A Question to Judge Mwambegele: Does Tanzania's INEC have Power-Right to Disqualify Any Registered Political Party From Participating in an Election?

[Doctor Mama Amon]

Chairperson of the Tanzania's INEC, Justice Jacobs Mwambegele

INTERROGATING THE COMPETENCE, INTEGRITY, CREDIBILITY AND INDEPENDENCE OF ELECTION MANAGEMENT BODIES: A TANZANIAN CASE STUDY ON THE ALLEGED INEC'S POWER TO DISQUALIFY A REGISTERED POLITICAL PARTY FROM PARTICIPATING IN AN ELECTION ​

Dear:

1. Justice Jacobs Mwambegele, Chairperson of INEC in Tanzania,
2. Justice Mathew Mwaimu, Chairperson of Human Rights and Good Governance Commission,
3. Justice Francis Mutungi, the Registrar of Political Parties in Tanzania,
4. Dr. Damas Ndumbaro, the Minister of Consttitution and Legal Affairs,
5. Mr. Ramadhan Kailima, the Elections Director of Tanzania,
6. Mr. Salum Rashid Hamduni, the PCCB Director in Tanzania, and
7. Mr. George Simbachawene, the Minister of Public Service and Good Governance.

This is a 3,000 words-long critique of the impugned conduct of INEC of Tanzania, bearing in mind that, every citizen and every state organ has a duty to protect and promote national unity, inter alia, by promoting "rule of law," as opposed to "rule by law," the duty which is overtly premised on articles 9(b) and 28(1) of the state constitution (1977).

While a citizen can protest against unjust laws or protest against the unjust administration of just laws, in the instant case, I am protesting against what I see as an unjust administration of the current relatively just laws, where, injustice appears to be taking place through the instrumentality of some INEC officers.

For this purpose, the contents of this critique is organized into the following sections:

1. Problem statement,
2. The logical structure of justice and human rights,
3. The legal structure of justice and human rights,
4. Grounding human rights in human nature,
5. Grounding human rights in natural law as opposed to revealed law
6. Arguments and objections,
7. Discussion, conclusion and recommendations, and
8. References.

I. Problem statement

Multiparty elections are the cornerstone of democratic political processes, serving as a mechanism for political parties and their candidates to compete for public offices under equal conditions before the electorate. For an election to be credible, the competition must be free, fair and transparent, requiring impartial management of the process.

For this reason, a credible, independent, competent and honest Election Management Body (EMB) is a key stakeholder in the process of promoting, protecting and fulfilling democratic values in any republican and multiparty constitutional democracy.

Accordingly, its composition, mandate, decisions and activities attract increasing public attention. An EMB and the rules of the electoral game, which it supervises, are the focus of passionate interest and debate before, during and after elections.

In many African countries, there is deep-seated public mistrust of EMBs for their real or perceived lack of political independence, which is associated with instances of legal compliance failures on the part of these EMBs, the Tanzania's Independent National Elections Commission (INEC) being included (Makulilo, Ntaganda, Sekaggya and Osodo 2016).

Against this background, on 12 April 2025, the Chadema's slogan of "No Reform, No Election" was countered by the INEC's slogan of "No signature, No Election," without stating any enabling legal provision that empowers INEC to do so.

It is Ramadhani Kailima, the Director of Elections at the Tanzania's INEC, while at Dodoma, who told journalists that Chadema had been disqualified by INEC following its decision to boycott signing the government's election code of conduct dated 2025, which was signed by other 18 political parties on 12 April 2025.

As a consequence, the general public started debating the claim, which INEC asserts, and which cHADEMA denies, namely, the claim that, The Independent National Electoral Commission (INEC) has a legal power-right to disqualify a duly registered political party, such as Chadema, from participating in elections, solely, based on an the ground that, the political party has not signed an election code of conduct, meaning that Chadema does not have a constitutional immunity-right against such a disqualification by INEC.

In this Chadema-INEC debate, the legal principle which is accepted by Chadema and is apparently denied by INEC, is the fundamental doctrine and tenet of statutory interpretation, according to which, where subsidiary legislation, such as the Election Code of Conduct, in this instant case, conflicts with or is in any way inconsistent with the provisions of a parent legislation, such as the Tanzania's constitution, in this case, the provisions of the subsidiary legislation must yield to those of the parent one, to the extent of the conflict or inconsistency.

In terms of this doctrine, my preliminary analysis of this “rights talk,” involving such terms as “power-rights” and “immunity-rights,” shows that, the recent INEC's decision to ban Chadema from elections has dealt a fatal blow to the credibility of INEC's claim to independence, legal competence and integrity, in so far as the public expectation of INEC's compliance with the principles of rule of law and good governance, as required by article 9(b) of the constitution, are concerned.

Therefore, I am writing to draw your wise attention to this fact, with a view of logically persuading you to provide the nation with a formal response to the circulating queries, as I hereunder do.

Mr. Ramadhan Kailima, Elections Director at Tanzania's INEC​

II. The logical structure of justice and human rights

The vision of a just society, arising from "justice," which is one of our key political values, is a constitutional promise to all Tanzanian citizens as made under article 8(1), since 1977.

After every five years, we have a President who takes oath to preserve, protect and defend the constitution of the united republic, with a view of accelerating the coming to be of a just society.

Yet 48 years later accusations of injustice are very common from citizens who cry daily for justice, demanding for the constitutional promise of a just society to come true before, during and after elections.

If so, what is meant by invoking the value of "justice" as opposed to the vice of "injustice", and how can our nation embrace justice, that is, become a society which is free from injustice?

Matthew Gaudet and Karen Lebacqz (2025), in their recent book, that discusses major "eight theories of justice," and which is here below attached, point out that, justice is like the proverbial elephant parable, in which an elephant is examined by different blind explorers.

In this parable, each explorer feels a different part, the foot, the ears, the tusks, and consequently, each describeing the beast differently. Some explorers say it is rough and tough, others say it is thin and supple, and some say it is smooth and hard.

But, the elephant itself, justice in this case, is not encompassed by any of the individual descriptions. At times, descriptions seem incompatible, yet each contributes something to the rounded definition of an elephant.

Accordingly, the authors discuss eight approaches to justice which are descriptions of the blind explorers of the said metaphorical elephant. The explorers include Utilitarians, Contractarians, Proponents of entitlements, Communitarians, Catholics, Protestants, Liberationists, and Feminists.

Finally, the authors conclude that, all explorers of the elephant agree with Johanna Ohlsson and Stephen Przybylinski (2023:4-7) who aver that, every known theory of justice tells us something about:

1. Forms of justice like contributive, distributive, retributive, restorative justice;
2. Subjects of justice like individuals, communities, institutions;
3. Objects of justice such as resources, opportunities, and rights;
4. Spatial Domains of justice such as local, national, and global domains;
5. Temporal Domains of justice such as past, present, and future domains; and
6. Principles of justice like fairness, equality, impartiality, and primary rules.

On the view of these four authors, then, from one perspective, namely, the perspective of the objects of justice, justice always concerns "rights" between members of a society, that is, whatever one person owes to another.

This is to say that, all theories of justice, roughly converge on one key issue: the question of human rights as a viable theory for allowing us to create a just society.

Then, the key word here is the English word "right," which is mention 121 times in our constitution.

The word "right" has two main meanings, as illustrated in the following sentence: "It is right (morally good) for us to demand our rights (things owed us)."

The two meanings stem out of the same root idea, the ethical concept of oughtness: how I ought to act, and how others ought to act toward me. Hence we have: (1) Right as opposed to wrong, and (2) Right as correlative to duty.

Human rights, in the second sense, are propositions that usually tell us what to do, or not to do, and give us reasons for actions or inaction.

Thus, all those involved with human rights should share one fundamental concern: to know what is the nature of the subject they are talking about and in which way it has normative force.

According to Manuel G. Velasquez(2014:96-111), whose book is hereby attached, a right is an individual person’s entitlement to have something or to the performance of some action.

On one hand, a person has a right when that person is entitled to act in a certain way or is entitled to have others act in a certain way toward him or her.

And on the other hand, a person has a right when that person is entitled not to act in a certain way or is entitled to have others not act in a certain way toward him or her.

The entitlement may derive from a legal system that permits or empowers the person to act in a specified way or that requires others to act in certain ways toward that person. The entitlement is then called a legal right.

Entitlements can also derive from a system of moral standards independently of any particular legal system. Such other rights, which are called moral rights.

A large group of rights are called negative rights. These are rights that can be defined wholly in terms of the duties others have to not interfere in certain activities of the person who holds a given right.

In contrast, positive rights do more than impose negative duties. They also imply that some other agents perhaps society in general have the positive duty of providing the holders of the right with whatever they need to pursue what the right guarantees.

The logical structure of a human right shows that its anatomy has four parts, each have a standard name, which is used by philosophers when talking about human rights.

According to Austin Fagothey (2000:146-161), in every human right we have a logical structure that distinguishes the subject, term, matter and title, which are defined as follows:

• (1) Subject: the person possessing a right, or a right-holder;
• (2) Term: other persons bound to respect or fulfill a right, or a duty-bearer;
• (3) Matter: some action to which one has an entitlement, where the action is either a commission or an omission which is a means of fulfilling, protecting or promoting some human good such as life, privacy, truth, liberty, knowledge, health, play, beauty, friendship, reasonableness, religion, freedom, and material prosperity; and
• (4) Title: the reason why this subject has this right, or the justification, which can be legal or moral.

In short, I have a right in relation to you that you perform some action if and only if you have a duty to perform the action in regard to me, where the performance of the action can encompass both acting and refraining from acting.

So, human rights are relational concepts which are crucial tools for securing and protecting human goods which are necessary for individual human flourishing and social harmony.

In other words, human rights are tools for articulating the essential demands of social justice and hence, tools for articulating the essential demands of a just society, which is premised on eqittable primary rules.

Clarification on “primary rules” is needed here. Nunzio Ali (2023) argues that, “justice concerns rules of social regulation” (22), also known as “primary rules” which are usually identified as “social structures,” and that, these primary rules refer to “a complex network of basic or ground rules – understood in broad terms as political, legal, socioeconomic, epistemic, and cultural – that govern the social relations in which individuals are involved.

On his view, these primary rules “find their codification on a spectrum that goes from the political constitution and the juridical system to regulations of schools and runs up to everyday practices,” (26) from which it follows that, the notion of primary rules “better expresses the idea that the object of social justice are those social rules that govern our social relations;” (26).

And Rawls (2005: 258) clarifies that, the basic structure of society is the way in which the main political and social institutions of society fit together into one system of social cooperation, and the way they assign basic rights and duties and regulate the division of advantages that arise from social cooperation over time.

On his view, this structure is composed of all major social institutions, namely, the political constitution, the legally recognized forms of property, and the organization of the economy, and the nature of the family.

He clarifies that, the basic structure of society defines people’s rights and duties and influences their life prospects, what they can expect to be and how well they can hope to do because its effects are so profound and present from the start.

Dr. Damas Ndumbaro, Minister of Consttitution and Legal Affairs​

III. The legal structure of justice human rights

Historically, the articulation of human rights in famous documents, such as in the Universal Declaration of Human Rights,, does not always adhere to the logical structure of a human right that requires a four-term specification of a human right.

For example, in this global document, some rights are identified by the claim that “everyone has a right to x,” including a right to life, liberty, property, and so on, but without reference to the bearer of the relevant duty.

In addition to the lack of reference to a duty bearer, these statements of right are also quite abstract. For example, our state constitution and both of the major human rights instruments, the Universal Declaration on Human Rights (1948) and the European Convention on Human Rights (1953) include the basic right to life, for the obvious reason that without life, none of the other rights can be exercised.

Yet, they do not say what is exactly included within the right to life. While one would expect that it involves immunity against certain forms of violence or force, under specific circumstances, none of these is stated.

While one would expect some entitlements to aid to be included in its specification, under certain circumstances none is mentioned.

Our state constitution is not very much different from the challenges highlighted above concerning the vagueness in the Universal Declaration of Human Rights.

Thus, in a political community, like Tanzania, some ambiguous rights questions ultimately require concrete and unambiguous legal specifications in order for rights to be realized and secured under their four-term specifications, without any ambiguity.

Professor John Finnis (2011: 199-201), whose book is hereby attached, has formalized legal rights analysis in a way that allows us to fully disambiguate the term “right” whenever it is used in a political community.

My reading of Finnis (2011: 199-201) and Fagothey (2000:146-161) shows that, there are two fundamental postulates of the standard system of legal rights, namely:

1. That, all assertions of rights can be reduced without remainder to ascriptions of one or some combination of the following six standard legal rights:
   • (a) positive claim, which entails a positive duty on others,
   • (b) negative claim, which entails a negative duty on others,
   • (c) positive liberty, which entails the absence of a negative claim from others (no-negative-claim),
   • (d) negative liberty, which entails the absence of a positive claim from others (no-positive-claim),
   • (e) power, which entails liability on others, and
   • (f) immunity, which entails disability on others; and
2. That, to assert a standard legal right is to assert a four-term relation between:
   • (a) one person (A), the right holder,
   • (b) one act-description (Q), an object of the right,
   • (c) one other person (B), the duty bearer, and
   • (d) a justificatory rule (R), the justification.

To understand the eight terms used in the above statements, namely, right, duty, liberty, no-claim, power, liability, disability and immunity, let us us follow the advice of Arthur Corbin (1919:165) who said that, while simplifying the structural analysis of legal relations between A and B, we should seek answers to the following questions:

1. What may person A (or person B) do, without societal penalty assessed for the benefit of the other?
   • If we determine that A may conduct himself in a certain way he has a liberty with respect to B, and B has no-right that A shall not so conduct himself.
2. What must person A (or person B) do, under threat of societal penalty assessed for the benefit of the other?
   • If we determine that A must conduct himself in a certain manner he has a duty to B, and B has a right against A.
3. What can person A (or person B) do, so as to change the existing legal relations of the other? (This has no reference to mere physical power.)
   • If we determine that by his own voluntary act A can change B’s legal relations with person A, A has a legal power and B has a liability.
4. What cannot person A (or person B) do, so as to change the existing legal relations of the other?
   • If we determine that A cannot by his own voluntary act change the legal relations of B, then A has a disability and B has an immunity.

Then, in terms of these terminological clarifications, from the above two analytical postulates, the following six different meanings of the term "right" are possible, where A and B signify persons, natural or legal, Q stands for an act-description signifying some act, and R is some rule which grounds the relevant legal rights relation:

1. Person A has a positive claim-right against person B that person B perform act Q if and only if person B has a legal duty under rule R to person A to perform act Q.
2. Person A has a negative claim-right against person B that person B not to perform act Q if and only if person B has a legal duty under rule R to person A not to perform act Q.
3. Person A has a positive liberty-right in face of person B to perform act Q if and only if person B has no claim under any legal rule R against person A that person A not to perform act Q.
4. Person A has a negative liberty-right in face of person B not to perform act Q if and only if person B has no claim under any legal rule R against person A that person A perform act Q.
5. Person A has a legal power over person B to change the legal rights of person B if and only if person B has a legal liability under rule R in face of person A that person B bring about this legal consequence through act Q.
6. And person A has a legal immunity against person B's act of changing the legal rights of person A if and only if person B has a legal disability in face of person A to bring about this legal consequence through act Q, since there exists no rule R that creates that power.

Judge Mathew Pauwa Mhina Mwaimu, Chairperson of HUman Rights and Good Governance Commission​

IV. Grounding human rights in human nature

Why do human persons, as opposed to non-persons, have rights?

Instead of grounding human rights in human nature, some thinkers try to ground them in conventional declarations, agreements, treaties, or seasonal positive laws as often enacted and repealed by parliaments, all of which are based on human consensus.

In this case, human rights are perceived as subjective powers vested in the individual, underpinned by a rational justification that necessitates their formal recognition within the legal system. They are created by humans in the parliament, and can be destroyed by the same.

But, the modern idea of a human right developed as a response to Nazi atrocities in World War II and the inadequacy of appeal to the positive law of particular nations, since, in point of fact, the Nazi atrocities were legal in the eyes of positive law.

At the Nuremburg trials it was recognized that human beings have fundamental, intrinsic value and dignity deserving of protection, and that the state has no authority either to grant or to revoke human rights: these rights are universal (all humans have them), inherent (one has them simply in virtue of being human) and they are inalienable (they cannot be suspended or taken away).

Thus, I hereby, prefer to argue for the view which grounds human rights in human nature, namely, the view that, every human being has certain rights that derive from their own nature and not gratuitous gifts from the consensus of a few people or their government through positive laws making and unmaking.

This is to say that, human rights exist if it is the case that there are principles of practical reason
directing us to act or abstain from acting in certain ways out of respect for the well-being
and the nature of humam persons whose legitimate interests may be affected by what we do or refrain from doing.

Only this position explains why it is the case that, being human is a reason for having certain rights, such as the right to life, freedom of expression, assembly, association, movement, to vote and to participate in government, which are not gratuitous gifts from the state, and therefore must be respected, protected and promoted by the state.

According to Szymon Mazurkiewicz (2023:105-116) and James G. Haninki (2019:60), a human right is someone’s claim against someone else. Claim bearers and their respondents are human persons.

Metaphysically speaking, a human person is an embodied individual entity of a rational kind.

Thus, from the ontological perspective, a human person is an individual entity capable of planning and performing conscious and free bodily actions.

This means that, a human person performs physical bodily acts knowingly and willingly, where every act is a means to some end and is performed within a specific volitional context (why), spatial context (where), temporal context (when), social context (with who) and praxiological context(how) context, all of which define the circumstances of the act.

The human actor deliberates upon possible alternatives and then willingly and knowingly choses what to do (the act), why to do it (an intention), and the context of performance (circumstances).

Accordingly, the “dignity” human persons are said to possess is due to their having dominion over their acts, since they are not only made to act by others, but they act through themselves, based on their inherent nature, as defined by their intelligence and free will.

We know that, the nature of an entity, such as a human person, falling under some class denotes the set of necessary and intrinsic properties of all entities under that class. This is a descriptive account of human nature. It states what properties a human person must possess to be human.

A property of an object is essential if, to be what it is, every time and everywhere, the object must have the property and the property is intrinsic; otherwise, the property is extrinsic and accidental.

If something has an intrinsic property, then so does any perfect duplicate of that thing; whereas duplicates situated in different surroundings will differ in their extrinsic properties. In the case of humans intelligence and free will are essential properties.

Taken together, they are natural attributes which ground a compound natural property called human dignity, while the possession of human genome having 46 chromosomes is a natural property which grounds human intelligence and free will.

On this view, the rights humans have, as humans, are natural attributes which are based on human dignity, which is possessed by every human person, either potentially or actually.

Thus, if an entity has human dignity, it possesses human rights, and the right to have rights that precede them, and is presupposed by them. In this context, human dignity can be presented as “the right to have rights.”

This is a secular dignity-based foundation of human rights, which grounds human rights on human nature, and which can be summarized differently as follows:

The dignity-based foundation of human rights asserts that every individual possesses inherent worth and value, regardless of their background or circumstances.

This fundamental principle, often seen as the bedrock of human rights, suggests that all people deserve respect, freedom, and opportunities to live a life of dignity, which excludes them from being used as mere means.

The fact that the state is sovereign and in a sense supreme brings up the question of its relation to its members, where there exists a rights-and-duty relationships between the two parties.

In this case, how do we reconcile the autonomy of the individual person with the supremacy of the state? Here, in a sense, we are interested in the following general problems:

Does society exist for each one of us, or does each one of us exist for society? Does the village exist for the villager or the villager for the village? Does the company exist for the shareholders or the shareholders for the company? Does the parish exist for the parishioner or the parishioner for the parish? Does the state exist for man or man exists for the state?

Responding to the last question will suffice. To this end, I suggest to defend the following position, namely, the claim that, the state is a natural society because it arose as a natural outgrowth of the family, the claim whose logical defense, according to Austin Fagothey (2000:240-46), can be summarized as follows:

1. The family of father, mother and their children is demanded by the natural law of human flourishing.
2. But the state is a natural outgrowth of the family, and becomes necessary for human living when a number of families realize the need of cooperation for their common good.
3. Therefore in these circumstances the state is demanded by the natural law, and is therefore a natural society, which is an instrument for facilitating the realization of the common good of the community.

This argument can be developed at length as follows:

One, the most elementary form of society is the family of heterosexual parents, their children, including blood relatives living together and any servants or others adopted into the household. It can provide for its own welfare in mere daily wants, but it cannot provide for a broader human life.

The arts and appliances of civilization could never be developed within one family; for these there is needed the cooperation of many minds and many hands through accumulated generations.

Two, as the family grows, the end it can attain also grows. The children reach maturity and found new families, usually near by.

In several generations a group of families all interrelated live close to one another. Division of labor comes in; people begin to specialize in different kinds of work and to exchange their products.

Three, the interrelated group becomes a clan or tribe. A clan is a smaller group with a tradition of descent from a common ancestor. A tribe is a larger group and may be an amalgamation of several clans; at least the blood relationship is not so clear.

Some tribes never get beyond the tribal condition, either because of nomadic habits, or because they are wholly occupied in war, or because they show no ingenuity in developing the earth's resources. To form a state a peaceful industrious settlement is necessary: a central village where the people trade.

Four, the village community can supply more of its wants than a single family, but it is not yet self-sufficing. Military organization against enemies from without, economic organization against famine and want, legal organization for settling internal disputes, are still wanting.

These things are handled rather arbitrarily by the tribal chief with his council of elders. This chief may be the patriarch or founder of the whole family, or his eldest son, or one of his descendants appointed by him, or one elected by the tribe to be their leader, or one who simply assumes leadership and keeps it by his ability.

And five, from the village community or an aggregate of such villages the state is formed. One village composed of people all descended from the same common ancestor may expand to such a size in such a favorable location, that it is now able to take care of all its needs and has become self-sufficing.

More probably several such villages would aggregate together, organize for common defense, mutual trade, and a common legal system. As soon as these things have been determined upon and an authority has been established to enforce them, the state has come into existence.

From the above said, it follows that the state is for man, and man not for the state, meaning that an individual citizen is prior to the state.

However, the phrase "an individual is prior to the state" needs clarification. Priority in time means, "that which came earlier," while priority in nature means, "that which is for the sake of the other."

Some individuals and families were prior to the state in time, as the word "earlier" and the whole argument for the natural origin of the state indicate. But the phrase "more necessary" does not refer to time, but means priority by nature.

In summary, thus understood, the state is natural, not in the sense that it is supplied by nature, but in the sense that it corresponds to the natural needs and aspirations of its members and that human nature itself inclines to it.

George Simbachawene, Minister of Public Service and Good Governance​

V. Grounding human rights in natural law as opposed to revealed law

The best example of intellectual analysis and synthesis, from which human rights were framed, comes from the historical process that led to the formulation of the UDHR.

According to Luca Di Donato and Elisa Grim (2018:53-72), the framers of the declaration made step by step intellectual observations, as follows:

One, a human right is a claim by someone, called a claim bearer, to some action in relation to something and against someone else, called a duty bearer, which is recognized by some legal or moral rule or both.

Two, claim bearers and duty bearer are persons, where, a human person is defined as an embodied individual substance of a rational kind.

Three, every person is free and intelligent agent, meaning that, he acts willingly and knowingly, under the control of reason, that allows him to determines his own end by ordering means to an end and review a range of possible ends.

Four, there is, by virtue of human nature, a natural disposition toward a certain a range of basic goods, which are the familiar ends of daily activity. Human reason discovers them and the human will must act accordingly in order to align itself to these essential and necessary ends of human perfection.

Five, these basic human goods are “states of affairs” that almost all humans naturally find attractive. They include knowledge, friendship, sexual union, the care of one’s children, beauty, self-direction in choosing a path in life, bodily integrity, lay or leisure, and life which is the foundation of all other basic goods. Without these basic goods, we cannot flourish.

Six, it is rational for humans to pursue these basic goods and irrational to attack them, since naturally, we pursue what is good and attractive, and avoid what is bad and repugnant.

Seven, these goods are incommensurable in that they do not have any common measure with each other such that the two goods can be rank ordered. On this view, it is a mistake to say that knowledge is of greater worth than friendship or, indeed, the reverse. Each basic good is unique.

Eight, in exploring these characteristics of basic goods, we arrive at a natural axiology that forms the basis of the right and the wrong. This means that, we have to look at the basic goods as the ends of moral action that lead to the flourishing of the human person.

Nine, to claim that an inclination toward some “state of affairs” (X) is natural and so morally warranted or unnatural and so morally suspect, is equivocal, since it may mean that (X) is either🙁a) statistically average, or (b) what people expect, or (c) spontaneous, or (d) not artificial, or (e) it helps actualize the goods of the person, where, counter examples to each of these criteria are easy to cite, except for the last option.

Ten, as a case for counter examples, to claim that an inclination toward some “state of affairs” (X) is natural and so morally warranted because it is not artificial, leads to the following absurd conclusion: using hearing aids is unnatural and so morally suspect. But this is not so, since, using hearing aids to understand others promotes friendship and is morally warranted, sometimes even obligatory.

Eleven, as opposed to the above counter example, natural human inclinations toward the basic goods serve as sources of moral direction because of the following logic: The relevant standard for affirming that an inclination toward some “state of affairs” (X) is natural and so morally warranted is the fact that it helps actualize the goods of the person.

Twelve, understanding the basic goods leads to an account of the common good, a pivotal aspect of natural law of ethics. The achievement of basic goods depends on both the material and the social environment. For example, knowledge depends on, among other things, the tools of communication. It also depends on language acquisition and the transmission of culture. We can reason similarly for other basic goods. On this view, the common good is the whole range of material and social conditions that enables us to pursue the basic goods, together with the basic goods themselves.

Thirteen, the common good includes is an inventory of the material and social conditions for political society which include the collection of public commodities and services, such as the roads, ports, and schools, which the organization of common life presupposes; a sound fiscal condition of the state and its military power; the body of just laws, good customs and wise institutions, which provide the nation with its structure; the heritage of its great historical remembrances, its symbols and its glories, and its living traditions and cultural treasures.

Fourteen, the fundamental moral standard of the natural law theory of morality thus far outlined in the above points, includes both a positive imperative and a negative prohibition, in the following form: “An act is morally right if and only if it promotes some basic good and does not, in so doing, intentionally attack some basic good.”

Fifteen, this first principle of the natural law theory of morality grounds both core human rights and ancillary human rights, where, the former are absolute and negative and the latter are conditional and positive, and each core right is directly grounded on a basic good.

Let us consider some examples of core human rights first. There is a right not to be intentionally killed, because life is a basic good. There is a right not to be sexually assaulted because sexual integrity is a basic good. We have a right that our governments not act on policies of deception because civic friendship is a basic good. Each of these rights is both absolute and negative in formulation. Each is an absolute human right.

Let us consider some examples of conditional human rights next. Each ancillary right is grounded in the material and cultural pre-conditions necessary to realize the basic goods.

There is a positive right to medical care but this right is conditional. It is rarely possible to provide the best medical care for everyone who needs it. There is a positive right to protection against sexual assault but this right is conditional. There might not be sufficient police information and resources to protect everyone at risk. There a positive right to governmental transparency and public review, but again the right is conditional. Only with great difficulty can a government make all policy transparent and open to review. Each of these rights is conditional and positive in formulation. Each is an ancillary right.

In distinguishing between positive and negative rights and their corresponding duties, we can reflect on exculpation and excuses. There might not be the time nor the resources to give medical care to someone in need. There might not be the time nor resources to make government policy transparent and participatory. But none of us is so limited in time and resources, or so restricted by prior commitments, that it is necessary to murder or rape.

Nor is any government so limited or restricted that it must use deceptive social policies. Not even beneficence excuses the violation of justice.

This way, we can assess rights listed in the constitution and the UDHR in terms of whether they are core or ancillary. Some are core while others are not, but both derive from the goods of human nature, without any reference to revelation from scriptures.

VI. Arguments and objections

In light of the above legal conceptual framework, Chadema asserts, and INEC appears to deny, the following argumentation strategy:

That, a legal system is a system made of a set of rules of unequal weights, forming a legal hierarchy or a legal pyramid, where, the force of law of these rules follows the principle that a hierarchy of norms exists, such that, in applying a legal system, one must make sure that a given rule does not contradict a principle of law that is superior to it.

Figure 01: Legal pyramid showing different levels of legal norms​

Source: Own conceptualization and design
​

That, in this legal pyramid, a state constitution may override statutes, statutes maty override regulations, and regulations may override codes of conduct, but not vice versa.

That, this is the case because, codes and regulations are made pursuant to specific statutory provisions, while statutes are made pursuant to specific constitutional provisions.

That, codes and regulations which derive their life and existence from statutory provisions, are of a legal hierarchy that is inferior to that of the statute. Thus, the square-like legislative power of a Minister is inscribed in a circular statute. This means that,, in the event of a conflict or inconsistency between the Code/Regulations and a statute, the Code/Regulations must yield place of priority to the statute.

And that, statutes which derive their life and existence from constitutional provisions, are of a legal hierarchy that is inferior to that of the constitution. Accordingly, the square-like legislative power of the parliament is inscribed in a circular constitution. This means that, in the event of a conflict or inconsistency between the statute and the constitution, the statute must yield place of priority to the constitution.

There are case laws which clearly support the doctrine of legal hierarchy. For example, through Appeal No. 1 of 2009, between the Attorney General of Kenya versus Prof. Peter Anyang Nyong’o and Others, the East African Court of Justice had the following to say:

“It is trite law, and a fundamental doctrine and tenet of statutory interpretation, that where subsidiary legislation (such as the Court Rules, in this instant case) conflict with or are in any way inconsistent with the provisions of a parent legislation (such as the EAC Treaty, in this case), the provisions of the subsidiary legislation must yield to those of the parent one – to the extent of the conflict or inconsistency.” (Para 12).

Figure 02: Limits of legislative powers possessed by the parliament, ministers and other agencies​

Source: Own conceptualization and design
​

The following constitutional provisions provide support to this thought process:

1. Article 34(2): The authority of the Government of the United Republic shall relate to the implementation and upholding of this Constitution and also to all other matters over which Parliament has power to legislate.
2. Article 63(3)(d): For the purposes of performing its functions, the National Assembly may enact law where implementation requires legislation.
3. Article 64(1): Legislative power in relation to all Union Matters and also in relation to all other matters concerning Mainland Tanzania is hereby vested in Parliament.
4. Article 97(1): Subject to the provisions contained in this Constitution, the Parliament shall exercise its legislative power through the process of debating and passing Bills which eventually shall have to be assented to by the President, and a Bill shall not become law unless it is so passed by the National Assembly and assented to by the President in accordance with the provisions of this Article.
5. Article 97(5): The provisions of this Article or Article 64 of this Constitution shall not prevent Parliament from enacting laws making provisions conferring on any person or department of Government the power to make regulations having the force of law or conferring the force of law on any regulations made by any person, or any department of Government.

In light of this constitutionally guaranteed legal pyramid, as discussed above, Chadema has made the following constitutional and legal claims:

1. That, the the political party's right to appoint a presidential candidate for participating in general elections, which is premised on article 39(1) and 39(2) of the state constitution (1977), cannot be derogated by any state organ by invoking any statute, rule, regulation or code of ethics.
2. That, the the political party's right to appoint a vice presidential candidate for participating in general elections, which is premised on article 47(4) and 47(5) of the state constitution (1977), cannot be nullified or derogated by any state organ by invoking any statute, rule, regulation or code of ethics.
3. That, the political party's right to appoint a parliamentary candidate for participating in general elections, which is premised on article 67(1) and 67(2) of the state constitution (1977), cannot be nullified or derogated by any state organ by invoking any statute, rule, regulation or code of ethics.
4. That, the right to vote possessed by a political party member who is not a citizen of another state, not mentally infirm, has never been convicted of certain specified criminal offences, above majority age, and a registered as a voter, which is recognized by article 5(1) and 5(2) of the constitution, cannot be nullified or derogated by any state organ by invoking any statute, rule, regulation or code of ethics.
5. That, the statutory right of every party which has been fully registered to put up candidates and to campaign for any candidate in any parliamentary election, house of representatives election, a presidential election or in a local government authority election, as enshrined under section 11(3) of the Political Parties Act, Chapter 258, Revised Edition 2019, cannot be derogated or nullified by any state organ by invoking any rule, regulation or code of ethics.
6. And that, the INEC officer, Mr. Ramadhan Kailima, has violated section 31 of the PCCB Act, according to which, any person who intentionally abuses his position in the performance or failure to perform an act, in violation of law, in the discharge of his functions or use of position for the purpose of obtaining an undue advantage for himself or for another person or entity, commits an offence and shall be liable on conviction to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years or to both.

Yet, no formal engagement has been made by INEC to contest Chadema's position apart from making public statements which are not supported by any enabling constitutional articles or statutory provisions.

Moreover, a careful perusal of 26 provisions under the INEC Act No. 2/2024, shows nowhere the INEC has been given power-right to disqualify a political party from elections.

Even sections 10(1)(f) which talks about election code of conduct is silent on this power-right. The sections read as follows:

"10(1) Kwa kuzingatia matakwa ya Ibara za 74(6), 75 na 78 za Katiba, Tume itakuwa na majukumu yafuatayo:

Possibly, INEC may decided to hide behind the ambiguity of the words "any other law" under section 10(f), according to which:

"(f) kuandaa na kusimamia Kanuni za Maadili ya uchaguzi; and "(k) kutekeleza majukumu mengine yoyote kama yalivyoainishwa kwenye Katiba au sheria nyingine yoyote."

However, even if there is any other law that creates the alleged INEC's power-right to disqualify a political party from elections, it would still be null and void, since no statute can override a constitutionally protected right.

Justice Francis Mutungi, Registrar of Political Parties in Tanzania​

VI. Discussion, conclusion and recommendations

It is within the above stated and clarified Hohfeldian legal scheme that the “rights talk” between Chadema and the Independent National Electoral Commission (INEC) must be judged. Specifically, the following legal relations apply to the present dispute:

First, we have seen that, person A has a legal power over person B to change the legal rights of person B if and only if person B has a legal liability under rule R in face of person A that person B bring about this legal consequence through act Q.

But, there is no statutory provision which empowers INEC to change the legal rights of a political party.

And secondly, we have seen that, person A has a legal immunity against person B's act of changing the legal rights of person A if and only if person B has a legal disability in face of person A to bring about this legal consequence through act Q, since there exists no rule R that creates that power.

As such, political parties are immune from any changes to their rights through the acts of INEC because, there is no statutory provision which empowers INEC to change the legal rights of a political party.

Accordingly, I wish to point out again that, under the citizens right to fight for justice, one can protest against unjust laws or protest against the unjust administration of the current just laws. In the instant case, I am protesting against the unjust administration of just laws by the Tanzania's INEC officials, some of whom are trained, qualified and experienced Judges.

To this extent, it is my considered view that, the following contested issues require administrative determination and clarification from Tanzania’s INEC, whose topmost boss is a trained, qualified and experienced judge:

1. Whether or not, the the political party's right to appoint a presidential candidate for participating in general elections, which is premised on article 39(1) and 39(2) of the state constitution (1977), can be derogated or nullified by INEC by invoking any statute, rule, regulation or code of ethics?
2. Whether or not, the the political party's right to appoint a vice presidential candidate for participating in general elections, which is premised on article 47(4) and 47(5) of the state constitution (1977), can be derogated or nullified by INEC by invoking any statute, rule, regulation or code of ethics?
3. Whether or not, the political party's right to appoint a parliamentary candidate for participating in general elections, which is premised on article 67(1) and 67(2) of the state constitution (1977), can be derogated or nullified by INEC by invoking any statute, rule, regulation or code of ethics?
4. Whether or not, the political party's act of omitting to sign an election code of ethics, for whatever reason, can derogate or nullify the political parties rights which are constitutionally protected under article 39(1) and 39(2), article 47(4) and 47(5), and under article 67(1) and 67(2) of the constitution?
5. Whether or not, the right to vote possessed by a political party member who is not a citizen of another state, not mentally infirm, has never been convicted of certain specified criminal offences, above majority age, and a registered as a voter, which is recognized by article 5(1) and 5(2) of the constitution, can be derogated or nullified by any state organ by invoking any statute, rule, regulation or code of ethics?
6. Whether or not, the statutory right of every party which has been fully registered to put up candidates and to campaign for any candidate in any parliamentary election, house of representatives election, a presidential election or in a local government authority election, as enshrined under section 11(3) of the Political Parties Act, Chapter 258, Revised Edition 2019, can be derogated or nullified by any state organ by invoking any rule, regulation or code of ethics?
7. Whether or not, an act of banning Chadema from participating in elections for five years, which was announced by INEC's Elections Director, Mr. Ramadhan Kailima, is a responsible use of power, consistent with the prohibition of the abuse of position, under section 31 of the PCCB Act, Chapter 329, the Revised Edition of 2022?
8. And, what are the remedies to which each party in this contested matter is entitled?

Mr. Salum Rashid Hamduni, PCCB Director in Tanania​

That having been said, it is my sincere belief that, the general public will highly benefit from your answers to these contested issues.

But, while waiting for your responses, I must declare my side in these issues, by stating that, I provide, not an affirmative answer, but a negative answer to the above questions.

Accordingly, I suggest that, the remedies to which each party in this contested matter is entitled are as follows:

1. INEC should withdraw its declaration of disqualifying Chadema from elections, since such a declaration is null and void from the beginning.
2. INEC should apologize to the general public for making irresponsible and unlawful statements.
3. INEC should make a declaration that, an election code of ethics is a norm having a moral force, which cannot override constitutionally protected rights.
4. INEC should make a declaration that, an election statute is a norm having a legal force, which cannot override constitutionally protected rights.
5. INEC should make a declaration that, the omission of signing an election code of ethics by any political party does not exclude the party from suffering the inherent punishments, where violations of the same by the said party are proved.
6. If INEC does not show remorse by reversing her unconstitutional decision to disqualify Chadema from elections, while it has done so without any relevant power-right, then,
   • (a) the PCCB should initiate formal investigation and then cause legal proceedings against INEC team in terms of section 31 of the PCCB Act (2022), which prohibits abuse of position by public officials; and
   • (b) TLS should lead the civil society to file a civil case to seek court interpretation and declaration on the invalidity of INEC's decision to disqualify Chadema from elections.

VII. Key references

Kindly note that, the following References, softcopies of which are hereby attached, informed my analysis:

1. Alexander B. Makulilo, Eugéne Ntaganda, Margaret Sekaggya and Patrick Osodo (2016), Election Management Bodies in East Africa: A Comparative Study of the Contribution of Electoral Commissions to the Strengthening of Democracy (New York: Open Society Foundation)
2. Austin Fagothey (2000), Right and Reason: Ethics in Theory and Practice, 2nd Edition (Charlotte, North Carolina: TAN Books).
3. Arthur Corbin (1919)," Legal Analysis and Terminology", Faculty Scholarship Series. URL: https://openyls.law.yale.edu/bitstream/handle/20.500.13051/2240/Legal_Analysis_and_Terminology.pdf
4. James G. Haninki (2019), Ethical Theory and the Specification of Human Rights, In: Luca Di Donato and Elisa Grimi (2019),(eds), Metaphysics of Human Rights 1948–2018: On the Occasion of the 70th Anniversary of the UDHR (Delaware, USA: vernom Press), pp.53ff.
5. Johanna Ohlsson and Stephen Przybylinski (2023), Editors, Theorising Justice: A Primer for Social Scientists (Bristol, UK: Bristol University Press)
6. John Finnis (2011), Natural Law and natural Rights, 2nd Edition, (New York: Oxford University Press Inc.).
7. John Rawls (2005), Political Liberalism: Expanded edition (New York: Columbia University Press)
8. Karen Lebacqz and Matthew J. Gaudet (2025), Eight Theories of Justice: Perspectives from Philosophical and Theological Ethics (Minneapolis: Fortress Press)
9. Manuel G. Velasquez(2014), Business Ethics: Concepts and Cases, 7th Edition (London: Pearson Education Limited).
10. Nunzio Ali (2023), How rich should the one percent be? Proportional Justice and Economic Inequality (New York: Routledge)
11. Pierluigi Chiassoni (2014), “Kelsen on Natural Law Theory”, Revus, 23:135–163.
12. Szymon Mazurkiewicz (2023), Grounding Human Rights in Human Nature (Switzerland: Springer International)
13. The United Republic of Tanzania (2005), The Constitution of the United Republic of Tanzania of 1977, Chapter 2 of The Laws.
14. The United Republic of Tanzania (2022), The Prevention and Combating of Corruption Act, Chapter 329, Revised Edition 2022.
15. The United Republic of Tanzania (2019), Political Parties Act, Chapter 258, Revised Edition 2019.
16. Jamhuri ya Muungano wa Tanzania(2024), Sheria ya Tume Huru ya Taifa ya Uchaguzi, Na. 2 Ya 2024.

Yours sincerely,

Dr. Mama Amon,
P. O. Box P/Bag,
“Sumbawanga Town”
Tanzania.

 

[Retired]

SHYSTER JUDGE

 

[Rutorial k]

As I'm not a lawyer,I know nothing about it but what I see from my point of view is cowardness. Intimidation and harassment are normally applied by inferior people/ political party

 

[Daby]

Why don't you do your submission at court ?just thinking aloud. You go and open a case...I don't know.??

From the layman's point of view.

 

[Smart911]

Muda utaongea...


Cc: Mahondaw