SPEECH BY HIS EXCELLENCY, Benjamin Mkapa, THE FORMER PRESIDENT OF
THE UNITED REPUBLIC OF TANZANIA AT EAST AFRICA LAW SOCIETY (EALS) ANNUAL
CONFERENCE 2010, BUJUMBURA
19 NOVEMBER, 2010
(Delivered by Ambassador Liberata Mulamula)
Democracy,
Constitutionalism and Good Governance in East Africa: Which Way Forward?
Between June of 2010 and December of 2013 the five members of the East African Community will
be celebrating 50 years of Independent Nationhood. How have their people fared?
The theme of the EALS Annual Conference is extraordinarily apposite and timely.
In the last three years three of the member states (Burundi, Rwanda and Tanzania) will have
gone to the polls to elect a President and Parliament. Uganda will go to the
polls in February of 2011 and Kenya is scheduled to do likewise in late 2012.
Going by immediate past history these elections will be shrouded in
controversy, instigated by national as well as observers. Complaints on the
outcomes of these elections are many faceted. Critics center their charges on the
Constitution.
It is invariably
claimed that the Constitutions under which the elections are held are bad; that
they are engendered in the concept and practice of governance under the
one-party state. It is asserted that the Presidency has excessive power and
authority over passage of the electoral law, over the composition of the
National Electoral Commission which organises and oversees the election process
and especially the counting of the votes, and over the effectiveness and
accountability of state institutions. One must also count in the conduct of
politicians themselves, overwhelmingly perceived as corrupt?!
There is no
doubt that Democracy has evolved in the region during these fifty years. This
is notwithstanding the coups successful or attempted that have marked the route
occasionally and devastatingly. It was Churchill who said “Democracy is the
worst form of government except all those other forms that have been tried from
time to time.” By this yardstick East Africans have fared well.
The biggest
challenge facing the newly independent states of Africa, including the East
African states, was that of Nation-Building. Our countries are
multi-ethnic and multi-tribal. We started moving towards unity and nationhood
almost surreptitiously when confronted by the slave raiders. The movement was
strengthened by the act of colonisation when we came under external
sovereignties. In the political and armed struggle against colonial and
apartheid rulers we were united in the pursuit of national sovereignty.
At Independence we thought we had built
nationhood. In fact the process of nation-building was only starting. Ethnic
and tribal, racial and sometimes religious loyalties remained. We faced the
task of constructing National Unity out of this multifarious diversity. There
are those who trace our political troubles to this presumption that
Independence Day marked the culmination of the process of Nation-Building. Our
Independence Constitutions are testimony to this presumption. Tthey were no
more than adaptations of those of the colonial powers which overrated the
elective principle and devoted little attention to the adequacy of
representation. We embraced too fully the view of an 18th century
English writer/philosopher who stated: “The right of election is the very
essence of the Constitution.
This is not to
denigrate the impressive advances recorded. Compared to the sixties we have
revolutionised education in terms of numbers of schools and universities and
the quality of education? Why else is there an outcry of the brain drain to the
countries of our former colonial masters? There are networks of health and
social security delivery infrastructures, communications, industries,
agricultural production upturns etc.
But we cannot ignore the incessant refrain to the
effect that much more could have, and can be achieved, with better
Constitutions corresponding to the facts of geography, sociology and political
aspirations as well as the material realities/resources of our countries.
The call for a
review of the Constitution is being heard in all community countries. Kenya is
the latest country to produce a home-grown one but legislators are staggering
with its implementation – and there is no shortage of detractors. In other
countries the constitutions are criticised for having too many amendments over
the years, or being drafted and adopted by one predominant party. The Core
concern relates to the aggregation of power and authority in the Presidency.
William Blackstone commented in 1765 of the British monarchy: “That the King
can do no wrong, is a necessary and fundamental principle of the English
Constitution.” Substitute President for King and you have the crux of the
Opposition complainants in East Africa.
The Constitution
is the Heart of the Nation. The Heart of the body human enables the organs of
the body to function, and the organs work to it. And so it should be with the
body politic. So, the way forward starts with an overhaul of the Constitution
and its organs of state. We cling to the Independence constitutions at our
deferred peril.
To frame a New
Constitution we must have a constitutional conference. In order that such a
conference break new ground, its composition must be inclusive and the
eligibility of delegates must be fully agreed. Who will be represented
–Political parties? Communities? Ethnicities? Geographies? Cultures? In the end how is the new constitution to be
adopted and promulgated?
The history and
experience of the last fifty years suggests that we must reappraise the role of
traditional rulers in the new constitutions. Do the Chiefs have a place/role?
What about Devolution and so-called “FEDERO”? What should be the coverage and
provenance of political parties?
To avoid the
political minefields of the last fifty years, the new constitution must spell
out unequivocally the relations between the State/Government on the one hand
and religious Faiths on the other.
Because our societies are multi-ethnic, multi-cultural and
multi-religious. The new constitution should also spell out the thresholds of
their recognition as well as the parameters of their influence in governance.
The saga of the Kadhi courts thrives in Kenya and Tanzania. In other parts of
the world the separation of State and Religion is strictly observed? Should we
emulate them?
An absolute
precondition of the new constitution should be the affirmation of the
Sovereignty of the people and provide an inclusive and participatory democracy.
That participation requires procedures to be managed and supervised by an
accountable National Electoral Commission. The manner of appointment of
the Commissioners, the staffing of the Commission, and the manner /necessity of
their accountability should be equally spelt out. Political Party alliance and
Cronyism should be avoided.
If the Constitution is the heartbeat of the nation’s political life,
the conduct of political parties is the
determining anchor of
Democratic Governance. East Africa has witnessed the movement away from
the culture of political competition in the one party state to a
political dispensation of pluralistic,
multiparty competition. The Law must define the terms of
establishing political
parties, the code of conduct in political competition and the thresholds of
victory in national elections, the appeal process and manner of its
determination. In nascent multi-party democracies is there room and a role for
independent candidacy?
Alongside the
emergence of political parties we have witnessed the implosion of NGOs and CSOs.
They are legitimised by the imperative of reinforcing political reform, and
facilitating the advance of human rights rectitude. With respect, their
numbers, rationale, mandate and financial dynamism should be examined. They are
well placed to influence the tempo and direction of the change that a new
constitution would usher, but could, if not monitored, determine the regional
and regional Vision. Philanthropy, yes, even political philanthropy, must be
tempered by respect for the dignity and unique circumstances of the recipient.
Some of the controversy,
infighting and fragility of our governments can be attributed to the Structure
of Government provided for in the Constitution. The constitution establishes
the Structure and its implementing institutions. Far too often there are not
enough checks and balances provided for. This gives rise to oftentimes
non-accountability and sometimes impunity. Framers of the new constitution must
show critical regard to this pre-condition of good governance.
A key
Institution in determining and adjudicating the powers and correctness of the
operations of the checks and balances is the Judiciary. Its integrity must be
safeguarded by Law; its independence must not only be legislated, but it must
be seen and believed. In the current political systems it tends too often to be
perceived as yet another arm of the Office of the President. The Constitutional
Conference must address the challenge of how to promulgate the Independence and
Integrity of the Judiciary more incontestably. And the Citizenry must be able
to truly look to the Judiciary as the last resort for the defence of their
human and constitutional rights.
Our modern
states are defined by territorial boundaries. The citizens though identify
themselves by the land they are on. Which raises one of the most pressing
but under-rated problem of our time – namely the Land Question. Among the
questions spawning ethnic tensions, personal litigation and violence: Who owns
it? How did they come by it? How does one access it? Do/how do communities own
it? Can it be leased? How can one be dispossessed? Then there is the conflict
between our citizens who are pastoralists and those who are peasant farmers. If
we are to eschew internal conflicts and foster national unity, we must urgently
address the issue of land as a national resource for development, set out a
land ownership/leasing/easement regime and explain it to our people. This is a
very important key to peaceful, sustainable national development. Such
determination should not be restricted to the land issue; it must also consider
the utilisation of other natural resources such as minerals, forests/wildlife
and fisheries.
All these reform
activities can only be pursued where there is an agreed Vision of what the
State and Society will be and look like down a given number of years down the
ages. Such a Vision must be consensually and inclusively agreed upon. In
illustration I can only quote from a paper by the Chairman of the Constitution
of Kenya Review Commission (CKRC) and distinguished Legal Mind, Prof. Yash Ghai.
He writes:
“A Constitution
is many things. One of these is a vision of a country and a statement of its
values…The Review Act envisages a republic which is at peace with itself and
its neighbours. The welfare of the people is its primary goal. This goal is to
be attained through national unity and a consensual basis of authority and
decision making. But the concept of the welfare of the people does not mean
that the people are passive recipients of state largesse. Kenyans are no longer
subjects subordinated to external authority. They are citizens who control
their destiny and organise state and society through the values and procedures
of democracy. The democracy through which Kenyans decide their destiny is rule
by majority, without regard to the interests of others. It is based on the
protection of the rights of individuals and communities. Rights constitute the
fundamentals of our democracy because they protect the legitimate space of the
autonomy of individuals and communities, and compel the state to respect basic
rights and procedures. Nor is the democracy envisaged in the Act merely
representative, in which people vote every five years and then become
powerless. Instead it envisages a citizenry actively engaged in public affairs.
These citizens participate continuously in the governance of the country
through the devolution and exercise of power. They keep a constant vigil over
those who claim to act on their behalf, politicians and governments. It is a
democracy in which the free exchange of ideas is actively promoted,
particularly by giving people information and resources…..
“People want a
Kenya which respects human dignity, ensures social justice, provides for the
disadvantaged, does not marginalise communities or minorities, has proper
respect for the culture of groups who want to preserve their traditional life
style, and treats nature with greater consideration for present and future
generations.”
This is at once
a firm foundation and an equitable goal over which to carry out the conference
deliberations.