What danger?
I AM referring to the possibility of candidates being punished for breach of a new law known as ‘The Election Expenses Act, No. 6 of 2010’.The punishments, which may be imposed for violation of this law, include being disqualified to participate in the forthcoming elections!
Those ‘learned brothers’ who are mandated to administer justice, have an unreasonable catch phrase which decrees that ignorantia juris baud excusat “ignorance of the law is no defence” This is clearly 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.
This article is addressed to all those Tanzanians who are aspiring for nomination by their respective political parties, as candidates for the forthcoming general election, and their supporters, 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.This law applies, with regard to election expenses, to candidates for election as President of the United Republic, as Member of Parliament, and as member of a Local Government Council. Its purpose is to help them to become aware of the existence of this particular law.
And this is extremely important, because ignorance of the law is no defence! The relevant law is cited as ‘The election Expenses Act, 2010’. The law 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 prohibitions 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. Particular provisions to be noted Particular attention should be paid to the sections of the Act listed below, and the questions arising there from.
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 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. 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, for the 2015 general elections, Chama cha Mapinduzi (CCM) invited its members who wish to be considered for nomination as candidates, to declare their intentions and start collecting the relevant request forms beginning from June 3, 2015. This is the period covered by the new term “nomination process’.
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 would appear to exclude the individual candidate from the requirements of this law during this process within his political party, because all his expenses are supposed to be paid by his political party. But is this interpretation correct? Will he have violated the law if he incurred any expenses himself during this process?
For the avoidance of doubt, this needs to be ascertained. Section 21(1) of the Act provides that every person commits an offence who, “during the nomination process, election campaign, or election, every person who, before or during the campaign period, 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”.
The punishment for this offence, which is described as ‘prohibited practices’, is provided for in section 24(2), which is that “he lends himself liable to disqualification from participation in the nomination process, or election”.
This is very serious. 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, that 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 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 within the political parties.
The section refers to conveyance of votes to and from polling stations. But since there are no polling stations during the nomination process which takes place within the political parties, does this prohibition include the conveyance of a candidate’s supporters (who are his prospective voters) to the venues designated for showing the intention to participate in the nomination process as stipulated in section 25 quoted above? Ignorance of the law is no defense This law is largely unknown to many people, because it was not used during the 2010 general elections.
It was sort of put in abeyance, because of the circumstances prevailing at that time, when there was no competition at all between CCM candidates aspiring for nomination.
This was midterm for President Jakaya Kikwete, and a well respected CCM convention requires that a CCM President should face no competition within the party at mid-term. But in view of the stiff competition being witnessed this year between certain strong and influential groups, some of which are antagonistic to each other, there is every likelihood that one groups may be tempted to work for the downfall of its feared competitor by making use of this law.
Hence, it is of utmost importance for the aspiring candidates and their supporters, to familiarise 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!
/Daily News.
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