What next for unopposed MPs, councillors after court ruling?
- Judges say that the laws unjustly prevented people from exercising their constitutional right to vote for their representatives
Dar es Salaam. The High Court has declared unconstitutional laws that allow members of parliament and councillors who won elections unopposed to represent citizens.
In the 42-page judgement, judges John Mgetta, Benhaj Masoud and Edwin Kakolaki said the laws unfairly restricted citizens from exercising their constitutional right to elect representatives by casting votes.
“The impugned provisions violate Article 21 of the Constitution as they introduce new situations restricting people from exercising their right to vote and freely electing a candidate nominated by a political party in a constituency or ward where there is a sole candidate,” said judges John Mgetta, Benhaj Masoud and Edwin Kakolaki.
The court said in a landmark decision delivered on Wednesday that the disputed laws “have introduced another category of members of parliament elected by virtue of being the sole nominated candidates, against Article 61 (1) of the constitution.
The decision follows a constitution petition filed in 2021 by the deputy secretary general of the opposition, ACT-Wazalendo, Joram Bashange, against the Attorney General (AG) and the National Electoral Commission (Nec).
Mr Bashange was challenging the validity of Section 44 of the National Elections Act and Sections 45 (5) and 13 (7) of the Local Government (Elections) Act that allow uncontested candidates for the position of Member of Parliament and councillorship to represent the constituency and the ward.
The petitioner believes it was against the constitution for the law to allow such an arrangement while a sole presidential candidate is elected by vote in a secret ballot and is not, as such, declared unopposed or uncontested.
Through his lawyers, Mpale Mpoki, Melchzedeck Joachim and Daimu Halfani, the petitioner argued that the category of unopposed or uncontested candidates for members of parliament and councillors of a ward was a creation not found in the constitution.
Allowing such candidates, he said, was a clear violation of the right of the citizen to vote, to elect representatives, and to participate in public affairs through representatives to the parliament and the local government authority.
Yesterday, Mr Bashange said the decision has restored constitutional rights that had been robbed from citizens using discriminatory laws.
Principal State Attorney, Hangi Chang’a, strongly opposed the petition, arguing the restrictions on the right to vote and elect representatives, among other reasons, were for economic purposes as they were cost-effective and inclusive.
The state lawyer also argued that the arrangement was for a legitimate purpose, was in the public interest and was necessary for a democratic state.
It was his further submission that the petitioner had ‘miserably’ failed to prove his case by the use of factual evidence and failed to demonstrate how the challenged laws violated complained rights guaranteed by the Constitution.
“The allegation against the impugned provisions, which render uncontested candidates as elected, could not simply be raised by the petitioner alone since they relate to the majority voters, who do not seem to have any complaint with the said provisions,” argued Mr Chang’a.
He invited the court to consider the experience obtained from Uganda, Pakistan, Malawi, Kenya, Zambia, Zimbabwe and Ghana whose systems of uncontested or unopposed candidates were similar to the ones existing in Tanzania.
The judges reviewed, among other provisions of the law, articles 76 and 77 (1) of the Constitution concerning the requirement of holding elections in every constituency.
“We are convinced that the above provisions are to the effect that a member of parliament for any given constituency must be freely elected by the citizen unless there is a restriction allowed by the constitution,” they said.
The judges rejected the argument by the state lawyer that restrictions saved the cost of holding elections.
“To be sure, it was not shown how the saving of costs by the government by not engaging in costly elections where a nominated candidate is not opposed or contested is within any elements of Article 30 (2) of the Constitution.
“Even if it were so shown, we are still not persuaded that what the petitioner is seeking in this petition in relation to the impugned provisions prejudices the interests of the public,” said the judges.
The decision is likely to have caused joy among opposition political parties who claimed massive discrimination during the 2019 and 2020 local government elections and General Elections respectively, where over 25 CCM nominees for MP positions sailed unopposed.
On August 29, 2020, two months before the General Election was held, former CCM secretary general Dr Bashiru Ally announced that over 400 candidates nominated for councillor positions had passed unopposed.
On the other hand, a government notice published on October 16, 2020, revealed that 28 candidates nominated by CCM for legislative positions had won elections unopposed.
Those who won in an uncontested election include the Prime Minister, Kassim Majaliwa, the former Speaker of the National Assembly, Job Ndugai, as well as 10 other ministers and deputies.
The ministers include: Nape Nnauye (Mtama), January Makamba (Bumbuli), Juma Aweso (Pangani), Prof Palamagamba Kabudi (Kilosa) and the late Elias Kwandikwa (Ushetu).
The deputies are Pauline Gekul (Babati Urban), Jumanne Sagini (Butiama), Ridhiwani Kikwete (Chalinze), Josephat Kandege (Kalambo) and Godfrey Kasekenya (Ileje).
Other lawmakers who sailed unopposed include Casto Chumi (Mafinga Urban), Isack Kamwelwe (Katavi), Daniel Sillo (Babati Rural), Ahmed Shabib (Gairo), Godwin Kunambi (Mlimba) and Edward Kalogeries (Morogoro South).
Also on the list are Hamis Taletale (Morogoro South East), Zeeland Jonas (Mvomero), Alexander Mnyeti (Misungwi), Edwin Swalle (Lupembe), Joseph Mhagama (Madaba), Iddi Kassim (Msalala), Philip Mulugo (Songwe), Rehema Migilla (Ulyankulu) and Dr Hamis Kigwangala (Nzega Rural).
Efforts to reach CCM’s top leaders to comment on the development proved futile yesterday.
The main opposition Chadema secretary general, Mr John Mnyika, said the decision has provided another critical piece of evidence for the need to review electoral laws and the constitution.
“This issue needs to be critically considered in the new constitution-making process. The so-called unopposed candidates were being used to sabotage the opposition,” he said.
He cautioned against relaxing and celebrating the decision, saying they would not be easily willing to implement the court decision as the experience has taught them, citing the delay in implementing the decision that has allowed independent candidates to contest elections in Tanzania.
Former Tanganyika Law Society (TLS) president Rugemeleza Nshalla said the invalidated provisions of the laws should not wait for the blessing of the parliament to operate.
When reached for a reaction, the Attorney General, who is the chief government legal advisor, Dr Eliezer Feleshi, declined to give the government’s position on the decision, saying he needed time to go through the decision before doing so.
Additional reporting by Louis Kolumbia