Dar es Salaam. On critical reading of CCM’s proposals meant for improving the Draft Constitution, I came across a very strong comment by CCM on emergency powers given to the president of the United Republic of Tanzania under Article 32 of the current Constitution, 1977 and under Article 84 of the Draft Constitution. The state of emergency is one of the matters on the list of Union matters. However, the Constitutional Review Commission (CRC) in reducing the number of Union matters from 22 to seven has also removed the state of emergency from that list and this is the concern for CCM as stated below:
“Hali ya hatari na vita katika nchi ni jambo zito na ndiyo maana huwekwa kwenye Katiba. Kwa mujibu wa orodha ya Mambo ya Muungano ya 1964 na orodha iliyoko sasa kwenye Katiba ya 1977, hali ya hatari ni jambo la Muungano. Rasimu ya Pili imeliondoa kwenye orodha ya mambo ya Muungano. Tafsiri iliyo wazi ni kuwa Rais wa Muungano hana mamlaka ya kutangaza hali ya hatari popote ndani ya Muungano kwani mambo ya hali ya hatari si jambo la Muungano tena”.
A simple translation of the above statement would be: “the state of emergency and war in any country is a serious matter and that is why it is a constitutional issue. According to the list of Union matters of 1964 and the current one in the Constitution of 1977, the state of emergency is a Union matter.
The second Draft Constitution has removed it from the list of Union matters. It is clear that the Union president has no authority to proclaim the state of emergency anywhere within the Union because the state of emergency is no longer a Union matter”.
What we can grasp from the above statement is that having a list of Union matters is a controversial issue in both the current Constitution and also in the Draft Constitution. In the current Constitution, the state of emergency is one of the Articles under general provisions (Articles 29 and 32), while the powers to declare war is under Chapter Two, which is specifically provided for the executive of the United Republic of Tanzania whose head is the president. Thus, these two Articles of the same nature fall under different parts of the Constitution. But the CRC has put these Articles under the powers of the president of the United Republic as Articles 84 and 85 under the same Chapter Seven.
Nevertheless, CCM’s concern is about the authority on the state of emergency and not on the powers of the president to declare war as under Article 44 of the current Constitution and Article 84 of the Draft Constitution. Now, this raises some questions like: does this make the Union president powerless to proclaim the state of emergency simply because the state of emergency is not on the list of Union matters? What does it mean in having the list of Union matters? Are Union matters exhaustive enough?
Historically, we all know the background of our current Constitution, that at the beginning it was very shallow before it was amended in 1984 and thereafter. In November 1978, the then president of this nation, Mwalimu Julius Nyerere declared a war between Tanzania and Uganda, while we had neither Article 32 nor Article 44 in the Constitution of 1977, which gave the president the powers to proclaim the state of emergency in the country or the powers to declare war. Those two Articles were among the Articles, which were enshrined in the current Constitution vide major amendments in 1984. If Nyerere did declare war without having such constitutional powers on Union matters and no one questioned such powers of the Union president, then having the list of Union matters as part of our current Constitution or the prospective one, does not make sense.
The CRC in reducing the number of Union matter from 22 to seven had several reasons. One is that a long list of the Union matters had been the cause of Union hitches (kero za Muungano). Secondly, it says that some of the Union matters as listed in the first schedule of the Constitution had been violated by either side of the Union without anyone raising eyebrows from either side of the Union.
In its last supplementary report which was meant to clarify some of the issues on the Draft Constitution raised by different people, including members of CCM, the CRC clarified again what the list of Union matters means.
According to the CRC’s clarification the words “Constitution and the authority of the United Republic of Tanzania” as they are in the first schedule of the Union matters in the Draft constitution include anything that is either classified or named in the Draft Constitution. For instance, proclaiming a state of emergency, declaration of war, the authorities of parliament and the judiciary, public service, human rights, national values, national policies and vision - just to mention a few.
The CRC maintains that the authority of the United Republic of Tanzania is an established institution, which together include the Parliament, the Judiciary, the Commission of Ethics and Accountability, the National Independent Electoral Commission, the Controller and Auditor General, the Cabinet, the Presidency, the Office of Attorney General and so on.
This clarification means that the list of Union matters is neither exhaustive nor was it meant to list every institution or function of every institution classified or named in the Draft Constitution on the list of Union matters.
For instance, the presidency is not a person but an institution of the Union although it is not on the list of union matters. If CCM’s argument on the state of emergency being left out of the list of union matters makes any sense, then they should also question why the presidency and other institutions are not on the list of Union matters. If the president lacks powers to proclaim a state of emergency simply because it is not on the list of Union matters, then the whole institution of presidency lacks legality because it is not on the list of Union matters either.
SOURCE: MWANANCHI
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