A Critical Look at Tanzania’s Election Law Revisions, Is Fair Election a Distant Dream?

An elderly voter casts her ballot at Wazo Hill polling station in Dar-es-Salaam, Tanzania, on October 28, 2020. AFP via Getty Images

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Having elections in which the electorate doubts whether those elections are free, fair, credible, and verifiable may be why our electoral legal regime is under scrutiny.

The Tanzania government, on its part, has proposed amendments to our election laws. Still, our position is that those reforms are mere window dressing and will not quench fears nursed by many voters that our election laws are skewed to help CCM cling onto power.

What Do The Proposed Reforms Aim to Address?

As it has become a matter of habit or impulse, the government is using ordinary laws to fix deficiencies in the constitution. The constitution says it is the president’s prerogative to appoint commissioners of the election commission. Still, the proposed amendment says the Chief Justice will head an appointment committee to recruit the commissioners.

Paradoxically, in enacting the constitutional process, we had pursued a similar approach of violating clearcut provisions laid down in the constitution on how to outrun it. We came up with an ordinary law to upend constitutional provisions that have made it abundantly clear that only two-thirds of members of Parliament from all sides of the Union can change those provisions like election, which is a union matter in areas of the election of the union president, vice president and members of the Union Parliament.

In the constitutional amendment law, we infringed the powers of the Parliament to rewrite the constitution, and we created unconstitutional bodies like the constituency assembly and its secretariat that collated the opinions from all over the country. As if those violations were insufficient, we legislated a referendum to decide on the constitutional amendments once approved by the constituency assembly. Efforts to overturn unconstitutional laws that guided the constitutional reforms were frustrated in courts over technicalities, and we seriously doubted our concerns were captured even in those legal challenges.

The election law reform attempts to achieve what constitutional reforms failed to secure. There was a proposal to call the National Election in the stranded constitutional reforms. Commission (NEC) Independent to parry allegations NEC was a Chama Cha Mapinduzi appendage. The constitutional reforms also recommended that an appointment/selection committee be established to appoint all commissioners, including the commission’s chairperson, from an array of applicants who will subject themselves to an interview from this appointment committee.

The election reforms law has also adopted the same constitutional proposals with minor alterations. Name bragging of NEC as independent, while it is relatively not, is an ice on the cake. The introduction of the appointment committee charged with picking the NEC commissioners packed to the rim with judges and lawyers as if an election is a legal dispute to be resolved by legal practitioners! Then, there is a deafening silence on where the commission’s independence matters most: the secretariat. Also, there is a convenient digression from what makes our elections opaque, unaccountable, bureaucratic determined and a nightmare to litigate against its verdict in a court of law.

Roadblocks to fair, accessible, accountable, transparent, verifiable and credible have been left undisturbed in those election law reforms. An average voter expected that past voting challenges would have been resolved, but such misnomers are left to their own devices. One needs to ask for whose interest?

In one of the parliamentary election results challenged in a court of law, the complainant disputed the results declared by the constituency supervisor that they did not capture the results from polling stations. He was armed to the teeth with the results of the polling station forms. While the outcome of that legal challenge is beyond the scope of this discussion paper, we are content to say that the proposed election reform has not addressed the loophole. The allegations presented in a courtroom had exposed that DEDs cooked their constituency declarations in total violations of the elections law, and there was no legislative effort to close that loophole. (Individual names have been intentionally redacted to avoid personalization of issues.)

Nape Suggests Electronic Voting for Tanzania: Discover the Basics Here.

Addressing Critical Flaws in Election Management

Another election matter that seeks atonement is how the results from polling stations are counted, transported, and declared. These results are confined to polling stations’ boards, but voters have no way of appraising the integrity of those declarations through comparison with polling station results. To pour acid on a festering wound, election laws instruct NEC to announce constituency results but not polling station results! The integrity of the elections is reproachable when election results are not transported by the latest technologies but are left to manual transportation, which opens a backdoor for forging the polling station results.

Since political parties are registered as national parties, the candidates they sponsor are forced to undergo a rigorous application process that often leaves the opposition disqualified for reasons that have nothing to do with them but how the application forms were filled. Lack of signatures, name misspellings or court rubber stamps are part of new regulations to remove opposition candidates from the approved list of prospective candidates.

Under the current legal regime, DEDs (president-appointed District Executive Directors) playing an additional role of constituency election supervisors carry the authority to receive filled election participation forms, evaluate them and approve or disapprove them. Opposition candidates are often disqualified, with no CCM candidate facing the music! Since DEDs are presidential appointees from the ruling party, many in the opposition cycles suspect DEDs are tools to upend the will of voters by either barring the opposition candidates from running or deliberately not tallying their polling booth results, leading to their unfair losses

Polling booth agents have hurdles to overcome or will not be permitted to oversee elections in the polling booths or the constituency tallying centres. DEDs doubling as constituency election supervisors have been empowered to issue official letters to polling station agents, but the opposition agents sweat to get those letters! Most of the time, DEDs are nowhere to be seen after issuing the forms to CCM polling agents!

The Independence of NEC cannot be assayed by naming bragging rights that the commission is squeaky independent as the proposed amendment deludes itself, but it begs on how it is formed and works.

The Recommendations for Strengthening the Independence and Integrity of the NEC

The independence of the NEC will be sentenced by how it is formed and works, and having presidential appointees lead the recruitment process is a step in the wrong direction. Presidential appointees are accountable to the president, not the electorate! The selection committee ought to include at least one member from every registered political party elected by the general assembly of each political party.

Every commissioner of the independent NEC will not be a civil servant who receives a paid salary from the government or holds any post in any registered political party. However, the commissioners must be bona-fide members of any of the registered political parties.

Once all elected commissioners have been secured, they will sit to elect the chairperson and deputy. Commissioners shall serve one term of five years and not be permitted to seek elective Office for ten years. There shall be no commissioner who is not elected by the general assembly of their registered political party.

Once the list of commissioners, the chairperson, and the deputy chair have been established, the chairperson shall inform the president to appoint them to the Board of Election Commission for five years. That recommendation shall be posted in local print and digital media.

The Parliament shall have no role in the ratification of the list of the commissioners because they carry a vested interest in imposing their parochial self-interest. No sooner has the president appointed the commission than the Board of Election shall advertise all the posts of secretariat members from the national to constituency level. DEDs are ineligible from being part of that secretariat.

Qualifications for the secretariat are the university degree recognized by our local institution for vetting such qualifications, at least five years either in the public or private sector and of most significance is proof of upholding the rule of law. No candidate can be disqualified except for the qualifications in the constitution. And, to avoid doubt, no election candidate will fill out an application form. Still, a list of all applicants sponsored by any political party shall be presented digitally to the NEC Executive Secretary by the Secretary generals of registered political parties, and a copy will be published in local print and digital media.

The Secretary generals of registered political parties shall also present a list of polling agents at all levels to the commission’s Executive Secretary at least 90 days before the elections. The secretariat shall issue digital copies to all political parties of the status of their candidates and their election agents.

The latest technologies shall transport polling station results and tallied constituency results. All these tabulated results shall be displayed on the NEC website as transparent, accountable and verifiable.

We have no doubt these election reforms shall go a long way to cleanse our beleaguered election process from booby traps that have seen many a voter expressing dissatisfaction in the form of voter apathy and other resistance forms.

The author is a Development Administration specialist in Tanzania with over 30 years of practical experience, and has been penning down a number of articles in local printing and digital newspapers for some time now.

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