The Right to Vote (Enfranchisement/Universal Suffrage) in Tanzania: ‘A new’ Challenge in the on-going ‘KATIBA Debate’? Twenty (20) Critical Questions to Consider

Jaba Shadrack, UDSM - School of Law

Critical issues:

(1) voting right (v/s polling stations) in 'armed forces' (i.e. JWTZ, Police Force, KMKM, and etc);

(2) voting right in Prisons (i.e. convicted and remandees, etc.);

(3) voting right in Zanzibar: resident/residence permit issue for 'Tanganyikans' and vice versa;

(4) special groups and associated problems: elders/elderly, physically challenged persons (vulnerable groups) etc;

(5) the Voters' register and the right to vote;

(6) procedures for declaration/introduction of new constituencies;

(7) the cost of being an oppositional supporter/voter: registration and voting problems in Tanzania;

(8) Secrecy of the ballot and the Right to vote;

(9) independence of the Electoral Commission;

(10) exercising the right to vote: voting at polling stations (in personal), postal ballot, absent voting by proxy;

(11) right to vote and voting education;

(12) right vote in Mandatory/optional referendum;

(13) right of citizen to vote in recalling (irresponsible) representatives before general election or expiration of their terms;

(14) Takrima syndrome;

(15) by-election in constituencies where respective representatives have passed away;

(16) by-election in constituencies where respective representatives have been recalled or impeached by own political parties;

(17) fairness of a representative ceasing being one by a mere fact that he/she has been impeached by own political party (and not the electorate);

(18) right to vote vis-a-vis the right to be voted into office: private candidate dichotomy and age limit;

(19) the legal basis (and safeguards) of the right to vote in Tanzania; and

(20) procedures to be followed in objecting a person to exercise his right to vote (or to be voted for).

THE COURTS' JURISPRUDENCE ON THE RIGHT TO VOTE (AND TO BE VOTED FOR): SOME GUIDING CASE LAWS

(1) Where substantial numbers of voters are denied their right to vote

NG'WESHEMI v. ATTORNEY – GENERAL Misc. Civ. Cause 5-M-70; [1971] HCD No. 251

(Onyiuke, J)

This is an election petition presented by Ng'weshemi the unsuccessful candidates at the Parliamentary election in the Karumo Constituency. The petitioner received 7700 votes and the successful candidate polled 7707, and thus a majority of 7 votes. The grounds of challenge were generally that (a) there were more votes counted then the number of registered voters: (b) there was failure to keep the pool open at some of the polling stations; (c) there was failure to provide screened compartments wherein electors could cast their votes secretly: (d) a substantial number of voters were denied the opportunity to vote.

Held: (1) [After going through the evidence and finding the irregularities proved] "The final point is to consider the effect of these irregularities on the result of the election. Section 123 provides as follows:- "The election of a candidate as a member shall be declared void on any of the following grounds which are proved to the satisfaction of the Court, namely:- (C) non –compliance with the provisions of this Act relating to election, if it appears that the election was not conducted in accordance with the principles laid down in such provisions and that such noncompliance affected the results of the election". A corresponding section (s. 99) of the National Assembly (Elections) act, No. 11 of 1964 has been discussed in a series of decisions of this Court. (MBOWE v. ELIUFOO [1967] E. A. 240; BURA v. SARWATT [1967] E. A. 234; See also the decision of SAIDI J. (as he then was) in Re K.A. THABITI [1967] E. A. 777 in District Council election). In the light of these authorities I would hold that the question whether noncompliance with the provisions of the act relating to elections affected the result of the election would depend on the nature of the particular complaint or irregularity and on the margin of victory. Where a specific irregularity has been proved and the number of votes affected established with some provision, then allowance should be made for that and if after such adjustments have been made the successful candidate still retains some margin of victory then the irregularity has not really affected the result of the election in BURA v. SARWATT, cited above, it was proved that 480 votes which would have been cast for the petitioner were spoilt because the presiding officer, contrary to the provisions of the Act, recorded more than one vote on behalf of some of the illiterate electors by putting a (V) mark against the name of the candidate of his choice and an (X) mark against the name of the candidate for whom he did wish to vote; these votes were conceded to the petitioner and yet the successful candidate still had a majority of about 46 votes. It was held that the irregularity did not affect the result of the election. Where, however, the complaint goes to the root of free election such as a case of organized campaign or undue influence, and it appears that a substantial number of votes were obtained thereby, then since the full extent of such wrong practice may never be known the Court may be inclined to hold that it affected the result of the election without proof of actual reversal of the result (MBOWE v. ELUFOO, Re: K.A. THABITI cited above. Lastly, the non –compliance may not be substantial and may have no effect on the result of the election as it merely creates conditions which are the same for the candidates. Such was the case where some electors were, contrary to the revisions of the Act, switched from one polling station to another solely to relieve pressure on the former (BURA v. SARWTT at page 238). I now proceed to apply the above principles to the issues raised in this case." (2) "On issue (5) it was clearly established that there was a surplus of 56 votes. One cannot say for whom those votes had been cast and considering that he successful candidate had a tiny Majority of 7 votes any adjustment in favour of the petitioner would clearly affect the result of the election. I hold that the petitioner succeeds on this ground." (3) "The petitioner also succeeds on Issue (3). The failure to keep the poll open at the Rugarama Mission polling station contrary to the provisions of the act affected a number of voters in that it deprived them of the opportunity to cast their vote. One the evidence 30 to 40 voters, at least, were affected and had they voted it cannot be said that their votes could not have affected the result of the election having regard once again to the margin of victory." (4) "As to Issue (2), the failure to provide screened compartments wherein the electors could cast their vote secretly, screened from observation, contravened the principle of the secrecy of the ballot but considering that it affected 4 out of 106 polling stations and there was no question of any sinister motive, it cannot be said that it affected the result of the election. The conditions were the same for both candidates. Had it affected a majority of the polling stations then one may possibly say that this was not really an election as envisaged by the Act. I dismiss this ground." (5) "The petitioner must also succeed on Issue (1). A substantial number of voters were denied the opportunity to vote and had they voted the result of the election could have been affected having regard to the narrowness of the margin of victory." (6) Petition allowed. Elections declared void.

GIGEUS v. THE RETURNING OFFICER, BABATI & Hon. MARKE MISC. CIV. CAUSE 10-A-70; 22/6/71; [1971] HCD No. 242

(Bramble J. and Kwikima Ag. J.)

This is a petition challenging the outcome of the 1970 General Elections in Hanang Constituency where the petitioner was defeated by a majority of 6, 956 votes. The grounds of objection were inter alia that the election and count of votes was not conducted in accordance with the Election Act 1970 in that: (a) c/s 71 (b) and (c) of the Act no polling took place in 10 named polling stations; (b) the presiding officer failed to put official marks at the back of some 8 ballot papers which were counted; and (c) because of the disregard of prescribed procedure and lack of proper supervision more than 3,000 registered voters did not exercise their right to vote.

Held: (1) "There were no presiding officers and therefore no voting in six of the ten polling stations named by the petitioner." (2) "There was no proof of the petitioner's allegation that more than 3, 000 voters were unable to cast their votes for lack of adequate supervision, the voters registered at those stations where there was no or inadequate supervision does not approach that number. The figures given for six stations had less than 2,000 registered voters." (3) "That the unstamped votes in the boxes listed above were counted (which has been proved) was clearly in contravention of the express provisions of the Act, because section 89(2) (a) states as following: "Any ballot paper which does not bear an official mark, shall not be counted." (4) "The action of the respondent (in allowing the counting of the unmarked votes) was a purely administrative error and an irregularity done with no corrupt motive. As such it could not be an illegal practice under the Act." (Referring to ss. 117(2) and 118 which define "illegal practice" which could be fatal to an election). (5) "The petitioner did not specify any section to the Act under which the elections was to be avoided……. What the petitioner has proved could only come under section 123(3) (c) which states as follows: [the learned judges then set out the provisions of the act and continued] All that the petitioner has done in this case has been to show that the returning officer caused some 2,000 voters or so not to cast their votes and that he was in breach of three of four Sections relating to the procedure at the counting of votes.

The majority which the successful candidate obtained against the petitioner was 6, 956. We are not convinced that with such a substantial majority against the petitioner, compliance with the rules of procedure at counting would have enabled the petitioner to defeat the successful candidate" (even assuming that 2,000 or so voters who did not vote had voted); (6) Petition dismissed.

NGOWI v. THE RETURNING OFFICER. MOSHI AND LUCY LAMECK Misc. Civ. Cause 9-A-70; 22/6/71; [1971] HCD No. 238

(Bramble J. and Kwikima Ag. J.)

The petitioner, being the unsuccessful candidate for the Moshi Constituency in the parliamentary general elections of 1970 sought to have the election declared void because of certain irregularities and contraventions of the Elections Act 1970. He alleged: (a) that without proper and justifiable grounds there was held election for the second time in 12 polling stations contrary to rules and regulations and without giving the voters proper notification of the change of date; (b) that four ballot boxes had no seals and two others had their seals tempered with c/s 73(2); (c) that 58 boxes did not have proper accompanying envelopes and eleven had no envelopes; and some other administrative irregularities. The petitioner relied on s. 123(3) (c) of the Election act which permits an election to be declared void on the ground of; "non-compliance with the provisions of this act relating to elections, if it appears that the elections was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of election."

Held: (1) "In U. Ofera v. Returning Officer and Banya [1961] E. A. 455, Sir. A. McKisack, C. J. expressed doubts as to what is meant by "in accordance with the principles laid down", which phrase occurs in the corresponding section 46 of the Legislative Council (Election) Ordinance of Uganda which is identical with the section quoted above. The section seems to follow section 12(2) of the Representative of the Peoples act 1948 in England which says: - [their Lordships then set out the provisions of the section and continued]….. As pointed out in the Ofera case the law did not specify any principles laid down" should be interpreted as meaning "Substantially in accordance with the Law." As to non-compliance affecting the result of election we are guided by the dictum of Kennedy, J. in the Islington West Case (1901) 17 T. L. R. 210 that:- "An election ought not to be held void by reason of transgressions of the law without any corrupt motive by the returning officer or his subordinates in the conduct of the election where the court is satisfied that the election was, notwithstanding those transgressions, an election was really and in substance conducted under the existing election law, and that he result of the election, that is, the success of the candidate over the other was not and could not have been affected by those transgression." (2) (Using those guidelines) "The first point is whether an election was really and in substance conducted under the existing laws in Moshi Constituency. There were 176 polling stations in the Constituency. At its highest the petitioner's case was that there were twelve stations where the fullest opportunity was not given to voters to cast their votes either through the non-provision of facilities or opening and closing outside the declared hours; that there was a breach of the law in adjourning or fixing a date for the voting at some or other of these twelve stations to a date other than that declared as Election Day. The petitioner did not show what proportion of the electorate was affected, but from the evidence, as it is, it will be safe to conclude that the election was substantially conducted according to law………we have to consider the election in the whole Constituency and whether any particular reach of the Laws substantially affected it in that it touched a large proportion or a majority of the electorate and as a consequence the result was affected ……. The majority in this case was 2792; there was no proof of the number of registered voters in the stations questioned and we cannot say that the result was affected having regard to the large majority." (3) Petition dismissed.

Summary: Causing some voters not to cast votes does not lead to avoiding elections if majority of successful candidate is greater than number of votes prevented.

EMMANUEL ABRAHAMU NANYARO v. PENIEL OLE SAITABAU [1987] TLR 47 (CA). At p. 59 MAPIGANO Ag JA, MUSTAFA JJA AND OMAR JJA

"Understandably we were not addressed on the issue of disenfranchisement. We have read the evidence pertaining to this point and we may briefly say this. We entirely agree with the finding of the trial judge that only 60 people were unable to exercise their right to vote, on account of the shortage of ballot papers at Olkungwedo and Ambaroni polling stations. This did not affect the results of the election, given the margin of victory."

Obiter dictum: Election results cannot be affected if the margin of victory votes is greater than the number of disenfranchisement vote.

See also: DYAMWALE v. MASOMO [1982] TLR 69; KASUSURA v. KABUYE [1982] TLR 338 and MUJUNI JOSEPH KATARAIA v. SAMWEL NTAMBALA LUANGISA AND ANOTHER [1986] TLR 53 (CA)

(2) The Voters' register and the Right to vote

GERVAS MASOME KULWA v. THE RETURNING OFFICER AND OTHERS [1996] TLR 320 (HC)

Per MACKANJA J, p. 324, "In my view of the law I have considered above, anyone who is qualified to register as a voter can only vote if he is registered. So the law creates two rights. The first one is the right to register as a voter; the second one is the right to vote after registration as a voter. In my construction of s 110(a) a person who can present a petition is that who registered to vote. It does not matter if he exercised his right to vote or not. In any case the right to vote can be exercised in the ward in which the petitioner was registered, and the interest he can pursue by an election petition challenging the election results will be limited to the ward in which he was registered to vote."

(3) Right to vote and voting education (illiteracy)

IN RE PETITION BY K. A. THABIT, MISC. CIV. 5-D-67; -/6/67; SAIDI J. [1967] HCD NO 167

Petitioner, the unsuccessful candidate in the election to the seat in Ward 10 of the Rufiji District Council, prays that the election be declared void, because the election symbols given to him and his rival were reversed on the ballot papers. Petitioner had been given the symbol "House", his opponent was given the symbol "Hoe". The Returning Officer testified that 75 per cent of the voters in the Rufiji District were illiterate and were guided by the symbols rather than the names of the candidates. Petitioner received 31 votes to 267 of his opponent.

Held: It cannot be surely said that the results would be reversed had the symbols been aligned with the proper names, so the petitioner cannot be declared elected.

The fairest solution would be to hold the election afresh, and the High Court so ordered.

YONGOLO v. ERASTO AND ATTORNEY-GENERAL MISC. CIV. CAUSE 6-M-70; 16/7/71; [1971] HCD No. 259

(El-Kindy Ag. J.)

This was a petition challenging the results of the parliamentary elections in Sikonge constituency on the grounds mainly that; (a) the presiding officers engaged in illegal practice during voting by (i) voting for some illiterate voters without showing the voters that they marked the ballot papers according to their choices, (ii) voting for some voters who were literate and able to vote for themselves; (b) the presiding officers engaged in undue influence in following voters into the voting enclosure where the voters were supposed to exercise their rights to vote freely and secretly and by advising and/or urging and/or exerting influence on voters to vote for the candidate of their choice. The allegations were not proved but evidence emerged that; (a) there was no screened compartment at one polling station (Kawale) and that anyone could observe how a voter cast his vote which arrangement contravened section 71(d) Elections Act 1970; (b) the presiding officer was present in the screened from at Chaubwa Barazani polling station on a number of occasion without any cause. The issue was whether these non-compliances with the law affected the results of the elections. The petitioner polled 7,389 votes while the successful candidate polled 8, 057 votes winning by a majority of 668 votes.

Held: (1) The illegal practice and undue influence alleged against the presiding officers were not proved. (2) "The party which seeks to avoid election results, has to prove, to the satisfaction of the court, that there was non-compliance with the provisions of the Elections act 1970……and that such non-compliance affected the results….I would respectfully agree and endorse the views of the learned judges (Georges C. J. and Banmerman J. as they were then) in the case of MBOWE v. ELIUFOO [1967] E. A. 240 that "proved to the satisfaction of the court" means proof beyond reasonable doubt, and that is the standard of proof which the petitioner has to discharge in this petition if he is to succeed." (3) "The next issue therefore is whether this noncompliance with the provisions of the law affected the results of the election. On this legal point I was ably addressed by both learned counsel, and I am grateful to both counsels as I have already said. The case of MBOWE v. ELIUFOO (1967) E. A. p. 240, passages from the commentary at page 116 paragraph 942 of ENGLISH & EMPIRE DIGEST Vol. 20, HALSBURY'S LAWS OF ENGLAND 3rd Edn, Vol. 14 at page 150, 159 and paragraph 289, and the case of WOODWARD v. SARSONS (1948) 2 All E. R. page 503 were quoted in the course of this submission. Although I avoid quoting these leaned opinions in this petition, I take them into account on the issue. But, it seems to me that it is a futile exercise to attempt to define what the statutory provision means by the phrase "affected the result of the election" and probably in the course of such attempt the borderline might be unduly affected. In the case of MBOWE v. SARWATT (1967) E. A. p. 240, the learned Chief Justice (as he then was) attempted to define a similar phrase as it hen appeared in s. 99 of the National Assembly (Elections) Act, No. 11 of 1964, so it can be seen from this passage, at page 242:- "In my view in the phrase 'affected the result', the word 'result' means not only the result in the sense that a certain candidate won and another candidate lost. The result may be said to be affected if after making adjustments for the effect of proved irregularities the contest seems much closer than it appeared to be when first determined. But when the winning majority is so large that even a substantial reduction still leaves the successful candidate a wide margin, then it cannot be said that the result of the election would be affected by any particular noncompliance of the rules." And at page 245 (para2 from bottom) the same learned judge said:- "In these circumstances, it is not necessary for me to define exactly what the term 'affected the results of the election' would mean in this particular case, and I would certainly refrain from doing so as this is a matter of some difficulty. We would prefer to leave the matter open in the event that in another petition the facts proved raise this issue more precisely for determination." In this passage, the attempt was abandoned as the matter was of "some difficulty and it was found unnecessary to define "exactly what phrase meant. In other words, this court did not In fact define what this phrase meant. This position was subsequently confirmed in the case of BURA v. SARWATT (1967) E. A. p. 234. In that case, the previous case of Mbowe was quoted to the same learned Chief Justice (as he was then). While he did not wish to resile from the stand he took in the case of Mbowe, he clearly said that the decision in Mbowe's case should be seen in its context here the allegations were of unlawful campaigning and undue influence. This passage seems to me to confirm that this Court did not find it expedient to define a similar phrase. Nor do I think that it is necessary in the case in hand to attempt such a definition since whether or not the results of the election were affected, would depend on the facts of the case and the allegations made. Effects on the results could be several and varied in form so that what could be said to have amounted to any effect on a case in one case may not be so in respect pr another with different set of facts . a similar position appears to have been taken in the recent petition in the case of NG'WESHEMI v. KISENHA, Misc. Civ. cause No. 5 of 1970 (unreported as yet) (see [1971] H.C.D. 251). In my view, the non-availability of screened compartment at Kawale polling station and the presence of the presiding officer in the screened chamber at Chabutwa Barazani polling station in the circumstances of this petition did not affect the results of the election in this petition. I would say the same thing even in connection of Chabutwa Barazani where the actual number o people who voted were not known. Even if one assumed that the 300 people, who were expected to vote at Chabutwa Barazani, were conceded for the petitioner, the first respondent would still be the successful candidate. "(4) "Two other matters need be stressed …. The right to vote is the sacred tight of the people, and it is only exercised once in every five years in normal circumstances. If the people are to express their choice in the true spirit of free elections, they ought to be served with the necessary care and requisite knowledge. Station should not have occurred if the presiding officer had been sufficiently careful, diligent and had acted with the necessary knowledge which one presumes to have been given to him. The majority of our people are illiterate and it is important that their expressions of free choice should not be destroyed or hampered by such carelessness of or lack or deficient knowledge of election officials. And more important the work has to be done consciously and with the necessary knowledge." … "And, finally, people who are related to either candidate, as it happened in the case of Ernest Nkulu, wherever it was practicable should not be chosen to hold key positions, such as that of a presiding officer, in election. This would avoid unnecessary suspicion of partisanship on the part of such persons. I hope these criticisms will be taken into account in future organisation of elections." (5) Petition dismissed.

(4) Importance of the Right to vote

PRINCE BAGENDA v. WILSON MASILINGI AND ANOTHER 1997 TLR 220 (HC)

Per Masanche J, p. 224 (quoting Lugakingira, J., in JOSEPH SINDE WARIOBA'S case) that "the franchise is the very cornerstone of democracy; it is the one right, perhaps more than any other, upon which all other constitutional rights depend for their effective protection. When the right to vote is denied or abrogated, democracy and freedom fail."

J.K. NYERERE, Our leadership and the destiny of Tanzania, African Publishing Group, Harare, 1995, pp 9-10.   

"This is very dangerous. Where can we stop? If one section of the Bill of Rights can be amended, what is to stop the whole Bill of Rights being made meaningless by qualifications of, and amendments to, all provisions? I am saying that the basic Rights of the Citizens of this country must be regarded as sacrosanct. The right to participate in Government is essential to democracy. The Right to vote and the Right to stand for elective office are Rights of Citizenship."

(Extracted from Pal Ahluwalia & Abebe Zegeye (2001) "Multiparty Democracy in Tanzania: Crises in the Union", in the African Security Review: Vol. 10 No 3)

(5) Legal basis of the Right to vote in Tanzania

ATTORNEY GENERAL AND OTHERS v. WALID KABOUROU [1996] TLR 156 (CA)

Per NYALALI CJ, p. 172 "....It is also implicit from the provisions of the Constitution concerning the people, such as the preamble envisaging a representative parliament elected by the people; Article 5 on the franchise or the right to vote; article 8(1)(a)(c) and (c) on sovereignty of the people, democracy, accountability to the people and people's participation in their government; Article 21 on the fundamental right to participate in the affairs of the government either directly or through freely elected representatives, that there is an underlying constitutional principle that requires democratic elections to be free and fair."

(6) Procedures to be followed in objecting a person to exercise his right to vote

Rule 12 of the Elections (Election Petitions) Rules 1971 which provides: [Ref. P. 255 of Arusha Kalwa and Five Others v. Wilbroad Slaa and another [1997] TLR 250 (CA)]

(7) Right to vote vis-a-vis the right to be voted into office: private candidate dichotomy

Rev. C. Mtikila Cases, [1995] TLR 31 HC - Dodoma, [2006] Unreported civil case, & HC - DSM, [2010] unreported civil case, CA – DSM.

(8) Prisoners' Right to vote

CANADIAN CASE OF LEVESQUE v. ATTORNEY-GENERAL OF CANADA, et al [1985] 25 DLR 184, a serving prisoner claimed and sought to enforce a right to vote. It was held that he had such a right, and the question arose whether an order of mandamus would issue to enforce it. Rouleau J, held (at 191–192):

"If the Canadian Chatter of Rights and Freedoms, which is part of the Constitution of Canada, is the supreme law of the country, it applies to everyone, including the Crown or a Minister acting in his capacity as a representative of the Crown. Accordingly, a fortiori the Crown or one of its representative cannot take refuge in any kind of declinatory exception or rule of immunity derived from the common law so as to avoid giving effect to the Chatter".

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