A landmark High Court judgment on Tanzania’s electoral law has just been set aside by five judges of the country’s Court of Appeal. At stake was a provision that allowed officials appointed by the President to become returning officers, acting on behalf of the electoral agency, during elections. Earlier this year, three High Court judges found the provision unconstitutional, saying it infringed the independence of the National Electoral Commission, the body intended to oversee elections in an impartial manner. Now the Court of Appeal has overturned the original decision, saying there are enough safety measures in place to make sure that the officers act with independence.
Read the judgment
The original case was brought by human rights defender Bob Chacha Wangwe, along with other human rights groups, opposition parties and the Tanganyika Law Society.
In the view of Wangwe and those who supported the application, the several disputed sections of the National Elections Act amounted to so serious an infringement of the constitution that they should be scrapped immediately ‘without allowing Parliament or the Government time to correct any defect in the impugned law’.
The applicants focused on the appointment of the director of elections, city directors, municipal directors and district executive directors as returning officers in elections.
All these officials, however, are appointed by Tanzania’s President, they said. Without proper safeguards to ensure that they are independent in relation to all election matters, their role as returning officers infringed the constitution, Wangwe argued. The challenged laws thus allowed elections to be ‘owned’ by the ruling party, so they were repugnant to ‘the very nature of a free democratic society’ in which citizens should be able to participate in free and fair elections.
The Attorney General on the other hand pointed to safeguards such as an oath of secrecy and the declaration that such officers had to make of ‘withdrawal’ from any political party.
In May 2019, after the High Court found in favour of Wangwe, the attorney general and the national electoral commission appealed, and it is that appeal that has now been decided, with judgment delivered this week.
Counsel for the government raised 11 different grounds of appeal, five of which, rather technical questions related to the pleadings and the role of the high court, were dismissed virtually out of hand by the appeal court bench.
However, the appeal judges disagreed with the holding of the High Court that the directors automatically became returning officers. They pointed out that a director first had to take an oath of secrecy and make a ‘declaration’ that ‘he is not a member of any political party or that he has withdrawn his membership from a policy party’.
They also quoted from the argument of counsel for the government: at one time the NEC appointed returning officers from outside the public service but this proved unsatisfactory due to issues like cost, limited office space and ‘expertise in the electoral processes management’. Because of those negative experiences, returning officers are now drawn from within the public service.
Photographs from a by-election showing certain returning officers wearing regalia of the ruling party were also in dispute. Although the high court accepted the pictures as evidence that active party members doubled up as returning officers, the appeal court found that the photographs had not been proved.
It was not possible for Wangwe to claim personal knowledge that all 75 returning officers were active members of the ruling party, said the appeal judges. He could not have been in all the constituencies to see the returning officers for himself, and did not disclose on whose evidence he might have relied for that information.
Instead, the appeal judges accepted the argument of the government, namely that those individual directors may have been ‘participating in politics’ before their appointment (as returning officers) but, once appointed, ‘they will automatically be restricted from engaging in political activities’.
The judges said it was clear that the real issue was not the absence of safeguards ensuring that the returning officers were impartial. Rather it was whether ‘the available safeguards are insufficient and impracticable’.
It was speculative and ‘based on apprehension’ to say that directors, appointed by the President, could not be impartial. Wangwe’s application did not produce any evidence to prove otherwise and so the personal impartiality of the directors should have been presumed by the High Court unless otherwise proved.
The appeal court concluded that the petition did not show that the measures taken to ensure impartiality were ineffective. They thus set aside the decision of the High Court but, because the matter ‘involved a public interest litigation’, made no order as to costs.