99. In Response, the Respondent State raises a number of contentions. First,
it contends that its laws provide enough safeguards to ensure that section
7(1) of the NEA is “implemented in line with the enjoyment of the rights to
participate in the government as enshrined in the Charter and Article 74(14)
of the Constitution.” It further points out that:
Upon appointment, the Directors do not automatically become Returning
Officers. Before assuming the duties of Returning Officers, the Directors are
to meet the requirement of section 7(5) of the Act and Regulation 16(1)(a)
and (b) of the National Elections (Presidential and Parliamentary Elections)
Regulations ….
100. Section 7(5) of the Act, the Respondent State submits:
… makes it mandatory for Returning Officers and Assistant Returning
Officers to take and subscribe to an oath of secrecy before a Magistrate
before assuming the functions of that Office. Likewise, Regulation 16(1) of
the Regulations require that every regional elections coordinator, a returning
officer and an assistant returning officer to take an oath of secrecy before a
Magistrate before assuming duties. The same provision makes it mandatory
for the officer to make a declaration before a magistrate or a Commissioner
for Oaths that he is not a member of any political party or that he has
withdrawn his membership from a political party.
101. Specifically in response to the list provided by the Applicants, of returning
officers who assumed their duties while they were allegedly active members
of Chama cha Mapinduzi, the Respondent State “… disputes the reliability
and admissibility of the same and the Applicants are therefore put to strict
proof.” It is submitted, therefore, that this allegation is unfounded.
102. Second, the Respondent State submits that the power under section 7(2) of
the NEA to appoint returning officers ensures “… that the Commission is
mandated to appoint any other officer to be a returning officer or assistant
returning officer for any reason that may deem fit disregarding the Director
who is in power … besides the returning officer or assistant returning officer
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