2020 General Elections: Key Electoral Reforms Tanzania must take

Tanzania has made progress on a number of democratic fronts compared to its peers in the region. However, when ranked on the common standards and guidelines for electoral management and regulation of political parties developed by European Commission for Democracy, Tanzania scores unfavourably on a number of major aspects whose reform would be helpful in strengthening Tanzania’s electoral governance credentials ahead of 2020 General elections

By Moses Kulaba, Governance and Economic Policy Center

Compared to its peers in the region, Tanzania’s Electoral Management Body (EMB) and Offices of the registrar of political parties only ranks in equal measure with its comparative peers in the respect that they are Constitutional bodies headed by persons of high integrity at a level of a judge or retired judge.

In our comparative analysis gaps are found in the following aspects whose reforms would place Tanzania at a higher pedestal in matters electoral governance;  The finality of decisions of its EMB (the National Electoral Commission) and Office of Registrar of Political parties, whereby their decisions are final and cannot be challenged in court, Election of NEC’s commissioners is not subject to a parliamentary vetting process, NEC’s mandate is limited to Presidential elections and local elections organised and supervised by local government executives under the Minister responsible for local government. The EMB and Office of Registrar of political parties’ reports to the responsible Minister compared to its comparative Countries such as South Africa and Nigeria where these institutions are answerable to parliament.

Mandate and powers of the Electoral Management Bodies and Political Party Regulation

Strengths and limitations of Tanzania in Comparative to South Africa, Kenya and Nigeria

1. Curtailed powers to conduct local or grassroots elections. Tanzania’s electoral commission is provided with limited or restrained powers to organising only the Presidential, Parliamentary and council elections. The Local Government Act of 1982 gives the Minister responsible for local government the mandate to organise and coordinate local government and municipal elections. The minister appoints returning officers. The District and Municipal directors who are public servants directly answerable to the Minister for local government are the returning officers.

        This is viewed as a weakness in Tanzania’s electoral management laws since the Minister responsible for local government is appointed by the President from the  ruling party. By virtue of his or her party affiliation, the Minister can have an ‘invisible’ influence in the results of local government and municipal elections. The principle of impartiality of the process is jeopardized[1]

This was experienced during the 2015 mayoral elections in Dar es Salaam where the Minister for Local Government was perceived by the opposition to have been determined to influence the outcome of the mayoral results in favour of the ruling party CCM by appointing none eligible people and Members of Parliament as councillors to vote for the mayor.  It is for this reason that there have been appeals from civil society and other political parties for expanded powers to be given to the Electoral Commission to conduct national and local government elections.

A High court on May 10th in  2019 declared unconstitutional electoral laws that gives Municipal towns and District Executive Directors (DEDs) powers to supervise local government elections on behalf of the Electoral Commission. The Court ruled that sections 7(11) and 7(3) which empower DEDs to supervise and coordinate registration of voters for presidential, parliamentary and council elections offended the Constitution, which also bared people affiliated to political parties from running elections. Lady Justice Atuganile Ngala said the sections contradict sections 74(14) of the constitution for not setting limitations to ensure independence and accountability of DEDs and directors of towns, municipalities or city councils who double as returning officers during elections. The ruling was in favour of a petition filed by activists and the opposition party, CHADEMA.[2]  This ruling has however been overturned by a Superior court which ruled that the independence and partiality of the District Executives is guaranteed by the oath of allegiance they take to remain nonpartisan.

2. Overarching Presidential powers to appoint top EMB and ORPP leadership. The powers granted to the President to appoint the top leadership of the commission and the Office of Registrar of Political parties without due nomination and vetting process from an independent, representative body like parliament is judged as a major lacuna in Tanzania’s electoral management process. The current system is perceived as bias, providing room for political influence or unsolicited return for political favors by the presidential appointees.

Indeed, this has been a ground for discontent which has been raised in the past by opposition political parties (such as Dr Augustine Lyantonga Mrema’s TLP, Late Christopher Mtikila’s DP and CHADEMA). The strength of these perceptions is increased, especially where high ranking officials from the EMB and ORPP have expressed interest or contested for political office on a ruling party ticket, CCM, shortly after leaving office.

3. The prerogative of finality of decisions made by the NEC, ZEC and ORPP is considered a major lacuna in Tanzania’s electoral law compared to Kenya’s system. NEC and ZEC have the exclusive powers to announce Presidential and parliamentary election results. After being declared by the NEC and the ZEC in the case of Zanzibar, Presidential results cannot be contestable in any Tanzanian court of law. This is perceived as an infringement on common standards of democratic practice, rule of law, natural justice and democratic rights to a fair hearing[3]. The exercise of finality of decisions can also be confusing, especially where it concerns matters that can be of concern to both institutions. The Kenyan system emerges as superior in this area as it allows decisions made by the EMB and ORPP to be contested in an appropriate court and further requires the courts to act expeditiously in determining cases of this nature.
4. Lack of clarity on the role of ORPP during the elections campaign period. In Tanzania the law clearly gives the NEC overriding powers during the election period. For example, it is not clear whether the ORPP can actively observe election campaigns, comment and take any action without accreditation and approval of NEC. ORPP is not a member of the Electoral ethics committees. It appears like the powers to supervise political party behaviour during elections are temporarily taken over by the electoral commission. The Kenyan system is also not clear either and the ORPP suggests that clarity in this area would improve the functional relationships between the two institutions
5. Lack of clarity on the role of ORPP during or in conducting civic education. The ORPP in Tanzania mentions providing civic education as one of its functions but this is not mentioned in the law. Civic education is clearly in the ambits of the National Electoral Commission. The Kenyan system appears to have clarified this role by clearly mandating the ORPP to conduct civic education but according to the ORPP, the resources to provide civic education of this nature are not guaranteed and as such this role has remained largely symbolic
6. Adhoc mechanisms and structures for coordination and potential functional conflict resolution. According to Tanzania’s NEC, the committees like the electoral code of conduct committees, ethics committees and stakeholder’s meetings are adhoc and others are need based. This is aimed at reducing operational costs. The Kenyan system appears to have attempted to circumvent this weakness by establishing a permanent Political Parties Liaison Committees, however the functioning of this body is still weak and structured intra and inter –agency coordination structures are still non existent

7. Perceived mistrust, suspicion and weak collaboration between the institutions. This perception is more pronounced in the Kenyan system where the ORPP perceives to be excluded from major decisions taken by the EMB and feels treated as a subordinate body to the EMB.

Therefore, the key reforms Tanzania must take ahead of the 2020 general elections are:

1. Review of current election coordination mechanisms with a view of minimizing election disputes and overlaps between NEC, Office of Registrar of Political parties and other government departments.

2. Expedite independent mechanisms for dispensation and resolution of election-related cases and offences. Nigeria and South Africa have established legal organs in the form of Electoral Courts and Tribunals headed by high court judges to enforce the code of conduct and preside over disputes whenever misunderstandings occur

3. Implement or review and adopt merits in Court decisions current and previous in regards to election-related matters such as independent candidates in Presidential elections and the role of local government executives or civil servants in election management.

4. Increase avenues for transparent and objective dispute resolution. These should be documented and formalised in law. South Africa has developed detailed operational guidelines for better communication and clarity on the roles of the two institutions. These have been enacted in a detailed law which provides a basis for better coordination

5. Adopt and adopt best practices from the comparative countries such as South Africa on matters related to election management and coordination, including opportunities to legally challenge the finality of decisions by the election coordination mechanism.

6. Address some of the concerns of political parties through some kind of a national convening and dialogue process ahead of the 2020 general elections

[1] OSCE/ODIHR & Venice Commission: European Commission for Democracy through Law (Venice Commission), Political Parties Regulation, adopted by the Venice Commission at its 84th Plenary Session, Venice (15-16th October 2010)Principle 8

[2] https://www.thecitizen.co.tz/news/Ruling-raises-hope-of-free-polls-body/1840340-5110172-ag1x2cz/index.html

[3] Ibid, Section XIII: Monitoring of Political Parties: Impartiality and Neutrality in Elections, paragraph 218