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SPEECH BY CHIEF JUSTICE OF TANZANIA, HON. MONAMED

CHANDE OTHMAN DURING THE WORKSHOP ON “THE ROLE OF

JUDICIARY IN SECURING ELECTION PROCESS IN TANZANIA:

BEST PRACTICES AND CHALLENGES EMERGED IN 2010

TANZANIA AND 2013 KENYA ELECTIONS PETITIONS”, 20th and

21st OCTOBER 2015, NEW AFRICA HOTEL, DAR ES SALAAM.

ORGANIZED BY

TANZANIA HUMAN RIGHTS DEFENDERS COALITION

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Hon Chairman, National Election Commission,

Hon. Principal Judge,

Hon. Judges,

Hon. President of the Retired Judges Association,

Hon. Registrars,

Hon. National Director, Tanzania Human Rights Defender Coalition,

Members of the media,

Adv. Keth Kilonzo from Kenya,

Distinguished participants,

Ladies and Gentlemen

Good morning,

Let me begin by thanking the Organizers for honoring me with the

privilege of officiating this Workshop on The Role of Judiciary in

Securing Election Process in Tanzania: Best Practices and Challenges

Emerged in 2010 Tanzania and 2013 Kenya Elections. Two weeks

ago, we held a training workshop for 35 Judges of the High Court

and 21 Registrars in Dodoma on a similar topic. This was the first

of its own kind as regards the training of Registrars in managing

election petitions. The Dodoma Training was a follow up to two

training seminars conducted in Arusha and Dar es Salaam for all

Justice of Appeal and a number of Judges of the High Court. Allow

me to express my sincere gratitude to UNDP for making those

training workshops a reality.

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Honourable Participants, As only 35 Judges out of 84 Judges of

the High Court have so far been exposed to a follow up training on

managing election petitions, we took a purposeful decision to work

together with the Tanzania Human Rights Defenders Coalition

(THRDC) whom I sincerely thank, so that additional 35 Judges

could also be trained. The selection include Judges who have not

attended the earlier training Workshops. Empowering judges to best

handle election petitions is a viable investment in democracy and

the rule of law. It is also worth recalling that in the 2010 general

election, the High Court of Tanzania received 44 election petitions

out of which 17 went to full trial with the rest resolved at the

preliminary stage.

Honourable Participants, it is an undisputed fact that 2015

General elections in Tanzania are in many respects quite animated

and unique. Candidates from ten political parties are contesting in

the elections. Four of the main opposition parties have formed a

common list of candidates for both the Presidential and

parliamentary elections. A political scientist, Prof. Staffan I

Lindberg, in his book “Democracy and Elections in Africa” advanced

the proposition that three dependent variables form the democratic

qualities of an election, namely, participation, competition and

legitimacy. The very first time the country had experienced vibrant

election campaigns was in the year 1995 when Tanzania had its

first multiparty elections. According to the National Electoral

Commission, the constitutional authority for the conduct of

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elections 23, 253, 982 people in Tanzania have registered for the

upcoming elections. While, respectively, over 70% of registered

voters voted in the 2005 general elections, and 43 % did so in the

2010 elections, according to an opinion poll or study by Twaweza

East Africa, a civil society organization, titled Let the People Speak,

(Brief No 27, Sept 2015) it was found out that 99 % of the registered

voters who were interviewed, responded that they intend to exercise

their right to vote in the upcoming elections, on 25th October, 2015.

Thus it is reasonable to say that participation and competition, two

of the dependent variables that form the democratic qualities of an

election, referred to earlier by Professor Lindberg are at a surge in

the growth of our democracy. After 25th October we may wish to

compare this with the voter turnout for the 2013 Kenya presidential

and parliamentary elections which stood at a record 85.91%. Let us

also not forget that the other indisputable standards of a

democratic election, include transparency, integrity, security and

accuracy.

Honourable Participants, an election is one of the foundations of a

sound democracy system of governance.

“Competitive multiparty elections”, says, Pippa

Norris, in Why Election Fail, (p.4, Cambridge

University press, 2015) are the bed rock for

democratic accountability, linking citizens and the

state, empowering electors to “throw the rascals

out” if dissatisfied by unpopular leaders”.

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A free and fair election gives the assurance that those who

emerge as winners are true elected representatives of the people.

Electoral dispute resolution mechanism (in our case the courts)

should be appreciated as a climax or finale of an electoral process.

Electoral process cannot be said to be complete or to have

concluded when there are still pending election petitions in courts.

In dealing with election petitions, courts also play an important role

of safeguarding democracy and safeguarding and protecting the

electoral rights created by Statute or law. This is one of the reasons

that elections petitions need to be accorded priority, expeditiously

speed tracked and disposed of in a timely fashion.

Honourable Participants, Looking at the history, Courts in the

past had experienced delays in the disposal of election petitions.

They were not disposed within the initial trial time limit provided by

the law, that is, one year. We had to seek leave from the Minister of

Constitutional and Legal Affairs for a six months extend of time for

the determination of the pending petitions. Judging from the 2010

general elections, the situation has approved appreciably. The

Court’s performance has been much healthier.

Honourable Participants, for the upcoming election, 2015, we need

boost our performance in respect of election petitions. The objective

and target for the Court is the fair, impartial and independent

disposal of election petitions within a shortest possible time. An

election could easily be compromised when a court of law is unable

to property determine an election petition. As the guardian of the

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Constitution and the law and with the ultimate responsibility for

the dispensation of justice, we should be prepared to hold the reins

in the timely determination of parliamentary and local election

disputes. The electorate needs to be certain whom they have freely

and fairly chosen as their elected representative, not unclear who

among the various rival contenders from the various political

parties that contested an election has been duly chosen. Ultimately,

it is also in public interest to diligently attend to election petitions

and for the very election process to see its finality.

Honourable Participants, Our strategy and plan of action for the

disposal of election petitions arising out of the 2015 general

elections must inevitably be informed by past experience and best

practices, including those from other EAC Member States, including

Kenya.

A lesson from history. The first factor that had repeatedly

contributed to a delay in the timely disposal of election petitions by

the court in the past was the lack of financial resources. While we

have continued to convince and submit that an election process

involves a chain of events that ultimately culminates with the final

determination of an election dispute if there is one instituted in

Court under the Elections Act and other relevant law, the financial

resources allocated by the Government and by International

partners, including the U.N system to the 2015 elections hardly

combines or incorporates financial resources for the Courts’ proper

determination of the upcoming election petitions. Both the Court

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and the Attorney General, who invariably is impleaded in an

election petition have to be financially empowered if we are to

dispose of the election petitions efficiently and timely. Judging from

participation and competition, for planning and readiness, we

predict that this time around we will see a rise in election petitions

compared to the 2005 and 2010 elections. So, the immediate

allocation to the court of financial resources for the handling of

election petitions is a matter of urgency.

Honourable Participants, the second factor responsible for delays

in election cases has to do with lack of seriousness on the part of

litigants. Some petitioners after lodging cases in Court do not

diligently prosecute them for example by failing to deposit the

amount for security for costs within a reasonable time or applying

for the determination of the amount to be deposited in court as

security. On the other hand, some respondents strive to do

everything possible to frustrate the serving of election petition upon

them.

A third factor causing delays is the dilatory practices of advocates

some of whom deploy all sorts of technicalities as a delaying tactic

to prolong the trial and thus allow the incumbent to remain in the

elected seat while the case is going on before the Court. A few of

those technicalities include the raising of frivolous interlocutory

applications, preliminary objections on facts and calling for

examination non-essential witnesses. To curb all that, the Court

has decided to enhance the case management of election petitions,

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to closely superintend the procedures involved and control the court

process more affirmatively.

Lack of experience of both the bench and the public and private bar

in handling election petitions cases is yet another cause of delay.

Unlike other civil and criminal cases, election petitions are

instituted in courts every after five years, have a distinctive special

procedure and have developed a set of jurisprudence.

Honourable distinguished, to curb or eliminate the above

mentioned and other causes of delays both the bench (Judges and

magistrates) and bar (advocates) requires the comprehensive

acquisition of knowledge of the procedures governing election

disputes in Court and a familiarization of the relevant

jurisprudence. This Workshop as we all appreciate is intended to fill

and seal that gap. The Judiciary has also ameliorated court

procedures governing election petitions in order to facilitate their

fair and expeditions disposal.

Honourable Participants, the demand for the timely disposal of

election petitions is high. Inexcusable delays in disposing election

petitions heighten political tension; cause lots of anxiety among the

voters amethe voted and may even lead to a breakdown or collapse

of law and order. Inordinate delays in determining elections

petitions also expose the judiciary to negative publicity, thus

eroding public confidence and trust. Courts and the legal

profession should therefore strive to dispose cases within the time

provided by law.

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It is through a Workshop like this that we can learn from past

experience, tap from our own and Kenya’s best practices, continue

to build up expertise and professionalism and improve our capacity

to determine election cases within the shortest time possible. The

public needs to be aware too that a court of law should not sacrifice

justice on the pretext of its swift administration nor should Courts

and the legal profession drag petitions inordinately in order to

strangle justice to which it is subservient.

Honourable Participants, in concluding allow me to call upon

Judges who will handle election petitions, to do so more diligently

and with added professionalism now that they will be equipped

through this workshop with practical skills, best practices and

increased knowledge on electoral law and jurisprudence.

Judges must of course continue to exhibit fairness, impartiality and

independence in the determination of election disputes as they do

in relation to their judicial duties.

Let me also refresh your memory on the insightful words of Winston

Churchill who put it this way:

“ At the bottom of all tributes paid to democracy is

the little man, walking into a little both, with a little

pencil, making a little cross on a little bit of paper-

no amount of rhetoric of voluminous discussion can

possible diminish the overwhelming importance of

the point”.

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The Judiciary and the legal profession must necessarily play their

roles in ensuring the purity of the 2015 elections and in particular

the conduct of a free, fair and peaceful election by the handling of

the approaching election petitions attentively, timely, diligently and

professionally. This should be our contribution to a free, fair and

peaceful 2015 election in Tanzania. It would be a final jewel to the

crown of our democracy.

Having said so, I hereby announce this Workshop as officially

launched.

CHIEF JUSTICE

HON. MOHAMED CHANDE OTHMAN