Why flawed electoral laws are a threat to free, fair elections

Questions about oversight, judicial recourse, voter inclusivity and political competition highlight the risks posed by these legislative gaps.

The INEC Act, introduced in 2024, marks a major shift in the management of local government elections, transferring responsibility from the President’s Office - Regional Administration and Local Government (PO-RALG) to the Independent National Electoral Commission.

However, this transition lacks a supporting legislative framework, creating confusion over the authority to oversee these elections.

INEC Director Ramadhani Kailima in July revealed that PO-RALG will oversee this year’s civic polls as there no law that give full mandate to INEC to oversee that election.

“This year’s civic polls will be overseen by PO-RALG because the laws give INEC to oversee the local government election but there must be the other law that gives us the direction on how to do so and that law is yet to be formed by the parliament,” he explained.

Just weeks later, PO-RALG Minister Mohammed Mchengerwa announced on August 15, 2024 that his ministry would handle the polls scheduled for November, 27.

“We will oversee the upcoming civic polls in accordance to laws and not otherwise,” he said in one of the press conferences ahead of civic polls.

On October 29, the High Court of Tanzania dismissed an application filed by three citizens—Dr Ananilea Nkya, Mr Bob Wangwe and Mr Buberwa Kaiza—seeking to prevent PO-RALG from overseeing the November 27 local government elections.

The case, presided over by Judge David Lunyare, challenged PO-RALG’s authority to establish election regulations and oversee the electoral process.

Speaking to The Citizen after the trial, lawyer Jebra Kambole expressed dissatisfaction with the decision, stating, “We are not satisfied with the decision; it lacks both legal and logical basis and has several deficiencies.”

Citizen participation

He confirmed plans to appeal the ruling to the Court of Appeal, emphasizing the importance of citizen participation in elections.

“Elections affect the interests of citizens,” Mr Kambole remarked, urging citizens to vote, protect their votes and take legal action against any irregularities.

He added, “We will appeal, but we understand that the decision may not be issued within a few weeks, so for now, citizens should take the appropriate action by participating in the election.”

Meanwhile, State Attorney Hangi Chana commended the court’s ruling for affirming PO-RALG’s authority. “This decision reassures citizens and addresses the concerns raised by some parties who doubted PO-RALG’s mandate,” he said, expressing optimism that the ruling would enhance public trust in the electoral process.

For his part, Mr Buberwa Kaiza called on citizens to document irregularities during the elections, describing the ongoing efforts as a “struggle for democratic freedom.” While acknowledging that the journey remains long, he noted that progress continues.

However, this contradiction has raised alarm among political parties, particularly the opposition.

According to Chadema’s Protocol, Communications and Foreign Affairs Director, Mr John Mrema, the legal ambiguity undermines the credibility of the elections.

“Such contradictions in responsibilities create room for manipulation, leaving the electoral process vulnerable and untrustworthy,” he said.

This view is echoed by political analysts who fear the absence of clear guidelines could disrupt the electoral process.

A law lecturer at the University of Dar es Salaam, Dr Onesmo Kyauke, described the situation as “a legislative vacuum that weakens institutional accountability and invites legal challenges.”

The absence of judicial oversight over presidential election results compounds these concerns. Article 41(7) of Tanzania’s 1977 Constitution prevents courts from reviewing or contesting presidential election outcomes, a provision criticized for fostering impunity.

He went on to argue that this restriction limits accountability in the electoral process.

“Without judicial recourse, there is no mechanism to address potential irregularities in presidential elections. This not only erodes public trust but also increases the risk of fraud and political instability,” he stated.

Another contentious issue is the disenfranchisement of certain groups, particularly prisoners and suspects. Article 5(2)(c) of the Constitution and relevant sections of the Presidential, Parliamentary and Councillors Elections Act deny voting rights to these individuals, excluding them from the democratic process.

A political science lecturer at the State University of Zanzibar, Prof Ali Makame Ussi, criticised this approach as undemocratic.

Principle of inclusivity

“Excluding prisoners and suspects undermines the principle of inclusivity, which is fundamental to a fair electoral system,” he said.

Equally concerning is the continued ban on independent candidates, which restricts political competition and limits voter choice.

This provision, combined with financial barriers to candidacy, disproportionately affects individuals seeking to contest outside traditional party structures.

ACT-Wazalendo secretary general Ado Shaibu emphasised the need for reform, stating, “The exclusion of independent candidates reduces political diversity and voter representation, which are essential to democracy.”

Financial barriers within the electoral process further exacerbate inequalities. Under the current laws, candidates are required to meet substantial financial thresholds to qualify, placing less affluent aspirants at a disadvantage.

According to Dr Richard Mbunda, a political scientist at the University of Dar es Salaam, this creates an uneven playing field.

“Requiring significant financial resources to compete side-lines capable candidates from disadvantaged backgrounds, perpetuating elitism in politics,” he explained.

Questions surrounding the independence of the electoral commission also remain unresolved.

Although the INEC Act was designed to enhance transparency, the President retains the authority to appoint its members, raising doubts about the body’s impartiality.

NCCR-Mageuzi vice chairman Joseph Selasini has expressed concerns about the commission’s ability to operate without bias, particularly given the retention of old electoral commissioners in the newly restructured INEC.

He highlighted the implications of this arrangement, claiming, “The independence of the electoral commission is critical to ensuring a level playing field. Without structural reforms that remove political interference, public confidence in the commission will remain low.”

Similar sentiments were echoed by Dr Paul Loisulie, who argued that “the continuation of past leadership within INEC undermines the credibility of the reforms”.

Campaign finance inequality remains another critical challenge.

The lack of comprehensive regulations governing campaign funding has allowed wealthier candidates and ruling parties to dominate the electoral space. This disparity not only disadvantages opposition parties but also skews the democratic process.

A legal expert at the Tanzania Constitution Forum, Mr Thobias Messanga, noted that unchecked campaign financing distorts electoral outcomes.

“When elections are influenced by financial power rather than voter preference, the essence of democracy is compromised,” he said.

Moreover, the opacity surrounding campaign donations raises concerns about corruption and undue influence.

A political analyst from the Open University of Tanzania, Dr Revocatus Kabobe warned, “The absence of campaign finance transparency creates opportunities for unethical practices, where political favors may be traded for financial support.”

Such practices have long-term implications for governance, as leaders prioritize the interests of donors over citizens.

Restrictions on political freedoms, including limitations on opposition rallies and media access, further constrain democratic participation.

Opposition parties often face challenges in organizing public events or gaining equal representation in state-controlled media during election campaigns.

CUF’s Protocol, Communications and Foreign Affairs Director, Mr Mohamed Ngulangwa, emphasized the need for a more balanced approach. “Ensuring equal access to media and public spaces is crucial for a fair electoral process. Without it, the ruling party holds an unfair advantage,” he said.

These restrictions contribute to voter apathy, as citizens may perceive elections as predetermined outcomes.

According to Prof Ussi, “When the electorate feels their choices are limited by systemic bias, voter engagement declines, weakening the democratic mandate of elected leaders.”