Frankly speaking, I was not mulling over this discourse. However, two seminal contributions from retired Judge Sinde Warioba and High Court Advocate Fatma Karume have pushed this issue into the frontline of the forthcoming elections.
Warioba has advised both CCM and Chadema to bury the hatchet, put the nation first, and proceed to a negotiating table. According to the well-intentioned judge, the nation’s peace and tranquillity depended on it! Fatma Karume revisited former president Magufuli’s ban on political associations save for their own constituencies and drew up a conclusion that in Tanzania, we don’t have the rule of law but rulers of it.
This eponymous article will interweave the issues raised and poke at the sources of our election impasse.
Judge Warioba’s recent contributions in our political standoff has counselled the police shouldn’t take part in political decision making but preserve its role as a law enforcer. He also urged CCM and Chadema to reconcile their differences and that time was sufficient to fix the contentious INEC rules.
The problem with Warioba’s input is that CCM has set up a parallel power structure that has annulled judicial power, and as a result, it feels no compunction about political mediation leading to meaningful reforms. Besides, three Zanzibar “miafaka” between CCM and CUF came to a halt, skewering CCM’s reputation.
Fatma Karume’s observation on her X page yesterday that in Tanzania we don’t have the rule of law but rulers of the law was spot on. This is what she had remarked “…Tanzania hatuna utawala wa sheria bali tuna watawala wa sheria…” Her input was more a complaint and an observation without proffering solutions. This article will attempt to address those deficiencies.
How CCM has been undermining judicial authority.
Tanzania’s ruling Chama Cha Mapinduzi (CCM) has systematically eroded judicial independence through legislative and political manoeuvres, leveraging its dominance over a compliant parliament to consolidate executive control. Below is a detailed analysis of the mechanisms employed:
- Legislative Overrides and Constitutional Manipulation.
The CCM-dominated parliament has passed laws that centralize power in the executive, weakening judicial checks and balances.
For instance:
2019 Political Parties Act Amendments:
These granted a government-appointed registrar sweeping authority to deregister political parties, criminalize unauthorized civic education (e.g., voter drives), and interfere in internal party affairs.
Opposition leaders decried this as a move toward “de facto one-party rule.“ Such unchecked powers have unconstitutionally elevated the Registrar of Political Parties into a judge of her own cause, overlapping and eroding judicial oversight and restraints.
Such unrestrained powers have emboldened CCM to recant good governance and the rule of law.
Control Over Judicial Appointments:
The President appoints judges, including the Chief Justice (CJ), without a robust, transparent, competitive recruiting process and without parliamentary oversight! A 2023 High Court ruling upheld the President’s constitutional power to dismiss the CJ, arguing that the process aligns with removal procedures for other judges. Critics claim this undermines judicial independence by tying tenure to executive favour.
Similarly, Court rulings that have defended electoral injustices confirm beyond any doubt how compromised the judiciary has become.
- Weaponization of Laws to Stifle Judicial Challenges.
CCM has abused her parliament super majority to enact laws that criminalize dissent and limit judicial recourse:
Crackdown on Opposition:
Under President Magufuli, laws like the Political Parties (Amendment) Act 2019 were used to arrest opposition figures for “illegal assemblies” or “ridiculing national symbols.” For example, Chadema officials were arrested for singing the national anthem at a party event!
Restrictions on NGOs and Media:
Amendments requiring NGOs to disclose funding sources and barring election-related activities stifled civil society’s ability to challenge government actions in court. Some NGOs’ accounts were closed, undermining their ability to handle executive excesses. Media outlets critical of the government, such as Kwanza TV, were suspended under pretexts like “false COVID-19 reporting.”
Enacting conflicting and overlapping laws to frustrate the rule of law.
There are four types of election codes of conduct that empower the CCM-appointed organs to judge their own cause, contrary to clear provisions of the constitution. Recently passed election laws have empowered INEC to rewrite the constitution!
INEC has parlayed those statutes to legislate alien constitution articles that can ban political parties from taking part in the forthcoming elections for failing to sign their code of conduct! Chadema is now banned from participating in the elections for a simple lack of unconstitutional qualification for signing its election code of conduct, save for judicial intervention.
INEC has rewrote the constitution since 1992 through statutory loopholes by introducing new qualifications for election candidates that are not covered in the constitution. On this frontier, INEC is a judge of itself, subject to aggrieved parties seeking judicial intervention.
INEC law has discriminated against all Tanzanians save for public servants from serving it. Essentially, it is reducing INEC into a government puppet. The scripture is instructive here in Mathew 6:24
“Matthew 6:24 KJV
[24] No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye cannot serve God and mammon.”
Our compliant parliament passed a law that allowed public servants to serve two masters: the CCM government on permanent and pensionable terms and the INEC temporarily. For obvious reasons, INEC cannot claim to be independent when its staff and recruiters have been temporarily outsourced from the CCM government.
Past election experiences have shown that government employees in the election body are under pressure to rig elections in favour of CCM. Moreover, those government officials attached to the election body who refuse to rig elections see their career short-circuited. Others saw themselves slapped with criminal cases after the elections or demotions or hostile transfers without legitimate cause.
Election codes of conduct bearing similar legal consequences are found with the registrar of political parties, Tamisemi and TCRA. All aiming to throw a spanner in the opposition political parties paving for CCM to win elections without voter’s approval!
- Undermining Judicial Review and International Accountability:
Withdrawal from the African Court:
In 2019, Tanzania revoked individuals’ rights to directly petition the African Court on Human and Peoples’ Rights, blocking a key avenue for justice amid systemic national judicial failures. This followed numerous rulings against the Tanzania government, including a landmark case condemning mandatory death sentences. Also, the government was pissed off when the Court outlawed DEDs to be election supervisors.
Tanzania has come under continental scrutiny for withdrawing from the African Court on Human and People’s Rights, which it hosts in Arusha. In 2019, Tanzania became the second country in the EAC, after Rwanda, to withdraw the right of individuals and non-governmental organisations to access the African Court directly.
Politicized Prosecutions:
Opposition leader Tundu Lissu is facing treason charges in 2025 after criticizing the government, with courts accused of rubber-stamping politically motivated cases. His trial is being conducted virtually, while his political party, Chadema, argued remote proceedings violated fair trial principles.
- Parliamentary Complicity in Eroding Checks and Balances.
The dominance of the National Assembly:
CCM holds 365 of 393 seats, enabling unilateral passage of laws. Key examples include expanding executive control over NGOs and granting the President power to nominate 10 MPs, ensuring loyalty. What is of concern is that this super parliamentary majority is artificial since in the 2020 elections, there was egregious election fraud that defied understanding.
Constitutional Ambiguities:
The judiciary’s reliance on the parliamentary interpretation of union vs Zanzibar jurisdiction creates legal grey areas. For instance, Zanzibar’s semi-autonomy is often overridden by union laws passed in the CCM-controlled parliament.
While the constitution solely empowers the president to appoint the chairperson and deputy chairperson of the INEC, in an act of hypocrisy, the Parliament created a constitution alien called “Kamati ya Uteuzi” to encroach on those constitutional powers. That recruitment committee has been constitutionally empowered to employ ordinary members of the INEC but not its bellwethers.
Under the CCM constitution, Zanzibar cannot sieve its own presidential candidates. Whatever the presidential preferential list they fathom is forwarded to CCM internal meetings in Dodoma, where mainland Tanzania’s dominance flips whatever was decided in Zanzibar. Mainland Tanzania imposed all Zanzibar presidential elections since joining the union in 1964.
Essentially, CCM has carefully structured its constitution to ensure only mainland puppets ascend to become Zanzibar presidents, quashing any claim to semi-autonomy despite the Zanzibar constitution bragging otherwise. The Zanzibar constitution asserts it is a country “Zanzibar ni nchi,” but the harsh reality is it cannot even elect its own president independently! It must surrender that sovereignty to CCM’s internal machinations. Whoever is Tanzania’s union president picks Zanzibar president after consultation with CCM acolytes.
- Judicial Intimidation and Systemic Flaws.
Targeted Harassment:
Judges resisting executive overreach risk retaliation. High Court judge James Mwalusanya saw his judicial career truncated due to his vibrant activism. Even the appeals court often chided him for exercising judicial independence!
While not explicitly, the High Court’s dismissal of concerns over CJ removal procedures reflects institutional deference to the executive. In the Appeals Court’s much-maligned ruling of “independent candidates,” the then-chief Justice, Augustine Ramadhani (now deceased), bypassed a three-judge panel and cobbled up a seven-judge bench to kill the proceedings!
The implications were frightening since the right to review was automatically quashed! Had the matter passed through normal procedures, both parties could have sought a review once dissatisfied with a three-judge panel decision. That legal route was intentionally closed to aid CCM in keeping her reign uninterrupted against the unknown factor of failing to leash her own candidates who may vie as independent candidates once they perceive they were unfairly treated in the internal nominations.
In the ruling, the chief justice insisted on maintaining a cordial relationship between the judiciary and the executive at the chagrin of good governance and the rule of law! He justified that by overturning the lower court ruling on the legality of “independent candidates.”
In the ruling, the chief justice sought succour upon parliamentary quorum without considering that it was irrelevant when human rights were imperiled. I have often wondered if the parliament armed with quorum ordered all justices of appeal murdered, would the chief justice accede simply because the mandatory quorum was achieved? Gladly, we know the answer to that.
Shockingly, after that highly controversial ruling, the chief justice retired and went on to pick CCM presidential forms, but his name was not shortlisted! Coming to terms with the rejection, the chief justice opined that the ruling was incorrect because it was obtained through political duress. What was this political pressure? Was he promised to be rewarded the presidency after ingratiating CCM a favourable ruling?
“When did he join CCM to qualify to gun down the presidency?” was a question that gained traction in social media. In his demise, he regrettably took those troubling secrets to his grave.
One person who is still alive and maybe cognizant of what really pushed the chief justice to the corner is none other than the then-president Jakaya Kikwete. We know he will never divulge the gospel truth. Our fertile imagination is what is left with us. Yeah, it boils down to intelligent guessing….
Lack of Transparency:
The executive’s influence over judicial appointments and the absence of clear dismissal protocols for judges create a culture of compliance. The 2023 Appeals Court ruling dismissed petitions for reform, asserting that existing procedures suffice. Since there is an appeal against the High Court ruling on leasing the Dar-es-Salaam port to DP WORLD, I will skip their nexus to the matter but will plunge upon them once a verdict is out.
Conclusion.
CCM has exploited Tanzania’s parliamentary supremacy to enact laws that subordinate the judiciary to executive parochial interests. By controlling judicial and executive appointments, criminalizing dissent, and blocking international oversight, the ruling party has transformed parliament into a tool for entrenching authoritarianism.
This erosion of judicial independence mirrors broader trends of “viral authoritarianism” in Africa, where legislatures rubber-stamp executive selfish agendas. Without structural reforms to ensure judicial autonomy and parliamentary accountability, Tanzania’s democratic institutions risk further decay.
Judge Sinde Warioba’s recommendation strikes me as a matter of convenience rather than a sustainable solution. His advice will not melt CCM’s intransigence, given how much power has been illegally allocated to itself.
CCM’s seemingly invisibility is her major weakness. She has become too aloof and self-righteous, the signatures of a ruling political party trundling to the exit door of our political stage. Nothing will salvage her. Let her cannibalise herself to the extinction of a political dinosaur.
CCM’s arrogance, brazenly displaying a streak of entitlements, bode well with all empires that eventually collapsed because they failed to adapt to ever-changing circumstances and overindulgence upon enforcement organs to sustain her without citizen’s say.
Read more analysis by Rutashubanyuma Nestory
