1. Typology Of Csos And Partners Engaged In Wpp

POLICY BRIEF 4:

THE POLICY AND LEGAL FRAMEWORK ON WOMEN AND POLITICAL PARTICIPATION IN TANZANIA 4

1� GLOBAL AND REGIONAL COMMITMENTS OF WOMEN’S POLITICAL RIGHTS

Representation of women in politics worldwide has grown over the last three decades mainly due to global efforts towards empowering women and enhancing their participation in governance and leadership spaces. The United Nations Convention on Elimination of All Forms of Discrimination against Women (CEDAW) defines discrimination against women and asks State Parties to eliminate this vice in all spheres. It notes thus:

"Discrimination against women is defined as distinction, exclusion or restriction made on impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, based on equality of men and women, of human rights fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

CEDAW calls on states to take all appropriate measures to eliminate discrimination against women in the political and public life of the country on equal terms with men, and specifically to enable women: (a) to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) to participate in the formulation of government policy, and (c) to participate in non-governmental organizations (NGOs) and associations concerned with the public and political life. The 1995 Beijing Declaration and Platform for Action is a roadmap that set the critical mass for women representation at 30 per cent to achieve gender equality.

At the African level, the protocol to the African Charter on Human and People’s Rights on women's rights in Africa (Maputo Protocol), 2003, obligates States to eliminate discrimination against women through appropriate, legislative, institutional and other measures. States are called to take positive actions, including special measures to promote the right of women to participate in political and decision-making processes. The Solemn Declaration on Gender Equality in Africa (2004) reaffirms State’s commitment to gender equality and accelerate the ratification of the Maputo Protocol.

The East African Community Treaty emphasizes adherence to good governance and democracy at the sub-regional level. Tanzania has ratified the African Charter on Democracy, Elections and Governance of 2004. It seeks, among other things, to promote gender balance and equality in the governance and development process, including holding free and fair democratic elections in Africa. However, the state has yet to domesticate the law.

2� THE CONSTITUTION OF TANZANIA AND GENDER EQUALITY

The United Republic of Tanzania constitutes Mainland Tanzania and Zanzibar. The two protectorates have different law-making bodies. The Parliament of the United Republic of Tanzania legislates on Union Matters while the House of Representatives legislates on Zanzibar matters. Tanzania has ratified numerous international and regional treaties touching on WPP and leadership. These include: (i) International Covenant on Civil and Political Rights (ICCPR) ratified in 1976; (ii) CEDAW signed on 17th July 1980 and ratified on 20th August 1985; (iii) the African Charter on Human and People’s Rights ratified on 12/12/2003); and (iv) the Protocol to the African Charter on Rights of Women in Africa that was ratified in 2010 (the Maputo Protocol).

The United Republic of Tanzania has put in place electoral laws, rules and regulations, election-monitoring bodies and regulations of political parties to ensure fair, free and credible elections. To accelerate the increase of women in Parliament, the Constitution of Tanzania (1977 CURT) promotes party and legislated quotas for the single/lower house and at the sub-national level. The CURT is well known for its gender fifty-fifty Rule (See also Article 9 (g) of CURT). Tanzania’s legal framework for promoting WPP in the Constitution provides that political parties that participate in general elections and obtain at least 5 per cent of the total valid votes shall propose to the National Electoral Commission (NEC) the names of women based on the proportionality of votes obtained by each party in parliamentary election (Article 78 (1) read together with Article 66(1) (b)). The general principles for the electoral system include the equality principle that provides that women members must not make up less than 30 per cent of the National Assembly (Article 66 (1) (b) of CURT).

The eighth amendment of the Revolutionary Government of Zanzibar Constitution of 2002 introduced special seats for women. The Election Act of Tanzania (s. 81) and Election Act of Zanzibar (S. 80) provide for the First-Past-the-Post (FPTP) System, also known as the plurality majority or the winner takes it all. The Proportional Representation (PR) system has been used to increase gender parity and promote equality, although not necessarily, equity. The P.R is also used to increase women participation at the local level through the Councilors women’s special seats (S. 35 of Local Government (District Authorities) Act, cap 288 and S. 19 (1) (c) of Local Government (Urban Authorities) Act and S. 86(A) of Local Government (Elections) Act, cap 292). These laws provide that there shall be at least onethird of Councilors’ special women seats of elected Councilors in respective Councils.

Each Political party submits a list of names for women candidates to the NEC, and the Commission is required to adhere to it after consultations with the party concerned, should a vacancy occur during the life of Parliament. While the Constitution provides for not less than 30 per cent for women in the National Assembly, pursuant to the Government decision during the 2015 elections, it was increased to 40 per cent. Further, out of five members from Zanzibar, two must be women within the National Assembly. The President appoints ten members, and five of them must be women. These are administrative processes used to increase WPP. On 31st March 2021, Hon. Samia Suluhu Hassan, President of Tanzania, appointed Ambassador Liberata Mulamula as one of those five female MPs.

3� PROMOTION OF POLITICAL RIGHTS AND THE TANZANIA ELECTORAL SYSTEM

The CURT largely promotes political rights for men and women (See Articles 5, 20, 8(1), 38, 40, 74 and 83). Expressly, all citizens have the right to: participate in forming political parties; participate in activities of recruitment of members of political parties; campaign for a political party; free, fair and regular elections based on universal suffrage; to be registered as a voter without unreasonable restrictions; to vote by secret ballot without restrictions; and without unreasonable restrictions, to be a candidate for public office within a political party, if a member.

Tanzania had maintained the FPTP System since 1995 when the multiparty elections were introduced, sometimes called the single-member plurality voting or majority electoral system. This system was inherited from the British. Voters cast their votes for a candidate of their choice, and the candidate who receives the most votes is declared the winner, i.e., more than 50 per cent of all total votes cast (50+1) for a sole presidential candidate. The CURT introduced PR as found under Articles 46A and 90 alongside the FPTP for the special seats, i.e., PR is used for MPs and Councilors’ special women seats (40 per cent of all MPs and one-third of Councilors).

���From 2015 to 2021, Tanzania has had a female Vice-President who has now become the President���

ELECTIONS, CONSTITUTION, PENAL CODE...

VOTE

Tanzania has recorded tremendous success in WPP because of affirmative action. Although women strive to achieve 50/50 gender parity in all spheres, the process has been slow. From 2015 to 2021, Tanzania has had a female Vice-President who has now become the President, following the demise of the late John Pombe Joseph Magufuli, the then President of Tanzania. This is seen as an excellent opportunity for more women to enter higher political space as they aim to realize the 50/50 per cent as SADC commitment.

During this research, it was revealed that the introduction of constitutional guarantees on special seats for women, persons with disabilities, and youth was progressive and aimed to increase special groups' political leadership. However, this process has compromised women’s chances of getting party tickets to vie in political party strongholds. There are legal barriers as well. One of the opposition party’s Central Committee in December 2020 publicly criticized 19 women members of parliament from their party who were sworn in as special seat members claiming that they forged their names and got onto the list through invalid means.

4� THE ELECTORAL PROCESS IN TANZANIA

Article 74 of the CURT establishes the election management body, which is the NEC. The complete cycle of the electoral process in Tanzania is guided by the CURT 1977, which calls on the electoral system to comply with the not

less than 30 per cent of all the members rule in elective public bodies and also a fair representation of persons with disabilities (Section 51 of the Persons with Disabilities Act No. 9 of 2010) in order to comply with the United Nations Convention on the Rights of Persons with Disabilities (CRPD) to which it is a signatory. Discrimination against persons with disabilities, including women in political posts and/or leadership, was also covered by the 2004 National Policy on Disability.

The electoral quota system is legislated. Therefore, it is a sure guarantee on at least 30 per cent of women serving in parliament and local assemblies. In compliance with affirmative action, for example, in 2015, only 3 parties got the opportunity to nominate about 113 women using the proportional party lists. Below is a brief overview of the election enabling legislation to promote WPP.

a) The National Elections Act Cap 343 RE 2015 This is the main law governing the entire presidential and parliamentary elections process. The law gives effect to constitutional stipulations on the franchise and allied rights and procedures. During the engagement with women during this review, it was notable that the majority were unfamiliar with election timelines as provided for within the law. In addition, some women demonstrated a lack of understanding of the laws and processes.

b) Local Government (Urban Authorities) Act (CAP 288 R.E 2002) There is clear provision on the PR system for the one-third of Councilors special women seats in every council. This piece of legislation, among other things, provides for the nominations of special seat members in the Urban Councils, which are important bodies for decision-making at the sub-national levels or divisions. This law is a bit discriminatory to women appointed for special seats as councillors as they are not represented in the composition of such urban authorities. Most of the provisions on WPP in this Act are also reinstated in the Local Government (District Authorities) Act (Cap 287 R.E 2002).

c) The Penal Code Cap. 16 RE 2019 The Act provides for the offences causing bodily harm, use of abusive language, et cetera. It identifies common offences and prescribes penalties to be meted upon offenders found culpable. Gender-based violence (GBV), which is a great barrier to women during campaigns, is dealt with by this law. However, there is a need in Tanzania as well to have a law that defines the offence of GBV and links it to the Sexual Offences (Special Provisions Amendment) Act that has stiffer penalties as opposed to those stipulated in the National Elections Act. The Electoral Code of Conduct for Presidential, Parliamentary and Councilors’ Elections 2020, made under S. 124A of Cap 343, does not include prevention of GBV as a duty required of the political parties and the candidates. This is a significant omission.

d) The Persons with Disabilities Act No. 9 of 2010 S.51 of the Act states that every person with a disability aged 18 years and above is entitled to enjoy and exercise political rights and opportunities as any other citizen without any form of discrimination and has the right to vote, hold public office and access any other opportunities. The responsible Minister is required to certify that voting materials, facilities and polling stations are accessible and training is provided for poll workers on the rights of persons with disabilities (PWDs). PWDs are encouraged to stand for elections, and they are free to be assisted to vote by a person of their choice. However, it is notable that PWDs have not been provided with the enabling environment to compete in politics in the country. They (PWDs) have limited education, lack resources, suffer stigma and discrimination, negative social attitudes and most polling stations are inaccessible with poor physical infrastructure. Political parties do not readily offer them to contest on winnable seats. PWDs still face challenges even though the Tanzania Federation of Disabled People's Organizations (SHIVYAWATA) on 20th May 2015 signed an agreement with the UN Women to execute a project called Inclusive Election to enable full participation of all PWDs in Tanzania elections.

e) Political Parties Act (PPA), Cap. 258 Political Parties Act as amended by Political Parties Amendment Act, Act No. 1 of 2019 draws its mandate from the CURT (Articles 3 (1), 20 (3) and 151) and Article 22 of the 1st Schedule to the CURT considers

the registration of political parties and other matters related to political parties as a union matter between Tanzania Mainland and Zanzibar. The Constitution stipulates the basic requirements for political parties. In the PPA, there is no specific provision for the WPP as the law stands now. Even matters of gender are not explained anywhere therein. The only gender parity requirement of political parties is that a political party should, among other things, promote gender (See section 6A (5) of PPA).

Concerning provisional registration, no political party shall qualify for such registration unless, among other things set out under section 9 (1) (c), its membership is voluntary and open to all the citizens of URT without discrimination on account of, among other things, gender and the election of its leaders at the general elections is open to both genders. The Act establishes the Office of the Registrar of Political Parties (ORPP) and the Council of Political Parties (CoPP) under section 21B (1), whose membership is provided under Section 21B (2) as being “of not more than two national leaders of each fully registered party”.

According to section 13 (I) of PPA, the funds and other resources of political parties which have been fully registered shall derive from membership fees, voluntary contributions; the proceeds of any investment, project or undertaking in which the party has an interest; subvention from the Government; donations, bequests and grants from any other source.