IN THE HIGH COURT OF TANZANIA
AT BIHARAMULO
ORIGINAL JURISDICTION
(Bukoba Registry)
MISC. CIVIL CAUSE NO. 10 OF 2005
In the matter of Election Petition under the National Elections Act (Cap. 34) and the Elections (Election Petitions) Rules
CHOYA ANATORY KASAZI ………………………….PETITIONER
VERSUS
1. KASHEMEZA PHARES KABUYE ……………1ST RESPONDENT
2. THE ATTORNEY GENERAL …………………2ND RESPONDENT
JUDGMENT
27/8/2007 & 12/10/2007
MUSSA, J;
In the parliamentary elections held on the 14th day of December 2005, the petitioner and the respondent, among others, contested the Biharamulo West constituency as, respectively,
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candidates of Chama cha Mapinduzi (CCM) and the Tanzania Labour Party (TLP). The other candidates were, namely, Rashid Issa Sadick of CUF and Faustin Gerald Nzigu of CHADEMA.
At the end of the exercise, the election results were pronounced by the returning officer according to which the respondent polled 24,234 votes; the petitioner 23,032 votes; the CUF candidate 1,575 votes and; the CHADEMA candidate 1,345 votes. The respondent was, therefore, declared the winner with a majority of 1,202 votes over his nearest rival, the petitioner.
The petitioner is at odds with the manner in which the elections were conducted and; seeks to avoid the elections results upon a petition comprised of fourteen grounds of grievance in which he joints the winner as the first respondent and the Attorney General as the second respondent. On the premises, the petitioner seeks a variety of reliefs all of which culminate into a prayer for a declaration that the election of the respondent as member of Parliament for Biharamulo West was null and void.
Before me, the petitioner had the services of Mr. J.S. Rweyemamu who was assisted by Mr. Chamani, both learned advocates, while the first respondent was represented by Mr.
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Magesa, also learned advocate and; the second respondent had the services of Mr. Vitalis, learned state attorney. The trial took over a week or so in the course of which the petitioner fielded six witnesses
him inclusive as well as numerous documentary exhibits; the first respondent eight and; the second respondent ten witnesses.
The petition conveniently falls into three distinct parts, that is, allegations of defamatory statements; irregular counting procedure and; illegal practice or intimidation by the first respondent and/or his agents. At the outset, the following issues were agreed and framed by the court for determination:-
1. Whether or not the petitioner vehicle was attacked by the 1st respondent or his agents at Musenyi and whether the supporters of the petitioner were obstructed by the supporters of 1st respondent while enroute from Musenyi at Biharamulo Bus stand.
2. Whether or not during the campaigns the 1st
respondent made allegations against the petitioner to the effect that the petitioner has killed his mother in law and his brother and buried a shrouded live cow so as to
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become an MP and further whether the 1st respondent, during the campaigns, made statement to the effect that the petitioner had sexual intercourse with one Humuds’ wife.
3. Whether or not the first respondent, during the Campaigns, made allegations to the effect that the petitioner had misappropriated a portion of the funds aimed at the construction of Nyakahura Secondary School and used that portion of the funds to construct his own house and; further whether or not the 1st respondent falsely alleged that the petitioner closed down a one year nursing course programme at the Biharamulo Hospital to the detriment of the votes.
4. Whether or not the 1st respondent made false allegations against the petitioner to the effect that he did file an objection to the returning officer to the effect that teachers should not be used in the electoral process and thereby cultivating an air of contempt between the petitioner and teachers.
5. Whether or not the counting procedure as alleged
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in forms No. 21B was irregular and if this irregularity affected the results.
6. Whether or not at Runazi, Nyarubungo, Biharamulo town and Rusahunga polling stations votes were intimidated, discouraged misled as well as scared hence were so many spoilt votes and blank papers to the effect that the elections were not free and fair.
7. Whether or not to suit the desired results, the Presiding officer did not post the election results.
8. To what reliefs are the parties entitled.
As it, however, later became apparent, the petitioner did not lead evidence in support of some of the allegations as contained in the Petition. Mr. Rweyemamu concedes that much and, in effect, abandons any further comment in pursuit of Issues Nos.6 and 7. I will be loath to have to tread an abandoned course and; accordingly,
issues numbered 6 and 7 are straightaway answered in the negative. I propose to consider the petition in the light of, and in the order of the remainder of the issues.
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Issue No.1
This issue was the subject of the testimony of the petitioner (PW1) and that of Andrew Bulimbalwa (PW2). It was said that on the 13th day of December, 2005 around 6.00pm, the petitioner, Andrew and several other CCM party officials were enroute from Musenyi locality to Biharamulo township. All were in a private motor vehicle belonging to and being driven by the petitioner . At some place, just a little outside Musenyi, the driving party heard noises from persons chanting with this:-
Kabuye Oyee, Kabuye Oyee, Kabuye Ameshashinda, wewe unajisumbua tu.
The occurrence was in the heart of a forest where the road was stony and; as a result, the petitioner was said to have been driving very slowly. Next, the shouting intruding party was heard counting:- moja, mbili, tatu, twende! And, all of a sudden, the
petitioners’ vehicle was studded with stones. In the ensuing fracas, the vehicles’ right hand window glass was said to have been broken and its body dented but; the petitioner drove on to eventually safely arrive home. This being the evidence, it was the case for the
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petitioner that their assailants were agents of the first respondent. This, he said, he figured from their speech at the time of the attack.
To this version as told by the petitioner and his witness, the first respondent denied any involvement. His case was that, at all the material times, he was at his residence and never moved out. He knew nothing about the allegation of the petitioner being attacked with stones and did not procure any of his agents to perpetrate the attack.
On the evidence adduced on this issue, counsel for the petitioner urges that the occurrence of the attack has been established beyond peradventure. That may be so but, to me, it would not really suffice to merely prove the occurrence of the attack. It would have required proof of either the personal involvement of the first respondent or his agents for the petitioner to carry the allegation as contained in ground No. 5 of the petition. In the matter presently before me, both eye witnesses conceded to not
having seen the first respondent at the scene of the attack. Neither did they identify any of the assailants and one cannot positively assert, then, that the stone throwers were known supporters of the first respondent. As correctly formulated by Mr. Magesa, the
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pronouncements at the time of the attack cannot, alone, exclude the possibility that the assailants were actually pretenders intent upon disguising their own felonious purpose. In the light of the foregoing, issue No. 1 is answered in the negative.
Issues Nos. 2, 3 and 4
A common question is involved on these issues and that is whether or not the first respondent made certain scurrilous
statements pertinent to the petitioner. That being so, the issues are conveniently and more appropriately resolved upon a unison consideration than would if discussed separately.
The impugned statements were basically accusations allegedly made by the first respondent at respective campaign rallies and directed against the petitioner. It was said that the first respondent made accusations, first, that the petitioner, ostensibly, by means of witchcraft, killed his mother-in-law, brother and buried a shrouded
live cow at the backyard of his house in order to retain his parliamentary seat; second, that the petitioner had an adulterous association with one Humuds’ wife; third, that the petitioner misappropriated a portion of funds aimed at the construction of Nyakahura Secondary School and converted the same to the
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construction of his own house; fourth, that the petitioner unilaterally closed down a one year nursing course obtainable at Biharamulo Hospital and; fifth that the petitioner had objected to the use of teachers in facilitating the electoral process.
These alleged accusations by the first respondent were testified to by the abovenamed Andrew (PW2), Abdallah Zedi (PW3), Emmanuel Mashahidi (PW4) and Joshua Ruhazwe (PW5). It was thus, respectively, said that the first respondent spoke those words on the 8th day of October, 2005 to a campaign gathering of 300 to 400 people at Ruziba Centre (PW2); On the 28th day of August, 2005 to a rally comprised of about 500 people at Biharamulo bus stand (PW3); on the day of October, 2005 to a gathering of about 200 to 300 people at Ng’ambo area (PW4); on the 30th day of September, 2005 to an undisclosed number of persons at Bisibo Ward (PW5) and; On the 5th day of September, 2005 to a gathering of about 800 people at Runazi (PW5).
More particularly, PW5 testified to the effect that the first respondent told the Bisibo and Runazi gatherings that the petitioner tried to block the income of teachers by writing to the returning officer to disallow them from facilitating the electoral process but that he will fight on until teachers were allowed to participate. He also
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was said to have posed a question at Bisibo as to whether a person who kills his own relatives to win the seat should be elected? And,
actually told the Runazi rally to forget about the CCM candidate who killed his own relatives to win the parliamentary seat.
The petitioners’ witnesses, that is, PW2, PW3, PW4 and PW5 all said that they believed the first respondents’ accusations including the bit about the petitioner killing his own relatives as a ritual sacrifice on account that the first respondent was a respectable person in that locality and that the petitioners’ mother-in-law and brother actually died in succession a few days before the campaigns.
The petitioner, for his part, testified that it is quite true that one month before the primary nominations, his mother-in-law died of what he conceived as a natural death while she was being during the
taken to hospital. His young brother also died of natural causes elections campaigns. The petitioner refuted the accusation that he buried a shrouded live cow at the backyard of his residence.
The petitioner additionally testified that he was the one who conceived the idea of building Nyakahura Secondary School and prepared a project appraisal towards the building of it which he submitted to the Japanese Embassy for funding. He personally
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contacted the Japanese Ambassador who extended a USD 42,000 grant towards building the school. The money was transferred to a Biharamulo account and used to construct the school without him converting a single penny of the projects’ funds for personal gain. To support the petitioner was Apolinary Gervas Mgalula (PW6), a Nyakahura councilor who also provided the minutiae of the project.
As regards the discontinuation of the nursing course obtainable at Biharamulo Hospital, the petitioner said he had nothing to do with the course of action which was actually taken by the Ministry of health itself. He also denied to have written the returning officer to disallow teachers from facilitating the electoral process.
The petitioner also denied the accusation of committing adultery with the wife of a Mzee Humud. He said that the wife of Mzee Humud who, presently, is a deceased person, was a councilor who used to request a lift on his car to take her to various meetings.
As such, he had a good working relationship with Humuds’ wife but denied ever having sex with her.
This being the evidence, it was the case for the petitioner that the statements allegedly made by the first respondent tended to
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expose him to contempt or ridicule and injure his reputation before the electorate.
These allegations are categorically denied by the first respondent. More particularly, while he does not quite dispute having addressed a campaign rally at Ruziba, the first respondent refutes to have made the impugned statements against the petitioner as held out by PW2. At the rally, of which he could not remember the date, the first respondent talked about building a road from
Biharamulo to Kayeru; putting up a dispensary at Katerela; providing
electricity to Ruziba from Biharamulo town and; promoting Kagango Secondary School to a High School status. The first respondent said that PW2 told a falsified account and that the witness was not even among those present at the rally.
The first respondent fielded a witness, namely, Joseph Matabalo Stephan (RW3), the village Executive Officer, who said the meeting at Ruziba was held on the 8th day of October and attended
attended by 300 people or so. All this witness heard was the first respondent speaking about helping people in development activities particularly towards building the road from Biharamulo to Chakende and; that if elected, he would be a member of parliament for all without regard to colour, religion or political affiliation. Joseph said
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he did not hear the first respondent pronouncing any of the allegations against the petitioner. But this was also the witness who yielded under cross-examination that he had specific instructions from the first respondent on what to testify.
The first respondent further conceded to have presided over a campaign meeting within Biharamulo township. Only he says the rally was held at soko jipya from 3.00p.m to 6.00p.m. It should be recalled that PW3 had said that the rally took place on the 28th day of August, 2005 at Biharamulo bus stand. But Antidius Mwesigwa (RW4) whom the first respondent called to testify for him clarified that the place is also known as soko jipya.
The first respondent testified to the effect that he told the gathering there about the need to complete construction of the road from Kagoma to Lusahunga; to elevate Biharamulo to a town council status and; again, the need to promote Kagango Secondary School into a High School. He denied saying anything pertinent to the
petitioner and accused PW3 of having told lies. His witness, RW4, that is, confirmed having heard the bit about the Kagoma – Lusahunga road and additionally added that the first respondent spoke about rallying people to combat poverty, Ignorance and decease. He too did not hear the first respondent speaking anything against the petitioner.
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As regards the Ng’ambo rally, the first respondent also admitted to have addressed although he could not assign a date.
There, the first respondent allegedly expressed the need to have a
tarmac road from Biharamulo to Mwanza and from Kagoma to Lusahunga. He denied uttering any of the statements referred to by PW4 saying the latter told lies as he was not at the gathering. He also imputed that PW4 was a campaign manager and a close associate of the petitioner. But the first respondent did not deem it opportune to call any of those present at the gathering to additionally refute the allegations made by PW4 against him.
With respect to the rally allegedly convened at Runazi, the first respondent would rather have it that the rally convened at kikomakoma than was at Runazi which is five kilometers away. The first respondent said that he addressed another meeting at the
neighbouring Rwekubo that same day but did not go to Runazi,
properly so-called. It should be recalled that PW5 held out in his examination-in-chief that the meeting was convened at Runazi but; not insignificantly, clarified under cross-examination that the meeting was actually held at kikomakoma which is within Runazi ward. That kikomakoma is within Runazi ward is a fact confirmed by the first respondent himself. I should express at once that, for what it is worth, there is no vast deal in this apparent misdescription or whatever be it. This stance, I will later elaborate.
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In substance, the first respondent testified that all he spoke about at kikomakoma was on the need to rally Government efforts in building a tarmac road from Kalekezo to Bwanga. It was not true,
he said, that he accused the petitioner with any of the allegations
testified to by PW5. To support him was Jonas Kasigara (RW5) who also claimed the first respondent did not utter those accusations at the gathering. They also both said that PW5 was not at the gathering for; had he been there, they would have seen him. As regards the rally allegedly convened at Bisiko ward which was also the subject of PW5’s testimony; the first respondent said nothing in response. But his witness, namely, Francis Chasama, (RW6) did. The witness confirmed that an election campaign meeting was held at Bisiko on the 30th day of September, 2005 in which the first
respondent addressed a gathering of about 150 people. There, the first respondent talked about the need to have a motor vehicle to
facilitate the Prisons, Biharamulo; the need to promote Biharamulmo into a town council status; the need to promote Kagango Secondary School into a High School; the need to build a road from Bisiko to Musenyi and; the need to build a dispensary to cater for Musenyi and Katerera. The witness did not hear the first respondent making any of the alleged accusations against the petitioner.
Having denied all allegations of making statements pertinent
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to the petitioner including the detail about the petitioner having an extra-marital affair; the first respondent, ironically though, introduced Humud Salum (RW2) as his witness. Humud is the estranged husband of the late Afisa Mussa Nshongwe whom was alleged to have had an adulterous association with the petitioner.
His evidence was that his relationship with his late wife turned sour with effect from year 2000 upon being informed that the latter had an extra-marital affair with the petitioner. The witness commenced his own investigations the results of which, often times, he would see his wife being driven back home by the petitioner in the latters’ car. The twosome would then spend quite a good while talking in the car before moving into the matrimonial home where the
petitioner would stay up to midnight and drive off. Rather dramatically, RW2 would hide somewhere outside his house and, again, paradoxically, passively watch all this happen. Humud also related to an occurrence in the year 2001 when his wife is said to have traveled to Dodoma at the instance of the petitioner without word to him. His late wife came back with a radio cassette recorder which, she said, was given to her by the petitioner. Against this
backdrop, the way it appears, Humud figured that his wife was having an extra-marital affair with the petitioner to which he
complained in writing to the District Commissioner and BAKWATA
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before the couple formally separated year 2003.
A good deal later, on the 2nd day of September 2004, Humud had his vehicle broken at a place near his farm when the petitioner and his estranged wife drove past. Apparently, to confirm his worst fears, the petitioner is said to have slowed his car and; they both laughed at him and drove off without offering assistance. As to what this aspect of the case for the first respondent is all about, would become apparent in the course of my determination of the nitty-gritty of the matter, that is, if at all, the impugned statements were made and their impact on the contested election.
Towards the resolve of the question involved, I have
subjected the whole of the evidence to anxious and careful
consideration. Quite obviously, the petitioners’ contention is founded wholly on the respective claims of his witnesses, denied by the first respondent and his witnesses; that the first respondent actually made those pronouncements at campaign rallies. That being so, the sustainability of the petitioners’ contention wholly depends on the credibility and reliability of both the contending and countering witnesses.
In this regard, Mr. Magesa for the first respondent singularly
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seeks to impugn the credit of PW5 and; although he does not single out the remainder of the petitioners’ witnesses as particularly unangelic, counsel does submit, in effect, that their testimony is demolished by what he conceives strong evidence of rebuttal from the first respondent and his witnesses.
I have already indicated the extent to which the first respondent and his witnesses countered the case for the petitioner with a diametrically opposed version. Expounding on his criticism of PW5, learned counsel for the respondent singles out the fact that the witness said in his in-chief that the campaign rally he was testifying on took place at Runazi whereas in fact the same was held at kikomakoma. On the premises, counsel urges that PW5 is a liar and
unworthy of credit. As hinted above, PW5 clarified this aspect of his testimony with an explanation that the campaign rally was held at kikomakoma but he referred to Runazi simply because the former is a village within the latter Ward. As I have already said, there is, afterall, no vast deal in learned counsel criticism and the misdescription, if at all, is essentially a matter of deal rather than
substance which neither contributes to, nor detracts from, the strength of the witnesses’ allegations against the first respondent.
Mr. Magesa goes so far as suggesting that PW5, a CHADEMA
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District publicity secretary, was just hired by the petitioner to come and tell lies in court. With respect, there being not a speck of evidence to that effect, the imputation is far fetched and hangs on too thin a thread to hold. On the contrary, if the predominant political into lerance is anything to go by, I cannot hide my being impressed by PW5 who, as a CHADEMA stalwart, traversed partisanship to come with what he conceived to be the factual truth which, to me, adds to his credit.
On the whole PW5 and, indeed, the remainder of the
Petitioners’ witnesses, were unshaken in their telling of the
pronouncements of the first respondent in relation to the petitioner. The witnesses, that is pw2, PW3, PW4 and PW5 were Ordinary,
simple citizens from different walks of life. From my own, respective and singular, impression of their demeanor, manner and bearing in the witness box, I am thoroughly convinced that the witnesses were not only bent on truth but that they told this tale without the slightest ill will or disfavour towards the first respondent. They all expressed themselves in relatively strong terms on this matter and; it seems to me inconceivable just as it is all the more unlikely, that simple, ordinary personalities of the likes of the petitioners’ witnesses would converge from different walks of like and fabricate a case
against the first respondent. Indeed, apart from PW4 whom the first
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respondent and his counsel attempted to depict as the petitioners’ stalwart, it was not suggested, if at all, the petitioners’ witnesses had
reason to manufacture the version against the first respondent.
As already indicated, the first respondent personally denied the allegations and brought witnesses to counter them. The counter allegation was that he did not pronounce the alleged specific accusations against the petitioner in any of the respective campaign rallies. The first respondent was subjected to focused cross-examination from which, I would say, he was not entirely unscathed by an accusation of being given to telling half truths. Upon being reminded that he, on occasion, told parliament that he taught in institutes and secondary schools, of which he had not; the first
Respondent preferred to bury his head unto parliamentary privilege than furnish an elaboration. Quite frankly, such was an idle approach designed to evade rather than meet the difficulty. But to me, it augurs with the first respondents’ denial of the accusations against him which, I find, were a belated invention designed to evade his own folly. That such was the case, is in a way apparent from the concession of RW3 to the effect that he had had his testimony dictated to by the first respondent.
Having been impressed, as already indicated, by the version
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as told by the petitioners’ witnesses, I will, accordingly, dislodge the account given by the first respondent and his witnesses to the effect that he did not utter the statements presently sought to be impugned
by the petitioner.
To this end, I accept the account related to by PW2, PW3, PW4 and PW5 to the effect that the first respondent uttered the statements pertinent to the petitioner at the respective campaign rallies. Accordingly, subject to the magnitude and effect of these statements on the contested election, to which I will revert to later, issues Nos.2, 3 and 4 are answered in the affirmative. As to what the utterances are all about in law and, in particular, the electoral law of this country, is a subject to which, as I said, I defer to a later
moment in my judgment. In the meantime, I will consider the remainder of the framed issues.
Issue No. 5
This issue relates to an alleged irregular counting procedure and is actually wholly the mainstay of the petitioners’ own testimony
which he sought to support with numerous documentary exhibits.
Briefly stated, the case for the petitioner is that in several polling stations, the final entries in form No. 21B differed from that
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originally released to the polling agent which, to him, was indicative that the counting process was a mess. But for a better appreciation of the gist of the petitioners’ grievance and the rebuttal thereto, I deem it instructive, in the first instance, to revisit the counting procedure as laid down in the relevant provisions of the electoral law and its regulations.
To begin with, unless directed otherwise, the counting of votes immediately succeeds the closing of the poll and is done at the
polling station by the presiding officer assisted by the polling assistants assigned to any given station. The counting is done in the presence of polling agents, among others, if present. Each complaint made which can be resolved or settled, is resolved or
settled at the stage at which it is made and the presiding officer prepares an account to be submitted to the returning officer.
When it comes to counting, the presiding officer counts aloud and records the votes in each lot and verifies their total with the total of all the ballot papers which were found in the ballot box and the number of voters who cast their votes at the polling station.
Upon the conclusion of the counting of the votes the presiding officer is enjoined, inter alia, to require the polling agents or, the
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candidate, if present, to state any complaint or to confirm satisfaction with the counting of votes; prepare a report of the results, in the manner and form as the commission may direct, which shall be signed by the presiding officer and the polling agents, if present; affix in some conspicuous place a copy of the results and; if available in sufficient numbers, give each of the polling agents present a copy of the report of the results. It is commonplace that the commission devised and prescribed Form No. 21B unto which results are posted and which, in effect, constitutes what is termed by the National Elections Act as a report of the partial results of the elections at the polling station. Also common ground is the requirement to transmit the so-called report of partial results to the returning officer at
the District Center where the addition process takes over from the counting process.
That said and, naturally, upon the counting exercise being well done at any given polling station, the entries posted in the report transmitted to the returning officer ought to necessarily tally with those on its copy posted at a conspicuous place at the polling station just as they must dovetail with those on the copy availed to the polling agent. The gist of the petitioners’ complaint is in the claim that in several polling stations the contrary was true in that entries in Form Nos. 21B transmitted to the returning officer were different from those availed to his polling agents.
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The petitioner singled out sets of forms No.21B from several polling stations to demonstrate his grievance. These were from
Biseko C and kabukoma B polling stations which were admitted, respectively, as P1 and P2. The rest were from kabukoma B, Ofisi ya kijiji Rusabya B, Shule ya msingi kisuma C, Shule ya msingi mizani B, Zahanati ya Zamani Nyakahura, Ofisi ya kijiji Kagoma A, Mwamitiro A, Ofisi ya kijiji Kagoma B, Shule ya msingi Nyamigogo and Ofisi ya kijiji Kasozi Bakaya A. These were collectively admitted as exhibit P3 except for the one for ofisi ya Kijiji Kagoma B which was admitted belatedly as exhibits P4. From each of these polling stations are two
forms No.21B comprised of the one availed to the petitioners’ polling
agent and acorresponding copy that was transmitted by the presiding officer to the returning officer .
The case for the petitioner was that on each set of these forms the details on the one transmitted to the returning officer do not tally with those on the one availed to his polling agents. It was
his polling agents. It was his contention that the discrepancies were a result of irregularities during the counting process.
To this contention, the returning officer, namely, William Mgalula (RW9) vigorously countered in his examination-in-chief saying that as there was no complaint pertaining to the counting
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process, the exercise was conducted without incident and that therefore, the petitioners grievance was without merit. Upon being cross-examined; however, and shown the impugned exhibits P1, P2, P3 and P4; the witness conceded that there were some discrepancies in the corresponding forms of which he could not explain. A painstaking comparison of the corresponding forms No. 21B all but confirms the petitioners’ contention.
In two of the sets of corresponding forms, for instance, the one from Biseko C (exhibit P1) and the other from Shule ya msingi
Kisuma C (exhibit P3) the entries were made by two different
persons. In the report from Biseko C transmitted to the returning officer, the presiding officer who signed on form No.21B was Debora Kagashe whereas in the one availed to the petitioners’ polling agent, the presiding officer indicated there was Novati Mathias.
Debora Kagashe (RW8) who was called by the second respondent, clarified that the presiding officer was one Nestory Tibasima and she was polling assistant No.1 whereas Novati Mathias was polling assistant No.2. Debora did not elaborate on why form No.21B transmitted to the returning officer was signed by her and
not the presiding officer and neither could she explain why the other polling assistant signed on the form availed to the petitioners’ polling
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agent. She conceded, however, that the entries on the corresponding forms do not tally.
As regards Shule ya msingi Kisuma C polling station, the report submitted to the returning officer was prepared and signed by Boniface Dotto whereas the one given to the petitioners’ polling agent was done by Benjamin Kanozi (RW12). It was the latter who was the presiding officer assisted by Boniface Dotto and Josephat Absolomu who were, respectively, polling assistants Nos. 1 and 2. In the witness box, Benjamin was prevaricative but; all the same, he
could not explain the glaring difference on the entries in the corresponding forms.
In the remainder of the forms produced by the petitioner, discrepancies would be located on a column at the foot of the prescribed form and the corresponding forms would differ in one or several of the details pertaining to the number of registered voters; the number of those who turned up to vote; the number of disputed votes; the number of rejected votes and; the number of valid votes. The odds are that the entries were doctored a good deal later, rather wittingly, to, perhaps, synchronise figures and attain mathematical precision. On the premises, the petitioner advises that the irregularities went to the root of the election. Mr. Rweyemamu
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submits, in effect, that the counting procedure was a total mess and had a bearing on the election results.
For my part, I accept, without hesitation, that at the
time of counting there were non-compliance with the provisions of the Act pertaining to counting procedure at several of the referred polling stations. If such were not so, the glaring discrepancies would have been easily explained. But, with respect, if the petitioner succeeded in establishing irregularities pertaining to the counting procedure; he miserably failed to establish, to the
satisfaction of this court, the magnitude to which the alleged irregularities operated to affect the results of the election. It seems to me that on each case where the issue of non-compliance with the provisions of the Act is raised, such non-compliance must be shown to have reference to the results of the election.
In this regard, I entirely subscribe to the submissions of learned counsel for the first respondent on the note that, on the
evidence, all what was established was that there were some errors in the recording of figures but that it was not sown that the errors went to the root of the election. To the extent that the irregularities are not shown to have effected the results, issue No.5 is answered in the negative.
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It is now opportune to revert to the deferred matter pertaining to the statements pertinent to the petitioner uttered by the first respondent at the referred campaign rallies.
In sum, I have found as an established fact that the first respondent uttered the impugned statements referred to in grounds Nos.6, 7 and 8 of the petition as well as issues Nos.2, 3 and 4 at campaign rallies he addressed at Ruziba, Soko jipya, Ng’ambo, Bisibo and kikomakoma. In their totality and effect, the first respondents’ utterances were that the petitioner was a witch who killed his own mother-in-law, brother and buried a shrouded live cow to retain his parliamentary seat; an adulterer; a thief who converted the Nyakahura project funds to personal use; a person who unilaterally closed a nursing course obtainable at Biharamulo hospital and; a person who attempted to block teachers from facilitating the electoral process.
It is beyond argument, I would say, that the utterances under reference were, indeed, scurrilous much as they do contain, with respect to the petitioner, matters likely to injure his reputation by exposing him to hatred, contempt or ridicule just as they were likely to damage his calling as a politician by such an injury to reputation.
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To my understanding, defamation is the publication of a statement which tends to lower a person in the estimation of right – thinking members of society generally or which tends to make them shun and void him. There was some evidence to the effect that up until when he sought re-election, the petitioner has been member of parliament for ten years and earlier also served a responsible capacity in the immigration Department.
No doubt, to many, the effect of the utterances complained of
depicted him as irresponsible and, perhaps, unworthy of the trust of his constituents. The utterances were amply publicised much as it is clear from the narrative of the witnesses that the campaign rallies attracted hundreds of listeners. The utterances of the first
respondent in those referred campaign rallies were, so to speak,
clearly defamatory of the petitioner. The reputation of the petitioner was, accordingly, widely tarnished and in some of those remarks, were matters abusive in nature that might have attracted the wrath of criminal action.
The publication of a defamatory matter is, however, justified if the matter is true and it was for the public benefit that it should be published. In this regard and; particularly with reference to the extra-marital accusation, the first respondent or, rather, his counsel,
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was dithering between two courses of action, mutually exclusive. While denying ever having accused the petitioner of having an extra-marital affair, the first respondent, in the same breath, enlisted the testimony of Humud who actually sought to justify that the petitioner
had an extra-marital affair with his wife. This attempt to justify
prompts an invitation from counsel for the petitioner for the court to find, in the justification efforts, an implicit admission of the
utterances. With respect, I do not think I should go that a in as much as it may be that the justification attempt was simply derived
of a lapse in tactics. More pertinently, Humuds’ account does not, at all, appeal to me as sufficient to sustain or justify the accusation that the petitioner had an adulterous affair with his wife. His was more of the voice of a suspicious, lamenting husband than constituted sufficient and conclusive evidence of an adulterous association.
A similar attempt, although hardly persued, was made by
counsel for the first respondent to justify the misappropriation
allegation in the course of cross-examining PW3. On the whole, none of the impugned utterances was excusable or justifiable but; the knotty issue is, here, whether or not defamatory utterances, as such, qualify to avoid an election. It is a question to which both Mr. Magesa and Mr. Vitalis struggled with a quite refreshing argument.
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Both learned counsel contentions derive inspiration from the provisions of the National Election Act, the relevant provision of which is now embodied in section 129(2) of the revised edition 2002. It was submitted, in effect, that only statements intended to exploit tribal, racial, religious or sexual differences are within the contemplation of the provision and; a complaint based on defamatory
statements, without more, would be both misconceived and unfounded as the courts are no longer at liberty to use any other ground to avoid an election. To appreciate the gist of learned
counsel contention it may be pertinent to take a brief account of the route through which this provision has traveled.
For quite a good while, the relevant provisions were embodied in section 108(2)(a) of the Act which stipulated thus:-
(2) The election of a candidate as a member
shall be declared void on any of the
following grounds which are proved to the
satisfaction of the court, namely –
a) that, during the election campaign,
statements were made by the
candidate or on his behalf and with
his knowledge and consent or approval
with intent to exploit tribal, racial or
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religions issues or differences pertinent
to the election or relating to any of the
candidates or where the candidates are
not of the same sex, with intent to
exploit such difference;
On the 21st day of April, 1995 Parliament passed and effected an amendment comprised in the Elections (Amendment) Act No. 8 of 1995 through which the whole of the introductory subsection (2) was deleted and substituted for it the following:-
(2) The election of a candidate as a member
shall be declared void only where any of
the any of the following grounds is proved
to the satisfaction of the court and on no
other ground, namely:- (Emphasis supplied).
The introductory subsection as contained in section 129(2) of the revised edition, 2002 now reads:-
The election of a candidate as a member of
parliament shall be declared void only on an
election petition if the following grounds are
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proved to the satisfaction of the High Court
and on no other ground, namely:-
(Emphasis supplied)
It was not immediately clear to me as to exactly when the expression only where washed down the drain to be replaced by only on an election petition and; neither could I ascertain how the words parliament and High were brought on board. Be that as it may have happened, the relevant expression is here and on no other grounds which, clearly, is still contained in the provision.
Mr. Rweyemamu urges that it is still open to challenge the validity of an election on grounds not otherwise expressly provided. To this view he partly relies and draws the courts’ attention to the pronouncements of the Court of appeal in Attorney General and 2 others versus Aman Walid Kabourou [1996] TLR 156. Both
Mr. Magesa and Mr. Vitalis counter that Kabourou is no longer good authority in as much as the decision was prior to the amendment introducing the expression “and on no other grounds.”
Rather less straightforward, before I address learned rival arguments and; needless to have to question the wisdom of the
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legislature which is not my mandate, I feel entitled to my own generalised comments on the effected amendment.
Quite frankly, to me, the expression “and on no other ground” sounds very ill. For one thing, it is, if I may be excused to express, a reflection of slovenly drafting not giving allowance to the notorious fact that, more often than not, on account of sheer human fallibility, a legislative invention suffers from in exhaustiveness and; it is unwise, then, to clog a provision of the law with such expressions
as would limit the scheme and scope of the intendment. For another, I am afraid to say, the expression is suggestive of some anxiety by the legislature to exercise kind of unwarranted superintendence over the judicial arm of the state. But, that was,
as I said, slightly besides the point.
Back to the point of contention, I entirely agree that defamatory statements that have no bearing to tribal, racial, religions or sexual issues are not within the contemplation of the provisions of section 129(2)(a) R.E. 2002. True, as already indicated, at the times of Kabourou the law read differently and upon consideration, the court observed that the provision of the law was not intended to be exhaustive, first, because it was then without the word “only”. My
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emphasis on the word first is with design to underscore the point, as will soon become apparent, that the court of Appeal had additional reasons to sustain a ground of challenge on the validity of an election not otherwise expressly provided.
It should be noted that, in addition, the court invoked a jurisprudential argument derived from the spirit of the constitution and the Act to the effect that democratic elections have to be free and fair. It was thus held that anything coming in the obstruction of free and fair elections would constitute a ground for avoidance of an election. The court also took the stance that legally indefensible or inexcusable defamation committed in furtherance of an election campaign amounts to a breach of article 26 of the constitution which
categorically states that every person is obliged to comply with the constitution and the laws of the United Republic. The court went on:-
It is our view that this constitutional command
applies at all times. It follows, therefore,
that presidential and parliamentary elections
are required to be conducted not only with
due observance of the constitution and the
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Elections Act, but also with due observance of
the general law of the land. (Emphasis mine).
This extract from Kabourou tells it all. To me, the pronouncement of the superior court, being derived, as it was, from a constitutional command, still holds even with the advent of the 1995 amendment. That the elections Act itself specifically submits to the constitution is clearly the import of section 1(2) of the National Elections Act which provides that the provisions of the Act relating to Presidential and parliamentary elections are to be read as one with the constitution. To this end and, with respect to learned counsel for the respondents, despite the amendment, the position remains intact and for avoidance of doubt an election result may be avoided upon grounds of illegality other than those expressly provided under section 129(2).
This court has actually done it before in the aftermath of the amendment. In Joseph Sinde Warioba v Stephen Masatu Wasira and another (unreported) Mwanza Regostry Misc. Civil
Cause No. 25 of 1995 Lugakingira, J as he then was, traveled to great lengths to elaborate why Kabourou still holds. Warioba was a decision heavily relied upon by counsel for the petitioner but I note that both Mr. Magesa and Mr. Vitalis, apparently, carefully avoided
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reference of it. It should further be noted that, in the aftermath of the amendment, in Sebastian Rukiza Kinyondo v. Dr. Medard Mutalemwa Mutungi (unreported) Civil Appeal No. 83 of 1998; the court of Appeal also considered and sustained an election complaint based on defamatory statements.
Mr. Vitalis for the second respondent additionally sought to explain away defamatory statements upon a contested election thus:-
A complaint against ordinary torts whethe
committed during campaigns or not gets
into courts by way of ordinary civil suits
…A court cannot interfere with peoples’
democratic choice simply because defamatory
statements which can take course of ordinary
civil suit was made by the candidate whom
people preferred and elected.
With respect to the learned state attorney, the whole intendment of the provisions of the Act is to protect the candidate from foul play just as it is also intended to protect the voter from being unduly influenced in his/her choice at an election. This court and, I would say, if it is to be worth the name, cannot brook an
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illegality and condone an election result simply on account that the complainant has an alternative remedy in a civil court. That way, the court would have lent itself in the enforcement of an illegality and; both the candidate and the voters would not, then, have been protected from such unjustified and ego motivated attacks.
I should, here, repeat the observations of the Court of Appeal in Kinyondo that in multiparty elections of today as opposed to one-party elections, the fight is not on personalities, but on the contending party policies to which there should be no room to campaigns characterised by character assassination. If a candidate
chooses scurrilous statements to characterise his/her campaign, he/she should know the course is to his/her own peril.
To this end, having found that the first respondents’
defamatory utterances against the petitioner at the respective campaign rallies were legally indefensible and inexcusable; I further find that the same were poisonous to free, fair and civilised campaigns. I should now be in a position to come to the final question as to whether the illegalities constituted in the defamatory statements affected the results of the election.
I propose to approach the question from two standpoints, that
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is, first, the magnitude of the publication of the defamatory statements and; second, the content of the statements.
To begin with the first, on the basis of the accepted evidence, it is quite certain that the defamatory statements were uttered to
hundreds of people in the respective campaign rallies. From the narrative of the witnesses, a pattern is revealed from which the first respondent lent himself to dirty and unusual tactics of blurting out systematic scurrilous statements against the petitioner. Taking into account the large number of persons exposed to the statements and, indeed, the respect the first respondent appears to command in this
locality; I am satisfied that the statements adversely affected the petitioners’ campaign.
Coming to the second standpoint, the position is even more complicated much as, here, some of the defamatory statements uttered by the first respondent amount to the imputation of criminal conduct against his political opponent. To this, I will do not more than pay complete homage to the observations of the court of appeal in Kinyondo thus:
…where defamatory statements which amount
to criminal conduct are made against a political
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opponent in an election campaign. It cannot
be reduced to a simple arithmetical problem of
adding and substracting the campaign centres
where this took place from the total number of
centres in the constituency. Candidates at
elections, must be effectively protected by law
from such unjustified and ego motivated
attacks as was the case in the Bukoba Rural
Constituency in the 1995 general election.
If a candidate at an election chooses as his
election tactics to vilify his opponent by
accusing him of criminal conduct, and it is
proved that he did so, then, he will have done
so that his own risk. The courts will assume that
the allegations adversely affected the other
candidate’s election campaign unless the person
making the allegations proved that they did not.
This is the only way the courts can clean up
election campaigns so as to give the electorate
clean and fair elections…
In the light of the foregoing, I am satisfied beyond doubt that the scurrilous utterances of the first respondent at the respective
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campaign rallies adversely affected the result of the election. In the end result, I allow the petition and; the election of Kashemeza Phares
Kabuye, the respondent, as a member of Parliament for Biharamulo West Constituency is hereby, accordingly, declared void. For avoidance of doubt, the petition is allowed with costs to be taxed. Order accordingly.
K.M. Mussa
JUDGE
10/10/2007
Date: 12/10/2007
Coram: K.M. Mussa, J;
Petitioner: Mr. Rweyemamu
1st Respondent: Mr. Ndjike holding brief for Mr. Magesa
2nd Respondent: Mr. Ndjike
B/C: Grace
Judgment delivered in open court in the presence of the parties.
K.M. Mussa
JUDGE
12/10/2007
AT BIHARAMULO
12/10/2007
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