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Tanzania`s Recent Electoral Reform Initiative: Comprehensive or Cosmetic Model?

25th March 2012
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National Electoral Commission (NEC) Justice (Rtd) Damian Lubuva

The announcement  by the Chairman of the National Electoral Commission (NEC) Justice (Rtd) Damian Lubuva that plans are well underway to stop using the senior public servants in local government authorities, namely the Directors for municipality, town and district councils in the management of elections in Tanzania  is  timely and  very positive.

The decision deserves a big welcome and support from all election stakeholders in Tanzania. If the plans are acceptable and endorsed by Government, the directors will no longer serve NEC as Returning Officers in the areas or constituencies under their jurisdiction.

The electorate and the election stakeholders, including political parties, prospective candidates, election observers and civil society should support and whole-heartedly welcome the decision.

Different local and foreign election observer missions had in their reports on previous general elections, including the 2010 elections recommended for comprehensive electoral reforms, including the need for the Tanzania Election Management Body and government to consider seriously the need to enhance the independence of NEC.

This entails devolution of staff recruitment and employment powers to NEC so that all Returning Officers would be loyal, answerable and accountable to their sole employing authority, NEC. Dual loyalty and answerability tend to undermine employees’ performance in several different ways. Employees’ loyalty should be indivisible.

Any reform initiative that is aimed at enhancing and consolidating the functional autonomy of the Tanzania Election Management Body in order to enable it execute its constitutional mandate is good news for elections’ stakeholders. The credibility, freeness and fairness of elections, by and large, depend on the trust and confidence that different stakeholders especially political parties and candidates have in the Election Management Body.

Since Tanzania reverted to multiparty political system in 1992 which consequently led inter-party competitive elections and plural politics, several players in the electoral processes have expressed their doubts, discontent and distrust in connection with capability of NEC to manage elections as a neutral referee, impartial and objective authority as well as an independent decision maker.

The basic argument for those who have been questioning the credibility and integrity of NEC have tended to anchor their arguments upon the rationale for NEC commissioners and Chief Executive Officer to serve at the pleasure of the President who is also their appointing authority.

Common sense and practice confirm the fact that in ordinary circumstances employees are bound to extend their loyalty to their employer and their loyalty is usually undividable. Employers are bound to obey the orders of the appointing authority. Moreover, all Returning Officers-cum-local government authorities’ directors are implicitly senior government officials who are also employed in the public service at the pleasure of the President. This line of thinking holds much water and rests on acceptable logic. There are elements of truth in this school of thought beyond any shadow of doubt.

The second school of thought regarding the impartiality and functional autonomy of NEC holds that the President of the United Republic of Tanzania is constitutionally empowered and authorized to constitute offices and abolish any office in the service of the Government of the United Republic.

Moreover, the Constitution vests in the President (mind you not in the presidency) the authority to appoint persons to Offices in the service of the Government of the United Republic. I must hasten to caution that the President exercises such powers subject to the provisions of the Constitution and other relevant legislations.

Those who subscribe to this line of thinking argue correctly that the mere fact that the Electoral Management Body’s Commissioners, Director of Elections and Returning Officers are appointees of the President does not at all pave the way for these officials to execute their duties according to the personal wishes, needs, wants and interests of their appointing authority.

The NEC Commissioners and officers have a noble responsibility to carry out their duties and responsibilities in accordance with the requirements of the electoral legislations, and with a sense of duty, patriotism, professional code of conduct and ethics governing the public servants. As such, the officers are not ready in whatever circumstances to either bend or break the electoral law and regulations to accommodate the interests, needs and wishes of their appointing authority.

Those who share this position regard NEC as a body of individual Commissioners or personalities whose integrity in the public service domain is absolutely unquestionable whatsoever. So long the Commissioners are carefully selected and vetted; the stakeholders do not need to worry about the officers’ behavioural competency and integrity regarding the management of elections.

Moreover, those who are skeptical have the right to voice their legitimate concerns using relevant structures and institutions in case they do not trust the NEC Commissioners, officials and staff. This is, arguably akin to the Judges who are appointed by the President but in adjudicating cases and dispensing justice they rely upon the laws of the land, and they do not execute their duties and responsibilities according to the directives or influence of the appointing authority. In the light of the foregoing, and I stand to be corrected, the current NEC commissioners and Director of elections (current and former), individually or collectively are Tanzanians with undoubted integrity, merit, sense of duty and patriotism.

I do not have the courage and capacity to offer an absolutely correct judgment on the validity of the two contentious schools of thought. But whatever the case, the Election Management Body must win the trust and confidence of the stakeholders. The perceptions of the key players in the electoral processes must also swing in the right direction to confirm the credibility, dependability and integrity of the Organization in-charge of the elections’ management.

The election winners and losers must, to a great degree, rate very highly the performance of the neutral and impartial electoral referee, in our case the National Electoral Commission. The Commission must not only be seen to be fair but must demonstrably be fair to all contestants, political parties and candidates.

In order to enable the Election Management Body in Tanzania deliver credible and legitimate elections, a lot more has got to be done. Abandonment of the local government authorities’ directors in the management of elections is a necessary step to the right direction but it is not at all sufficient electoral reform measure.

Non-use of the directors is not panacea for addressing correctly the systemic and institutional problems afflicting the management of elections in the United Republic. A lot more have got to be done in Tanzania if at all NEC is to be trusted by all key stakeholders in the country’s electoral politics, including the management of electoral processes.

I am prompted to put forward the following suggestions in order to enhance the trust and confidence of the electorate in its entirety in the body vested with powers and responsibility to dispense justice in elections that enables the country to get democratically elected and legitimate leaders and government.

i.Comprehensive and holistic electoral reforms are required in Tanzania rather than piecemeal changes here and there. As announced by Justice Damian Lubuva, a change in one sub-system is good but reforming the entire electoral system is the best approach to creating the National Electoral Commission that the majority of Tanzanians want and trust. The abandonment of the local authorities’ directors to serve as Returning Officers for NEC is but one step to the right direction; however it is not good enough.

Thus, it is one of the necessary conditions but it is insufficient. The legal and institutional frameworks which govern the functioning of NEC must be overhauled to cater for the many and diverse interests of elections’ stakeholders. I trust that the Tanzanians will get the opportunity to express their views forward in connection with the Electoral Management Body that is the NEC we all want as soon as we formally embark on the debate regarding a new Constitution of the United Republic of Tanzania.

ii.Significant changes are required in the current system which government uses to appoint the key NEC officials, including the Commissioners and Director of Elections-cum-Secretary to the Commission. The appointment procedure must be open and transparent without undermining the principles of merit and competitiveness. It is important to vest the appointment powers to the President of the United Republic and Head of State.

Two options may be considered in making appointments. First, the President may publish or make available a list of the names of individuals that s/he wishes to appoint as NEC’s Commissioners and Director of Elections. The nominees of the President should be subjected to public scrutiny by inviting the members of the public to express their views on the choice of the appointing authority.

The members of the public should be given the chance to raise objections, if any, against the individuals in the list that they consider inappropriate or unqualified to hold key positions in the electoral body such as Chairperson, Commission and Director of Elections.

Second, the President could propose to Parliament a list of names of people that s/he wishes to consider for appointment to key positions in the Election Management Body. The Parliament or its relevant Committee(s) should scrutinize the list and approve or endorse the names of individuals for the President’s appointment to the key positions in NEC. Moreover, once constituted, the Commissioners should by secret ballot elect the Chair and Vice Chair from amongst themselves. In this way the trust and confidence of the elections’ stakeholders in the Election Management Body could be significantly enhanced. The number of the “doubting Thomases” regarding the efficacy, integrity, impartiality and independence of NEC in discharging its functions could be substantively reduced.

iii.NEC Commissioners should have a guaranteed but limited tenure of office. A two-term limit mandate for the Commissioners is probably good enough for the interest of all elections’ stakeholders. The key electoral officers should be independent from the authority of those standing for political offices.

iv.The election Management Body should not report to the Head of state and Government, that is the President. Administrative mechanisms and structures should be devised to enable NEC become accountable and report directly to Parliament.

v.In order to be able to deliver credible, free and fair elections, the Election Management Body must be well resourced in terms of human, financial and technological resources. In most African countries, the election management bodies tend to depend excessively on donor financing. This is not healthy for attaining the desired independence of the electoral bodies as well as for nurturing and consolidating democratic governance in the developing countries, including Tanzania.

The government should ensure that NEC is adequately resourced in terms of human capital and financial resources. Elections should not become the donors’ burden.

The general election in Tanzania is held once in five years. The government has adequate time and should be able to allocate adequate money for the general election in each fiscal year so that in five years the required financial resources are available for NEC’s functions. Democracy is always regarded as the most expensive political process. The consequences of dictatorship and authoritarianism are unbearable in the modern world.

vi.The NEC Chairman’s idea and decision to terminate the involvement of local government authorities’ directors in the administration of elections is a good step to the right direction. If the necessary reforms are implemented in order to make the National Electoral Commission (NEC) demonstrably independent in the eyes of all election stakeholders, I suggest that the Election Management Body in Tanzania should acquire a new name.

It should be named the Tanzania Independent Electoral Commission (TIEC) or Independent National Electoral Commission (INEC). The concept “independent” portrays a good image to stakeholders and signify in a way that the Election Management Body is autonomous and able to implement the election legislation without interference and intimidation from both the Executive and other political forces or actors.

vii.The development of an independent structure for the management of elections on the one hand is likely to create many employment opportunities for Tanzanians. That is good news for qualified job seekers.

However, on the other hand the decision to create a cadre of electoral officers will also undermine the initiatives which the government undertook since 1992 to downsize and right-size the public service in order to avoid a bloated government bureaucracy. The administration of elections in the constituencies is not carried out solely by the Returning Officers (ROs), which Hon Justice Lubuva is intending to avoid in the management of elections function.

The election management hierarchy at the constituency level includes the Assistant Returning Officers (AROs), Presiding Officers (POs) and Polling Assistants (PAs).

There is also a Regional Election Coordinator in each region during the general election season. All these officers are public servants per ce. Is NEC intending also to abandon all local government staff in the administration of elections? Is it possible, desirable and feasible that we can run the general elections in Tanzania with a team of officers which is exclusively employed and accountable to the Election Management Body?

viii.Much as we all support initiatives geared at enhancing the independence of the NEC, we must bear in mind that the independence of NEC cannot be guaranteed only by diminishing its dependence on local government administrative structure and staff. We need also to take into account the cost and benefit implications of such decisions.

Many countries tend to use public servants and even volunteers in the management of electoral processes and Tanzania is not exceptional. Tanzania like many other developing countries has many competing priorities and limited resources. Electoral reforms decisions should be informed by rational thinking, including the cost and benefit analysis.

Dr Benson Bana is Head of Department of Political Science and Public Administration at the University of Dar es Salaam.

 

SOURCE: GUARDIAN ON SUNDAY
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