In its judgment dated 15th October which was made public yesterday, the appellate court found that High Court judges erred in law and fact by declaring as unconstitutional in May provisions of Section 7(1) and 7(3) of the National Elections Act based on Article 74(14) of the Constitution - which was neither pleaded as a violated Article nor made part of the reliefs sought by the petitioner, Bob Wangwe.
“The learned Judges erred in law and in fact in finding that City Director, Municipal Director and District Executive Director upon appointment automatically become Returning Officers for purpose o f conducting elections,” reads the judgment.
“The learned Judges erred in law and in fact for determining and assessing the provisions of section 7(1) and 7(3) of the National Elections Act of 2015 in isolation of other provisions of the same Act and the entire scheme of the whole electoral management process,” the appellate court intoned.
The apex court also found that the High Court judges erred in law and fact by declaring that provisions of section 7(1) and 7(3) of the National Elections Act were unconstitutional based on Article 74(14) of the constitution, noting that this provision does not fall under Part Three of Chapter One of the Constitution.
“The learned Judges erred in law and fact in failing to properly assess the prohibitions under Article 74(14) and the safeguards set out in the National Elections Act and its regulations, the Public Service Act and its regulations, as well as other laws and regulations relating to the conduct and management of elections.”
The appellate justices also found that the judges erred in law and in fact by failing to properly indicate how the provisions of section 7(1) and (3) of the National Elections Act violate Article 21(1), (2) and 26(1) of the Constitution of the United Republic.
The justices also found that the High Court judges erred in law and in fact by failing to establish the relevance, admissibility, authenticity, reliability and probative value of the evidence adduced in the affidavit relating to allegations that some returning officers are members and supporters of the ruling party.
“The learned Judges erred in law and in fact by failing to appreciate the legal effect of oath of secrecy and declaration of withdrawal of membership from a political party or not to be a member of a political party taken by Returning Officer before assuming office,” the ruling asserted.
They also found that the judges erred in law and in fact by failing to take into account the positive role of the impugned returning officers in the electoral management processes.
“The learned Judges erred in law and in fact by usurping legislative powers reserved for Parliament in striking out the impugned provisions of section 7(1) and (3) of the National Elections,” reads the judgement in part.
In May, the High Court in Dar es Salaam declared null and void provisions 7 and 7A of the National Elections Act (2010) which allow DEDs to also assume the role of returning officers during elections.
This was after the applicant convinced the court that the provisions were contrary to Article 74 (14) of the Constitution of the United Republic which prohibits persons concerned with conduct of elections to join any political party.
Last year, Bob Wangwe filed constitutional case number six of 2018 at the High Court challenging the constitutionality of the said provisions. Wangwe was represented by advocate Fatma Karume.
The Legal and Human Rights Centre (LHRC) in collaboration with other non-state actors initiated the move and provided technical support to the applicant, explaining that this initiative was aimed at the promotion of democracy.
The applicant had argued that scores of DEDs had unsuccessfully contested for various political positions before their appointments to those offices.
Also, the petitioners argued that allowing directors of local government authorities to oversee elections jeopardised the fairness of the electoral process because the leaders were presidential appointees.
But the Attorney General, Prof Adelardus Kilangi, said that the government, through the Solicitor General, had immediately submitted an appeal.