CORDIAL ‘nane nane’ festival greetings to all our esteemed readers.
The whistle has already been blown for the commencement of preparations for the fourth coming set of general elections, starting with the Local Authorities elections, which are to be held later this year, to be followed by the Parliamentary and Presidential elections to be held in October next year, 2020.
Ordinarily, there are two ways in which members of the general public become ‘ stakeholders’, or active participants, in any general election exercise.
The first is when they act as voters, for which purpose they are required to be registered first, in accordance with the provisions of the relevant law.
The second, is when they act as election candidates; for which they are similarly required to observe the provisions of all the relevant laws; including, in their particular case, a recently enacted statute cited as The Election Expenses Act” (no. 6 of 2010).
The purpose of today’s article, is to draw the attention of all the aspiring candidates, in both sets of the forthcoming elections referred to above, to this important new law; and specifically, to the reasons for its enactment, which is, primarily, to tighten the screws against the scourge of electoral corruption; but also to draw attention to the severe punishments which can be imposed for breach of the said law.
Those ‘ learned brothers’ who are mandated to administer justice, have a wholly ‘ unreasonable’ catch phrase which decrees that ignorantia juris baud excusat “ignorance of the law is no defense” I call it unreasonable, because it is absolutely impossible for anyone to know all the rules of law which are in force at any given time, for they are just too numerous.
Thus, for the purpose of offering a little helping hand, this article is addressed to all those who are aspiring for nomination as election candidates by their respective political parties in the said forth coming general elections; in order to draw their attention to this new statute which was enacted by the Parliament of the United republic of Tanzania, and became law on the 1st day of April, 2010; whose primary intention is to impose strict controls on election expenses.
The election Expenses Act, 2010; Makes provision for controlling the use of funds by candidates during the three stages of the election process, namely the nomination stage, the campaign stage, and the election stage.
These controls include the disclosure of, and accountability for all such funds; and the imposition of an upper limit to expenses which may be incurred.
Secondly, it imposes a prohibitions on certain practices (which are specified therein), during the whole period covered by these stages. Thirdly, the law prescribes penalties which may be imposed upon a candidate who is in breach of its provisions.
The particular provisions to be noted
Particular attention should be paid to the sections of the Act listed below:- Section 7(1) of the Act defines the term ‘election expenses’ as “all funds expended, or expenses incurred, in respect of the conduct and management of the nomination process, election campaign, and election”.
And, as indicated above, this law provides for expenditure controls and imposes certain prohibitions on candidates (and their political parties) during “ the nomination process, election campaigns, and the elections”.
The term ‘nomination process’ is new in our system and should be carefully noted. References to ‘ nomination day’, the ‘campaign period’, and ‘election day’ present no difficulty, because their dates are set and announced in advance by the National Electoral Commission.
What is new and not so familiar, is what the new law describes as “ the nomination process” during which the provisions of this law will be applicable. It is defined in this law as: “ the process by whatever procedure, whereby a political party invites persons who wish to be sponsored by any of such political parties to stand as candidate in the elections” .
For example, participating political parties normally invite their members who wish to be considered for nomination as candidates, to start collecting the relevant request forms beginning from a date which is several weeks before the Electoral Commission’s ‘nomination day’ for candidates.
It means that the whole of this period is now included in “ nomination process’ as defined by the new law. Section 14 (1) provides expressly that “all expenses to be incurred during the nomination process within the political parties shall be borne by the political party concerned.”
This provision would appear to impose the whole burden of paying the necessary election expenses during this specific process, on the candidate’s political party.
It is imperative to ascertain, for the avoidance of any doubt, whether an individual candidate will he have violated the law if he incurred any personal expenses during this particular process.
Section 21(1) of the Act provides that: “ during the nomination process, election campaign, or election, every person who, directly or indirectly by any other person on his behalf, gives, lends, or agrees to give or to lend...any money or valuable consideration to any person in order to induce such person to vote for him at any nomination process or election, commits an offence”.
The punishment for this business of ‘giving or lending money’ during that process, is described as “prohibited practice” , and is provided for in section 24 (2), which is precisely that “ he lends himself liable to disqualification from participation in the nomination process, or election”.
This is serious, and should be noted by all aspiring candidates. But even if he is able to escape from being so disqualified, he is still haunted by section 24(7), which provides that “where a candidate or his agent . . . commits an act which amounts to a ‘prohibited practice’ in respect of which no action was taken, the Attorney-General may institute criminal proceedings, or file an election petition, against that candidate” As can be seen, this section expressly includes the nomination process which takes place within his political party.
And the danger to the candidate is further buttressed by section 25 of the Act, which provides that : “ the prohibition of ‘prohibited practices’ stipulated in this Part, shall extend and have the same effect to a person who, by pronouncement or conduct, has shown an intention to participate in the nomination process’. (kutangaza nia).
Section 23 (1) of the Act prohibits “payment, or contract for payment, for the purpose of promoting or procuring the nomination of a candidate at any nomination process or election, for the conveyance of voters to or from the polling station, whether for the hiring of any vehicle, vessel or transport of any kind whatsoever”.
And section 23(2) provides that if any payment is made in contravention of this section “either before, during or after an election, the person making such payment or contract shall commit an act of prohibited practice”.
The words ‘before an election’ obviously include the nomination process which takes place within the political parties. Thus, the following question inevitably arises: does the prohibition on “hiring of any vehicle vessel, or transport of any kind whatsoever” apply to the conveyance of a candidate’s supporters (who are his prospective voters) to the venues designated for the public announcement of his intention to participate in the party nomination process, or the collection of the relevant participation forms? For the avoidance of doubt, the interested stake holders should seek clarification.
A temporary reprieve for the ruling party CCM
For the ruling party Chama cha Mapinduzi, the provisions of this new law relating to the ‘ nomination process’ (which takes place within the political parties) will not bother them in respect of the 2020 mid-term Presidential elections; During which incumbent President John Magufuli will be seeking a second and final term in office.
This s due to the well-established CCM convention, which practically eliminates any internal competition between CCM candidates for the Presidency, through express party Rules which guarantee the nomination of the incumbent President for the mid-term election, unless, of course, he has committed such awful blunders that will qualify him for dismissal from office, which is what is implied in the refusal to nominate him for a second term.
But in view of the usual stiff competition which normally takes place in Parliamentary, as well as in Local Authorities elections, it is of utmost importance for the aspiring candidates and their supporters, to familiarize themselves with the provisions of this new law, and, in particular, those provisions that might put them into trouble, in order to avoid being “ caught with pants down”!
A contribution to the fight against corruption in elections
It is important to understand that the enactment of this law was motivated by the need and desire on the part of the ruling party, to further ‘tighten the screws’ in the fight against corruption in elections.
This is what explains the inclusion in that Act (section 21 (1), of a provision prohibiting certain conduct, which is described as “prohibited practice”, and is defined as follows: “During the nomination process, election campaign, or election, every person who, directly or indirectly by any other person on his behalf, gives or lends, or agrees to give or lend money or valuable consideration to any person in order to induce such person to vote for him at the nomination process or election, commits an offence”.
Such conduct has thus been placed within the category of “electoral corruption” offences, in order to further strengthen the country’s legal regime against corruption.
Collection of funds during elections can easily constitute a huge source of electoral corruption. This reminds me of a book which I read about electoral corruption in India.
The book is titled “The politics of corruption”, published in 195, in which the author contends that (in India), “the greatest source of electoral corruption was the collection of funds for political parties, ostensibly for financing what was vaguely described as ‘party work’, whereas in fact, the line between the party chest and the personal pocket was literally obliterated”.
The author goes on to describe the unexpected negative results of an amendment which had been made by the Indian Parliament to their Companies Act, in order to forbid companies from contributing to political parties; whose real intention was to plug the glaring loophole which had facilitated massive electoral corruption activities.
On the contrary however, this amendment actually opened the door for even bigger election corruption deals! As the author himself puts it, “ when companies were allowed to make donations to political parties, they were obliged to disclose such donations in their accounts. But once such transparent donations were banned through the said amendment, there was no limit to unaccounted for, or secret, donations being made to all and sundry, who had access to the corridors of power, in exchange for a quid pro quo. It became free for all in terms of funds collection. No one knew from who, and for whom, the funds were being collected. Everyone who was in a position to do so, just merrily went about doing that, without any accountability”.
The new Election Expenses Act was intended to curb such prohibited conduct, of “ every one merrily going about, corruptly collecting election funds without any accountability”.
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