22 nd September, 2020

The Chairperson,
The National Election Commission,
The United Republic of Tanzania,
P. O. Box 10923
Foreign Affairs Building, Shaaban Robert Street and Garden Avenue, Dar es
Salaam
uchaguzi@nec.go.tz

Dear Justice of Appeal (Rtd) Semistocles Kaijage,

RE: Tanzania Election Watch Panel on the Legal Hurdles for the attainment of a Free and Fair election in Tanzania

Greetings from the Tanzania Elections Watch.
The Tanzania Election Watch (TEW) is a regional initiative whose mandate is to shed light on the electoral context in the Tanzania and offer a regional response to the same. The initiative focuses on growing regional and international attention and response to the electoral situation in Tanzania.

The TEW initiative has put together a dedicated panel of eminent persons made up of well reputed individuals from the region to critically debate key developments and events as they unfold in order to trigger appropriate responses to address the prevalent human rights and political concerns ahead of the General Elections to be held on 28 October, 2020. The panel of
eminent persons is led by three co-chairs, namely; Prof. Frederick Ssempebwa from Uganda, Dr. Willy Mutunga from Kenya and Ms. Alice Mogwe from Botswana.

The Panel notes that the National Electoral Commission (NEC) on 5 June, 2020 published two sets of election regulations i.e. the Local Authorities (Councilors’ Elections) Regulations, 2020) and the National Elections (Presidential and Parliamentary Elections) Regulations, 2020. The
publication of these regulations is the functions of NEC as an electoral body and guided by the National Elections Act (CAP 343). The panel also notes the enactment in 2018 of the Zanzibar Elections Act with notable amendments to the preceding law.

It is in this capacity and for these reasons that we address you in this letter as hereunder:

The Panel acknowledges the continued commitment of the National Electoral Commission to conduct a free, fair and credible election according to international law, norms and standards. While the NEC and the Zanzibar Electoral Commission (ZEC) carry on their mandate in preparation for the elections on 28 October, 2020 the Panel notes with concern several provisions of the governing law and regulations including their enforcement, their compatibility with the Constitution of the United Republic of Tanzania as well as regional and international covenants to which Tanzania is a party to.

First, the Panel notes with concern the complaints by both civil society and political parties of the absence of stakeholder consultations in the development and subsequent enactment of the June 2020 elections regulations. The Electoral Commission is required by the National Election
Act in pursuit of its role to make necessary consultation with relevant stakeholders including political parties and the public at large. The Electoral Code of Conduct stipulated in the National Elections Act, Article 124A (1), also mandates the electoral body to consult with relevant stakeholders.

Second, we commend the NEC efforts to invite and accredit domestic and international observers in accordance with Section 18 of the National Elections (Presidential and Parliamentary Elections) Regulations, 2020. The invitation and participation of local and international observers is universally accepted as an all important measure of a free, fair and credible election. The Panel notes the 23rd June 2020 announcement by the NEC of 96 organizations accredited to observe the 2020 election in addition to the ZEC publication of 17 accredited organizations to observe the Zanzibar elections. We also commend the NEC for the invitation and accreditation of
15 international election observers as announced by the foreign ministry.

The Panel however notes with concern that NEC has denied some of the leading local human rights Civil Society Organizations (CSOs) such as the Tanzania Legal and Human Rights Centre (LHRC), the Tanzania Human Rights Defenders Coalition (THRDC) and the Tanzania Constitution
Forum (Jukwaa la Katiba) the right to observe the elections without explanation. The Panel also takes note of the exclusion of the Tanzania Episcopal Conference from the list of accredited observers. The Panel observes that the decisions have been undertaken with limited
transparency as no explanation has so far been provided.

More so, the Panel is concerned that said observation is restricted through various clauses in the National Elections (Presidential and Parliamentary Elections) Regulations, 2020. For example, the conditions set out in Section 22 of the Regulations undermine the very essence of election
observations by barring observers from making commentary on the electoral processes in the country. Such a provision is an infringement on the right of the election observers, and more importantly, the public to information and freedom of expression in contravention of Section 6
of the SADC Principles and Guidelines Governing Democratic Elections which provide for among other rights “Unhindered access to and communicate freely with the media” as well as the right to
“Communicate freely with voters without prejudice to the electoral law proscribing such communication in order to protect the secrecy of the vote”.

Third, the Panel notes that good governance is based upon the principles of democracy, constitutionalism and the rule of law. The Courts are essential to guarantee these principles, as well as democratic rights of citizens. The Panel is concerned at the exclusion through these regulations, of the role of the Courts in the electoral process. Following are a few examples of a few examples of provisions that in its opinion do not promote the principles above in the context of elections and in guaranteeing free, fair and credible elections. These are:

a. Section 28 of the National Election (Presidential and Parliamentary) Regulations providing that an unopposed nominated candidate is deemed to be duly elected, contrary to Article 66 (1) (b) of the Constitution requiring members of parliament to be elected.

b. Section 39(7) of the National Election (Presidential and Parliamentary) Regulations providing that the decision of the Commission under sub regulation (6) shall be final and conclusive and shall not be called into question by any court of law. This contrary to the recent Ruling of the African Court of Human and Peoples Rights in Jebra Kambole v. United
Republic of Tanzania condemning the retention of article 41(7) in the Constitution for it violates the right to due process. Article 41(7) of the Constitution bars any court from inquiring into the election of a presidential candidate after the Electoral Commission has
declared a winner.

c. Section 143 of the Election Act, No. 4 of 2018 by which the Zanzibar Electoral Commission have full powers, mandate and authority to determine any matter related to election which is not provided for under the Election Act or any other Act related to elections and its decision on that matter shall be final and shall not be questioned by any Court. The presence
of such legal provisions curtails the right of the people of Tanzania to access justice in line with Articles 13 of the Constitution of the United Republic of Tanzania but also the Article 3 of the African Charter on Human and People’s Rights.

In view of these concerns, the Panel calls on the National Election Committee to review said regulations, with the aim of aligning them to reflect constitutional values and principles, as well as relevant regional and international provisions.

Yours sincerely,
Prof. Frederick Ssempebwa – Chairperson
Ms. Alice Mogwe – Co- Chair
Dr. Willy Mutunga- Co- Chair