Tanganyika Law Society Observer Mission to the October 31, 2010 General Election in the United Republic of Tanzania Interim Report Dar es Salaam, November 5, 2010 1. Introduction The Tanganyika Law Society ("TLS") is the Bar association of Tanzania Mainland, founded in 1954 by an Act of Parliament - the Tanganyika Law Society Ordinance Act, Chapter 307, of the Revised Laws. The TLS was granted official observer status on 30th August, 2010 by the National Electoral Commission of Tanzania. Pursuant to the mandate provided, the TLS deployed an Observation Mission, comprised of 190 observers, during the General Elections held on 31st October, 2010. The Observation Mission was led by the Election Observation Committee, constituted by the TLS Governing Council and Chaired by the TLS President, Mr. Felix George Kibodya. The Committee was comprised of members of the Council and Chairpersons of TLS standing committees. The Observers were comprised of TLS members who were supported by a select group of L.L.B. graduates currently studying at the Law School of Tanzania. As a starting point, four (4) full-day training seminars were held concurrently in four (4) different regions for the TLS Observers on Saturday, 24th October, 2010 and facilitated by trainers from the TanzaniaElections Monitoring Committee (TEMCO) on the practical modalities for observing elections. The TLS Observers were deployed on Friday, 29th October, 2010 to ten (10) regions across the country, namely: Tanga, Arusha, Mwanza, Dodoma, Dar Es Salaam, Tabora, Mbeya, Moshi, Mtwara and Mara. All Observers were equipped with data collection instruments as well as laws and guidelines for the electoral process. 2. Objectives of the TLS Observation Mission The TLS's objectives in the observation of the elections were guided by its Vision of "a society where justice and the rule of law are upheld". In line with this Vision, it is the TLS's view that elections – when held freely and fairly – are a clear indication that the will of the people is being respected. As a law society, the TLS is a key stakeholder in the justice sector, and carries a critical voice in public matters particularly on the broader concept of justice. It is for this reason that the TLS decided to participate in this exercise to observe whether the election protocols were followed in line with international best practices. Specifically, TLS Observers assessed the voting process starting with voters awareness, transparency, the voting process itself, ballot box safety, vote counting and tallying of results as well as media reports. All of this was done by assessing the efficacy of applicable legislation and guidelines on the elections. An assessment of all of these would, therefore, form the basis for determining whether the elections were fair, free and thus lending legitimacy to the results. 3. Key Interim Findings & Recommendations The report findings will be put together from a series of activities including: 1. Two key roundtable discussions on elections and democracy, which attracted participation from the Chairperson of the National Electoral Commission, the Registrar for Political Parties, politicians, journalists, academicians and lawyers; 2. Courtesy calls on key stakeholders; 3. Monitoring of media reports; 4. Gathering and analyzing messages from the TLS SMS Hotline; and 5. Observing on polling day. What follows is a summary of key interim findings: Management of the Electoral Process The National Electoral Commission (NEC) of Tanzania is established by Article 74 of the Constitution and its functions are enumerated in The National Elections Act, sections 3 – 8. The NEC is established to function as an independent body, responsible for the overall supervision of the general conduct of all Parliamentary and Presidential elections in the United Republic of Tanzania. The Chairman and the Commissioners are appointed by the president of the United Republic of Tanzania without oversight of Parliament as is usually the case with developed democracies. The NEC has responsibility over the elections at the National, Regional and Local Government levels; demarcation of constituencies; educating all voters throughout the country regarding election issues /campaigns; voter registration and the conduct of the elections; management of the Permanent National Voters Register ("PNVR"); and other functions. Findings: It was generally observed that the NEC administered the general elections professionally and in compliance with the electoral laws. Under those circumstances, it is TLS's view, at this point that the elections were to a large extent, free and fair. However, we wish to point out certain shortcomings that were observed: 1) There were reports from TLS observers that several people could not locate their names on the voters' lists posted outside the voting stations and that the NEC Hotline did not provide the expected support. 2) The PNVR was published only one week prior to the elections, giving voters only one week to ensure that their names were on the list. 3) TLS Observers noted that many voters came to cast their votes but were informed that they were registered in another constituency, thereby preventing them from voting. 4) It was also observed that in certain polling stations some voters were not well versed with the methods of voting. Some were also not clear on the time for the opening of the voting stations. 5) There were some incidents of the slow pace in handling the voters. 6) There were reported incidents of faulty ballot papers in three (3) constituencies, which did not partake in the elections. 7) There was delay in counting and declaration of the results (particularly for the Parliamentary and Presidential elections), which in certain cases resulted in skirmishes at the tallying stations. The TLS observed at least three incidents where exited voters were involved in skirmishes that led to the police using force, tear gas and other means to disperse crowds. Recommendations: As indicated above, it is the TLS view that the National Elections Commission (NEC) performance in this year's elections was professional and that the results declared are credible. But having observed thus, the TLS finds it prudent to give the following recommendations: The NEC should make a greater effort to educate voters in advance of the elections, not only about polling day, but on all other matters touching on the general elections, including how the elections will be administered. For example, a common concern raised by many voters was the delay in the declaration of the results and the widespread perception that there was ballot tampering or "kuchakachua", a Kiswahili adage now closely associated with the 2010 elections. Furthermore, the TLS has also observed the limitations imposed on the NEC officials caused by financial resources, the technology and the software, and the methodology employed in tallying votes. Legislation General Information: The Constitution of the United Republic of Tanzania, supported by the laws of the land, prescribes the rights and duties of all players including the government. It is through the laws that order is maintained in a society and from whence a society can build confidence in its government and citizens. The following laws and regulations form the legal framework governing the electoral processes in the United Republic of Tanzania: (i) Constitution of the United Republic, 1977 (the latest edition that was published in 2005, while the official English version was issued in 2008); (ii) National Elections Act, Cap 343 (the June 20th edition incorporates all amendments up to Act No.7 of 2010) governing the Presidential and Parliamentary elections; (iii) Local Authorities (Elections) Act, Cap 292 (the June 20th edition incorporates all amendments up to Act No. 7 of 2010) governing the civic elections; (iv) Elections Expenses Act, 2010, which governs the expenditure by or on behalf of political parties for election campaigns; (v) Political Parties Act, 1992 and Political Parties (Amendment) Act, 2009, governing the qualifications for contesting in elections or to field election candidates; and (vi) Guidelines for Local and International Observers, 2010. Comments on the Laws: The Constitution of the United Republic: The right to take part in one's government either directly or through freely chosen representatives is a right clearly enumerated by Article 21 of the United Nations Declaration on Human and People's Rights and is enshrined in our Constitution by the Eighth Constitutional Amendment Act, 1992 of the Constitution of the United Republic of Tanzania. However, the provisions in the Constitution limit this right – for all elected positions - to candidates affiliated with political parties. Also limited by sub-article 7 of Article 41 of the Constitution, is a citizen's ability to challenge the elections of the President. Also firmly entrenched in the Constitution is the function of the National Electoral Commission, which may be perceived to lack autonomy from the President with whom the power of appointment vests over the Commissioners of the NEC. The Election Expenses Act: This Act was passed more or less in advance of the party nominations in 2010. The Act defines the parameters for the funding of nominations, campaigns and elections. Various issues have been raised with regard to whether the law, in fact, provides a level playing field for all political parties and candidates. For example, the requirement for a donor to disclose their name, address and other particulars may expose them to potential risk or discrimination for being affiliated with a particular party and may, therefore, serve as a deterrent to donors, especially those of opposition parties. Another issue that has been brought to the fore is whether the Registrar for Political Parties has the capacity to efficiently supervise and administer election expenses under this Act. In this regard we have observed that the Registrar relies heavily on the Prevention and Combating Corruption Bureau (PCCB). The National Elections Act: This law was enacted to define the parameters for the Parliamentary and Presidential Elections. Various issues have been raised with regard to the capacity of the NEC to be able to adequately enforce the provisions of the law and regulate the same in accordance with the law,particularly with regard to advertising and campaigns by political parties. Recommendations: It is therefore recommended that there is a need for a consultative review of the Constitution of the United Republic of Tanzania and the electoral laws in advance of the 2015 General Elections. 4. Notable Successes & Challenges The TLS found that the pre-election and election phases in Tanzania were remarkably peaceful, with campaigns being held by various political parties with minor instances of violence being reported. The TLS further commends the police and other security organs for maintaining peace and order. The TLS observed an extraordinarily low voter turnout, where several voting stations recorded a turnout of as low as 40%. The TLS found that the Media provided wide coverage in the period leading up to the General Elections, relatively free from interference by the Government (save for the threat to ban the Mwananchi newspaper). However there were certain newspapers and electronic media that were clearly inclined towards one political party. It is the TLS view that there is still room for improvement for the media houses especially with regard to their role in voter education and in accurate reporting. 5. Conclusion Before a conclusion is made on whether the General Elections were conducted freely and fairly it is important to know the applicable criteria in making this determination. The TLS view is that for an election process to be free, the political environment should be free of intimidation. To be fair, an election must have a "level playing field" for all players from the nominations stage through to the polling day. Therefore, notwithstanding the overwhelming need to revisit the legal framework for the elections, the TLS found that the 2010 General Elections of the United Republic of Tanzania was conducted in a free and fair manner. A comprehensive TLS report will be released two weeks from the release of the final election results. Submitted By: FELIX GEORGE KIBODYA, PRESIDENT ON BEHALF OF THE TANGANYIKA LAW SOCIETY Kama macho ya wanasheria, waliobobea kwenye sheria zote za nchi wanauona uchaguzi katika mtazamo huu jee muokota chupa za plastiki (mjasiriamali wa karne ya 21) atasema nini???? Tuna safari ndefu.