146.
The CSAR [p.58] concludes that, “on the whole there is still a long way to go before one can confidently and
objectively believe that there is adequate respect for the rule of law in Tanzania.”
Political pluralism and periodic competitive electoral politics
147.
Describing and analyzing the constitutional and political framework of electoral governance in the URT,
particularly the role of the National Electoral Commission (NEC) and the Zanzibar Electoral Commission (ZEC), the
CSAR points to “serious cracks” in the constitutional and political framework for competitive party and electoral
politics, and pluralism generally, in Tanzania.
148.
The cracks include: (i) public funding of political parties, disproportionately favouring the ruling party, CCM
[p.42]; (ii) the increasing concern that “big money” from undisclosed sources is becoming a serious threat not
only to competitive party and electoral politics but also to the whole practice of democracy and Government
accountability [p.43]; (iii) the provisions of the Political Parties Act No. 5 of 1992 which, “has discouraged
initiatives by opposition parties to form electoral alliances and contest elections as a unified bloc against the
ruling party” [p.44]; (iv) disregard for the court decision allowing independent candidates to stand for elections at
all levels [CSAR, p.45]; (v) the retention of the “majoritarian or simple plurality” electoral system, which the ruling
party “vigorously” defends, as against “a mixed electoral system,” for which opposition parties are advocating
[p.47].
149.
Other cracks relate to: (i) concerns about the independence and impartiality of the National Electoral Commission
(NEC) and the Zanzibar Electoral Commission (ZEC), because of the mode of appointing and removing their
members, and, in the case of ZEC, “the de facto fusion between the ruling party and the Election Management
Body” [CSAR, p. 47] ; (ii) Constitutional provisions, whereby entertaining and adjudicating disputes over the
results of presidential elections declared by NEC are ousted from the jurisdiction of the courts [p.48-51]; and, (iii)
the constraining, “oppressive,” and “restrictive” legal provisions, such as under Section 12(i) of the Societies’
Act, governing the operations and activities of subsidiary associations such as civil society organisations.
Supremacy of the Constitution
150.
The CSAR [page 64] points out that the 1977 Constitution stipulates, under Article 8(1)(a), that sovereignty
shall reside in the people, from whom the Government, through the constitution, shall derive all its power and
authority. Article 64(5) provides for the supremacy of the Constitution, which “shall have the force of law in the
whole of the United Republic”. The Article further stipulates that,“….in event any other law conflicts with the
provisions contained in this Constitution, the Constitution shall prevail and that other law, to the extent of the
inconsistency with the Constitution, shall be void.”
151.
The CSAR (p.64) notes that the supremacy of the constitution is also provided for under Article 98 of the
Constitution, which stipulates that “the vote required to pass a Bill on Constitutional amendment must reach
two-thirds of all the Members [of Parliament],” although “if the amendment sought to be made relates to Union
matters in the First Schedule of the Constitution, the vote required is two-thirds of all the Members [of Parliament]
from Mainland Tanzania and two-thirds of all the Members [of Parliament] from Tanzania Zanzibar.”
152.
The CSAR draws attention to “instances where the legislature has been in tension with the judiciary on the
question of [the] supremacy of the constitution.” The major cause of tension arises from the provision of the 5th
Constitutional Amendment, which contains the Bill of Rights. The amendment vests in the Judiciary “the power…
to declare Acts of Parliament unconstitutional where [the judiciary] is satisfied that such Acts of Parliament were
made in excess of the power given to [Parliament] by the Constitution.”
153.
The CSAR [p.65] observes that tension between the judiciary and legislature over this provision reached boiling
point in 1993. This was when the Speaker of the National Assembly, reacting to the declaration of the judiciary
that various parliamentary enactments were unconstitutional, called upon the legislature to exercise its power
to check the judiciary. The Tanganyika Law Society and legal academics, among others, viewed the call “as
an act of serious erosion of the supremacy of the constitution for the parliament itself is the creature of the
constitution.”
51
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