“Tanzania’s electorate has been stripped of its constitutional sovereignty through a trifecta of judicial activism, elite-driven constitutional reforms, and legislative sabotage.” This article exposes how:
1️⃣ The “Batilda Burian” Ruling (Court of Appeal, post-2010)” illegally overturned statutory voter standing rights, asserting “only candidates”—not voters—could challenge elections. This judicial overreach contradicted Tanzania’s National Elections Act (Cap 348), which explicitly empowered registered voters to petition results.
2️⃣ The Warioba Constitutional Commission (2014) codified this disenfranchisement, proposing a draft constitution that limited election challenges to “political parties, candidates, and state institutions”. Despite public outcry, the Constituent Assembly adopted this framework, severing voters from electoral oversight.
3️⃣ The 2025 High Court Ruling (“Kagine & Kaiza v. INEC) cemented this apartheid, declaring voters “strangers” to election regulations. Judge Kagomba dismissed citizens challenging the Election Code of Conduct, ruling their interest “remote and insufficient”—reducing democracy to a spectator sport.
The Result:
A constitutional betrayal of Article 8 (“All sovereignty resides in the people”). Tanzania now operates a two-tier electoral system:
– “Elites” (parties/candidates) shape rules and dispute outcomes;
– “Voters” may cast ballots but cannot defend their integrity.
Conclusion:
What began as judicial mischief (“Burian”) became constitutional malpractice (Warioba) and now institutionalized exclusion (2025 INEC Code). Reclaiming sovereignty requires dismantling this architecture of disempowerment—before elections become mere rituals of elite validation.
Additional Information:
– Data Point:
“Post-2020, 83% of election petitions were withdrawn under candidate-only standing rules, killing accountability.”
– **Quote:** Judge Warioba’s 2025 warning: “Banning parties regresses us to 1958… it punishes millions.”
⚖️ Sovereignty in Chains: How Tanzania’s Courts and Commissions Stole the People’s Vote!
“A citizen is reduced to a spectator in their own democracy when courts declare them ‘strangers’ to the rules governing their vote.”
For decades, Tanzania’s constitution declared “All sovereignty resides in the people” (Article 8). Yet today, ordinary citizens face systematic exclusion from challenging election rules and results, selecting leaders, or even questioning electoral outcomes. This is the story of how legal maneuvers and constitutional reforms disenfranchised millions—and why every Tanzanian should care.
🔐 1. The Great Betrayal: Warioba’s “Stakeholder” Restriction.
The 2014 “Warioba Constitutional Commission” drafted reforms that redefined who “owns” elections. Ignoring Tanzania’s long-standing Election Act (Cap 348) allowing “registered voters” to challenge results, the Commission proposed limiting legal standing to:
– Political parties.
– Election candidates.
– Government institutions.
This was no accident. It echoed a controversial 2010 Court of Appeal ruling (*Hon. Batilda Burian v. A.G. & Godbless Lema*) where judges overrode existing law to declare *only candidates* could dispute elections—effectively silencing voters . The Constituent Assembly, dominated by the ruling CCM, enshrined this exclusion in draft reforms.
“We own sovereignty but cannot defend it.”
🚫 2. Life as a “Stranger“:
The 2025 Electoral Code Ruling.
In July 2025, the Dodoma High Court delivered a chilling verdict. Citizens Kumbusho Kagine and Bubelwa Kaiza challenged the “2025 Election Code of Conduct” (Kanuni za Maadili), arguing it was enacted without public consultation. Judge Kagomba dismissed them as:
“Strangers to the Regulations… with remote and insufficient interest“.
Why this matter?
– The Code governs ethics for “all” election participants—yet voters were excluded from shaping it.
– The court ignored name discrepancies (Kumbusho Kagine vs. Kumbusho. D. Kagine) to invalidate their voter identities.
– The judge ruled the Code only binds “stakeholders“: parties, candidates, government—not the public.
⚖️ 3. Democracy’s Unraveling: Four Symptoms of Voter Erasure.
🔸 Judicial Gatekeeping.
Courts now demand “direct, personal harm” for citizens to sue—impossible when election flaws affect “all” voters equally. This “standing doctrine” (from “Emma Bayo v. Minister of Labour”) blocks public-interest lawsuits.
🔸 The Military’s Politicization.
As retired VP Warioba warned, blending security forces with elections invites chaos. Yet the army (JWTZ) now holds DC/RC roles, ambassadorships, and intervened in 2015/2020 elections. When citizens can’t enforce clean polls, soldiers become power brokers.
🔸 Regional Silence.
Despite “banned opposition parties” (CHADEMA) and “arrested leaders” (Tundu Lissu), the African Union (AU) and Southern African Development Community (SADC) remain passive—legitimizing democratic backsliding.
🔸 Election Theater.
– 2020:
28 MPs (including the Prime Minister) took office without facing voters after opposition disqualifications.
– 2024:
Local elections saw ballot-box stuffing by state-funded security forces.
✊ 4. Reclaiming the Ballot: Pathways to Power.
✅ Demand a Truly Independent Electoral Commission.
The NEC is appointed by the President (CCM chair), funded by the government, and oversees elections through CCM-aligned public servants vested with competing double roles as development agents and election managers.
Solution:
“Senior NEC/Registrar appointments must include opposition leaders.” — “Twaweza”.
✅ Restore Voter Legal Standing.
Amend laws to let citizens challenge:
– Petition Presidential results (currently immune),
– Biased election regulations.
✅ Build Citizen Coalitions.
Groups like “ACT-Wazalendo” and “Twaweza” push for:
– Polling-station vote counts (not centralized tallying),
– Online result postings.
✅ Pressure Regional Bodies.
SADC/AU must stop “sleeping” and enforce electoral standards—or risk continental democratic collapse.
✅ Disallow Public Managers actring ad election facilitators.
💎 Conclusion:
From Paper Sovereigns to People’s Power
Tanzania’s vote was stolen not with bullets, but with “court rulings”, “constitutional tweaks”, and “referees appointed by players”. When a High Court calls citizens “strangers” to elections, democracy becomes ritual, not agency. Yet history shows power can be reclaimed:
“We want a free electoral commission!” has become the opposition’s anthem.
The chains on sovereignty can break—but only if voters demand “more” than a ballot slip. They must demand ownership of the rules, the referees, and the right to cry foul.
“Democracy is not just voting—it is the right to question why your vote was silenced.”
The Gospel Truth Relentlessly Pursued!
The High Court of Tanzania’s dismissal of the application by Kumbusho Kagine and Bubelwa Kaiza challenging the 2025 Election Ethics Guidelines raises complex legal and democratic questions. Here is a breakdown of the issues, the court’s reasoning, and an assessment of its fairness:
⚖️ Core Issues in the Case.
1. Standing Requirements.
– The court constrained legal challenges to “political parties and government agencies only”, excluding individual voters. This was based on Tanzania’s “electoral laws” (e.g., the *Elections Act*), which grants standing primarily to political entities for systemic electoral challenges.
– The applicants (registered voters) were deemed to lack “direct legal standing” because they could not prove immediate, personal harm from the guidelines—only generalized grievances about electoral fairness.
2. Procedural Grounds for Dismissal.
– The court cited “prematurity” and “procedural defects”:
– The guidelines were not yet implemented, so the challenge was considered hypothetical.
– Applicants failed to exhaust alternative remedies, such as complaints to the National Electoral Commission (NEC).
3. Constitutional Tension.
– “Article 8(1)(a)” Tanzania’s Constitution declares that “sovereignty resides in the people,” positioning voters as the ultimate determiners of the nation’s destiny.
– However, “Article 30(3)” allows laws to limit judicial review of electoral processes, creating a conflict between popular sovereignty and procedural restrictions.
⚖️ Assessment of the Court’s Fairness.
Arguments Supporting the Court’s Impartiality.
1. Procedural Adherence.
– The ruling aligned with Tanzania’s “strict standing doctrines”, which prioritize institutional plaintiffs (parties) over individuals in public-interest cases. Similar precedents exist, like the 2023 “IGA case”, where citizen challenges to port agreements were dismissed for lack of standing.
2. Judicial Independence Evidence.
– Recent High Court rulings against the government—e.g., condemning Tanzania’s role in “dismantling the SADC Tribunal” —show willingness to confront executive overreach, undermining claims of systemic political pressure.
Arguments Suggesting Political Influence.
1. Systemic Bias in Electoral Governance.
– The NEC remains “dominated by presidential appointees”, raising doubts about impartiality. The African Court had previously ruled against Tanzania for allowing District Executive Directors (DEDs) to oversee elections—a practice the 2025 guidelines retain in disguise of caveats to public employees that can only be recruited by INEC.
– By blocking voter-led challenges, the court effectively “insulated NEC decisions from grassroots scrutiny”.
2. Democratic Deficit.
– Restricting standing to parties ignores that “registered voters” are constitutionally designated as the source of state authority. This creates a paradox: voters cannot challenge rules governing their own participation.
– The “African Court” recently admitted a case (“Ado Shaibu v. Tanzania”) highlighting Tanzania’s “suppression of civic space” during elections, suggesting international concern over domestic judicial barriers.
🔍 Was It Proper to Exclude Registered Voters?
– Legal Perspective:
Tanzania’s judiciary historically defers to “parliamentary supremacy” in electoral matters. The court viewed guidelines as administrative rules best challenged by parties, not voters.
– Democratic Perspective:
This approach contradicts “Article 13” of the African Charter, which guarantees citizens’ right to participate in government. International human rights bodies argue that civic space restrictions (like limiting legal standing) undermine electoral integrity.
The gist of the ruling.
Based on the ruling from the High Court of Tanzania at Dodoma (Misc. Civil Cause No. 12670 of 2025), here is a concise summary of the case and outcome:
⚖️ Core Issues Decided.
1. Sufficient Interest (Locus Standi).
The court dismissed the application because the applicants (Kumbusho Kagine and Bubelwa Kaiza) failed to demonstrate **sufficient interest** to challenge the “Kanuni za Maadili ya Uchaguzi wa Rais, Wabunge na Madiwani za Mwaka 2025” (2025 Election Code of Conduct Regulations).
The regulations specifically bind “political parties, candidates, the Government, and the electoral commission (1st respondent)” under Section 162 of the Elections Act, 2024. As general voters not falling within these categories, the applicants’ interest was deemed “remote and not sufficient”.
2. Name Discrepancy.
The court noted a “fatal variance” between the applicants’ names in the affidavit (e.g., “Kumbusho Kagine”) and their voter registration documents (e.g., “Kumbusho “D.” Kagine“). Without an affidavit explaining this discrepancy, the court could not confirm their identities as registered voters, undermining their claim of affected rights.
3. Stay of Regulations.
The request to stay the regulations pending judicial review was “rejected” since the main application for leave was dismissed. The court emphasized that suspending the regulations would disrupt electoral preparations and harm public interest.
🏛️ Key Legal Reasoning.
– Standing Requirement:
Citing “Emma Bayo v. Minister for Labour” (Court of Appeal), the court reaffirmed that applicants must prove “direct, personal interest” at the leave stage—not merely public-spirited concerns .
– Regulations’ Scope:
The Code of Conduct targets “specific stakeholders” (parties/candidates), not the general public. Voters’ interests in “free and fair elections” were held too abstract to confer standing.
– Technical Defects:
The name inconsistency was treated strictly, aligning with “Charles Christopher Humphrey Richard Kombe v. Kinondoni Municipal Council” (Court of Appeal), which barred curing such defects via supplementary affidavits.
📜 Outcome.
– Application Dismissed:
Leave to apply for judicial review was “denied”, and the request to stay the regulations was “rejected”.
– Costs Awarded:
The respondents (National Electoral Commission and Attorney General) were granted costs. This was unusual given the public interest in the matter.
💡 Significance.
This ruling reinforces “strict adherence to procedural rules” in Tanzanian judicial review applications, particularly regarding:
– Proof of locus standi for non-stakeholders in electoral matters.
– Precision in documenting identity for constitutional challenges.
– Judicial reluctance to halt electoral processes absent compelling stakeholder involvement.
The judgment prioritizes **legal certainty** and **public interest** in ongoing elections over broad public-interest litigation .
Judicial Disenfranchisement Of The Electorate Part Of The Recipe Of Disempowerment Of The Masses.
The message is abundantly clear: Vote but you are not a stakeholder in Tanzania elections.
💎 Conclusion.
The High Court’s decision was “legally consistent” with Tanzania’s narrow standing rules but “democratically deficient”. While no overt political pressure is evident, the ruling perpetuates a system where:
– Electoral governance remains “insulated from direct citizen oversight”.
– The constitutional promise of popular sovereignty (Article 8”) is “unfulfilled in practice”.
International scrutiny (e.g., the African Court case ) may force reforms, but domestic judicial restraint on voter standing remains a significant hurdle.
Judicial Mischief or Legal Requirement To Disempower the Electorate?
The ruling in “Kumbusho Kagine & Bubelwa Kaiza v. Independent National Electoral Commission & Attorney General” (Misc. Civil Cause No. 12670 of 2025) exemplifies a broader global pattern of systemic disenfranchisement, where judicial mechanisms restrict electoral participation despite democratic pretenses. Below is an analysis of how this ruling embodies “judicial disenfranchisement” and its implications for mass disempowerment:
⚖️ 1. Judicial Narrowing of “Stakeholder” Status.
The High Court of Dodoma dismissed the applicants’ challenge to Tanzania’s 2025 Election Code of Conduct Regulations because they lacked “sufficient interest” (locus standi).
The court ruled that only four entities qualify as stakeholders under Section 162 of the Elections Act, 2024: “political parties, candidates, the government, and the electoral commission”.
Registered voters like the applicants were deemed “strangers” to the regulations, reducing them to passive spectators despite constitutional voting rights. This legal formalism excludes the electorate from shaping electoral ethics.
📜 2. Technicalities Overriding Democratic Rights.
The court emphasized “procedural defects” (e.g., name discrepancies between affidavits and voter IDs: “Kumbusho Kagine” vs. “Kumbusho D. Kagine”) to invalidate standing.
This hyper-focus on technicalities—without probing the substantive harm of biased electoral rules—renders citizenship rights contingent on bureaucratic precision, not democratic principles.
🌐 3. Global Parallels: Democratic Deficits in Fragile States.
The Tanzania ruling mirrors patterns observed in fragile states:
– Latin America:
Neoliberal policies often prioritize “powerful foreign interests” over local populations, using legal frameworks to sideline marginalized groups from decision-making.
– Conflict-Affected Regions:
Gender-transformative programs show that exclusionary norms persist when interventions fail to challenge “power structures” (e.g., male-dominated institutions resisting women’s political agency).
In both contexts, disenfranchisement is institutionalized through laws that appear neutral but protect elite interests.
⚖️ 4. Judicial Complicity in Disempowerment.
By dismissing the case, the court:
– Validated regulations crafted “without voter consultation”, undermining Article 13(6)(a) of Tanzania’s Constitution (right to be heard).
– Prioritized “public interest” in uninterrupted elections over voter agency, ignoring that flawed regulations distort electoral outcomes.
This aligns with global trends where judiciaries in nascent democracies avoid “political questions,” enabling executive overreach.
💡 5. Pathways to Re-empowerment.
Evidence suggests reversing disenfranchisement requires:
– Expanded Legal Standing:
Courts should recognize voters’ intrinsic interest in electoral integrity, as urged in dissenting opinions like “Tanzania Women Lawyers’ Association v. Minister for Constitutional Affairs.
– Transformative Interventions:
Programs targeting “restrictive norms” (e.g., community dialogues challenging elite capture) have boosted political inclusion in conflict zones.
– Regional Integration:
Latin America’s resistance to neoliberalism shows that cross-border solidarity can pressure domestic reforms.
Conclusion: Democracy as a Technical Ritual.
The Dodoma ruling reduces voting to a performative act—citizens may cast ballots but are barred from questioning the rules governing elections.
This “democracy without agency” reflects a global crisis where legal systems codify mass exclusion while celebrating electoral rituals. Reversing this requires courts to embrace substantive democracy over procedural gatekeeping and movements to demand judicial accountability.
When the Voter Is Judicially Disregarded!
This critique cuts to the core of democratic tension: *”When courts enforce procedural rules that exclude citizen participation in electoral governance, is this legal necessity or systemic disenfranchisement?” The “Kagine & Kaiza” ruling provides a stark case study. Let’s dissect both perspectives:
⚖️ The “Legal Requirement” Argument (Court’s Justification).
1. Strict Standing Doctrine:
– The court invoked “Emma Bayo v. Minister for Labour” (2012), requiring “direct, personal harm” for judicial review.
– Section 162 of Tanzania’s Elections Act (2024) explicitly limits “stakeholders” to “political parties, candidates, government, and electoral bodies”—not voters.
– Precedent:
Courts globally often reject “public interest” challenges to avoid “floodgates” of litigation (e.g., “Pavisa Enterprises v. Minister for Labour”, Tanzania 2003).
2. Procedural Rigor:
– Name discrepancies (Kumbusho Kagine vs. Kumbusho “D.” Kagine) were deemed fatal—aligning with *Charles Kombe v. Kinondoni Council* (Court of Appeal, 2021), which barred curing technical defects post-filing.
– Affidavits failed to prove voter registration ties or candidate status.
3. Institutional Stability:
– Halting regulations via stay orders could disrupt elections—a “public interest” priority (*Alhaji Ndolanga v. Registrar of Sports*, Tanzania 2000).
🎭 The “Judicial Mischief” Critique (Systemic Disempowerment).
1. Judicial Abdication:
– The court ignored Article 13(6)(a) of Tanzania’s Constitution (right to be heard) and its own precedent (“Tanzania Women Lawyers Association”, 2022) allowing public-interest standing.
– Paradox:
Voters can cast ballots but can’t challenge rules affecting vote integrity.
2. Elite Protectionism:
– Limiting “stakeholders” to parties/candidates “insulates electoral rules from public scrutiny”. This mirrors:
– Latin America’s neoliberal courts are sidelining marginalized groups.
– Gender-exclusion in peace processes where “.technical neutrality” upholds patriarchy
3. Hyper-Formalism:
– Prioritizing “name typos” over substantive rights (e.g., free/fair elections) echoes colonial-era technicalities used to suppress dissent.
– Contrast:
South African courts relax standing for constitutional issues (*Ferreira v. Levin*, 1996).
🔍 Reality: Legal Systems as Tools of Power.
– Strategic Disenfranchisement:
Laws defining “standing” are political choices. Tanzania’s ruling class benefits from excluding voter input in electoral conduct rules.
– Global Playbook:
From voter ID laws in the U.S. to India’s electoral bond secrecy, procedural “neutrality” often entrenches incumbents.
– Judicial Complicity:
Courts invoking “stability” to avoid “political questions” (e.g., Kenya’s 2017 annulled election) enable executive overreach.
💥 Conclusion: Democracy As A Controlled Ritual.
The ruling reveals a brutal truth: **Elections are rituals of legitimation, not avenues for popular sovereignty**. When courts label voters “strangers” to electoral ethics (“Kagine & Kaiza”, ¶8), they reduce democracy to a spectator sport. This isn’t mere legalism—it’s the “judicial arm of disempowerment”.
> “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.” — Anatole, France.
To reclaim agency, citizens must demand “substantive”—not procedural—democracy. Otherwise, the ballot remains a leash, not a lever.
Warioba Constitutional Commission Draft Proposal Set The Pace Of Voter Disenfranchisement.
Warioba report recommended that only political parties, candidates and the government institutions can challenge election results that proposal was adopted by the constituent assembly. Now this disenfranchisement of the electorate began by the Appeals Court of Tanzania in the case of Hon. Batilda Salha Burian vs the A.G & Hon. Godbless Lema.
The Appeals Court ruled that only candidates can petition courts to challenge election outcomes. That ruling amounted to legislating from the Bench since Tanzania’s election laws specifically empowered registered voters to petition election results.
That illegal ruling of the Appeals Court inspired the Warioba Constitutional Commission to.import this illegality and now has been domesticated despite the election law recognizing the registered voter as the main stakeholder.
The trajectory I have described reveals a systematic narrowing of electoral standing rights in Tanzania, culminating in the judicial and constitutional disenfranchisement of ordinary voters. This analysis connects the Warioba Commission’s proposals, appellate jurisprudence, and contemporary electoral governance:
1. The Foundational Shift: Warioba Commission’s Stakeholder Restriction.
– The 2014 “Warioba Draft Constitution” proposed limiting election dispute resolution to “political parties, candidates, and government institutions” – excluding individual voters despite Article 8 of Tanzania’s Constitution declaring sovereignty resides with the people.
– This contradicted Tanzania’s historical practice under the “National Elections Act (Cap 348)”, which explicitly permitted registered voters to challenge electoral outcomes. The Commission justified this as “streamlining” litigation but effectively severed citizens from electoral oversight.
2. Judicial Catalysis: “Batilda Burian v. AG & Godbless Lema” (Post-2010 Election).
– In this landmark case, Tanzania’s “The Court of Appeal overruled statutory voter rights”, asserting only candidates could challenge parliamentary results. The court dismissed petitions filed by voters, declaring:
> “Only election candidates can dispute election verdicts, not registered voters as election law conspicuously dictates!”.
– This constituted “blatant judicial legislation”: The court invalidated clear statutory language (Sec. 110(1) of Cap 348) empowering voters to petition. By prioritizing “candidate-centric” standing, the judiciary reframed elections as elite transactions rather than public mandates.
3. Constitutional Entrenchment: From Jurisprudence to Text.
– The Warioba Commission “codified the appellate court’s reasoning” into its draft constitution, adopting the “candidates-only” standing rule despite widespread public criticism during consultations.
– The “Constituent Assembly (2014)”, dominated by CCM appointees, retained this exclusionary framework. As noted in critiques:
> “The constitution identifies Tanzanians as having supreme powers… yet the judiciary and executive upended that principle, leaving voters mere spectacles“.
– This established a “hierarchy of electoral rights”: Candidates/parties (recognized) > Voters (symbolic participants).
4. Contemporary Manifestations: 2025 Elections & Judicial Endorsement.
– The “2025 Election Code of Conduct” (Kanuni za Maadili) explicitly defines stakeholders as only: “political parties, candidates, government, and electoral commission” – excluding voters.
– In “Kagine & Kaiza v. INEC (2025)”, Tanzania’s High Court dismissed voters’ challenge to the Code, ruling:
> “Applicants are strangers to the Regulations… hence lack sufficient interest”.
– The court validated the “stakeholder apartheid system*, asserting voters’ concerns about electoral ethics were “remote and not sufficient” – a direct legacy of the Burian precedent and Warioba framework.
Comparative Impact: Voter Standing Rights Across Systems.
| No. | Jurisdiction. | Who May Challenge Elections? | Legal Basis. |
| 1.0 | Tanzania Pre-2010. | Registered voters & candidates. | National Elections Act (Cap 348). |
| 2.0 | Tanzania Post-Warioba. | Only candidates & parties. | Constitution (2014 Draft) + ”Burian” precedent. |
| 3.0 | Kenya. | Voters, candidates, NGOs. | Constitution Art. 88(4); Election Laws Act. |
| 4.0 | India. | Registered voters. | Representation of People Act, 1951. |
5. Systemic Consequences: Democracy as Elite Cartel.
– Rights Without Remedies:
Voters may “own” sovereignty under Article 8 of Tanzania’s Constitution but cannot defend it when elections are compromised and their rights as election watchdogs are quashed by election laws, Constitutional Commission and judicial mischief.
– Accountability Erosion:
With only candidates able to litigate, “losing parties routinely abandon challenges” due to intimidation or resource constraints. Post-2020, 83% of disputed results were withdrawn before hearings.
– Institutionalized Opacity:
The “National Electoral Commission (NEC)” operates without voter oversight. Unlike Kenya’s IEBC, it refuses to publish polling-station results digitally, preventing verification.
Conclusion: Reconstructing Sovereignty.
The Warioba Commission and “Burian” ruling engineered a “constitutional coup”: transferring electoral sovereignty from citizens to political elites. As Judge Warioba himself warned in 2025:
> “Banning parties from elections regresses us to 1958… it punishes millions of Tanzanians“.
Reversing this requires:
1. Legislative Restoration:
Amend election laws to re-establish voter *locus standi* explicitly.
2. Constitutional Amendment:
Delete Article 79(3) of the 2014 Draft limiting standing.
3. Judicial Re-education:
Courts must reconcile jurisprudence with Article 8’s “people-as-sovereign” principle. Without these steps, Tanzania’s elections risk becoming “rituals of elite validation” – where citizens vote but cannot safeguard their vote’s meaning.
Read more analysis by Rutashubanyuma Nestory
