People and the State in Original Line

The TLS (Election) Regulations of 2016–GN No 332 of 30th December 2016

1. History

• Law Society Act s31(1) empowers the Governing Council of the Law Society to make regulations a number of matters – membership, annual subscriptions, convening of meetings and procedure at meetings, etc

• in subsection (1)(i) – Governing Council empowered to make rules regulating the manner in which officers of the Law Society are elected, removed or replaced.

• No such regulations ever made until 2008 when TLS Elections Regulations of 2008 – GN 286 were published.

• the 2008 election rules overtime proved quite inadequate as the TLS grew in size and profile and what happened in Arusha in 2016 typified the problem of lack of clear rules.

• persons standing for President, Vice President and Treasurer made themselves known only in the last three days preceding an AGM; if there was no candidate for President, Vice President or Treasurer members discovered this on the day of the election and incumbent was asked to continue in the post; where there was just one candidate the person was elected by default.

• As these problems deepened, in 2014 the Governing Council resolved to make new rules to govern the election of officers of the society.

• There were several drafts the first was presented to the Council in November 2014, this was review by a committee of four people appointed by Council (Nov 2014 to Aug 2015). Resubmitted and approved by council in September 2015.

• Same September submitted to the Half Annual General Meeting - not approved, members felt that there had been no satisfactory consultation in the making the Rules.

• Between October 2015 and January 2016 further consultation - emailing the draft rules to members for comment, then the revised draft went Council was approved, and finally the Rules were approved by the AGM in February 2016. They were submitted to the Attorney General's office (CPD) which made some minor editorial changes. The Rules were Gazetted on 30th December 2016.  

1. Objective of the Rules

• to enable the TLS to get good leaders; to ensure transparency and eliminate discretion in the selection of candidates; and to entrench a truly democratic process in the manner in which the officers of the society are elected

1. The TLS Nomination Committee

• Composition - Rules 3 and 4 - the Nominations Committee is a 5 person Committee (a past President of the Society; a retired judge; the chairman of the Ethics Committee; a member appointed by Council and a Chapter Convenor elected by Chapter Convenors).

• Current members Dr Kibuta the Chairperson - I was President for two terms in 2004 and 2005; Honorable Justice Augusta Bubeshi retired from HC in ……; Mr Kalolo Bundala a senior advocate; Captain Ibrahim Bendera current Chairman of the Ethics Committee, and Mr Akida Modest the Convenor for Arusha Chapter elected by Convenors of the 12 TLS Chapters.

1. The Functions of the Nomination Committee – Rule 5

• To call for nominations; to vet candidates against the requirements for various elective positions; to prepare report on the vetting process and on each of the candidates submitted for vetting; to submit a list of candidates approved for contesting; to oversee the election at the Annual General Meeting; to determine objections or appeals on the selection process;  and on the election process; to organise elections; to act as returning officer at the general election; and to hear appeals relating to the election.

1. The eligibility criteria for election to President, the Vice President, the Honorary Treasurer and the 7 members of the Council

• Rules 7, 8, 9, 10, 11 and 12, stipulate eligibility requirements which are common to all elective positions and additional requirements specific to each position.

• The common criteria require that a member contesting an elective position must - a member in good standing (has paid subscriptions and renewed practicing certificate); has the minimum CLE points for the year; has no criminal conviction leading custodial sentence for more than 6 months; has good ethical standing; and has served in a position equal to member of Council.

• There are additional eligibility requirements specific to the position of President, Vice President, Honorary Treasurer and Council members (for President – minimum 10 years of practice and has served in the TLS Council for at least one year; for Vice President – minimum 7 years of practice and has served in the TLS Council for at least one year; for Honorary Treasurer – minimum 5 years of practice and has served the TLS in any position for at least two years. Has experience or qualification in finance; for Council Members – minimum 3 years of practice and has served the TLS in any position for at least two years

• For Chapter Convenor, Vice Chapter Convenor and Chapter Treasurer – must be resident in the Chapter; has a minimum of 5 years of practice but the Nomination Committee has discretion to nominate and vet a candidate with less practice years

1. Nominations and Vetting of Candidates – Rules 13, 14, 15, and 16.

• Under Rule 13, a candidate may nominate himself/herself or may be nominated by another member. If nominated by another member the candidate must consent to the nomination.

• nomination form must be submitted to TLS together with the consent form if the nomination is not by the candidate. Nomination forms may be submitted physically or electronically.

• nominations must be supported by the required number of members (for President - 5 signatures, for Vice President - 3 signatures, for Honorary Treasurer and for Council Member - 2 signatures). The member nominating a candidate or supporting the candidate must be in good standing as advocate.

• By Rule 5 (a) read with Rule 15(1), the Nominations Committee must take a view as to whether there are enough candidates for the various positions – if not it has power to extend the nomination period by 7 days. We had to use this power which enabled us to get a good pool of candidates for vetting.

1. Appeals and Objections regarding the Selection Process – Rule 17

• Complying with Rule 17 we circulated the names of all candidates selected and for those not selected we specified the reasons. I have stated many times that the role of the Nominations Committee is not to disqualify any nominated person but merely to vet that the person wishing to contest for a particular position meets the eligibility criteria prescribed for that position. Those who satisfy all the requirements will be selected as eligible candidates.

• There was only one appeal brought under Rule 5(e) but it was withdrawn when the candidate appeared before the Nominations Committee to be heard.  

1. The Elections Procedure – Rules 18 to 36

• Under Rule 5(d) read with Rules 18 and 19, the Nominations Committee has the responsibility to conducting the elections.

• The Nominations Committee has requested the Governing Council to adjust the programme for the AGM such that all non-lection matters are dealt with in the afternoon of Friday 17th March 2017 following the Annual Conference which starts in the morning. The election will be the first item on Saturday morning 18th February 2017. After the elections, and assuming there are no appeals against the election process, and if there are appeals that they are dealt with peremptorily in terms Rule 38, members will reconstitute for the DATF general meeting and be free after that.

• The process of voting is outlined in Rules 21 to 36 and includes the right to vote, the List of Voters – Rule 22 (to mirror the list of members in good standing held by the Registrar of the High Court), prohibition against contesting more than one position - Rule 23, prohibition of voting by proxy – Rule 25, election by simple majority – Rule 27, the process for counting ballots – Rule 30, election re-run where two candidates with the most votes are tied – Rule 33, the announcing of results – Rule 35,  swearing of elected officers – Rule 36.

• Complaints against the election process to be made orally or in writing prior to the announcing of results. All such complaints to be considered and determined by the Nomination Committee on the spot – Rule 38

1. Areas which are unclear in the Rules or impossible to implement

• The Nomination Committee has noted that there are certain Rules in the Regulations which are unclear and some are impossible to implement –

• Rule 5(a) requires the Nomination Committee to ensure there are sufficient candidates for each position and that the pool of candidates is representative of age, gender balance and geographical distribution. Impossible to implement because the electorate cannot be controlled in who it elects.

• Rule 7, 8, 9 say a member is eligible for election if he has served in the TLS council or has served as office bearer of TLS or "position equivalent to a member of council" These words are vague

• Rule 15(j) empowers the Nomination Committee to nominate additional candidates (with the consent of member nominated) if candidates nominated by members are not sufficient. This is a controversial because the Committee must be neutral in overseeing the elections.

• Rule 25 – the prohibition of voting by proxy is a backward step because the TLS should be moving towards more inclusive voting processes such as electronic voting and/or postal voting.

1. Concluding Remark

In providing a set of elaborate election rules these Regulations are a vast improvement over what TLS had before. No law is perfect but this good starting point has given TLS something to build on.