CONSTITUTION MAKING & CONSTITUTION CHANGE

Prepared by Punge, I.SLecturer in Law - MU

• Most of the national constitutions in the world are written constitutions

• What is true for the substance of the constitution is also true for the constitution-making process

• The constitution should cater for the present and future generations. The constitution should therefore try to capture future circumstances

Constitution must Achieve

• Political Legitimacy:–Accepted, endorsed and respected by the

people– It must be popular

• Legal Authority: –Deriving from effective legal process and

organs

• What is legitimate may not always be legal and what is legal may not always be legitimate. Only when legality and legitimacy coincide that you get hegemony

Processes

• Political Process– Public Participation• Public Meetings/Hearings• National Debate• National Conventions• Referendum• White Papers• etc

Convention

• This is a political body representing all interest groups

• The constitution will embody the interests of all groups

• Its major objective is to deliberate on the main principles and guidelines for the new constitution. That is, to put in place the basic framework, structure and essential features

• The principles and guidelines will be used by the Committee of Experts to produce a Draft Constitution

• The Committee is to be appointed by the Conference

–Constitutional Commission to monitor views, facilitate and monitor debates and prepare an analytical Report and organise national convention–Building National Consensus and

Crystallising National Consensus–Committee of Experts to prepare Draft

Constitution

Referendum

• It is a process whereby the political authority – the gvt, comes up with a proposal for constitution content and then the people are called upon to give their views on the proposal

• It is for the people to decide the acceptability of the proposal

• Referendum is a kind of Direct Democracy. The decision is made directly by the electorate

• All the adult citizens are invited to vote on a particular issue of great national importance

Examples

• The first ever government white paper to be introduced after independence was Government Paper No. 1 of 1962, which was entitled "Proposals of the Tanganyika Government for a Republic.''

• On that occasion, the government was making proposals for a new Republican Constitution of Tanganyika

• People were asked to indicate by secret vote whether they preferred a one-government structure; or a two government structure; or a three-government structure of the Union

• The overwhelming majority voted in favour of a two-government structure, i.e. the Union Government and the Zanzibar Government

• In view of the referendum results, parliament met again and resolved to rescind its earlier resolution calling for a three - g o v e r n m e n t structure

White Paper

• The Oxford Advanced Learner's Dictionary defines the word ''White paper" as :–A report published by the government

about its policy on matter that is to be considered by Parliament

• Report published by Government after taking views of citizens and before making a final decision on a matter

Examples

• The first ever government white paper to be introduced after independence was Government Paper No. 1 of 1962, which was entitled "Proposals of the Tanganyika Government for a Republic.''

• On that occasion, the government was making proposals for a new Republican Constitution of Tanganyika

• These proposals were set out clearly and extensively in that paper, using simple non-legal language, in order to make them meaningful to the general public. The paper containing these proposals was published on 1st May, 1962. and distributed widely throughout the country

• Members of the public who wished to do so were invited to submit their views, no necessarily restricting themselves to the specific proposals which were outlined in the government paper because members of the public were invited to submit any other views which they considered relevant to the broad Issue or the contents of the proposed Republican Constitution

• When all the views and comments had been collected and analysed, the government published, at the beginning , of November of the same year, the resultant bill for submission to Parliament. – It was entitled "A Bill for an Act to Declare

the Constitution of Tanganyika"

• The gvt appointed a committee under the chairmanship of the Court of Appeal judge, Mr. Justice Kisanga, to co-ordinate the views of the "people" on the White Paper. The issue was about the structure of the union

Legal Process

• The process should ensure that the constitution is legitimate and legal–Parliament to enact the Constituent

Assembly Act–Constituent Assembly to Adopt the

Constitution. The Constituent Assembly is composed of elected delegates based on universal suffrage

• It is a special convened assembly based on Universal Suffrage. It is a higher body than the ordinary Parliament. It derives its authority and mandate from the people

• It is set up for the purpose of enacting or adopting a new constitution

• Referendum: public vote or poll for purpose of validation of the proposed Constitution• Promulgation: Official

announcement to introduce a constitution

Public Participation

The whole process should employ participatory approach, i.e participatory approach to constitution-making

Public participation and deliberation at every stage are essential processes for the success of the final product

• Constitution should not be imposed on the people by force. It should be an outcome of a democratic process

• Constitution should reflect peoples’ ideals, values, interests and aspirations

• People must be educated and sensitized: through seminars, workshops, public discussions, etc.

• This will enable them to contribute from the point of knowledge and not ignorance

This will make the constitution a “home-made and home-grown” and will create a sense of ownership and receive wide public support and legitimacy of the constitution

Other benefits include consolidation of democratic institutionsThe foundation of democracy depends largely on ensuring that the drafting process for the country’s constitution is inclusive and representative

• People will respect and safeguard it.

• In order for the constitution to command their loyalty, respect, obedience and confidence, the people must identify themselves with it through involvement and a sense of attachment.

• The constitution will be understood and accepted by the people

Historical Background

Independence Constitution - 1961

• Made by: UK Parliament– Westminster Model

Republican Constitution1962

• Made by: National Assembly converted into Constituent Assembly

• Main Features– Executive Presidency– President was the Head of State and Head of

Government

Interim Constitution of the United Republic - 1964

• Made by: President

• Main Features: Two Government Union

One-Party Constitution1965

• Made by: Parliament Act of Parliament (No. 43/65)

• Main Features:–One-Party System. TANU on Mainland

& ASP in Zanzibar –TANU (party constitution) made part of

the State Constitution

Permanent/Union Constitution1977

• Made by:

–Constituent Assembly under the authority of Articles/Acts of Union–Composed of members of existing

Parliament

Main Features

• Imperial Presidency: President with too much executive power • Two-Government Union• One-party system

PERMANENT CONSTITUTION 1977

• On October 1975 a joint meeting of the TANU & ASP met to receive and implement the decision to merge the parties

• The Committee of 20 people was appointed, 10 from each side to draft and propose the new constitution of the new party

• A joint meeting of the two top organs of the party met in Zanzibar and endorsed the committee’s draft constitution for the new party - CCM

• The draft constitution was approved on January 1977 by a joint meeting of the ASP Congress and TANU National Conference. • The new constitution was launched

on 5 February 1977.

ARTICLES OF THE UNION

• Articles of the Union had provided for the appointment of a Constitution Commission to be followed by a Constituent Assembly within 1 year of the signing of the Articles of the Union with a view to adopt the constitution of the Union

• The above process did not materialize and the time was extended indefinitely via an Act of Parliament called the Constituent Assembly Act, number 18/1965

END