How NEC Could Prevent the CHADEMA’s Women Special Seats Confusion

First things first. Most people wonder about the legality of the expelled 19 women from CHADEMA still being regarded as MPs and carrying on with parliamentary business. The terms under which the 19 women remain MPs despite a controversial oath and the expulsion that followed is legally explained by an intraparty appeal process that the 19 women have taken against their removal from the party. Other court avenues exist in case they lose at party level. Just so we do not continue to wonder when we keep seeing them in the Parliament, the 19 women will still be regarded as MPs until all court appeal levels if pursued are exhausted. Since the occurrence of the dispute regarding the selection of the 19 women for special seats through CHADEMA in November 2020, there has been curiosity to revisit the legal framework governing special seats system in Tanzania. The need to discover ways in which the dispute and the confusion caused could have been prevented altogether made me restless. I know legal analysis cannot in itself provide sufficient answers to the all-rounded dynamics of this interesting fracas, particularly under the current volatile legal and political context. It’s my hope that the political scientists may as well be moved to infuse other perspectives on the legal viewpoint that I am going to make.

Serious scrutiny of the constitutional and statutory provisions governing special seats system in Tanzania made me arrive to the conclusion that the CHADEMA special seats dispute has been caused by an omission of the National Electoral Commission (NEC) to provide to the political parties a clear, transparent and uniform modality for selection of women for special seats. The procedure for implementation of women special seats system in Tanzania as it stands can be deduced from Articles 66(b), 67,78 and 81 of the 1977 Constitution and Section 86A of the National Election Act. The laws require not less than thirty percent of all categories of the members of parliament be designated for women through the special seats system. The procedure also allows a political party which contests for parliamentary election and obtains at least five percent of the total valid votes for parliamentary election to propose and submit to NEC names of eligible women for nomination to women special seats. After the vote counting exercise is completed, NEC indicates the number of nominated women candidates each qualifying political party are eligible to select on the basis of the votes obtained.

A woman is qualified for special seats if she is a citizen of the United Republic, has attained the age of twenty-one years, can read and write in Kiswahili or English, and, most importantly, she has to be in the list submitted to the NEC by a qualifying political party. The NEC then, in accordance with the order of preference indicated in the list proposed by each political party, declares such number of women as Members of Parliament for women special seats. The NEC then sends a notification of declaration to the Speaker of the National Assembly and to the Secretary General of the respective political parties about the nominated women. The list of names of women proposed to the NEC by each political party shall be the same list that shall be used by NEC for filling any vacancy in the office of Member of Parliament for women special seats during the whole period of the life of the Parliament.

Apart from the procedure outlined above, there are no additional procedures for implementation of women special seats system in the country. Also, there is no established procedure for the selection of women to special seats by the political parties. I have noted however that, Article 81 of the 1977 Tanzanian Constitution, directs NEC to make provisions specifying the procedure to be followed by the political parties for the purposes of electing and proposing the names of women special seats MPs. Despite this provision, NEC has consistently forgotten to comply with this requirement. Consequently, in execution of its special seats system management role, NEC only requests, receives, declares and submits names of women special seats to the parliament and refills them as need arises. Since its establishment in 1993, NEC has overlooked providing to political parties a clear, transparent, and uniform modality for selection of women to special seats as required by Article 81, leading to a number of challenges in the implementation of special seats system, including disputes such as the very one which is the subject of this article. Non-compliance to Article 81 makes us to wonder that perhaps NEC over-prioritizes its actual electoral management role thus lagging behind in proper execution of its equally important role of managing the women special seats system.

Back to the CHADEMA dispute, in the absence of a clear, transparent and uniform modality for selection of women to special seats by political parties, it is difficult to discern who is honest between CHADEMA national leaders who have vehemently denied to have submitted the list of women for special seats to NEC; and NEC which communicated to have received the list from CHADEMA. A simple presumption must be made here. If a clear, transparent and uniform modality for selection of women to special seats binding all the political parties existed, it would mean that the list containing the names of the qualified women for special seats from all political parties would be publicly known and would be with NEC before, during or soon after the election. The lists would be waiting for NEC’s endorsement based on votes that political parties would obtain followed by onward submission to Parliament. If this was the case, therefore, when CHADEMA communicated that it would not endorse what they claimed to be a rigged election by partaking the special seats share, the public would take notice of the names of qualified special seats women that CHADEMA has withdrawn from NEC. Accordingly, when a situation that CHADEMA has termed as “forged party documents containing a list of women selected for special seats from CHADEMA submitted and acted upon by the NEC” occurred, the public would wonder about such an unusual activity. Similarly, when the 19 women, appeared and took what CHADEMA has dubbed as a “illegal and controversial oath” to be special seat MPs, the ball would outright be on NEC and the Parliament to explain why they acted upon a withdrawn or forged list.

Unfortunately, in a situation where each political party has its own internal and mostly unknown procedure for selecting women for special seats, concerns such as whether the names of the 19 women were legitimately and or illegitimately obtained and submitted to NEC will remain. To fit this dispute within the legal lenses, there is no amount of explanation from either NEC and or CHADEMA that could erase this confusion. The only way this mix-up could be avoided in the first place would be if the NEC would have in place an existing, clear, transparent and uniform mechanism for political parties to select women to special seats-a responsibility it has under Article 81 of the 1977 Constitution. Unfortunately, this confusion adds into an already existing people’s mistrust and concerns about special seats system. My humble view is that, a complete overhaul of the special seats system is overdue. In the meantime, NEC could salvage the special seats system by working with relevant electoral actors to co-design a clear, transparent and uniform modality to guide the political parties in the selection process of women to special seats.

About the Author-Victoria Lihiru is Lecturer of Law at the Open University of Tanzania. She is also a Consultant on Governance, Gender and Disability Inclusion. Her specialization is on women electoral rights. Reach her via Email: victorialihiru@gmail.com.

For the past 10 years, I have been passionate about laws/policies, governance, gender and social inclusion.