Well, we need to face facts about INEC or else we will sink low embracing electoral confusion. INEC as per the constitution ought to be an independent institution. Still, that is not what we have been getting since 1992 when multiparty were re-enacted in our constitution. The executive has hijacked the election commission for the purposes and intents of massively rigging our elections. There is no other reason to explain why the executive is so obsessed with self-apportionment in the composition of the election body. This article revisits what is stated in the constitution and chronicles the evolution of Tanzania election commission laws to appreciate what is wrong with our elections. Here is my contribution.
The 1992 constitution reforms had several legal implications. One, a declaration of multiparty democracy as the cornerstone of our democracy. Second, elections to be managed by an election body solely appointed by the president. From the constitution standpoint, the president became our chief election manager despite harbouring debilitating conflict of interests.
Third, the president would appoint both the chairperson and the deputy chairperson of the commission applying criteria of the two positions that couldn’t be filled by citizens of one part of the union government. If the chairperson is from the mainland, the deputy would hail from Zanzibar. The constitution places no parliamentary or competitive process to attract the best talent wherever it is. From the beginning, meritocracy was subdued, and loyalty to the president was glorified. With this kind of lopsided constitution, all presidents since 1992 appointed minions in the election commission who would carry their election can.
Fourth, the constitution limited the qualifications of the chairperson and his deputy of the election commission to judges of the High Court, and the Appeals Court as if the judges have a modicum of executive experience! Well, they don’t. It explains why our elections have been mismanaged since then because the said judges are unqualified for these posts. Management of elections don’t require judges or lawyers but any person who is vested with public administration fortes.
There are no cases to decide there. Judicial experience is not executive experience, and treating it at par is preposterous. Of interest, most of the judges who were appointed to the election body had a glamour-less judicial career, with the majority of their decisions leaning in favour of the government. One must be sympathetic to the CCM government to have a chance to be appointed to the election commission.
Fifth, the constitution provided for the parliament to craft laws that will spell out the qualifications for those to fill ordinary membership of the election commission. Until last year, the parliament didn’t legislate on that, showering the president with even more powers to appoint the whole election commission. The election commission is answerable to the president, who has a strong motive to disenfranchise the electorate and prolong the CCM ironclad vice on power regardless of the voice of voters!
Sixth, the constitution out of hypocrisy dedicated the election commission to conduct itself as an autonomous body. However, I have demonstrated earlier in this discourse that since the president appoints the election body it couldn’t be independent. It was designed to operate as if Tanzania was a de facto one party country. The constitutional ruses of an independent election commission were vanities, and as a result all the elections during multiparty democracy since 1982 were tilted in favour of CCM.
Seventh, the constitution also ensured that even the election commission had no hiring and recruitment onus for the executive director or returning officers, as per the constitution itself and election laws. The constitution empowered the president to appoint the executive director who is the chief executive of NEC. Through the election laws, the president was also empowered to appoint all returning officers who, before the recent amendments, were DEDs, or District Executive Directors. How can the election commission be autonomous when all key positions in the election commission are presidential prerogatives?
Eighth, the election laws uncharacteristically violated the principles of natural justice by empowering the election body to be a judge of her cause. Election body can disqualify opposition candidates at will, and faces no accountability. Top CCM leaders never face the opposition in the ballot box since all the opposition candidates find themselves removed from the election register.
DEDs are picked in a manner of their ability to commit election fraud. The more the better. Under the current constitutional and legal framework don’t expect the prime minister Majaliwa Majaliwa to ever face the opposition in the ballot box. Whoever from the opposition picks the forms to challenge him will either end up roughened up by security forces and his forms taken away or DED is there to terminate the litany of his miseries.
Ninth, DEDs who double up as returning officers since 2019 stopped tallying polling stations results and even the supervisors of the polling stations themselves have followed suit. Now there are no longer elections but outright electoral fraud. Our laws do not make it mandatory for polling station supervisors invalidate elections when polling agents have been blocked from doing their duties.
Tanzania police round up the opposition polling agents to prevent them from attending to their civic duties. After the polling stations have been stuffed to the rim with fake votes, CCM-aligned polling station supervisors communicate with the police to permit the opposition polling agents to attend to their duties! At that time, the election had already been irretrievably tampered with.
Tenth, government media access portrays the opposition as a criminal or a bugbear, and they rarely are given the opportunity to air their views. Again, the chief executives of public media outlets are an exclusive presidential playground! So, the whole election regime in Tanzania was designed to create a conducive environment to ensure CCM will never lose elections, and accountability to the voters is eroded to its roots.
What’s wrong with the new election commission laws?
The new election commission laws are a sellout because they didn’t make any effort to address the drawbacks existing in the constitution, election laws, and the power of the rules in the election commission. What the election laws did was to add more muscle to rig the elections. The refurbished election laws have created another layer of bureaucratic inertia that is also answerable to the president.
This layer is called: “Kamati ya Usaili”. It has recruitment powers over the commissioners but can’t remove them. Instead, it has to offload them to an opaque disciplinary process at the president’s behest. This recruitment committee of the election commissioners is tamped to the rim with presidential appointees! Therefore the new election laws have sustained the election commission as a presidential department. Once it is under the presidential watchful eyes, any vestiges of independence are washed away. The election commission remains the CCM extended department through the president.
Besides, ex-officios that include chief justice of the United Republic of Tanzania and the chief justice of Zanzibar in the “Kamati ya Usaili” infringes the doctrine of separation of powers well entrenched in our constitution. The duo are chairperson and deputy chairperson of “Kamati ya Usaili”. I am aware of at least three decisions of the Appeals Court that say violations of the doctrine of separation of powers render any decisions made by the trespassers null and void. Here such rulings of the highest Court in the land are trampled by election commission laws!
The election commission laws have rewritten the constitution in many aspects the powers such ordinary laws don’t have. For instance, the constitution says the powers of appointing the chairperson and his deputy were exclusive for the president. Still, these election laws now upended those powers by stipulating that the “Kamati ya Usaili” now recommends to the president a shortlist of those should fill the positions. That piece of legislation is unconstitutional, period!
Moreover, the election commission laws have discriminated against all Tanzanians who are employed by the election commission. Now the election commission law states only public employees can be considered in the commission’s employment. The aims of this law are vastly clear to maintain loopholes of wanton rigging. Under the recruitment laws even the election commission lacks disciplinary powers over those employees because they have permanent employment terms with the government. Having such kind of employees are inherently compromised and corrupts the election commission eliminating any bragging rights to its independence. Occupational discrimination just like any kind of discrimination was outlawed in Tanzania yet unconstitutional election commission laws were enacted!
The appointment of the secretariat of the “Kamati ya Usaili” too is sourced from the government. That seals the deal this “TUME HURU YA UCHAGUZI YA TAIFA” is not what it touts to be. All of its employees are from the government. How can it manage elections for us? An important principle this election commission law has failed to grasp is that elections are referendums to the performance of the government in power. Then the same government that is being evaluated cannot manage her own appraisal. That setup renders such elections a nullity because the voice of the voters will be whittled down.
Injustices fomented in the election laws embolden the rulers of the day to act not in the best interest of the nation. Laws are being created to shield top public officers from accountability and as a result national resources are being stolen with impunity. Unless election laws of all sorts restore accountability to the voters we should expect the conflict of interest between the rulers of the day and their subjects who happened to be the powerless voters to grow exponentially.
Over time, Tanzania is inching towards a civil war just like Sudan, Southern Sudan, DRC, Somalia and the rest of nations that have eroded accountability to free the rulers of the day to help themselves with national resources. The stark choices are entirely ours.
Read more analysis by Rutashubanyuma Nestory
