We are about to participate in local government elections, but a one-billion-dollar question is: Are they legal? Can election laws legalize what is unconstitutional, ab initio?
This article investigates the constitutionality of the latest passed election laws. It concludes that those laws have mocked and ousted the constitutional principles guiding how Tanzanian election laws should be crafted and enforced.
The Minister of State in the President’s Office for Regional Administration and Local Government, Mohamed Mchengerwa, has been bragging about the number of Tanzanian citizens registered to participate in local government elections.
As far as he is concerned, about 31 million Tanzanian voters have registered, clearing any doubt about the credibility, acceptability, and integrity of the local government elections!
Under the recently passed election laws, the minister for local government is an umpire of those elections. For all purposes and intents, Tanzanian election laws were amalgamated in a manner which flourished in emblematic panache rather than substance.
The defunct election laws were re-domesticated wholly with few nips and tucks here and there, making the whole exercise an intellectual affront to our constitutional orderliness.
The most conspicuous constitutional aberration is when the newly refurbished election laws heeded the counsel of a former election commission—NEC chairperson, Justice Damien Lubuva.
He counselled that the best way to quell calls for an independent election commission permanently was to rename it “INEC: INDEPENDENT ELECTION COMMISSION.”
In his own words, this is what he whistled: “……. kwa vile wanachodai ni Tume huru ya uchaguzi basi tubadilshe jina la tume na tuiite tume huru ya uchaguzi kwa kufanya hivyo tutakuwa tumekidhi mahitaji ya vuguvugu la kudai tume huru ya uchaguzi….” (At the end of the quotation, the emphasis is mine.)
ALRO, READ Time to Reform: How Fixing Tanzania’s Election Laws Could End Political Deadlock
The learned judge failed to comprehend that NEC and INEC are, legally speaking, two different entities and one cannot purport to supplant the other; the gospel truth is vice versa. They breathe and live in different spaces and curves.
Our constitution recognises NEC as a legitimate constitutional body to manage our elections, rendering INEC an illegal concoction.
Therefore, all elections conducted under the INEC are illegal, null, and have no legal consequences.
Constitutional amendments are needed to cure the constitutional anomaly and ensure that INEC, rather than NEC, is a duly legal person mandated to supervise our elections.
Names of parties go to the root of the matter, and irresponsibly exchanging them to meet a parochial sleight of hand is a wilful violation of the Constitution.
INEC is now ensconced as a poison ivy and a love potion to dupe our collective consciences. We are now on cloud seven regarding the integrity of our elections because we have brand new election laws! How pathetic!
Another unconstitutional imperative in our new election laws is forming an INEC appointment committee (Kamati ya Uteuzi) that is charged with calling up for interviews and shortlisting candidates aspiring to be commissioners of INEC.
For the same legal argument, this appointment committee is a constitutional alien. Whatever acts of commission or omissions sanctioned through or by it are unconstitutional and of no legal serfdoms.
A constitutional amendment is needed to arrest this illegality and empower INEC with all the powers delegated to it in the election laws.
Weirdly, this constitutional abomination was imported from the abandoned Warioba-led draft of the constitution.
The draft constitution proffered this constitutional principle to guide the development of election laws, but in our current constitution, such a fiat is a lacuna.
What is happening is that the forsaken Warioba draft constitution is being legislated piecemeal with total reckless disregard for the current constitutional edicts! The constitutional departures from the election laws know no bounds!
Scrutiny of the INEC appointment committee members are all presidential appointees in different capacities: some as president and some as CCM chairperson.
Patently, the election laws feigned to clip presidential powers to appoint members of the appointment committee and, by extension, the commissioners in the INEC but have surreptitiously retained all of those powers through proxies!
If this is not bad enough, the ex-officios are roiled in conflict of interest.
Chief Justice who chairs the appointment committee and his ilk from the judiciary do so as a gratitude for violations of the “doctrine of separation of powers between the judiciary and the executive”.
Tanzanian official graft is wantonly unchecked because the judiciary is snuggling with the executive and cannot pretend or purport to be an impartial referee against the executive excesses of who is now an identical twin and its chief perpetrator.
The AG is the president’s principal adviser and is vested with a conflict of interest to ensure the political fortunes of her party take precedence over those of national interest.
Since the AG has an ear to the president, it is not unthinkable that he will be a passionate advocate in the appointment commitment to ascertain by hooks or by crooks that all commissioners, the chair, and the deputy are the president’s personal picks through masquerades.
The election laws embody hypocrisy in fixing an election problem while, in harsh reality, the laws have worsened and compounded it.
Perhaps the powers vested in the minister for public administration and local government epitomize the wrongness of the election laws.
Since the re-adoption of multiparty democracy in Tanzania, the minister has been vested with powers to manage local government elections on behalf of NEC.
The problem has always been that the said powers were on hiatus in the Constitution. Nowhere in the Constitution is the said minister entrusted with the authority to usurp or act as an agent of NEC.
The constitutional framers designated the NEC as the sole manager of our elections, and all election laws that corrupted that constitutional principle are nullities with no legal ramifications.
Notwithstanding, our highest Court in the land has found a devious way to circumvent this constitutional onus by ferreting over an “element of bias” to rule that the status quo ante is “too legit to quit”, which is in itself irrelevant in the determination of the matter, at hand.
Under the hijacked constitutional powers of NEC, the minister for local government has created parallel power structures to rival NEC, sparking confusion and leeway to massively rig local elections in favour of the ruling party CCM.
That bakes a temporary database with no semblance to the one held by INEC! First and foremost, the new election laws did not disturb the powers of the said minister but condoned them as legal when they were not!
Armed to the teeth with those powers, the preparation and conduct of the 2024 elections have witnessed non-agenda being registered as adults without any effort to fact-check whether they were over 18 years of age.
National identity cards were not deployed to circumvent age and citizenship strictures. The local government elections roster is temporary and divorced from the one on INEC’s record.
If forensic auditing of the two election voter registers were diligently carried out, the one held by the local government would be found to be tamped to the rim with underage, double-registering, and questionable citizenship voters. Henceforth, 31 million registered voters for local government elections could be hyped to reflect all is well when it isn’t.
Local government elections, more than those conducted by NEC, are impossible to verify for their authenticity, credibility, and integrity despite being corrupted by the same local government officials.
While luminaries in the opposition parties have unambiguously certified and tentatively qualified these unconstitutional elections with a clean bill of health in a forlorn hope that CCM’s well-placed cadres will do them justice, no sooner will the results begin to be announced than the opposition will cry foul.
Suppose the voter registration exercise has been accosted with fatalities and grievous injuries. In that case, one needs to prod one question: why is non-salaried employment violently fought for unless behind the official veil of community volunteering lies a web of corruption to financially support the soon-to-be elected officials?
I will cite one example to drive this point home. During the aborted constitutional amendment proceedings, a caricature called the constituency assembly was charged with voting on whether the Warioba draft constitution would be adopted for a referendum.
During the exercise of electing members of the constituency assembly, I saw that there were no elections everywhere. Still, well-placed CCM handpicked cadres self-elected themselves to be constituency assembly members.
My investigations across the country convinced me that those cadres massively rigged the elections because they were not salaried and that the constituency assembly was a rare opportunity for reimbursement and payback for ungainful employment!
When other citizens turned up on the day that was earmarked for elections, the officials were nowhere to be seen. However, the following day, the names of CCM local leaders were put on notice to have won the said elections, pumping more illegality into the constituency assembly.
Such unscrupulous leaders have been trusted to oversee the local government election voter register drive and the election itself. You need no rocket science know-how to solve this riddle: the elections are rigged even before one vote is cast, and dubious numbers of tens of millions of registered voters cannot assuage this sad reality.
This discourse ends with one heart-wrenching question: Why do people register to vote in places where no election will be held?
Well, one day, I learnt the extent and outsize recklessness of many Tanzanians’ sheer ignorance when one elder quizzed me on how the authorities rig the elections.
It took me two solid hours to respond to this query. However, even after an elaborate response, he told me he would register and vote because, as a citizen, he would fulfil his constitutional imperative even if they did not count his vote.
The rest, God would require restitution from those who would render his vote an inconsequential dud.
Perhaps this is not a holistic answer that applies to everyone. Still, from his probing, you can see that ignorance, more than anything else, stokes voters to condone massive election rigging and grant its perceived legitimacy, albeit a phoney one.
Another explanation came from a friend who confided in me that he had no faith in the election regime but was inspired by the first president, Mwalimu Nyerere, who acquiesced to being a partaker of a legally racially rigged election in 1957.
In that fateful election, a white man had three votes, an Indian two and a m’matumbi like myself one vote.
Nyerere refused to budge from the pressure of abandoning the election, citing we would win despite the skewed elections. TANU bagged that election, albeit with a slender majority.
However, there was one major difference. British colonial rulers’ elections were transparent, credible and verifiable.
Our post-1990 elections have become less transparent, verifiable, and credible, with the 2020 elections widely acknowledged as the most egregious in our short post-independence history.
British colonial rulers feared God so much that they could not imagine declaring results without counting votes and respecting the voice of the electorate.
Today, Tanzanian rulers esteem God in lip service while they have removed their hearts from Him. Declaring results without counting and tallying the votes is increasingly becoming a norm rather than a misnomer!
