This is an appeal from the decision of the High Court of
Tanzania (Main Registry) at Dar es Salaam dated 10/5/2019 in Miscellaneous
Civil Cause No. 17 of 2018. In that case, the Respondent petitioned the High
Court challenging the constitutionality of sections 6(1), 7(1) and (3) of the
National Elections Act [Cap 343 R.E. 2002]. He sought an order declaring the
said provisions of the National Elections Act, Cap 343 unconstitutional for
offending Articles 21(1), (2) and 26 (1) of the Constitution of the United
Republic of Tanzania, 1977 as amended (hereinafter the Constitution). The
application was preferred by way of an originating summons under sections 4 and
5 of the Basic Rights and Duties Enforcement Act [Cap 3 R.E. 2002] (the
BRADEA), rule 4 of the Basic Rights and Duties Enforcement Rules, 2014 and
Articles 26 (2) and 30 (3) of the Constitution. The grounds upon which the
petition was based were stated by the Respondent in the originating summons. Referring
to the rights and duties enshrined under articles 21(1), (2) and 26 (2) of the
Constitution, he contended that the basic rights guaranteed therein are
violated by sections 6(1), 7(1) and (3) of the NEA. The particulars of the
breach were stated in paragraphs 7 - 29 of the grounds of the petition on which
the learned counsel for the Respondent anchored her submission at the hearing
of the petition.
The grounds essentially challenged appointment of the Director
of Elections, (the D.E), City Directors, Municipal Directors and District
Executive Directors (the Directors) to become Returning Officers. It was
contended that, since the D.E. and the Directors are appointed by the President
of the United Republic of Tanzania (the President) and considering that the NEA
does not set out any safeguards to ensure that they are independent from their
appointing authority in matters of election, their role as Returning Officers
offends the provisions of articles 21 (1), (2) and 26 (1) of the Constitution.
It was contended further that the process of appointing the D.E. and the
Directors has enabled the appointing authority to have the Returning Officers
who are members of the ruling party - Chama Cha Mapinduzi (CCM) thus violating
the citizens’ right of free and fair elections because, from being affiliated
to their political party, such Returning Officers would not act independently
vis-a-vis the other political parties.
The Appellant disputed the claims that sections 6(1) and 7(1)
and (3) of the NEA are unconstitutional. The Appellants submitted that, except
for the City Directors who, under s.ection 5 of the Public Service Act, No. 8
of 2002 are appointed by the President, the other Directors are appointed by
the Minister responsible for Local Government. According to the learned Counsel
for the Appellant, even though section 7(1) of the NEA makes the Directors to
become Returning Officers, under section 7(1), the National Electoral
Commission (NEC) may appoint by office or name, any person amongst the public
officers to become Returning Officers. Counsel explained that the power vested
in the NEC under section 7 (2) of the NEA is intended to ensure that the NEC
replaces any Returning Officer who acts against the requirement of ensuring
that elections are conducted according to the law, including observance of the
safeguards stipulated under article 74 (14) of the Constitution.
It was argued further that before a Director assumes his duty as
a Returning Officer, he must, under section 7(5) of the NEA and regulation 16(1)
(a) and (b) of National Elections (Presidential and Parliamentary Elections)
Regulations, 2015 GN. No. 307 of 2015 (the Regulations), take an Oath of
Secrecy and make a declaration that he has not joined a political party or that
he has withdrawn from membership of a political party, if he had joined any. It
was the Appellants’ contention that from those measures, the contention that
the Directors become Returning Officers automatically and that they cannot act
independently, is not correct.
Other safeguards, it was argued, include firstly, existence of
standing orders for public service which prohibit the employees, members of the
NEC and Returning Officers from participating in politics and secondly, the
process of counting votes as provided under sections 57 and 70 -71 of the NEA
which inter alia, allow appointment of agents of political parties and
candidates at polling stations. It was the Appellants’ case therefore, that
from those safeguards which ensure that the provisions of article 74 (14) of the
Constitution are not breached, sections 6(1) and 7(1) & (3) of the NEA do
not infringe article 21(1) (2) and 26(1) of the Constitution.
The High Court held that the provisions of section 7(1) and (3)
of the NEA violate articles 21(1), (2) and 26(1) of the Constitution and
therefore declared them void for being unconstitutional and thus proceeded to
strike them out. The Appellants were aggrieved by the decision of the High
Court hence this appeal.