Any academic or practitioner, who is of good will, loyal to the rule of just law and to fundamental principles of democracy, cannot but be concerrned with the challenges of preventing rigged elections, guaranteeing a level playing field during electoral competitions and correcting flaws in vote tabulation to ensure truly representative electoral processes. This view is encouraged by what President Magufuli said about the 2020 General Elections when addressing the diplomats during a sherry party held at the State House on the 21st of January early this year. He said “General election is mandatory for any democratic nation like Tanzania. Therefore the government is determined to embrace justice, transparency and freedom during the election”.
However, until now, we Tanzanians have not yet reflected enough on democracy through elections, despite the ups and downs of the electoral processes we have gone through since multiparty politics was re-introduced in our country in 1992. The President’s statement therefore encourages us to reflect on the elections so that we prepare ourselves to participate in just, transparent and free elections. To many Tanzanians, discussing democratic politics and electoral integrity is a taboo, if not a crime! For that reason, one of the essential democratic conditions has been given least attention so far, namely the availability of mechanisms to uphold the rule of law and to promote and protect human rights linked to political participation and representation. Now that we are heading towards the General Elections at the end of this year, it is imperative that we reflect critically, early and in good time, on promoting electoral integrity through upholding legal justice in our country.
What is electoral integrity?
The answer to the question above is very important because electoral integrity is linked to both democracy and development. If we want to become a middle income country in the year 2025, we cannot avoid answering the above question. The answer to the question is best given by the Global Commission on Elections, Democracy and Security when it says in its report on Deepening Democracy: A Strategy for Improving the Integrity of Elections Worldwide (September 2012): “To promote and protect the integrity of elections, governments should build the rule of law in order to ensure that citizens, including political competitors and opposition, have legal redress to exercise their election-related rights.”
Three phases are key in that conditionality of building rule of law for the integrity of elections: these are ‘rule of law,’ ‘legal redress,’ and ‘election-related rights.’ No wonder, therefore, the Global Commission defines an election with integrity “as any election that is based on the democratic principles of universal suffrage and political equality as reflected in international standards and agreements, and is professional, impartial, and transparent in its preparation and administration throughout the electoral cycle.’
A critical analysis of that statement implies a number of challenges which we are now facing in our efforts to enhance democracy and electoral integrity. These challenges are:
1) developing professional and competent electoral management organs with full independence of action to administer elections that are transparent and merit public confidence;
2) establishing the rule of law to substantiate claims to human rights and electoral justice;
3) creating institutions and norms of multiparty competition and division of power that bolster democracy as a mutual security system among political contenders; and
4) removing barriers – legal, administrative, political, economic, social and psychological – to universal and equal political participation.
If we respond to these challenges successfully, we shall prove to the world that we are able to engender broad public confidence in the process and trust in the outcome. We shall have shown that our elections were run honestly and transparently, respecting basic rights, with the effective and neutral support of state institutions and the responsible conduct of participants (leaders, candidates and voters). In that way we shall have realized the promise of the President since the results or outcomes will have been achieved acceptably and peacefully. In short, we shall have obsereved electoral integrity.
Legal justice for Electoral Integrity
Tanzania, like many other African countries, is yet to accept, at least in practice, the ethical fact that political rights are human rights according to the International Covenant on Civil and Political Rights (ICCPR). The ICCPR is a key international human rights treaty, providing a range of protections for civil and political rights. The ICCPR, together with the Universal Declaration of Human Rights and the International Covenant on Economic Social and Cultural Rights, are considered the International Bill of Human Rights. The ICCPR obligates countries that have ratified the treaty to protect and preserve basic human rights, such as: the right to life and human dignity; equality before the law; freedom of speech, assembly, and association; religious freedom and privacy; freedom from torture, ill-treatment, and arbitrary detention; gender equality; the right to a fair trial; right family life and family unity; and minority rights. The Covenant compels governments to take administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty and to provide an effective remedy.
Therefore, in the light of ICCPR, broad public access to justice at the local and national levels must be available against violations to those rights, along with the corresponding reparation and remedies. The connection between the rule of law and electoral integrity is self-evident. As the Global Commission mentioned before reiterates “(t)he effort to protect and promote the integrity of elections has to be an ongoing commitment. Legal frameworks need to be reviewed to ensure that: there is a genuine opportunity for political contestants to compete fairly; effective remedies can be applied by administrative bodies and the courts; political competitors can turn to legal redress, rather than violence or other extra-legal measures; and citizens have confidence that they can overcome any obstacles to their political enfranchisement. Civil society organizations can monitor and report on the functioning of state institutions in these respects.”
Access to justice is essential for electoral integrity. In line with this logic and in order to provide further elements to analyse the link between electoral integrity, rule of law and legal frameworks, we need to discuss the following questions: How can we establish capable institutions which will assure us of access to justice for the rule of law and electoral integrity? What are the key principles for effective, timely and impartial administration of electoral justice? Under which institutional forms and mechanisms is it possible to effectively provide judicial remedies to violations to fundamental human rights linked to political participation and representation?
(To continue next week).
By Dr Camillus D. N. Kassala, PhD
The author is a Researcher with the Interfaith Standing Committee for Economic Justice and Integrity of Creation as well as Executive Secretary for Tanzania Episcopal Conference Department of Justice, Peace and Integrity of Creation. His views do not necessarily reflect or represent the position of the Episcopal Conference or that of the Standing Committee.