The main election stakeholders were the National Election Commission (NEC), the Zanzibar Election Commission (ZEC) and the Registrar of Political Parties.
The TLS letter said the intention of reviewing the general election was to discuss and gather views which it could later use, in accordance with its statutory mandate, to advise the government and the public on matters relating to law.
Towards that end, TLS said it conducted a post-mortem of the 2015 general elections for the United Republic of Tanzania and the Revolutionary Government of Zanzibar to explore legal challenges encountered during the elections and propose remedial measures.
The post-mortem, which was conducted through a public dialogue, brought together seasoned legal experts, members of the academia, politicians, civil society, religious leaders, retired civil servants and the general public from both Tanzania Mainland and Zanzibar.
After lengthy submissions, recommendations and counter-arguments, members from the floor and presenters observed that the 2015 general elections were marred by numerous incidences of violating laws of the land.
It was agreed that the 2015 elections were dominated by unprecedented peaceful campaigns and voting process compared to previous elections since the adoption of the multiparty system in 1992.
As for the United Republic of Tanzania elections, the following legal challenges were identified:
Massive violation of the 2015 election rules of ethics that were accepted and ratified by all the parties which took part in the elections.
These included the use of abusive and ill-mannered language and utterances by campaign team members, some of them being persons held in high esteem by the public.
Though such statements could have sparked political hatred and unrest among the parties and their supporters, NEC, ZEC and the Registrar of Political Parties did not exercise their statutory mandate to condemn them.
According to local election observers, 188 incidences of using abusive language in campaigns were reported.
Outdoor campaign time was not adhered to, according to Regulation 39 (2) of the Elections Regulations of 2010. Rule 2.1. of the Election Ethics Rules of 2015 stipulates that outdoor campaigns should commence from 8:00 in the morning to 6:00 in the evening.
Numerous campaign rallies were however reported to have extended time up to 7pm.
TLS said it was its considered opinion that these small violations of the law which go without being condemned breed and nurture a culture of lawlessness in the society.
Unwarranted delays in pronouncing election results at the ward and constituency levels by Returning Officers and their authorized assistants were another noted challenge.
Several incidences of delayed pronouncement of election results were reported by different media houses and local election observers.
Such delays were reported to have occurred at Mbagala on the outskirts of Dar es Salaam city, Mbozi and Iringa Urban despite the fact that in some instances results were ready for pronouncement long time ago. Such delays if left to dominate our elections can raise suspicion, intolerance and finally lead to civil unrest.
Compared to previous elections, especially that of 2010, the PCCB was this time around very active and a number of corrupt politicians were arraigned.
Despite numerous reports and allegations of bribery by politicians, the PCCB remained silent, abrogating their vital mandate citing lack of enough resources to follow up the incidences.
From NEC statements, some parties missed the deadline for submitting their election expenses budgets and disclosing donations received as required by Section 9(2) and Section 11 of the Election Expenses Act of 2010.
Commenting on the Constitutionality of prohibiting citizens their right to follow up Election Day’s processes as per Section 104 (1) of the Elections Act Cap 343 which and the recent “200 meters case” ruling by the High Court of Tanzania.
Participants at the meeting were of the firm position that, such provision and ruling does not augur well for contemporary principles of democracy, transparency and public participation in key decision making.
TLS said it was its opinion that with all the security measures that were adopted and deployed during the 2015 elections and the general calmness of citizens, such prohibition served the public no good, but simply ended up creating suspicions and mistrust among political parties and their supporters.
TLS said it wished to bring to the attention of electoral bodies and other authorities in the country that Nigeria, despite the aggressive nature of their citizens, do follow up on an election at a polling station in a peaceful manner, thus building public trust and participation to the election processes.
Commenting on the non-adherence to the requirement to introduce independent candidates in all elective posts in Tanzania as ordered by the African Court of Justice in its 14th June 2013 judgment; following a joint application by the Tanganyika Law Society, Legal and Human Rights Centre and the Late Reverend Christopher Mtikila.
TLS said despite Tanzania being in the process of rewriting its constitution and that the proposed constitution provided for independent candidates, TLS solely believed that there was little political will and respect for the decision by the highest court of our continent.
Then arrangements would have been made to see the necessary provisions of the law and the constitution amended to allow independent candidates to vie in the 2015 general elections.
TLS said it was its solemn advice to all election stakeholders and the President of the United Republic of Tanzania, who has publicly averred to be a God-fearing and law-abiding citizen of this land, that firm measures be taken to ensure the foregoing anomalies do not repeat, come the 2020 general election.
Zanzibar, just like the Mainland, had their election to elect the President of the United Republic of Tanzania, President of the Revolutionary Government of Zanzibar, Members of Parliament, Members of the House of Representative and Councilors.
However, before the tallying and announcing process was over, the Chairman of the Zanzibar Election Commission Mr. Jecha Salum Jecha annulled the elections, alleging that they were marred with irregularities.
In an attempt to resolve the crisis, the two major opposing parties, CCM and CUF held several closed-door meetings in an effort to resolve the issue amicably.
However, to date no proper or promising feedback has come from the meetings. But the to the contrary, there have been conflicting statements given by both parties.
While the citizens are still in the dark about what transpired, the outgoing President of the Revolutionary Government of Zanzibar, Dr Ali Mohamed Shein, when addressing the public during the commemoration of the 52nd anniversary of the Revolutionary Government of Zanzibar announced that there will be an election re-run in Zanzibar.
And ZEC Chairman, Mr Jecha, did not only confirm the president’s statement, but he went on to announce the date for an election rerun to be March 20, 2016.
Following the nullification, Zanzibar has for almost past four months been entangled in a political and constitutional crisis that has had adverse effects to its economy and the social life of citizens.
TLS and other legal experts in the country, including ZLS, the East African Law Society (EALS), Tanzania Human Rights Defenders’ Coalition (THRDC), Legal and Human Rights Centre (LHRC).
And other private legal experts have called on the Zanzibar Revolutionary Government and Union government to ensure that this constitutional and political crisis is dealt with amicably through mutually acceptable and negotiated solution.
TLS and other legal and human rights stakeholders reiterated their grievance s over ZEC chairman’s decision to annul the 2015 Zanzibar election results without providing vivid evidence to substantiate his claims that irregularities had taken place.
What is more, unfortunate as it were, the allegation by ZEC chairman were made despite positive assessments of electoral observation missions conducted by both local and external observers like the African Union, European Union, the East African Community and the SADC, to mention but just a few.
TLS said it was its firm position that Jecha usurped powers not vested on him by annulling the 2015 elections contrary to Article 119 (10) of the Constitution of Zanzibar which require that all decisions of the Commission to be seconded by majority members of the Commission.
What was done by Jecha was against this Article following statements made by the majority of members of the Commission soon after the announcement by Jecha disowning the decision to annul the elections.
TLS said they were equally concerned that the election re-run was announced while a dialogue between strong opposing parties was still going on.
“For the benefit of all Tanzanians, we reaffirm our strong belief that the current constitutional and political impasse in Zanzibar would be best addressed through a mutually acceptable and negotiated solution.
We are deeply concerned that the unilateral declaration of election re-run may lead to an escalation of intimidations, tensions and even worse, political unrest in Zanzibar.”
Unfortunately, both the Zanzibar Constitution and the Zanzibar Electoral Commission Act of 1984 ousted Courts jurisdictions to interfere with any decision or action taken by the Commission.
Article 119 (13) of the Zanzibar Constitution and Section 5 (6) of the Zanzibar Electoral Commission Act of 1984 are to the effect that no court of law shall have jurisdiction to inquire into the question whether the Commission has validly performed any function vested in it by both legislations.
These two provisions of the law are bad, create injustices and are geared at undermining the powers of the Courts.
However bad and unjust they are, still Jecha’s annulment of the 2015 election is not covered by these two provisions because he acted on his own and not on unilateral decision of the Commission as required by Article 119(10) of the Constitution of Zanzibar.
We continue to commend the population of Zanzibar for having excised calm and restraint to this date over this crisis.
We call on all parties and their supporters to continue to work together towards finding a peaceful solution.
It goes without saying that for an election to be fair and transparent, the electoral process must be credible, inclusive and representative. Under the current circumstances (bearing in mind that other parties like the CUF have announced their non-participation in the election re-run), it is difficult to ascertain whether the election re-run process will be fair, credible, inclusive and representative.
The TLS said owing to their statutory mandate of advising the government and the public in matters relating to the law.
It is their firm and considered opinion that proceeding with the election rerun without the participation of almost half of Zanzibaris who are CUF followers is to officiate at the violation of the rule of law of the highest order.
We therefore urge the Zanzibar Revolutionary Government, ZEC and the Union government to recall the announcement of the rerun date, resume previous dialogues for a negotiated solution between CCM and CUF facilitated by an impartial international mediator so as to ensure a peaceful outcome.
But, more importantly, to ensure the integrity of electoral processes in future.
• Attilio Tagalile is a journalist/author and media consultant and can be contacted through tagalileattilio@yahoo.co.uk
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