Shrinking freedom spaces in Tanzania

In a recent book examining the state of democracy in East Africa in 2015 it was established that the year was one of sustained democratic recession across the region. The reason for this dreadful state of affairs was found to hinge around the failure of democratic consolidation.

This, in turn, was traced, specifically, to the failure by East African countries to firmly entrench the doctrine of ‘separation of powers and checks and balances’ as fundamental norms of democratic practice in the region.

This has created continuous tension particularly between the Executive and the other two arms of government with the former progressively encroaching upon the Legislature and the Judiciary. As a result the whole multiparty political system has been rendered virtually dysfunctional with dire consequences for political, legal and socio economic rights and freedoms in these countries.

Tanzania has had a long and tortuous journey toward democracy. It has essentially navigated through, at least, four phases on this journey. The first phase (liberal) began a few years before independence in the mid 50s when the colonial government authorized the formation of political parties to participate in the struggle for independence.

By the time the country acceded to independence in 1961 there were at least four political parties namely; Tanu, UTP, AMNUT and ANC. Tanu won the contest to lead the country to independence but the other political parties continued to exist until 1964 when they were proscribed.

The second phase (single-party) began when a one party state was declared by Tanu in Tanganyika in 1964 just before the revolution in Zanzibar. In the wake of the revolution in Zanzibar, the new government also declared the Afro-Shiraz Party (ASP) the sole political party in Zanzibar. Tanu and ASP were later to merge, forming the CCM in 1977. This move heralded the consolidation of single party rule in the Union. During this phase CCM established a monopoly over political power and imposed ideological hegemony over the whole society in all spheres of socio-economic and political life.

The Third phase (liberal) began with the setting up of the Nyalali Commission in 1991. The Commission recommended, inter alia, the establishment of multi-party democracy and was quickly followed by enabling legislation in 1992 to that effect. Between that time and now the country has experienced the gradual rise and slow consolidation of an opposition composed of several political parties though most of them have been weak. This is largely because of the deliberate refusal by the government to implement the key Nyalali recommendation: that a new constitution was necessary if the new political system was to be effectively established.

The result has been that the opposition political parties have continued to function in a hostile environment under a constitution designed for one party rule. This situation continues to prevail with the CCM resisting any transformative constitutional changes. That persistent resistance is what led to the rejection of the transformative constitutional recommendations that were made by the Constitutional Review Commission under Judge (rtd) Warioba.(CRC) in 2014.

The CRC aimed at accomplishing political transformation by proposing a constitution providing for, inter alia; curtailing the powers of the president, strengthening separation of powers and checks and balances; introducing the right of recall of representatives; introducing term-limits for Members of Parliament; emphasizing ethics in society and government; entrenching national norms and values, etc. Moreover by establishing an inclusive, participatory, responsive and accountable political system, the constitution was expected to address the legitimacy crisis of the state by vesting power at the sources of organic legitimacy: the people. This, in turn, would have considerably reduced the necessity of manufacturing legitimacy.

Unlike the CRC, which reached its decisions by consensus, the Constituent Assembly (CA), quite early in its task, adopted a zero-sum approach leading to a split between the CCM and the bulk of the rest. The split that occurred in the CA was, in effect, between those who upheld the colonial views and those who defended the views of the ‘natives’. The ‘colonial’ school maintained the position that the natives could not express cogent views on such a complex matter as the constitution. Some were frequently heard derisively contending that their ‘natives’ (watu wetu) were incapable of understanding such “complex” matters as; reducing the powers of the president, the right of recalling representatives, term limits for MPs, separation of powers of powers and checks and balances and all other provisions that sought to transform the structure of political power. Some members went as far as accusing the CRC of dishonesty in putting such views in the mouths of the ‘natives’. This group, composed mainly of members from the ruling party, interpreted their mandate widely and embarked upon drafting the CA’s own draft which closely approximates the existing (1977) Constitution.

Those who defended the people’s views as documented by the CRC in the draft presented to the CA however, displayed an understanding of where these views were coming from. Perhaps because most of them were in the opposition they could understand why the people would express views seeking to transform the structure of power.

They could also relate to the sense of powerlessness that ordinary people expressed. This group embraced a narrower interpretation of the CA’s mandate insisting that the people’s views had to be respected and thus the CRC draft was to provide the basis of the CA’s deliberation. Its task was to be confined to elaborating, clarifying, and improving on the draft but not to subvert the views of the people.

Needless to say, the CA fell apart when the second group formed Umoja wa Katiba ya Wananchi (UKAWA) (Alliance in Defense of the People’s Constitution) and walked out of the CA. The output that finally emerged from the CA as the Proposed Constitution was essentially arrived at unilaterally by the ruling party at the cost of dividing the population. This has left Tanzanians divided and exploded the myth of Tanzania as a haven of peace in a turbulent region.

It has also created some kind of a constitutional vacuum because the 1977 constitution was, ipso facto, repudiated by the decision to embark upon the search for a new people centered constitution. Moreover, the failure to adopt the Warioba Draft, not only ended Tanzania’s attempt to establish a national consensus and consolidate democracy but it also signaled the reinforcement of authoritarianism. What should have been the crowning moment in Tanzania’s long journey to democracy turned out to be a squandered opportunity setting the clock back, according to some commentators, several decades.

The fourth and present phase began with the last general election in 2015. Despite election campaigns that were relatively peaceful and largely vibrant, two incidents, (perhaps foretellers of what was to come), happened in the last stages in the election process. Halfway through the tallying of the presidential votes on both the mainland and Zanzibar some irregularities which marred the results of the presidential poll occurred.

In Zanzibar the whole Zanzibar part of the elections was summarily and unilaterally nullified by the Chairman of ZEC. On the mainland the independent tallying centres set up by the Legal and Human Rights Centre and another one set up by UKAWA were both raided by the police and their equipment impounded. These incidents not only raised questions about the integrity of the electoral bodies and the veracity of the results but also created anxiety about the political situation in the post-election period.

What unfolded in the wake of the elections is what has been variously described as democratic reversal, populist authoritarianism, etc. which has resulted in the shrinkage of political, economic, social, as well as legal and human rights spaces. The general impression that emerges is that the present government is steadily forcing the country back to one-party rule complete with tightly regulated society and autocratic governance.

Democracy space

The most conspicuous space that has been shrinking is the political; specifically democracy. Apart from the failure to obtain a democratic constitution alluded to above, shrinkage in the political space formally began with the installation of the Magufuli regime in 2015. Soon after that, Magufuli launched an open, unapologetic and unrelenting onslaught on democracy through the harassment of opposition parties in what has been observed and described as a creeping dictatorship or petty dictatorship dressed in populist garb. This is manifested in the violation of the constitution and rule of law with impunity. This has left the people entrapped between exercising their constitutional and lawful rights at the risk of getting arrested or obeying unconstitutional and unlawful orders out of fear!

The following instances illustrate that:

• Abrogating freedom of assembly by arbitrary and unconstitutional banning of public rallies by the opposition parties.

• Arbitrary arrests of opposition leaders and members of political parties.

• Illegal detentions of opposition party leaders by denying them bail on trumped up charges of sedition, incitement, etc. Chadema Mps. Halima Mdee, Esther Bulaya, Freeman Mbowe, Tundu Lissu, etc.

• Harassment of opposition party councilors and parliamentarians including disappearances, cold blooded murders and the politically motivated recent assassination attempt on the life of the opposition chief whip, Tundu Lissu, (arrested and detained at least six times in one year before the shooting incident in September last year)

• Systematic and maliciously undermining of democracy by dismembering the opposition through threats or bribes of parliamentarians as well as councilors. This also includes government discrimination against opposition led constituencies or local councils.

• Persistent and pervasive disregard of the law in the conduct of public affairs has become commonplace. The LHRC and others have systematically documented instances of unilateral suspension of legally constituted institutions such as Land Committees, unlawful muzzling of media. Also documented has been the violation of the principle of separation of powers through executive interference with other arms of government by giving instructions to the judiciary and the legislature.

• Instilling fear of politics in the population by pervasive show of force by the paramilitary police (FFU) against political activism such as protests and demonstrations.

• Use of excessive force by the police including deploying live ammunition which caused the injuring of several people and the death of a young woman at a recent protest demanding a fair election.

• Mysterious disappearances and extrajudicial killings seemingly targeting politicians and journalists have been on the rise. Bodies in bags have been washed ashore in Dar and others found brutally murdered in different places. This has caused widespread fear among the population.

• Securitization of elections through excessive involvement of police and other security agencies in what is essentially a civil activity. Combined with electoral fraud by NEC, this is causing loss of confidence in elections as the perception grows that there is no electoral justice. Elections have virtually become national security operations.

• In a move to disengage from international scrutiny Tanzania withdrew, without explanation, from the Open Government Partnership Initiative.

Economic space

Over the last couple of years Tanzania’s economic policy has been anything but predictable in terms of both external and internal dimensions. Internally, there is a squeeze on liquidity creating difficulties for consumption, saving and investment. Externally, policy instability has resulted in extreme uncertainty deterring foreign investment.

• Economic policy instability creates uncertainty deterring investment. Between 2012 and 2017 Tanzania received only 17 per cent of total FDI in East Africa.

• Growing shutdowns of businesses; bank failures through nonperforming loans; tight monetary/credit policy; unplanned taxation and public spending.

• Economic activity by the ‘wananchi’ is illegalized into: illegal fishers; illegal hunting; illegal mining; illegal sales of crops by peasants; illegal farming on protected public lands; illegal occupation of land by squatters; illegal grazing by pastoralists, etc.

Social space

Civil society space is equally under a state of siege. A recent statement by over 100 civil society organizations protests the restrictive and openly hostile environment in which they are forced to operate. This includes threats of deregistration, banning of censoring of public education materials (HakiElimu) and denial of right to observe elections or being required to submit their reports to censorship before publication, etc. The Tanzania Law Society (TLS) is on notice of proscription by the Minister of Constitutional and Legal Affairs.

• Muzzling of the press and tight control of media inducing self-censorship or risk avoidance in reporting news and stifling investigative journalism.

• Draconian legislation on statistics, cybercrime law and media law combine to obstruct the free flow of information as well as research and investigation.

• Long and short term policy instability in education leading to organizational chaos, declining standards and poor performance in schools.

• Discrimination of the girl child by expulsion after they become pregnant.

• Tight control over civil society organizations projects and activities.

• The entertainment industry has not been spared. ‘Bongo fleva’ songs with critical political lyrics have been banned with one artist earning a six month ban of his work.

The human rights space

Tanzania is experiencing a steady and general deterioration in human rights and freedoms in the last two years.

Instances of human rights issues

• Right to life. This most primary and fundamental right faces growing threats including extrajudicial killings, mob justice and violence, the killing of people with albinism as well as violence against the police.

• Freedom of expression. Tanzania’s World Press Freedom ranking has declined significantly in one year from 71 in 2016 to 83 in 2017. The cybercrime, statistics and media laws, all passed under certificates of urgency just before the last general election, have seriously dampened press freedom with increasing arbitrary bans and penalties on media as well as arrests and prosecutions of journalists.

• Freedom of assembly. This is the one freedom under severe stress. Contrary to the Constitution and the law political parties, the President has imposed a ban on public rallies, demonstrations and protests creating a situation aptly described as ‘the politics of fear and fear of politics.

• Over 100 civil society organizations under Tanzania Human Rights Defenders Coalition (THRDC) recently signed a petition condemning the recent killing of a student; growing abductions, disappearances, torture and extrajudicial murders; repressive legislation and illegal arrests and attacks on human rights defenders.

Professor Mwesiga Baregu is an independent consultant and a member of the main opposition party, Chadema