Did Fatma Karume Misconstrue the Court Ruling on Oath of Office?

Share this article

High Court Advocate Fatma Karume has lambasted the Appeals Court ruling on DEDs managing our elections. She excoriated the Court for ruling “oath office obliterates conflicts of interest” and chastised it as “an utter nonsense. But what did the Appeals Court rule in specific terms? Did the Court determine whether the oath of office fumigated against conflicts of interest as Fatma Karume had insisted?

This discourse piece together the controversies of that ruling that had afflicted Tanzania electoral regime with some serious damage, the article peeks at the genesis of the matter at the High Court and what issues were decided at the African Court of Justice for Human Rights and People’s Rights. The article will also fish out the legal and political implications of the rulings to our quaking electoral landscape. Here we go.

High Court Advocate Fatma Karume said as follows:

“…Haki ya kiapo…I think…to be frank…the decision that was made by the Appeals Court is completely misguided under the law. Even the concept of conflict of interest. I will explain to you why. Once you have conflict of interest kiapo hakiondoi conflict of interest. And this is what the lawyer there was saying kwamba Jaji anakula kiapo lakini akija mtu mbele yake aliyekuwa ndugu yake, jamaa yake, mpenzi wake, au jirani wake anaji-recuse, anaji-recuse kwenye hiyo kesi kwa sababu kiapo hakiondoi conflict of interest.

And this is a known principle. But the Court of Appeal in its considered wisdom, which sometimes I doubt very much, had completely decided that kiapo kinaondoa conflict of interest. Sasa kama kiapo kinaondoa conflict of interest nataka ni apply hii principle kwa sababu wanasahau kitu kimoja muhimu sana Court of Appeal wakianza…waki-decide kesi, waki-make a decision kwenye kesi it became a precedent and it is applicable across the board.

It is not just about the government in power, when you decide kiapo kinaondoa conflict of interest this means it affects mpaka public procurement act, Mtu kwenye public procurement act anaweza kukaa in a public board na akaamua kumpa mpenzi wake, mwanamke wake, mke wake, au mume wake tenda akasema sikuwa conflicted maana nimekula kiapo Mahakama ya Rufaa imesema hata kwenye issue ya election which is the most important in this country….ukiisha kula kiapo you are not conflicted anymore, what an utter nonsense, and this is what Court of Appeal has left us with the conflict of interest in this country and completely eroded and completely set aside. My people whom having been trusted with to be the guardians of the principle of law and that makes me extremely sad.” End of quotation.

The acerbic criticism by Fatma Karume, a prominent Tanzanian High Court lawyer and former president of the Tanganyika Law Society, regarding the Tanzania Court of Appeal’s ruling on resolving conflicts of interest through an oath of office likely pertains to broader debates about judicial ethics and accountability in Tanzania. There were three conflicting rulings from the Tanzania High Court, the Appeals court and the African peoples rights and Human rights. Here are pertinent excerpts from those three decisions:

Court decisions on alleged conflicts of interest resolution through oath of office:

Tanzania High Court ruling.

In the ruling of MISCELLANEOUS CIVIL CAUSE NO. 17 OF 2018 BOB CHACHA WANGWE versus

THE ATTORNEY GENERAL …1st RESPONDENT,

THE NATIONAL ELECTORAL COMMISSION…..2″d RESPONDENT & THE DIRECTOR OF ELECTIONS…..3rd RESPONDENT it was decided as follows on page 28 – 31:

“….It is clear to us that the Petitioner highlighted instances which shake the independence of the appointed executive Directors who serve as Returning Officers irrespective of their political affiliations. Concerns have been shown that as the Ministry responsible for Local Government is currently under the…

auspices of the President’s Office, it is the President who appoints City Directors, Municipal Directors, Town Directors, and District Executive Directors albeit in different capacities. Since the appointment of the said executive Directors automatically makes them Returning Officers, the provisions of section 7(1) of the NEA therefore gives the President power to appoint Returning Officers to oversee the election in which the ruling party and other political parties compete. In our view, this is discriminatory, invidious and iniquitous among the Public Officers or Government Officers of the same category under the Public Service Act (supra) and the National Elections Act (supra) and also among political parties.

In the premise, we do not agree with the Respondents that there is no problem in relation to the independence of the said Directors simply because of the oath of secrecy and declarations they make as Returning Officers to disassociate themselves from being members of Political parties. Moreover, the argument by the learned Principal State Attorney does not hold water because section 7(1) of the NEA does not provide restrictions, standards and/or qualifications for one to become a Returning Officer as envisaged under article 74(14) of the Constitution other than being an appointed executive Director of a Local Government Authorities and contradicts the provisions of article 74(7) & (11) of the Constitution.

It is undisputable fact as argued by the learned Principal State Attorney that human beings cannot be angels, but we insist that there must be standards.

or qualifications for one to become a Returning Officer in a multiparty system in order for all the citizens to see that indeed the Electoral Commission is impartial and autonomous as provided for in the aforementioned provisions of the Constitution. We insist because the Respondents have not furnished evidence to support their contention that the City Director, Municipal Director, Town Director, and District Executive Directors do not automatically serve as Returning Officers, but they do so after being designated and gazetted. This argument is not in the joint counter affidavit which was deponed on behalf of the Respondents by the learned Principal Attorney representing the Respondents in her own personal knowledge.

It is our stand that the provisions of section 7(1) and 7(3) of the NEA do not reflect the safeguards set out in under article 74(14) of the Constitution which prohibit Returning Officers from joining political parties. We are equally satisfied that the provisions of section 7(1) and 7(3) of the NEA violate article 21(1), 21(2) and 26(1) of the Constitution.

With regards to the provisions of section 6 (1) of the National Elections Act (supra) on the appointment of the Director of Election by the President from amongst Civil Servants of the United Republic recommended by commission, and the provision of section 7(2) of the same Act on the appointment of public officers as Returning Officers or Assistant Returning Officers, we have

found no evidence to show that the two provisions infringe on the relevant articles of the constitution.

In the upshot and for the foregoing reasons, we declare the provisions of sections 7(1) and 7(3) of the National Elections Act [Cap 343 R. E 2015] unconstitutional and void in terms of Article 64 (5) of the Constitution of the of the United Republic of Tanzania, 1977, as amended from time to time.

Accordingly, they are struck out for being unconstitutional. As regards costs, we are of the considered view that since this is a public interest matter.

We make no orders as to costs. It is so ordered.

C.A. F. Ngwala

Judge

10/05/2019

F.N. Matogolo

Judge

10/05/2019

Cle

B.S. Masoud

Judge

10/05/2019” End of quotation.

Tanzania Appeals Court overturned High Court Ruling.

In the ruling of MISCELLANEOUS CIVIL CAUSE NO. 17 OF 2018 BOB CHACHA WANGWE versus

THE ATTORNEY GENERAL …1st RESPONDENT,

THE NATIONAL ELECTORAL COMMISSION…..2″d RESPONDENT & THE DIRECTOR OF ELECTIONS…..3rd RESPONDENT it was decided as follows on pages 41-42.

“…..Having duly considered the rival arguments of the learned counsel for the parties on this issue, we agree with the appellants that the High Court erred in holding that, upon the appointments, the Directors automatically become Returning Officers.

It is not disputed that before assumption of their functions as Returning Officers, the Directors must comply with the provisions of s. 7(5) of the NEA and reg. 16(1) of the Regulations. S. 7(5) of the NEA states as follows:-

“Every Returning officer and Assistant Returning

Officers shall, before embarking on the functions of that office, take and subscribe to an oath of secrecy in the prescribed form before a Magistrate.”

With regard to reg. 16(1) of the Regulations, the same provides as follows:-

’16(1) Every regional elections coordinator,

returning officer and an assistant returning

officer shall, before assuming duties-

(a) take an oath of secrecy prescribed in Form

No. 6 set out in the First Schedule before a

Magistrate; and

(b) make a declaration prescribed in Form

No, 7 set out in the First Schedule to

these Regulations before a Magistrate

or a Commissioner for Oaths that he is

not a member of any political party or that he has withdrawn his that membership from a Political Party. [Emphasis added.]

Since therefore, it is a mandatory requirement that the Returning Officers must comply with the conditions stated in the above quoted provisions of the law before they assume their functions, the finding by the High Court that the Directors automatically become Returning

Officers upon their appointment is, with profound respect, erroneous.” End of quotation.

The African Court on Human and Peoples rights restored the High Court ruling.

On pages 20, 23 – 25 & 27 -31 it was ruled as follows:-

“…..171.

While acknowledging that “there are no precise indications as to the characteristics of an ‘independent’ and ‘impartial” electoral body”, the Court has nevertheless highlighted some elements which confirm the independence and impartiality of an electoral management body. For example, in Action pour la Protection des Droits de l’Homme (APDH) v. Côte d’/voire, the Court held that “an electoral body is independent where it has administrative and financial autonomy; and offers sufficient guarantees of its members independence and impartiality.”

22 The Court further held that institutional independence in itself is not sufficient to guarantee [thel transparent, free and fair elections …. The electoral body in place should, addition, be constituted according to law in a way that guarantees its independence and impartiality, and should be perceived as such.”

Clearly, therefore, while States have atitude in terms of configuring their electoral management bodies, they bear the overiding responsibility of

establishing an institution that is independent and impartial.

Importantly, the mere act of establishing, by law, an electoral management body as an independent entity is not a sufficient measure to prevent or limit

political or other attempts at undermining its impartial and autonomous functions and the general fulfilment of its mandated responsibilities.

25 It is also important to have a legal and institutional framework and sufficient transparency mechanisms meant to secure the independence and autonomy of an electoral management body.

……on the basis of recommendation(s) by the Electoral Commission in respect of the Applicants’ allegation that section 6(1) of the NEA “lacks

80.

the criteria for the appointment of the Director of Elections and thus, makes it wide broad and vague, and subject to abuse”, the Court observes that, indeed, section 6(1) does not allude to any qualifications that an appointee for the position must possess in order to qualify for appointment. Admittedly, article 74(3) of the Constitution delineates persons who are not eligible for appointment as commissioners. In the same vein, article 74(14) of the same Constitution prohibits persons “concerned with the conduct of elections” from joining any political party. Apart from these two negative prescriptions the NEA has no provision which positively stipulates the qualifications that a potential Director of Elections must possess to be eligible for appointment.

The question that must be resolved, therefore is whether the lack of a requirement stipulating the qualifications and attributes of individuals who can serve as Director of Elections violates the Charter. If the Court finds that the preceding amounts to a violation of the Charter it must, additionally, resolve the question whether or not this is a permissible limitation on the right to participate freely in one’s government.

32 . The Court observes that given the centrality of electoral processes to the maintenance of democratic governance, an electoral management body occupies critical space in a country’s democratic architecture. It is of utmost importance, therefore, that an electoral management body should be legally and practically empowered to perform its duties in an independent and impartial manner. One important component to ensuring that an electoral management body performs its functions independently lies in the manner in which its staff is recruited. As a general rule, recruitment of staff for an electoral management body should be guided by transparent recruitment processes based on the possession of necessary qualifications for

particular positions so as to ensure that staff are not in a position of a conflict of interest.

In the present case, the Court finds it anomalous that the Respondent State’s laws contain no provisions stipulating the qualifications that one must fulfil to be appointed a Director of Elections. The Court holds that, in relation to the head of the Electoral Commission’s secretariat, it behoves the Respondent State to appoint individuals of the highest calibre who can independently, impartially and transparently coordinate the management of the electoral process. However, without a clearly laid out qualifications scheme, it is not clear the considerations that the appointing authority takes into mind when appointing a Director of Elections. This exposes the process not only to uncertainty but also the possible consideration of irrelevant

factors.

The Court thus holds that section 6(1) of the NEA, in so far as it fails to prescribe the qualifications of persons who can be appointed as Director of Elections, violates Article 13(1) of the Charter.

The above notwithstanding, and as earlier alluded to, the Court must also determine whether the provisions of section 6(1) of the NEA are a justifiable limitation as stipulated under Article 27(2) of the Charter.

While the absence of a prescribed criteria for persons who can be appointed as Director of Elections is contained in a clearly expressed law which is of general application, the Court finds that the restriction occasioned by section 6(1) does not have a clear legitimate purpose and neither is it a proportionate means of restricting the rights under Article 13(1) of the Charter. The absence of qualification criteria, the Court holds, lends itself ta the creation of a perception that the Electoral Commission may recommend, and the appointing authority appoint someone whose competence may be ill-suited to the running of the Electoral Commission.

In the circumstances, the Court holds that section 6(1) of the NEA violates Article 13(1) of the Charter in so far as it does not prescribe qualification criteria for persons to be appointed as Director of Elections and that this infringement of the Charter is not a permissible limitation under the terms of Article 27(2) of the Charter.

….

In the circumstances the Court finds that section 7(1) of the NEA does not violate Article 13(1) of the Charter by permitting certain office bearers, to wit, city directors, municipal directors, town directors and district executive officers to serve as returning officers by virtue of their positions,

As for sections 7(2) and 7(3) of the NEA, however, the Court notes that these provisions grant the Electoral Commission the leeway to appoint returning officers from among public officers at large. Sections 7(2) and 7(3), therefore, are different from section 7(1) which ties the qualification of a potential returning officer to his official position within the public service

Looked at holistically, the Court holds, therefore, that the width of the latitude created by sections 7(2) and 7(3) of the NEA cannot be justified.

This latitude may result in the appointment of returning officers that are not fit for duty since, for example, there is no clear indication as to the level of placement, within the public service, from whence such appointments can be made.

The Court must also address the Parties’ contention on the effect of taking an oath of office As the pleadings reflect the Parties are in dispute as to the effect of the oath that persons appointed as returning officers must take before assuming office. The Applicants submit that the oath does not make a difference while the Respondent State submits that this is a crucial procedure in guaranteeing the independence of the appointees.

The Court recalls that it has found an oath to be a “. pertinent guarantee of independence and impartiality.” Where a litigant alleges that the taking of an oath does not guarantee independence and impartiality it is his/her

duty to lead cogent evidence to demonstrate the disregard of the oath by persons to whom it was administered. In the present case, however, the

Court finds that the Applicants have simply made a general allegation and have failed to lead cogent and specific evidence to prove the disregard of

the oath by particular returning officers

As for the list of returning officers who the Applicants allege were appointed to serve as returning officers while they were still active members of the ruling Chama cha Mapinduzi, the Court observes that this issue was also in contention between the Parties during the litigation at domestic level.

Specifically, the Court of Appeal dealt with this matter in its judgment from pages 50 to 53. In its findings the Court of Appeal held that the evidence by the Applicants “fell short of ..” and dismissed the Applicant’s claims. Given this clear finding on an evidential matter by the Court of Appeal, the Court is constrained in interfering with the same. This is because it, ordinarily, does not engage in exhaustive factual analyses which

are best conducted by domestic courts.

Overall, and in light of the above, the Court finds that section 7(1) of the NEA does not violate Article 13(1) of the Charter

The Court also finds that sections 7(2) and 7(3) violate the Charter. This is because these provisions do not contain any indication of the positions in the public service that public servants must occupy to be appointed returning officers or even an indication as to the qualifications that they must possess before they can be appointed as returning officers.

Allegations relating to the right to equality and equal protection before the law

The Applicants also challenge the fact that under sections 7(1), 7(2) and 7(3) of the NEA only persons employed in the public service can serve as

According to the Applicants, these provisions restrict the returning appointment officers. of disallowing others from returning officers thereby participating in public affairs by being allowed to have a chance to be appointed to various leadership positions”. The Applicants submit that restricting the appointment of returning officers to civi servants only violates Article 3 of the Charter.

34 “ End of quotation.

Implications of the three Rulings.

Tanzania Court of Appeal cunningly skirted the issue of independence of the DEDs, therefore didn’t rule on the legality of “oath of secrecy” to nullify conflicts of interest. Having said that, I must therefore conclude Fatma Karume highly misconceived the Appeals Court ruling.
The gist of the High Court ruling which was unfairly impugned by the Appeals Court was grounded on the principles of natural justice. The High Court determined the DEDs were not independent, because they automatically assumed the office of returning officer by merely being presidential appointees and not on a criteria of qualifications. The Appeals Court ruled that the decision was erroneous, since DEDs assumption of office is subject of “oath of secrecy.”

Clearly, “oath of secrecy” is not and cannot be qualifications required for returning officers! The Appeals Court deliberately intertwined “oath of secrecy” with job specifications! The two are akin to water and oil, and mixing them doesn’t change or modify the outcome.

The Appeals Court took a narrow view of the “electronic evidence” of some DEDs who were photographed donning CCM outfits and ruled that doesn’t imply they were bona-fide CCM members! That finding was, to say the least, absurd, since the Appeals Court had circumvented the issue of element of bias.

What was before the High Court was “the mind of an average person” in the determination of impartiality of DEDs. Why will any DED in his right mind wear CCM uniforms unless was pogoing where his heart was?

The Appeals Court didn’t even address the below quoted ruling of the High Court yet still summoned the vacuous audacity to quash the whole ruling of the High Court!

This is what the High Court had ruled but it is a smokescreen in the Appeals Court decision:

“It is our stand that the provisions of section 7(1) and 7(3) of the NEA do not reflect the safeguards set out in under article 74(14) of the Constitution which prohibit Returning Officers from joining political parties. We are equally satisfied that the provisions of section 7(1) and 7(3) of the NEA violate article 21(1), 21(2) and 26(1) of the Constitution.” End of quotation.

This ruling of the High Court referred to constitutional “safeguards” while the Appeals Court confined itself to the conduct of DEDs! Moreover, the constitutional “safeguards” ought to be found in the laws governing the office of the registrar of political parties.

It was wrong for the Appeals Court to parlay the law of evidence to dismiss allegations some of the DEDs were bona-fide CCM members. Only nonexistent laws in the establishment of the office of the registrar of political parties could have been resolved by requiring all political parties to furnish it with the list of its members on a monthly basis. That list ought to be published in the website for the scrutiny of members of the public. Otherwise, constitutional “safeguards” were despicable vanities.

The Appeals Court illegally converted points of law into evidential matters which is a shock in itself leaving me with a question: was the Appeals Court sitting as an appeal court or a court of first instance?

I am struggling to comprehend how the Appeals Court overturned this finding of the High Court:

“We insist because the Respondents have not furnished evidence to support their contention that the City Director, Municipal Director, Town Director, and District Executive Directors do not automatically serve as Returning Officers, but they do so after being designated and gazetted. This argument is not in the joint counter affidavit which was deponed on behalf of the Respondents by the learned Principal Attorney representing the Respondents in her own personal knowledge.”End of quotation.

Only a trial court is in the position to weigh in on this finding, the Appeals Court couldn’t rewrite the Respondents’ affidavits just to put it mildly. An Appeals Court cannot aid the Respondents and add something in their counter-affidavits which was missing. However, the Appeals revocation of the High Court ruling did just that!

Equally infuriating, the Appeals Court, didn’t consider the literal and meaning reading of the cited laws that made it abundantly clear returning officers were mandatorily DEDs with “an oath of secrecy” a performance or mworking environment enabler but not a statutory qualification of entry!

The African Court did what the Appeals Court had reneged to do. It offered a ringing endorsement to the High Court ruling on the standards defined as qualifications of the returning officers. I applaud the Court for acting judiciously.
However, the African Court introduced its own errors. The Court refused to acknowledge basic principles of natural justice. It is in the principles of natural justice where conflicts of interest rear its ugly hydra.

Really, can the president of United Republic of Tanzania be a judge of his own cause? And, we know just too well, he can’t.

The African Court erroneously ruled presidential appointments cannot necessarily lead to partiality! Was the African Court serious?

The then president John Pombe Magufuli had threatened DEDs with these words:

“Wewe Mkurugenzi wa Halmashauri ya Wilaya nikupe kazi, nikulipe Mshahara na posho, nikupe gari la Vieti, nikipe ulinzi halafu umtangaze Mpinzani kushinda Ubunge, una akili kweli wewe?” End of quotation.

The then vice president Samia Suluhu Hassan is also on record before 2020 elections bragging:

“…SAMIA SULUHU: HATA UKIPIGIA KURA KWINGINE, CCM ITAUNDA SERIKALI/ MSIPOIPIGIA KURA CCM HAMTAKUWA SEHEMU YA MAENDELEO YATAKAYOLETWA NA CCM

Mgombea Mwenza wa Urais kwa tiketi ya CCM, Samia Suluhu Hassan amewaambia wananchi wasipige kura kwa Chama kingine kwa sababu hata wakipiga kwingine CCM inaenda kuunda Serikali

Amesema hayo akiwa Chunya Mkoani Mbeya ambapo ameeleza kuwa, CCM watashinda vikubwa sana, kwa hiyo kupigia kura Chama kingine ni sawa na kuweka sukari kwenye Ziwa Victoria

Aidha, amesema wakipigia kura vyama vingine watakuwa sio sehemu ya maendeleo yatayoletwa na CCM, hivyo kura zao zitawasuta

#Uchaguzi2020…” End of quotation.

What she meant NEC was not independent but a CCM tool to massively rig elections in their favour.

Former, CCM organizing and publicity secretary, Humphrey Polepole is on record confirming what we all know:

“Uchaguzi ukiwa huru na wa haki CCM ijiandae kukabidhi Ikulu…...: End of quotation.

Former minister Nape Nnauye was also on record saying it’s not voters who pick leaders but DEDs on behalf of CCM government. He was immediately sacked for his candid revelation.

Former DC and sections of senior police have been reiterating NEC is not independent but a CCM tool to massively rig elections.

Courts of law being part of the society cannot pretend to be oblivious of these glaring realities.

The African Court had made an important determination on page of her ruling:

“

How can a public servant seconded in the election commission assure its independence?

The African Court on page 33 condoned the disempowerment of non public servants from serving in the election body after blessing the Tanzania government averments:

“

On its part, the Respondent State concedes that sections 6(1), on the one hand, and sections 7(1), 7(2) and 7(3) do provide for a differentiated treatment. t is argued, however, that the differentiated treatment is reasonable and justified. In the case of the Director of Elections, the Respondent State submits that “the appointment of a civil servant as Director of Elections is for common interests as it is easy to ascertain his ethical, professional and educational background since public service is governed by well-established legal framework.”

As for the returning officers, the Respondent State submits that the differentiation is justified because “the National Electoral Commission do not have branch offices at constituency level hence the use of the Directors as returning officers since they have enough office facilities and expertise in electoral management.” End of quotation.

The African Court had defined the parameters of the independence of the election body to include financial and institutional independence. Here is Tanzania government admitting the election body isn’t independent since it lacks branch office facilities and expertise in electoral management!

The African Court didn’t even bother to interrogate how DEDs have expertise in electoral management when even their qualifications were unknown!

Moreover, Tanzania government didn’t prove that those outside public service lacks common interest and a competitive, transparent recruitment process wouldn’t resolve ethical, professional and educational background concerns?

Tanzania government alluded that public service is governed by a well-established legal framework confirming beyond reasonable doubt the election body wasn’t independent to manage elections without tapping on government resources!

The African Court didn’t investigate Tanzania government’s pleadings that disproved the election commission was indeed independent.

That the African Court on this ruling upended its own precedent it had established on page 20:

“

While acknowledging that “there are no precise indications as to the characteristics of an ‘independent’ and ‘impartial’ electoral body”, the Court has nevertheless highlighted some elements which confirm the independence and impartiality of an electoral management body. For example, in Action pour la Protection des Droits de l’Homme (APDH) v. Côte “‘/voire, the Court held that

“an electoral body is independent where it has administrative and financial autonomy; and offers sufficient guarantees of its members’ independence and impartiality.”

The Court further held that… institutional independence is insufficient to guarantee [(the transparent, free and fair elections …. The electoral body in place should in addition, be constituted according to law in a way that guarantees its independence and impartiality, and should be perceived as such.”

23 “ End of quotation.

Public servants have inherent conflicts of interest since they cannot serve their chief employers, the CCM government in power, who have vested interest to massively rig the elections and indefinitely prolong their illegal stay in power.

Any Court of law which fails to grasp this concept has ceased to serve justice but is a captive of parochial interests unrelated to the essence and vitality of judicial power.

Of keen interest, the current Chairperson of the INEC, Hon Justice Jacobs Mwambegele, was the chairperson of the Appeals Court panel that legalised DEDs to continue massively rigging our elections. If he is not an embodiment of “conflicts of interest” then I am dumbstruck before I was formed in my mother’s womb.
Under Chairperson of the INEC, Hon Justice Jacobs Mwambegele tutelage, INEC has doubled down in disqualification of Chadema ensuring a safe passage in this election for his main employer: CCM government. Before his appointment to INEC, only opposition candidates were being unconstitutionally disqualified but now he has taken the electoral injustices to a higher level: Chadema shouldn’t trouble CCM in the 2025 election! Will there be an election worth its name after this?

Read more analysis by Rutashubanyuma Nestory

Post Views: 254