THE UNITED REPUBLIC OF TANZANIA
THE NINTH EAMJA ANNUAL CONFERENCE AND GENERAL MEETING
“THE
ROLE OF THE EAST AFRICAN JUDICIARIES IN THE ELECTORAL PROCESSES”
TRIAL AND MANAGEMENT OF ELECTION
PETITIONS BY COURTS: A CASE OF TANZANIA
By Hon.
Mr. Justice Robert V. Makaramba
A Paper to be presented at the Ninth EAMJA Annual Conference and General Meeting from the 11th – 15th
October, 2011 at the Imperial Resort Beach Hotel, Entebbe, Uganda
TRIAL AND MANAGEMENT OF
ELECTION PETITIONS BY COURTS:
A CASE OF TANZANIA
By Hon. Mr. Justice Robert V. Makaramba
1.0INTRODUCTION
Let me take this
opportunity to present to you with greetings from Tanzania, the Land of
Kilimanjaro, the highest snow capped mountain in Africa. Tanzania is a nation, although
endowed with many tribal groupings, speaks one national language, the Kiswahili
language. Tanzania is endowed with many tourist attractions including the mighty
Serengeti National Park and Ngorongoro Crater. The latest addition to the
tourist fame of Tanzania is the traditional herbalist, “Babu wa Samunge” of
Loliondo with his miracle cure!
This paper however does
not intend to discuss tourist attractions. It discusses the role of the
Judiciary in Mainland Tanzania in resolving election disputes. Where
appropriate, the Paper makes reference to Tanzania Zanzibar, the other
constituent entity of the United Republic of Tanzania, famous for its variety
of spices and spotless beaches. The Paper discusses the role of the courts in Tanzania
Mainland in settling electoral disputes within a background of international
and national legal principles, thus providing a rich learning and knowledge
sharing experience with other judiciaries within East Africa gathered here
today.
1.1 Why Elections?
Elections
not only do allow for political competition, participation and legitimacy, but
also permit peaceful change of power, thereby making it possible to assign
accountability to those who govern. This is why it is often argued that
elections facilitate communication between the government and the governed, and
also have symbolic purposes by giving voice to the public.
Generally,
elections give the mass of the people opportunities to have a say in who
governs them and how and with which policies they are governed. As means of
giving accountability to citizens, elections are a constant reminder to public
office holders of the limited nature of modern government. Public elections
allow the citizenry the opportunity to exercise their broadly constitutionally
guaranteed right to take part in the governance of the country, either directly
or through representatives freely elected by the people in conformity with
procedures laid down by the law. Public
elections therefore are the periodically manner in which citizen exercise their
right and freedom to participate fully in the process leading to the decision
on matters affecting them, their well-being or the nation. The right to vote is not however, enjoyable
by every citizen. It is a reserve of only those who have attained the age of
eighteen years (the age of majority), who according to our Constitution and the
electoral laws are entitled to register and vote in any election held in
Tanzania. The right to vote however is subject to the Constitution and the law
in force in Tanzania in relation to public elections.
2.0
THE CONCEPTUAL FRAMEWORK
2.1
The Tanzania Electoral System
Tanzania
adheres to a mix of the electoral system known as the “first-past-the-post”, for
members of parliament elected to represent constituencies and some semblance of
“proportional representation” with respect to special member seats. Under the
first-past-the-post electoral system, the winner is determined by a plurality,
that is, majority vote. Members of Parliament representing constituencies are
elected by the people, on the principle of only one Member of Parliament in a
constituency.
Developments
affecting the electoral system, method and rules of counting votes to determine
the outcome of elections, winners may be determined by a plurality, a majority
(more than 50% of the vote), an extraordinary majority (a percentage of the
vote greater than 50%), or unanimity] of any country are therefore bound to
reflect one way or the other on the party system, and vice versa.
Elections
are primarily a contest among groups, mainly registered political parties. It
is the existence of such groups, which Tanzania like our neighbours, is not
short of, organized and operated along democratic traditions that give meaning
to the electoral process as the cornerstone of liberal democratic politics. Electoral
and party systems are hence, necessarily
intertwined as both are designed to facilitate peaceful and orderly transfer of
political power. Party politics within a democratic setting are, indeed, "intrinsically electoral politics." The
judiciary ultimately is called upon to adjudicate on disputes arising from the
electoral process.
2.2
International Election Dispute Resolution Standards
Resolving
election disputes involves both national and some international standards that
are found across the wider spectrum of election related rights and rules and
those associated with due process of law requirements and judicial
independence. Generally speaking however, there are no international election
disputes standards per se. The right to challenge decisions, actions or
failures to act in connection with an election, may be considered as part of
the voting rights. The right to seek redress however, is of little value
without, among other things, an impartial and independent judiciary that can
enforce the laws equitably and efficiently. This also infers that the
requirements of due process of law are met by fair procedures, including notice
to the defendant and an open trial before a competent tribunal with the right
to counsel.
Generally
accepted international human rights standards, which have been developed based
on international legal instruments such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and
Political Rights (ICCPR)(1966), and the African
Charter on Human and Peoples Rights (ACHPR) find expression in our national
law in the form of constitutional recognition under Article 9(f) of the Union
Constitution, the upholding and preservation of human dignity in accordance
with the spirit of the Universal
Declaration of Human Rights as well as the enforceable Bill of Basic Rights and Duties in Part III of Chapter One of the 1977 Constitution of the United
Republic of Tanzania (as amended from time to time).
The
United Republic of Tanzania is a member to and has ratified the ICCPR and a
number of other global and regional human rights instruments. The main
challenge Tanzania like most common law countries faces is to domesticate
ratified international treaties. Tanzania is still salutary to the weak common
law dualist theory that international law and domestic law are separate legal
systems. If international law is not transformed into national law through
legislation, that is, domesticated, national courts cannot therefore apply it
to adjudicate on the rights of citizens. Our neighbours in Kenya, through the
new 2010 Constitution of Kenya, which the People of Kenya “gave themselves” on
27 August 2010, innovatively has done away with the “albatross around our necks” by
declaring categorically that international treaties ratified by the Kenyan
Government to be a source of law and
general principles of international law to form part of the law of Kenya.
The
1977 Constitution of the United Republic of Tanzania incorporates a number of
enforceable fundamental human rights in its Bill of Rights and Duties.
Tanzanian courts have, on a number of occasions, refused to be held back by the
dualist theory by holding that the Constitution incorporates the Universal
Declaration of Human Rights as well as other global and regional human rights
treaties, which courts should consult when interpreting provisions in the Bill
of Rights and Duties.
2.3
The Right to Participate in Governance and Democratic Legitimacy
There
are international standards enshrined in international human rights instruments
which now find expression in our Constitution particularly Article 21 which
recognizes and gives force to the citizens' potential to participate in
political outcomes and to elect officials who represent their interests or
desires in representational bodies. Article 21 of the Constitution provides as
follows:
“21.-(1) Subject to the provisions of Article 39, 47 and 67 of this
Constitution and of the laws of the land in connection with the conditions for
electing and being elected or for appointing and being appointed to take part
in matters related to governance of the country, every citizen of the United
Republic is entitled to take part in matters pertaining to the governance of
the country, either directly or through representatives freely elected by the
people, in conformity with the procedures laid down by, or in accordance with,
the law.
(2) Every citizen has the right and the freedom to participate fully
in the process leading to the decision on matters affecting him, his
well-being or the nation.” (the emphasis is mine).
Article
21(1) of our Constitution domesticates Article 25(b) of the International Covenant
on Civil and Political Rights (ICCPR). Article 25 of the ICCPR provides as
follows:
“25.
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a)
to take part in the conduct of public affairs, directly or through freely
chosen representatives ;
(b)
to vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors ;
(c)
to have access, on general terms of equality, to public service in his country.”
Furthermore,
the right to vote is enshrined in Article 5(1) of the Constitution, which
provides as follows:
“5.-(1)
Every citizen of the Untied Republic who has attained the age of eighteen years
is entitled to vote in any election held in Tanzania. This right shall be
exercised in accordance with the sub article (2), and of the other provisions
of this Constitution and the law for the time being in force in Tanzania in
relation to public elections.”
Article
5(1) of our Constitution which expressly recognises the right to vote however, falls
in the unenforceable part of the Constitution. The right to vote under Article
5(1) of our Constitution and “the right to take part in matters pertaining to
the governance of the country, either directly or through representatives
freely elected by and to participate fully in the process leading to decision on matters affecting the citizen, the citizen’s well-being or the nation
in Article 21 of our Constitution creates what can be termed as “democratic
legitimacy.” Public elections are in my view the most direct expression
and embodiment of democratic legitimacy which is an opportunity for the
citizens periodically to have a say in who governs them and how and with which
policies they are governed.
2.4
The Necessary Elections Elements
Generally
there are certain elements which inform elections which find expression under
Article 25(b) of the ICCPR on the right and opportunity, “to vote and to be elected at
genuine periodic elections which shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing the free expression of the will of
the electors.” Article 25(b) of the ICCPR gives a binding force to
Article 21 of the 1948 non binding Universal Declaration of Human Rights (UDHR)
which stipulates as follows:
“1.
Everyone has the right to take part in the government of his country, directly
or through freely chosen representatives.
2.
Everyone has the right to equal access to public service in his country.
3.
The will of the people shall be the basis of the authority of government; this
will, shall be expressed in periodic and genuine elections which shall be held
by universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures.”
In
my view, Article 25(b) of the ICCPR which recognizes the contents of Article 21
of the UDHR contains at least two distinct matters: firstly, the necessary elements for elections,
and secondly, the idea of an electoral cycle or a time-span during which the various
elements for elections shall be implemented. The election
elements/standards included in paragraph (b) of Article 25 of ICCPR can be
organised in an order which is more or less chronological as follows:
·
Periodic elections: Election of elective bodies of popular representation at state level and
local government authorities’ bodies; and elective offices to be held within
the periods established by the constitution and laws. In our case, the
presidential term is for two terms only. The life of parliament is five years
with no limitation on re-election.
·
Genuine elections: It means real political pluralism, ideological diversity and a
multi-party system realized through the functioning of political parties whose
lawful activity is under the legal protection of the state. In Tanzania only
political parties with full registration can nominate and sponsor candidates
for public elections. Political
coalitions for purposes of election such as was the case previously in Kenya
are not legally permissible in Tanzania.
·
Universal suffrage: Each citizen, who has attained to the age established by the
constitution, laws, has the right to elect and be elected. In the case of
Tanzania the statutory age for being eligible to vote is eighteen years and the
legally permissible age for contesting the post of Member of Parliament is 21
years and for that of presidential post 40 years.
·
Equal suffrage: Each voter has one vote or the same number of votes as other voters.
·
Direct suffrage: Citizens directly vote for the candidate and/or list of candidates or
against the candidate, candidates, list of candidates or against all candidates
and/or lists of candidates.
·
Secret vote/ballot: Exclusion of any control whatsoever over the expression of the will of
voters, assurance of equal conditions for making a free choice.
·
Free expression of the will
of the voters: The supremacy of the constitution is
the basis for holding free elections and for making it possible for citizens
and other participants in the electoral process to choose, without any
influence, coercion, threat of coercion or any other unlawful inducement,
whether to participate or not to participate in elections in the forms allowed
by law and by lawful methods, without fear of any punishment or mistreatment regardless
of voting returns and election results, as well as the basis for the legal and
other guarantees of strict observance of the principle of free elections in the
course of the entire electoral process. The participation of a citizen in
elections is supposed to be free and voluntary. Candidates, political parties
and other participants in the electoral process must bear responsibility to the
public and the government in accordance with the constitution and law.
·
Fair Elections: There must be equal legal conditions to all participants in the
electoral process. Fair elections guarantee:
(a) universal and equal suffrage;
(b) equal
possibilities for participation of each candidate or each political party in an
election campaign, including access to the mass information and
telecommunications media;
(c) fair and
public funding of elections, election campaigns of candidates, political
parties; (in Tanzania as per the Elections Expenses Act, political parties
themselves shoulder the burden of funding for their election campaigns)
(d) honest voting and vote counting;
(e) rapid
provision of full information about voting results and timely official
publication of all election results;
(f) organization
of the electoral process by impartial election bodies, working openly and
publicly under effective public and international observation;
(g) prompt and
effective adjudication of complaints about violation of electoral rights and
freedoms of citizens, candidates, political parties to be performed by courts
and other duly authorized bodies within the time frame of the appropriate
stages of the electoral process.
2.5
The Electoral Cycle, Political Rights and Electoral Rights
On
the basis of paragraph (a) of Article 25 of ICCPR, the right to participate in
the conduct of public affairs is a continuous right. The attribution of a
continuous character to the right to participate through elections strongly
underlines the fact that the simple act of voting on “Election Day” does not
exhaust
elections nor consume this part of participation.
Rather, the continuous character of elections implies that elections are an
on-going process of a cyclical nature: when one election has been completed and
those elected have assumed their seats, the process will start again from the
beginning.
The
extension of elections far beyond the immediate act of voting also has wider
implications. It makes it necessary to take into account a number of other
human rights closely linked to the right to participation. The so-called
political rights of freedom of association, freedom of assembly and freedom of
speech are brought into the election context in a more substantive manner by a
cyclical understanding of elections and through the requirement of the genuine
nature of the elections. The human rights linked to the right to participate
find expression in our Constitution and are enforceable as such.
I
wish to point out here that there is a reference in Article 25(b) of the ICCPR
to the right to be elected. However, in comparison with Article 21 of the UDHR,
the provision is a novelty. In my view, Article 25(b) of the ICCPR does not however
imply that citizens have a subjective
right to become members of any elected body, but rather that all
citizens qualifying under the provisions of the law should have not only the
right but also the opportunity to stand as a candidate. The right to stand for
election in my view also includes recognition of the right to stand as an independent candidate, which is recognized in
Kenya and Uganda but not in Tanzania where constitutionally it is mandatory
for a candidate in presidential, parliamentary and local government elections
not only to be a member of a political party but also to be nominated and
sponsored by a political party. I shall revert to a brief discussion on the
right to stand as an independent candidate in Tanzania at a later stage in this
Paper.
3
THE MANAGEMENT OF
ELECTIONS AND TRIAL OF ELECTION PETITIONS IN TANZANIA
3.1 Introduction
Constitutionally, the
United Republic of Tanzania, which is among the five members of the revived
East Africa Community (EAC), is a “united
sovereign state” of two constituent entities, Tanzania Mainland and
Tanzania Zanzibar. Despite the seemingly unity nature of the
union state structure, the management of elections and trial of election
petitions in Tanzania however, is enmeshed in dualism. The National Electoral
Commission (NEC) exercises overall management over union presidential and
parliamentary elections and over Councilor elections for Mainland Tanzania. The
Zanzibar Electoral Commission (ZEC), on the other hand is the body entrusted with
the overall mandate over elections of members of the House of Representatives
and local authority elections in Tanzania Zanzibar.
The judicial
architecture in Tanzania similarly shares in this dualism, with the judicial
system in Tanzania Mainland being distinct and separate from that of Tanzania
Zanzibar, with
each constituent judiciary having its own Chief Justice, system of laws and
courts, save however, for the Court of Appeal of Tanzania, which was established
in 1979 following the breakup of the former East African Community, thus ending
the mandate of the defunct East African Court of Appeal (EACA). The Court of
Appeal of Tanzania (CAT) handles appeals in all types of cases from all types
of courts and Tribunals in Tanzania Mainland and in Tanzania Zanzibar, except appeals
in Islamic law matters originating from the High Court of Zanzibar.
The resultant dualism in
Tanzania in the legislative, judicial and electoral management system, traces
its origins in the “Union”, which resulted from the merger of the two erstwhile
international entities, Tanganyika and Zanzibar whose existence ceased on the
26th of April 1964, when their former leaders, the Late Mwalimu
Julius Kambarage Nyerere and the Late Abeid Aman Karume, signed the “Articles
of the Union” creating a new international legal person known as the United
Republic of Tanzania (URT). It is as from that date that the former Republic of
Zanzibar lost its international identity.
3.2The Management of
Elections in Tanzania
In
Tanzania, the procedure for conduct of public elections and for resolving
electoral disputes other than those concerning presidential election results is
firmly embedded in legislation and its attendant rules. The legal framework for
the electoral process provides a peaceful way of succession to power. It is in
this regard that the 1977 Constitution of the United Republic of Tanzania as
amended from time to time vests on Parliament, a representative body of people’s
power (sovereignty), with the legislative competence to ensure that laws are
enacted to make public elections freely and fairly conducted. Pursuant
to this delegated legislative power, the Parliament of Tanzania has passed a
set of electoral laws which make provisions for the management of the electoral
process for the election of the president, members of parliament and
councillors in local government authorities.
The electoral process is prone to disputes
both pre, during and post elections. Courts play a vital role in resolving
disputes arising from the electoral process. However, the role of courts in
determining disputed elections is indeed very limited. This is so because
courts have to carry out the role carved for them in the Constitution and
electoral laws to determine whether the grounds for avoiding the election as
set out in the petition have been established to the standard required in the
law, which in an election petition as we shall later come to realize is much
higher than in normal civil suits. Under our Constitution, it is for the
judiciary to determine the meaning of the law enacted by Parliament. The courts
in dispensation of electoral justice therefore do no more than to discharge
these limited functions under the Constitution and the electoral laws.
In
Tanzania, like in many commonwealth countries, Parliament has entrusted to a
“reluctant judiciary”, the rather limited task of determining disputed
elections, a task carried out by the High Court and subordinate courts. The constitutionally
assigned role of the judiciary as custodian and guardian of standards of
legality and due process is to interpret and apply the law to resolve among
other disputes, election petitions contesting results of parliamentary and
local government elections without fear or favour and expeditiously. The
function of a court in an election petition however, as I intimated to earlier is
fairly a limited one. The court is required to determine the issues which have
arisen on the election petition upon grounds and on consequences laid out in
the electoral and petition laws and rules. A detailed discussion of the rules
however, is beyond the reach of this Paper.
I
should emphasize here however, that it is for the electorate to determine whom
it wishes to elect in a free and fair election. This is entirely consistent
with the constitutional principles derived from the doctrine of separation of
powers and the rule of law, that it is
for the courts to determine the meaning of the law enacted by Parliament and apply
it to a set of given material facts. The discharge of its fact finding and law
interpreting role in an election petition albeit limited as it is, this has to
be consistent with the constitutional principle that it has always been the
role of courts of law to determine the meaning of the law enacted by
Parliament.
It
is trite also to be emphasized here that the general principle underpinning
trial of election petitions is that they must be determined with utmost
urgency, which is why the amended electoral laws and the new 2010 Election
Petition Rules contain very strict time lines for hearing and determining
election petitions. Finality in the determination of an election petition is of
great importance for the electors to have a representative in Parliament or in
the local authority council, particularly where majorities are small, in which
case the absence of a Member or a Councillor can be significant. Furthermore,
we should not lose sight also of the fact that the decision of a court in an
election petition declaring the status of the election is a judgment in rem,
and in that sense it is final and binding on the whole world.
The
most critical issue in a trial of an election petition is to consider whether
the outcome of the election will be such that most “participants” (both voters
and candidates) will perceive the officially announced results as reflecting
the wishes and aspiration of the voters, and that where this was not the case,
that there is a capable and honest judiciary to assuage the grievances of the
losers. The 1977 Constitution of the United Republic of Tanzania actually
contain provisions for judicial outlets for the resolution of electoral
grievances. These judicial outlets have been complemented by institutional
reforms aimed at insulating the judiciary and judges from politics and
political influences particularly by prohibiting membership in political
parties by judicial officers. This probation is now constitutionally provided
for in Article 113A of the Constitution as follows:
“113A. It is hereby prohibited for a Justice of Appeal, a Judge of the
High Court, a Registrar of any grade or a magistrate of any grade to join any
political party save only that he shall have the right to vote which is
specified in Article 5 of this Constitution.” (the emphasis is mine).
The
above constitutional provision not only cements the constitutionally recognized
principle of separation of powers but also that of the independence of the
judiciary and judicial officers in their actions. The bar on active
participation in politics by judicial officers however, does not affect the
exercise of their right to vote. It is only through the ballot box judicial
officers can express their political preference and since this is secret it is
hard to tell who preferred which political party in the election.
3.3The Jurisdiction of
Courts in Resolving Electoral Disputes
The
Constitution stipulates clearly under Article 83(1) that in election matters,
all election complaints, except complaints pertaining to a presidential
election, shall first be heard by the High Court in respect of parliamentary
elections. Article 83 of the Constitution provides as follows:
“83.-(1) Every proceeding for the purposes of determining the question
whether –
(a) the election or appointment of any person to be Member of Parliament
was valid or not; or
(b) a Member of Parliament has ceased to be a Member of Parliament and
his seat in the National Assembly is vacant, or not, shall, subject to the
provisions of sub-article (2) of this Article, first be instituted and heard in
the High Court of the United Republic.”
The
jurisdictional basis for the High Court in conducting trial of election
petitions not only is statutory but constitutionally stipulated. Article 83(4)
of the Union Constitution provides further that a petitioner dissatisfied with
the decision reached by the High Court can appeal to the Court of Appeal, which
has the final say in all matters including election petitions, except
presidential elections, which under the Constitution cannot be contested in any
court of law.
Despite this limitation, the courts in Tanzania have worked relatively well to
secure the neutrality, independence of and respect for the judiciary when it
comes to dealing with election petitions.
In
Tanzania perhaps different from England, there is no “Election Court” in the
sense of a court specifically constituted to hear only an election petition
whose task terminates with the finalization of the petition. Across the border
in Kenya, the Chief Justice is empowered to constitute the court for hearing
election petitions.
In
Tanzania, the jurisdiction of courts for conducting the trial of election
petitions is statutorily provided for in the electoral laws. Statutorily there
are only two courts which are specifically designated and vested with original
jurisdiction to hear and determine election petitions. These are the High Court
of Tanzania for parliamentary election petitions and the courts of Resident
Magistrates or designated District Courts for local authorities (Councillor)
election petitions. Although these
courts are not referred to specifically in the electoral laws as “election
courts”, for our purposes however, we can safely refer to the High Court as a “parliamentary
election petition court” (PEPC) and a Resident Magistrates’
Courts or District Court as “local authorities election petition court”
(LAEPC) respectively. Both courts enjoy original jurisdiction in parliamentary
and local government election petitions. They are the only courts in the country
specifically enjoined by law to declare void the election of a Member of
Parliament or a Councillor upon stipulated grounds.
In
Tanzania the only legally allowed procedure for challenging the election
results of Member of Parliament or a Councillor is by way of an election
petition presented either to the High Court or to the Resident Magistrate Court
depending on what kind of election results a petitioner wishes to challenge. In
the case of avoiding the election of a Member of Parliament, section 108(2) of
the National Elections Act [Cap.343 R.E. 2010] provides as follows:
“108(2)
The election of a candidate as a Member of Parliament shall be declared void
only on an election petition if the following grounds is proved to the
satisfaction of the High Court and on no other ground, namely-“ (the emphasis is mine)
In
the case of election of a Councillor, section 107(1) and (2) of the Local
Authorities (Elections) Act, [Cap.292 R.E. 2010] provides as follows:
“107(1)
The election of a candidate as a member shall not be questioned except on an
election petition.
(2)
The election of a candidate as a member shall be declared void on any of the
following grounds which are proved to the satisfaction of the court.”
3.4The Jurisdiction of Courts
in NEC Functions
In
Tanzania public elections are managed by two institutions, the National
Electoral Commission (NEC) which is established under Article 74(1) of the 1977
Union Constitution comprising of members appointed by the President and the
independent Zanzibar Electoral Commission (ZEC) established under the 1984
Constitution of Zanzibar as amended. NEC manages the conduct of presidential,
parliamentary (both on the Mainland and in Zanzibar) and councillor elections
(on the Mainland). ZEC on the other hand manages the conduct of presidential
and union parliament members as well as members of the House of Representatives
and local authorities (shehias) for Tanzania Zanzibar.
In
terms of Article 74(12) of the Union Constitution, courts of law are barred
from inquiring into “anything done by the Electoral Commission in the discharge of its
functions in accordance with the provisions of this Constitution.” In
order to give the National Electoral Commission some semblance of independence,
Article 74(14) of the Constitution, categorically stipulates that “persons
concerned with the conduct of elections” are prohibited from joining
any political party, save only that each will have the right to vote. In
Tanzania, the National Electoral Commission is the only institution with the
mandate to announce election results for presidential, parliamentary and
councillor elections. In ATTORNEY-GENERAL
AND TWO OTHERS v AMAN WALID KABOUROU
however, the Court of Appeal of Tanzania held among other things that:
“The
High Court of this country has a supervisory jurisdiction to inquire into the
legality of anything done or made by a public authority, and this jurisdiction
includes the power to inquire into the legality of an official proclamation by
the Electoral Commission (tamko rasmi).
In
its reasons in support of the findings on ground number one in both memoranda
of appeal concerning the validity of the Tamko Rasmi the Court naturally
started by considering whether courts of law have jurisdiction to inquire into
the validity of the “Tamko Rasmi” in view of the
provisions of sub-article (12) of article 74 of the Constitution, which as
amended by Act 4 of 1992 ousting the jurisdiction of the High Court “to inquire
into anything done by the Electoral Commission in the exercise of its functions
according to the provisions of this Constitution.” The Court observed at [1996] TLR p171 per NYALALI CJ (as he
then was), that
“On
the face of it, it appears that the Constitution expressly prohibits the courts
from inquiring into the validity of such things like the Tamko Rasmi, but on a
deeper consideration of the principles that underlie the Constitution, it is
obvious that such an interpretation of the Constitution is wrong. One of the
fundamental principles of any democratic constitution, including ours, is the
Rule of Law, the Court noted. The Principle is so obvious and elementary in a
democracy, that it does not have to be expressly stated in a democratic
constitution.”
In
that case the Court of Appeal of Tanzania was satisfied and made a finding that
the High Court in this country, like the High Court in England, has a
supervisory jurisdiction to inquire into the legality of anything done or made
by public authority, such as the Tamko Rasmi. As a corollary, this
Court has similar jurisdiction to do so in a matter properly before it, as in
the present case, the Court further reiterated.
3.5The Jurisdiction of High
Court in Presidential Election Results
The
issue of jurisdiction of the High Court to enquire into election of President
came up for consideration in AUGUSTINE
LYATONGA MREMA AND OTHERS v ATTORNEY-GENERAL AND OTHERS (Maina J, Kyando J, Mackanja J), where the
Court stated categorically that the provision of Article 41(7) of the
Constitution ousted the jurisdiction of the High Court to inquire into the
election of the President once the National Electoral Commission had declared
the election results. In that case, the petitioners sought declaratory orders
in the High Court that the whole electoral process nationwide be nullified;
that the electoral Commission be reconstituted after some condition was
fulfilled; that fresh general elections be held nationwide; that the third and
fourth respondents be barred from participating in any elections for five
years; and for ancillary relief. The petitioners contended that the misconduct
complained of had been made throughout the country and in almost every
constituency; that the Presidential election was
involved in the petition; and that once a Presidential candidate was declared
elected, the jurisdiction of the Court was ousted.
The
former Chief Justice, the late Francis Nyalali in Kaborou Case [1996] TLR p.176 explained the omission in the
amendment to Elections Act of procedures for invalidation of presidential
elections as “puzzling, since in multi-party Presidential Elections, such lacunae is
an invitation to political chaos.” The former Chief Justice hoped that
appropriate amendments of the relevant law would be made before the forthcoming
multi-party presidential elections. This however did not happen and the last
nail on the coffin of presidential election petition was put by the Court of
Appeal of Tanzania in its recent decision in THE
HONOURABLE ATTORNEY GENERAL AND REVEREND CHRISTOPHER MTIKILA (Dar Es Salaam)
(unreported), a seven panel member decision handed down on the 17th
day of June, 2010.
3.6The Issue of Independent
Candidates in Tanzania
The
nagging issue in Tanzania since the incorporation of the Bill of Rights and
Duties in the Constitution in 1984 has always been whether constitutional
provisions can be declared unconstitutional by the High Court, itself a creature
of the very Constitution whose provisions it is sought to declare unconstitutional.
This “chicken and egg question”
recently received a judicial answer by the Court of Appeal of Tanzania in THE HONOURABLE ATTORNEY GENERAL AND REVEREND
CHRISTOPHER MTIKILA where
the Court stated as follows:
“In our case, we say that the
issue of independent candidates has to be settled by Parliament which has the
jurisdiction to amend the Constitution and not the Courts which, as we have
found, do not have that jurisdiction. The decision on whether or not to
introduce independent candidates depends on the social needs of each State
based on its historical reality. Thus the issue of independent candidates is
political and not legal.”
The Court of Appeal
therefore elected to categorize the issue of independent candidate as being
political rather than legal and therefore not fit for judicial determination
but parliament. It is unfortunate that the Court does not give us the benefit
of knowing why the issue of independent candidate is political and not legal.
The decision has had some legal pundits crying foul that in deciding so
technically the Court of Appeal abdicated from its constitutional role of
administering justice.
Clearly,
the decision of the Court of Appeal has reversed the progressive approach in REV. CHRISTOPHER MTIKILA V ATTORNEY
GENERAL
by Lugakingira, J., the first landmark decision on independent candidacy
for presidential post, which thirsty continued to be quenched by a Panel of
three judges of the High Court (Manento, J.K.; Massati, J. and Mihayo, J.) in Misc. Civil Cause No. 10 of 2005 in
their decision dated 5th day of May, 2006 on independent candidate which
gave rise to the appeal in Civil Appeal
No.45 of 2009, which decision is now being contested in a “petition” lodged
by a group of legal enthusiasts at the African Court on Human and Peoples Rights,
yet to be determined. In the meantime, the fate of independent candidate for
presidential elections remains as uncertain as ever.
3.7Access to Electoral
Justice
3.7.1
Who may petition in an election petition
The
electoral law in Tanzania give a very wide locus standi in electoral petitions. The provisions of the law regarding who is eligible to launch a petition
after an election if dissatisfied with the result or the conduct of the
election are stipulated under section 111(1)(a)-(d) of the NATIONAL ELECTIONS
ACT [Cap.343 R.E. 2010] for parliamentary elections, and section 110(1)(a)-(d)
of the LOCAL AUTHORITIES (ELECTIONS) ACT [Cap.292 R.E. 2010], for Councillor
elections. In terms of these provisions of the law, an election petition may be
presented to the High Court (in respect of for parliamentary elections results)
or the Resident Magistrates’ Court (in respect of for Councillor election
results) by one or more of the following persons-
“(a) a person who lawfully voted or had a right to vote at the election
to which the election petition relates;
(b) a person claiming to have had a right to be nominated as a candidate
or elected at the election to which the election petition relates;
(c) a person claiming to have been a candidate at the election to which
the election petition relates;
(d)
the Attorney-General.”
The law by broadening the common law doctrine of locus standi may bring
in what Lord Denning was famous of saying “meddlesome interlopers” who have no
genuine interest who might be used by some troublesome persons bent on causing
chaos in governance. It is mainly for this reason that the law also introduced
higher rates for security for costs as safety valve and sieving mechanism to
ensure that only serious minded people would approach courts to petition
against election results.
3.7.2
Payment of Security for Costs
The
law in Tanzania as is the case for Kenya make security for costs a condition
precedent for courts to hear an election petition.
The
constitutionality of security for costs has also received judicial
determination in JULIUS ISHENGOMA
NDYANABO VS ATTORNEY GENERAL, where the Court of Appeal of Tanzania struck
down section 111(2) of the National Elections Act, 1985, for being
unconstitutional. In that case the Court declared that the sum of money which a
petitioner is required to pay as security for costs in a parliamentary election
petition is still TZS 500,000 (five hundred shillings). The Government responded
immediately by tabling a Bill in Parliament which finally got passed into law as
the Written
Laws (Miscellaneous Amendment) Act No.2 of 2002 amending section 111 of
the National Elections Act [Cap.343 R.E. 2010]
putting even more stricter conditions for security for costs in election
petitions. The amending law effected some amendments in the two principal elections
legislation in section 111 of the National Elections Act, in my view has dealt
a severe blow on would be petitioner who now have to dig even deeper into their
pockets to cough up money for security for costs. Section 112(2) of the
National Elections Act provides categorically that:
“111(2) The Registrar
shall not fix a date for the hearing of any election petition unless the
petitioner has paid into the court as security for costs, an amount not
exceeding five million shillings in respect of each respondent.”
Under
the amended law, a petitioner in a parliamentary election petition now has to
pay into court as security for costs a maximum amount of TZS 5,000,000/= “in
respect of each respondent”, and not “in respect of the election petition” as
previously was the case before the amendment. A petitioner in an election
petition to challenge the election results in councillor election is also now required
to pay a maximum of TZS 500,000/= as security for costs in respect of each
respondent, before the court can fix a date for hearing of the petition.
The
2010 Election Petition Rules made pursuant to the Election Petition Laws are to
the effect that in every petition, the Attorney General must be must be made a
party as the respondent except for a petition presented by the Attorney
General, where the Attorney General may make all such persons parties to the
petition as respondents who are “likely to be adversely affected in the event
of the relief sought by the Attorney General being granted. Section 111 of the
Act exempts the Attorney General from payment of security for costs. The Court
of Appeal of Tanzania had opportunity in JULIUS
ISHENGOMA FRANCIS NDYANABO VS. THE ATTORNEY GENERAL Civil Appeal No. 64 of 2001 (unreported)
(Samatta C.J.) at pp.17-18 now reported
in [2004] TLR 14 to state as
follows:
(i)
In our view, the statutory
provision is a class legislation. It is also arbitrary and the limitation it
purports to impose on the fundamental right of access to justice is more than
is reasonably necessary to achieve the objective of preventing abuse of the judicial process. Plainly,
Parliament exceeded its powers by enacting the unconstitutional provision. Legislative competence is limited to making
laws which are consistent with the Constitution. These conclusions are
sufficient to dispose of the appeal, but we consider it useful to say a word or
two on the arguments addressed to us concerning the exemption granted to the
Attorney General by Section 111(3) of the Act.”
(iv) For the avoidance of
doubt, it must be distinctly stated that, since the subsection has been so declared, the provisions of Rule
11(3) of the Elections (Elections Petitions) Rules, 1971, as amended, are still
in force and, therefore, the powers conferred upon the High Court by those
provisions may, in appropriate cases, be invoked by the Court in favour of
petitioners. One of the results of Section 111(2) being struck down for being
unconstitutional is that the sum of money which a petitioner is required to pay
as security for costs in a parliamentary election petition is still five
hundred shillings.”
In PRINCE BAGENDA VS. WILSON MASILINGI AND ANOTHER
[1997] T.L.R. 220 (HC) at page 224 the
petition was allowed with costs to be taxed and the parliamentary elections
held in Muleba South in November 1995 were declared null and void and set
aside. The first respondent, Wilson Masilingi, was found not to have concerned
with the irregularities and malpractices. It was ordered that he be paid costs
by Attorney General, which costs were also to be taxed.
One
possible interpretation of the phrase “no
further proceedings shall be heard on the application” appearing in section
111(7) of the National Elections Act is that the phrase may mean that in the
event the applicant fails to raise the determined amount of security for costs
within the statutorily prescribed period of fourteen days following
determination by court of the amount payable as security for costs, there will
be no more proceedings for the applicant to be heard on the matter of security
for costs.
In
my considered view, despite the fact that the Government of Tanzania went
forward and enacted law essentially killing the reach of the decision of the
Court of Appeal with respect to the amount payable as security for costs in an
election petition, this does not however, prevent a further search and action
on the issue as to whether under the current constitutional dispensation in
Tanzania, it is the Constitution or Parliament which is supreme and
specifically the role of the judiciary as an impartial arbiter. Perhaps these
and other nagging constitutional issues will be tackled in the ongoing debate
on new constitutional order.
3.7.3
Grounds for Avoiding Election Results
The
relevant sections of the electoral laws on the grounds for avoiding elections
are found under section 108 of the National Elections Act, [Cap.343 R.E. 2010],
and section 107 of the Local Authorities (Elections) Act, [Cap.292 R.E. 2010].
There
are two critical issues which arise from the above provisions of the law. The
first one relates to the use of the phrase “…and no other grounds” in
sub-section (2) of section 108 of the National Elections Act [Cap.343 R.E.
2010], which seems to be restrictive as compared to the phrase “on
any of the following grounds…” appearing under subsection (2) of
section 107 the Local Authorities (Elections) Act [Cap.292 R.E. 2010] which
does not seem to restrict the grounds on which an election can be annulled.
The
second issue relates to the legal position on corrupt or illegal practice as
ground for avoiding an election. The law stipulates very clearly that the
election of a candidate “shall not by reason of any corrupt or illegal practice
be void but only for the court to certify to the Director of Elections or the
returning officer as the case may be with the consequence of only deleting such
person from the voters register. However, if a person is found guilty of
corrupt or illegal practice he or she is disqualified to contest presidential,
parliamentary, and councilor elections for a period not exceeding five years.
In
PRINCE BAGENDA VS. WILSON MASILINGI
AND ANOTHER [1997] T.L.R. 220 (HC) at page 224, the Court stated that
an election petition must be construed more strictly than a plaint in a civil
suit. This is so because (1) the right
to file an election petition is not a common law right but a statutory right;
(2) one of the respondents is a person who has been declared by the Returning Officer to have the confidence of
the electorate and the Courts are slow to interfere with such verdicts except
when a clear case is made out; and (3) where the petitioner establishes corrupt
practices, the successful candidate may not only be unseated but even
disqualified to stand as a candidate in future
elections Mogha's Law of Pleadings 14th Edition. Samatta J.K. (as he then was) endorses this
view in PHILIP ANANIA MASASI VS.
RETURNING OFFICER NJOMBE NORTH CONSTITUENCY AND OTHERS Misc Civil Cause No
7 of 1995 (High Court - Songea) (unreported).
3.7.4
Standard and Burden of Proof in Election Petitions
The
provisions of section 108(2) of the National Elections Act and 107(2) of the
Local Authorities (Elections) provide the standard of proof in trial of
election petition. It is proving any or all of the grounds for avoiding the
election to the “satisfaction of the court.” The level of the standard of proof
is more or less that which is applicable in trial of criminal cases, which is,
beyond any reasonable doubt. This settled legal position find expression in CHABANGA M. HASSAN DYAMWALE vs. ALHAJI
MUSA SEFU MASOMO AND THE ATTORNEY GENERAL where
Sisya J. (as he then was) observed that the term “proved to the satisfaction of
the court” means that the standard of proof must be such that no reasonable
doubt exists that one or more of the grounds set out in the relevant section
have been established.
In
the case of an election petition which is sui generis, the standard of proof is
over and above the normal standard and it is beyond any reasonable doubt. This
means that a petitioner in an election petition has tough burden of bringing
cogent evidence which will enable the court to be satisfied beyond any
reasonable doubt that an election is void. The rationale is that since the
court in an election petition is being asked to annul the choice of the
electorate and turn down their will while at the same time unseating a
candidate. This should not therefore be taken lightly but with the seriousness
it deserves. As it was stated in LUTTER
SYMPORIAN NELSON AND THE HON ATTORNEY GENERAL AND IBRAHIM MSABAHA the
burden is heavy on him who assails on election which has been concluded – he
must prove his case beyond any reasonable doubt. The standard of proof however
depends upon the seriousness of the allegation made and what is reasonable
doubt is always difficult to decide and varies in practice according to the
nature of the case
3.7.5
The Outcome of Election Petition
In
terms of section 113(1) of the National Elections Act and section 112 of the
Local Authorities (Elections) Act, at the conclusion of the trial of an
election petition or an appeal (in the case of the High Court or Court of
Appeal) the court has to make the following determinations:
- Whether the member (MP or Councillor)
whose nomination or election is complained of, or any other person; or
- Which person was duly
nominated or elected or
- Whether the election was
void.
After
making such determination, the court then has to certify it to the Director of
Elections in the case of parliamentary election or the Electoral Authority in
the case of election in local authorities. Upon such Certificate being given,
the determination becomes final and the election will either be confirmed or a
new election will be held as the case may require in accordance with the
certificate.
Under
the existing electoral laws, it is not open for a court after trial of an
election petition to declare any other candidate other than the one whose
election has successfully been challenged as having been duly elected. The only
recourse open is therefore for the electoral authority to call for and hold of
a bye-election, which as we all know comes with a price on the economy. The
issue is whether the law should be changed to empower the court to declare
another candidate duly elected instead of only certifying and thereafter a
bye-election is held.
4
Conclusion
As
I stated in my opening statement, elections not only do allow for political
competition, participation and legitimacy, but also permit peaceful change of
power, thereby making it possible to assign accountability to those who govern. In the electoral
process, disputes are bound to arise whose settlement is the province of the courts.
The right to challenge decisions, actions or failures
to act in connection with an election, may be considered as part of the voting
rights. The right to seek redress however, is of little value without, among
other things, an impartial and independent judiciary that can enforce the laws
equitably and efficiently.
