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 prohibition 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 understood 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
1995, 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 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 “everyone
merrily going about, corruptly collecting election funds without any
accountability.”
piomsekwa@gmail.com / 0754767576.
Source: Daily News and Cde Msekwa Himself.
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