Minister for Constitutional and Legal Affairs (MoCLA), Damas Ndumbaru while in Tarime, Mara region on 09th June, 2025 made a specious claim that 15 election law reforms have improved democracy and the rule of law! Nothing can be far from that!
In fact, those election law reforms are a paragon of occupational discrimination, violations of principle of justice and an aberration of constitutional pillars of separation of powers between the judiciary and the executive.
With such blatant violations of principles of law it is misleading to claim those election law reforms have added value to our democracy and the rule of law but have made it worse.
Below is a recount of how CCM has parlayed election law reforms to hijack constitutional powers bestowed upon the electorate to elect leaders of their choice, and abrogated that onus to itself!
Ndumbaru specious claims.
The first achievement according to Ndumbaru is amalgamation of election laws that led to legislation of one election law that sufficed the needs of a modern democratic nation. While having one law is commendable but the devil always is in the details. The reforms have obfuscated transparency condemning the elections unverifiable, not free and fair, at all.
His pivot on the Independent Election Commission Act of No. 2 of 2024 is the first in the history of a nation is a mockery of democracy and the rule of law. He quickly reminded us that DEDs have been done with, and now a competitive recruitment process has been enacted ensuring election managers are free of conflict of interest! What an absurdity.
However, the learned lawyer is conveniently reticent that the so much vaunted election laws have discriminated against non public servants from seeking employment with INEC. In fact, Ndumbaru wouldn’t want to point out that INEC is the only public institution that discriminates to employ only those already in public service.
Ndumbaru is silent that all conflicts of interest found with DEDs are also found with the public servants who will eventually be employed by INEC.
What are the inherent conflicts of interest created by public servants of all sorts?
What Ndumbaru will never acknowledge is the unholy fact that CCM is the employer of all public servants who will be employed by INEC. It is being in the payroll of CCM in the government that pukes conflicts of interest. CCM being one of the political parties running in any elections shouldn’t also have leverage on employees of INEC.
Having authority on INEC employees who double down as public servants corrupts absolutely INEC, deleting any claim of independence bragged in its nominal. For INEC to have any aura of independence, only non public servants ought to qualify to be employed by INEC. INEC must be a no go zone for public servants of any colour.
Judiciary wrongly decided case.
The African Court of Justice ruled that the composition of the election commission is a matter that is determined by local conditions. There are no local conditions to justify CCM employees in the public sector to manage elections on its behalf. Such type of elections are illegal since CCM has vested interests to massively rig elections, and declare itself the eventual winner in any election.
Our AG claimed in that hearing that public servants have the wherewithal to manage elections nothing can be far from the gospel truth. Nobody in the public service has the experience to manage elections for a simple reason nobody in the public service is hired to manage one. Management of elections is learnt through seminars, workshops and other short courses. Anybody with a university degree should be able to excel in acquiring the necessary skills to manage our elections.
Besides, public servants, although they are hired to manage elections, don’t resign from public service, reducing such terms of employment to qualify as “secondment”. Really, INEC under this law has employed nobody but has borrowed from public service 💯 of its employees, and that alone eliminates any pretence to the independence of INEC.
INEC can only be independent if its employees aren’t employees of public service, and the law says so. However, when the law prevents non-public service candidates from seeking employment with INEC, and the same law limits employment of INEC on government seconded employees such election commission isn’t independent at all. It is an extension of government department.
As the election law is constituted INEC is a department of the government because all of its employees have been seconded from the government. Until, government employees are prohibited from seeking jobs to INEC and must resign before doing just that INEC will continue being a department of the central government. You can all it whatever but hard facts are unswayed by the beautiful nomenclature bragging of nonexistent independence.
Ndumbaru lauded the law has stipulated election managers will be gazetted, and those in the political positions in the last five years will not be employed by INEC. Ndumbaru misses a bigger point: seniority in government employment doesn’t eliminate conflicts of interest. Seniority doesn’t obliterate conflict of interests.
We have in the past primary school teachers who were caught in camera carrying in their purses cast ballots for CCM. Those teachers were polling booths invigilators. We have junior police officers caught in camera stuffing ballots in the ballot boxes.
What is my point? Junior government employees take orders from their superiors. Henceforth, even if senior government officials aren’t employed in the INEC will still have a say of how elections are managed through their subordinates who have not even resigned from public service when they are employed by INEC. Such kind of employment amounts to “secondment” not full engagement.
Moreover, once their INEC tenure is over they will fall back to their former employer who is the government. What kind of a junior employee would want to risk his future employment prospects with the government by disobeying orders to massively rig elections?
Most junior government employees working with INEC will perceive this is an opportunity to curry employment favours with their employer: the government. Stealing elections on behalf of CCM could potentially pave the way for promotion and other juicy reassignments after that INEC job has expired.
A claim that those who have been in political positions in the last five years have been proscribed from holding employment in the INEC didn’t go far enough. INEC should cease immediately from being a breeding ground of public service refurbishments through rigging elections in favor of CCM.
Ndumbaru makes a point that election managers will be subject to public scrutiny through judicial reviews of their competence. The flipside is the election law has already legalized inherent conflicts of interest so what will the courts do beyond deferring to “executive discretion”?
Unless judicial review addresses conflicts of interest and occupational discrimination matters already litigated in the past and wrongly legalized lawlessness what else can litigants do? Meaningful litigation will commence when election laws prohibit public servants of all sorts from managing elections then a law that empowers the electorate to question the suitability or qualifications of a hired election manager will carry a lot of a heavy punch. Right now, the law has legalized an illegality rendering judicial incursions an affront to good governance and the rule of law.
Ndumbaru asserts these new developments have strengthened fidelity to transparency, accountability and the rule of law. However, when the law legalized conflicts of interest such admirable traits have been negated by very retrogressive election laws.
Ndumbaru is delighted on recruitment of chairperson, deputy chairman and INEC commissioners will be conducted in a competitive and transparent manner. The Waterloo has always been the secretariat of “Kamati ya Uteuzi” will be outsourced from the government and all members of that INEC appointment committee will be presidential appointees. Really, nothing has changed from the current legal regime: The election commission is the president’s exclusive playground. The new law hasn’t changed that narrative of presidential ironclad vice on how our elections are managed and such harmful relationships cannot guarantee out elections are free, fair, verifiable and trustworthy by the electorate.
“Kamati ya Uteuzi” is answerable to the president who hired it and will obey orders from the president. Before we peek at recruitment of INEC top officials let us talk about “Kamati ya Uteuzi”. Why should it be the president’s prerogative?
While the president who is a politician has final say and unchecked powers to employ it? Why don’t we find another way which excludes the president in the preliminary stages. We need stakeholders to be part of the “Kamati ya Uteuzi.”
We have three stark choices here: either “Kamati ya Uteuzi” be formed by representatives of political parties or by representatives of professional bodies or a combination of the two. The president has no business of appointing members of the “Kamati ya Uteuzi”.
The real threat to the independence of the election commission is civil servants and presidential appointments corrupting it. This is why election reforms before elections are inescapable.
Judges of all sorts and chairperson of the human rights commission shouldn’t be part of “Kamati ya Uteuzi”. First allof them are presidential appointees and are answerable to that office which render our elections an illegality, abinitio.
Moreover, our constitutional order is very clear: separation of powers between the judiciary and the executive is paramount while this election law makes nugatory of this constitutional tenet. My question is why are election laws blatantly violating the constitution?
There is no public interest when the Chief justice and his cohorts become employers of the INEC. Kamati ya Uteuzi is a gross abomination of the election laws. The Kamati ya Uteuzi headed by chief justice makes our election laws worse since independence and when a lawyer applauds this then we have to wonder which school of law he had attended.
The new election law abhors applications of latest technologies in transporting, reporting, displaying and monitoring the election conduct. We are in the 21st Century but our refurbished election laws behave as if we are in the Stone Age! It suffices to state categorically that until our election laws mandate the deployment of latest technologies in managing our elections we have no lame excuses to buy the Ndumbaru’s yarn that is yearning for us to accept the unacceptable!
In summary, the refurbished election laws have retained the hijacking of the constitutional powers to elect representatives from voters and have doled them out to CCM ensuring the latter’s summit will continue unabated to choose leaders on our behalf. It is a situation that was not acceptable yesterday, today and will never be acceptable tomorrow.
To say otherwise, is an unforgivable infidelity to the national ideals gluing this country together.
Read more analysis by Rutashubanyuma Nestory
