Court of Appeal reinstates DEDs as electoral body’s returning officers

Dar es Salaam. The Court of Appeal has revoked the ruling by the High Court of Tanzania which prohibited the district executive directors from being election returning officers on behalf of the National Electoral Commission (NEC).

Following the ruling, the directors will therefore continue to be district returning officers on behalf of NEC, for the general elections.

The judgment was delivered yesterday at the Court of Appeal in Dar es Salaam by three judges -- Judge Dr Atuganile Ngwala who was the chairman of the team of judges, Judge Benhajj Masoud and Judge Farmni Matogoro.

However, one of the defence lawyers, Mr Jebra Kambole, said he was not satisfied with the Court of Appeal judgment and his team was contemplating what action to take.

“This is a constitutional case, and the matter at hand is a basic right. This is not the end of it. We are going to going to brainstorm on our next course of action,” Kambole said.

On May 10, this year, the High Court of Tanzania nullified the Article 7 and 7(A) of the National Elections Act (Cap 343 of 2010) which allowed the directors to be electoral commission’s returning officers. The constitutional case was filed in 2018 by Bob Chacha Wangwe challenging the constitutionality of the said articles.

Mr Wangwe told the High Court that the act contradicts with section 21 (1), 21 (2) and 26 (1) of the Constitution of the United Republic of Tanzania.

He argued that the directors are appointed by the President of the United Republic of Tanzania, who is also the chairman of a political party.

However, the government filed the appeal against the judgment on July 30, presenting 11 reasons before a team of five judges including Judge Augustine Mwarija Judge Stella Mugasha, Judge Richard Mziray, Judge Rehema Mkuye and Judge Jacobs Mwambegele.

The ruling to revoke the High Court judgment, which was read by an assistant registrar of Court of Appeal, Ms Elizabeth Mkwizu, said the court agreed with five out of eleven reasons by the government.

Among the five reasons filed by the government said the clause which allows the DEDs to be election returning officers does not contradict with the constitution, which was the basis of the High Court judgment.

The Court of Appeal also agreed with the government reasons provided by the team of lawyers, led by the Solicitor General Dr Clement Mashamba.

Among other things, the team of appellant lawyers said the High Court judgment did not show ‘without reasonable doubts’ how the disputed Election Act contradicted the Constitution.

The team of appellant lawyers also said not all DEDs were appointed by the President as it was claimed by plaintiff at the High Court, instead, the President appoints city directors only and others were appointed by the minister responsible for public service.

They insisted that even if they were appointed as returning officers, there are legal procedures which they had to take before they were commissioned to represent the National Electoral Commission.

The procedures include taking oath to declare that they were not members of any political party and they would work without favour.

However, the team of defence lawyers led by Ms Fatma Karume said the High Court judgment delivered on May this year was right.

She said the Election Act sections did not only contradict the Constitution but also created an environment for the election to be non-free and unfair elections.