Petitioners say the decision lacks rigor and exposes the systemic issues within our judiciary, where judicial independence is compromised. Photo: Courtesy
Tanzania High Court Confirms Minister’s Control Over 2024 Civic Elections in Landmark Decision
By Adonis Byemelwa
In a landmark decision today, October 28, 2024, the High Court of Tanzania, Dar es Salaam Sub-Registry, dismissed Miscellaneous Civil Cause No. 19721 of 2024, a high-profile case brought by Tanzanians Bob Chacha Wangwe, Bubelwa Kaiza, and Dr. Ananilea Nkya, challenging the authority of the Minister of State in the President’s Office, Regional Administration and Local Government (OR-RALG), alongside the Attorney General, over local government election oversight.
At the heart of the petition was a dispute over ministerial neutrality, with the petitioners contending that entrusting election regulation to a sitting minister compromised the election’s impartiality. The court, however, upheld the minister’s authority under existing laws, dismissing the petition and marking a critical reaffirmation of the government’s powers in local electoral administration.
The petition had been brought to the court to halt the minister’s role in organizing and overseeing the electoral process, arguing that it compromised the neutrality necessary for such an election. The court session presided over by Justice David Ngunyale, deliberated on preliminary objections raised by the Republic, yet determined that these objections lacked sufficient weight to influence a direct ruling, thus necessitating a focus on the petition’s substantive issues.
Central to the court’s deliberations was whether the Minister of OR-RALG held lawful authority to draft regulations governing local government elections. Justice Ngunyale stated that the court carefully examined if there was any abuse of authority by the Minister, as claimed by the petitioners, who argued that the minister lacked the legal mandate to establish these regulations. The petitioners asserted that, as a politician from the ruling party, the minister had a vested interest in the election’s outcome, inherently undermining the election’s impartiality.
Countering these assertions, the State’s legal team argued that the minister was fulfilling statutory responsibilities and was therefore not compromised by any personal interests. Justice Ngunyale, aligning with this stance, affirmed that several legal provisions indeed granted the minister the authority to draft election regulations.
Further, the court described the notion that the minister’s involvement would lead to conflicts of interest due to political affiliation as speculative and unsubstantiated, emphasizing that judicial decisions must not be based on subjective or emotional appeals.
Justice Ngunyale noted that while criticisms could be directed at the existing legal framework itself, this was a separate issue — highlighted by the Constitutional petition filed by Wallace Mayunga, which challenges the minister’s authority from a constitutional standpoint, acknowledging the statutory protection currently afforded to the minister.
Addressing arguments related to the National Electoral Commission’s (INEC) supposed mandate to oversee local government elections, the court upheld the Republic’s argument that INEC could only assume such a role if explicitly mandated by law through a new legislative act.
Despite the enactment of a statute earlier this year, Parliament had yet to confer such powers onto INEC. Justice Ngunyale clarified that legislative continuity requires explicit statutory repeal, which had not been established in this case.
The court further addressed the petitioners’ argument that the Minister of OR-RALG should have introduced a comprehensive bill to establish new legislation for the election framework, rather than merely presenting a budget request for election oversight.
The petitioners argued that, according to Section 10 of the Election Commission Act, Parliament should have introduced a bill enacting broader principles that would effectively curtail the Minister’s powers under PO-RALG, replacing provisions from the Local Government (Elections) Act of 1987, particularly sections 12A and 87A, by implication.
However, the State Attorney countered that the minister’s actions were lawful under the current legal framework, as these provisions had not been formally repealed. Justice Ngunyale ruled in agreement, asserting that within the statutory scope, the minister had the authority to oversee and fund the election process, as structured under existing laws.
In his final judgment, Justice Ngunyale stated that the court was bound by legislative intent and could not grant INEC the authority absent specific legislative authorization. The court emphasized that the minister had acted per the existing legal framework.
Notably, the court refrained from awarding costs to either party, recognizing the public interest at the heart of this case, thus directing each party to bear its costs.
Outside the courtroom, Bob Chacha Wangwe expressed dissatisfaction with the ruling, stating, “Though we have lost this case, it is Tanzanians who have truly been let down. This ruling reveals that the minister can, through the approval of Parliament, exercise partisan influence without judicial recourse.
This decision lacks rigor and exposes the systemic issues within our judiciary, where judicial independence is compromised. I have observed similar cases where district directors were permitted to oversee elections based on mere oaths as if taking an oath alone guarantees impartiality.”
Wangwe further referred to Prof. Chris Maina Peter’s work, Independence of the Judiciary, highlighting that judicial independence faces numerous hurdles. “The concept of judicial independence is now clearer to me, and I urge Tanzanians to safeguard their votes vigilantly, encouraging them to turn out in large numbers to vote,” he concluded.
Bubelwa Kaiza, one of the petitioners, noted that they intend to appeal, reaffirming that this is not merely a local government election but an election involving villages, village committees, and hamlet leaders, roles distinct from councilors who serve in the formal local government structures. Kaiza elaborated that the term “local government elections” had been misinterpreted since the 1990s.
Jebra Kambole, counsel for the petitioners, decried significant legal inadequacies in the judgment, emphasizing that their legal team had fulfilled their duties thoroughly. He stated, “This ruling exposes deficiencies in our electoral process, from candidate registration to vote counting, which we will undoubtedly witness.” Kaiza underscored the importance of accurately documenting these shortcomings for future reference, particularly in the context of their impending appeal.
