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The question of the independent candidate in elections

MY motivation for writing this article came from reading the news regarding the action which was taken last week by the Tanzania Constitution Forum of renewing its call for resumption of the stalled process for the enactment of a new Union Constitution, as was reported on the front page of THE CITIZEN Newspaper of Tuesday, July 24th, 2018.

It read as follows:- “Forum calls for changes to be made to Katiba, and the electoral laws, ahead of 2020 polls”. Quoting the relevant spokespersons on this matter, part of the said news item read as follows :- “The Tanzania Constitution Forum has pleaded with the Government to make at least nine changes to the Constitution and the national electoral law, in order to safeguard a peaceful environment during the 2020 general elections”.

Among the nine changes mentioned was that “independent candidates be allowed to vie for different electoral positions”. That is what attracted my attention.

Some of our readers are presumably aware of the long history relating to this particular matter of independent candidates being allowed to stand for elections; for it has been the subject of controversy right from 1992, when the Union Parliament amended the country’s Constitution in order to re-introduce the multi-party political system, amendments which included this provision.

That is when the calls for the removal of this prohibition started being made, initially coming mainly from the Opposition parties.

This restriction on the participation of private candidates in elections had also been one of the constitutional provisions under the One-Party political system; but that provision had not generated any observable conflict during that period.

The calls for its removal started being made only after the re-introduction of multi-party politics in 1992; and they came not only from the Opposition parties, but they were also made by certain other influential ‘voices’, participating in the campaign for the protection of ‘peoples’ basic rights’.

Such prominent voices included that of Mwalimu Julius Nyerere himself. Mwalimu Nyerere’s position on this matter In his 1995 book titled “Our leadership and the destiny of Tanzania” Mwalimu Nyerere wrote as follows:- “I am not denying that the right of every citizen to stand in an election was effectively denied during the One-Party system.

But I argued then, and I continue to do so now, that the manner in which it operated in this country, with two candidates being submitted to the free choice of the voters, the One-Party system was the most democratic, and the most appropriate political system in the circumstances of the time.

But by moving to the multi-party system, a move which I fully supported, we were effectively saying that the circumstances have changed.

Therefore this restriction on the exercise of one of the peoples’ basic rights (the right to stand for elections) could be lifted without endangering the unity and peace of our country. Provided we continue to insist that all the political parties, and all the candidates, are barred from using race, tribe, or religion, as a basis for their appeals to the electorate for votes”.

In the same book, Mwalimu Nyerere reiterated his position on this matter, in the following words:- “The right of the citizens of Tanzania to participate in their own Government was enshrined in article 21 (1) of the Constitution, as part of the Bill of Rights.

Unfortunately however, the same Constitution, and the relevant electoral laws, imposed unnecessary restrictions on private candidates’ participation in elections.

By requiring that in order to qualify, all candidates for Presidential, Parliamentary, and Local Authority elections must belong to, and be sponsored by, a fully registered political party.

I am saying that the basic rights of every citizen of this country must be regarded as sacrosanct.

The citizen’s right to participate in his country’s governance is absolutely essential to democracy”. Enter the Tanzania Constitution Forum I must hasten to add that I was also motivated by former President Benjamin Mkapa’s statement, or ‘plea’ which he made last week, asking Tanzanians “to engage in serious discussions and analysis of the important issues” regarding conditions pertaining to our country.

Hon. Mkapa also referred to the question of the new Constitution-making process, and implored the interested parties to analyze the conditions which surround the process for the enactment of the proposed new Constitution, “instead of just ‘complaining’ about it”.

I had the good fortune of being the Speaker of the National Assembly (Bunge) when the Constitutional Amendments which introduced the said prohibitions on private candidates were being discussed in the august House, and can vividly remember the arguments which were advanced, both for and against the prohibitions.

The said arguments were no doubt based on a proper analysis of the issues involved. But that took place nearly three decades ago (a time when many of the present day generation were not yet born), a restatement of those arguments may be helpful in facilitating a clearer understanding of ‘why’ the said prohibition was imposed in the first place, and why the new Constitution now proposes to remove them. These issues are dealt with in the paragraphs which follow below.

There were arguments both in support of, and against, the said prohibition, which were the following:- The arguments against the ban There were two main arguments against the ban on private candidates:- (a) The main one was that which was advanced by Mwalimu Nyerere, which we described above; Namely, the need to protect the citizen’s basic right to participate in the governance of his own country.

This was the basis of the court action which was taken by Rev. Christopher Mtikila in his petition to the High Court, in the case cited as Rev. Christopher Mtikila vs Attorney-General (1995).

His petition was successful, because the High Court ruling was that “since article 20(4) of the Constitution provides that “no person shall be compelled to belong to any political party or organization . . . It was illogical for a law to provide that no person shall be compelled to belong to a political party, and in the same breath to provide that no person shall run for office except through a political party”.

Consequently, the court held that:- “If it was the intention of the Legislature to exclude non-party citizens from participating in the governance of their country, it could easily have done so by removing the generality in article 21(1)”. But the Government’s legal pundits quickly devised a novel response to this court ruling.

Taking advantage of the statement “the Legislature could easily have removed the generality in article 21(1), they produced a draft amendment to that article, which added the following words at the beginning of that article: “Without prejudice to the provisions of articles 39, 47, and 67 of this Constitution, and of any other laws relating to the requirements for election or appointment of a person to participate in the Government of the country . . .”

These words appear to have been carefully crafted, for the purpose of removing the ‘generality’ which had been identified by the High Court, ostensibly in order to implement the said court decision.

But that action did not, obviously, rectify the basic problem of trespassing on the people’s basic rights. Hence, in my humble opinion, that is the reason for the current proposal which has been included in the new Constitution to remove this prohibition, in belated realization of Mwalimu Nyerere’s contention that “the circumstances have changed”.

The other argument was that “there is no reason why those voters who prefer to elect “a person of integrity rather than for a pompous party programme”, should be deprived of his right to do so”.

Those who were opposed to this argument, expressed the view that the alleged ‘man of integrity’, if he is indeed genuinely interested in participating in the governance of his country, and whom the majority of the citizens would in fact prefer to elect.

Will most probably want to join one of the political parties; because that kind of person would presumably be fully aware of the value of associating with other like-minded citizens.

So as to facilitate the social and economic development of the people collectively. Being ‘a man of integrity’, he will certainly want to demonstrate that he is prepared to put the public interest ahead of his own self-interests.

Thus, by standing as a candidate sponsored by a political party, he will have shown that he is ready to join hands with other like-minded citizens, so that they can work together for the advancement of the community as a whole.

Conversely, the political parties will be keen to recruit such person as their election candidate, as soon as they discover that he is indeed the person whom ‘the citizens would prefer to elect’.

Hence, in view of all these considerations, the value of the private candidate is reduced to the totally selfish motive of giving another chance to those aspirants who fail to win their party’s ticket during the primary elections, of trying their luck again as private candidates. Such selfish motives cannot be sufficient reason to justify the trespass on people’s basic rights.

The arguments in support of the ban The arguments in support of the ban on private candidates were the following:- (a) The major argument was that “political parties are absolutely essential for the proper functioning of the parliamentary system of government”.

This notion is itself based on the fundamental principle that democracy gives the majority the right to rule the country, and that there is no other reliable way of creating such a majority without the presence of strong political parties which can compete effectively for the right to rule.

By presenting their different policies and programmes to the electorate, and each party endeavoring to convince the electorate to vote for its particular policies and programmes.

In that way, the political parties provide a stable basis for the government of the country. Because the electorate is enabled to grant the ‘mandate to rule’ to the party (or coalition of parties) having the most acceptable social and economic policies and programmes.

Private candidates, who may succeed in getting elected to Parliament, will not have the requisite tools of ‘organization and discipline’ required for the successful performance of these specialized political functions which are so vital in the Parliamentary system of Government.

The other arguments were the following:- That the prohibition of private candidates would enable the newly registered political parties to get credible candidates, in view of the requirement that all those persons seeking leadership positions in the Government, would be required to belong to a political party of their own choice, a requirement which would greatly assist those new parties in their membership recruitment drive.

This point of view was challenged by the counter-argument that even if this was a desirable relief, it was a purely temporary one, since within the first few years, the new political parties will have established themselves sufficiently well, so as to be able to attract new recruits without the help of this strategy, which effectively encroaches the people’s basic rights.

(ii) That “considering the fact that for almost thirty years of the One-Party political system, Tanzania’s voters have been accustomed to choosing between only two competing candidates whose names appeared on the ballot paper, and it was most likely that if private candidates were allowed to compete, there would be a very large number of them presenting themselves for election, which created the fear that the ballot paper would contain too many names, to the extent of confusing the voters, and therefore disabling them from making meaningful choices”.

As can be seen, the arguments advanced in favour of the ban on private candidates were pretty weak, which amply justifies the position adopted by the Constituent Assembly in the proposed new Constitution, of doing away with that obnoxious prohibition.

piomsekwa@gmail.com 0754767576

THREE days ago, a group ...

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Author: Pius Msekwa

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