Dr. S.J. Bwana, P.R.M. - E.J.: In the 1985 Parliamentary General Elections in the Masasi Constituency, Rajabu Athumani Mrope emerged the victor, beating his opponent, Kate Sylvia Magdalene Kamba, the then incumbent Member of H Parliament.
Following the outcome of this election, three voters in the Constituency namely John Sapuli, Mathew Kannonyele and Stephen Rashid (hereinafter referred to as the Petitioners) filed a petition alleging that (as per paragraph 5(a) of their petition) Rajabu I Athumani Mrope (hereinafter referred to as the First Respondent) is not, and was not at all
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times material to the election, a citizen of the United Republic of Tanzania in terms of the A Citizenship Ordinance Cap. 452 by reason whereof he is not, and was not at all... qualified to be elected as a Constituency Member of Parliament... as per section 36 of the Elections Act, Number 1 of 1985.
In support of their allegations, they called five witnesses. They therefore asked this Court B to:
(a) declare that the election in Masasi Constituency is void;
(b) declare that the nomination of the First Respondent was invalid;
(c) declare that First Respondent's election as a Member of Parliament for the said C Constituency in October, 1985 elections is void;
(d) Costs of this Petition.
In other words, the only issue in this Petition is whether the First Respondent was at all material times a citizen of Tanzania. D
The three Petitioners namely John Sapuli, Mathew Kannonyele and Stephen Rashid testified before this Court as PW.1, PW.2 and PW.3 respectively. Common elements in their evidence are that:
1. They became suspicious of the citizenship of the First Respondent after reading his E personal particulars - Form 12 - which did not show in which village he was born and where he studied (Exh. P1).
2. During the election campaign in the district, each one of the Petitioners had intended to F question the First Respondent on that issue of where he was born but that each time they were not allowed to do so by the elections' supervisor, one Violet Bushiri. She told them to raise questions which were only in line with the election manifesto. G
3. After the election results were out and having learnt that First Respondent had won, they coincidentally met outside the Returning Officer's Offices at Masasi from where H they decided to follow up the issue. They were told by the same Returning Officer (R.O.), Vicent Awasi (2 RW.1) that he was powerless - the most they could do was to file a petition with the High Court - hence, this case.
Again, it is worth noting at this early stage that both PW.2 and PW.3 attended the I Special Annual District Conference of the Party, in
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line with the provisions of section 40 (1) of Act No.1 of 1985. However, both of them A claim that they could not raise the question of citizenship of the First Respondent because the procedure was not followed particularly the one that allows delegates to question each aspirant after his or her particulars are read out. PW.2 and 3 show (and it is partly admitted by 2 RW.1) that because the conference started late, delegates B decided not to question any of the aspirants. Masasi Constituency had five aspirants and after the Returning Officer had read the personal particulars of each aspirant, there were shouts from the delegates .... "apite, apite, tumemwona". C
After the personal particulars were read out a secret poll was taken and First Respondent polled fourth. However, the National Executive Committee nominated him as one of the two candidates.
The other five PW's testified or attempted to show that First Respondent was not a citizen of Tanzania because his parents moved into Tanzania from Mozambique across Ruvuma river in 1947. At that time the First Respondent was already born although still D an infant being carried (although Mwenye Ndimila Saidi - PW.6 - shows that at the time the First Respondent was walking on his own, aged about 4 years).
Ali Masisa, PW.4 testified before this Court that he knows the First Respondent from the time his parents crossed from Mozambique and settled first at Mkongo village. He E knew the names of both parents of First Respondent. They crossed into Tanzania during the leadership of Mwenye (Village Elderman) Lenyago under Jumbe Ndimila, alias Abdulhman Saidi. PW.4 showed further in cross-examination that he saw the parents of First Respondent cross into Tanzania but could not tell where First Respondent nor his F parents were born. He states:
It is possible you were (meaning First Respondent) born in Tanzania and then went to Mozambique for a while and then returned. G
The same witness could not tell the First Respondent's parents' clan and could not name other people who crossed into Tanzania from Mozambique in the like manner. When cross-examined further by Mr. Mlewa, learned Counsel for the Second Respondent, PW.4 admitted first to have seen First Respondent's parents after they had crossed into H Tanzania - and were living in a neighbouring village. He said he was told of their coming by the one who ferried them across. He stated further:
It is likely that they went for a visit to Mozambique. I
Hamis Ismail Liuta, PW.5, told this Court that he was just told of
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the coming of the First Respondent's family. He does not know the tribe nor the Mrope A clan. He does not know any of his (Mrope's) surviving relatives. He never saw the family cross the river. Mwenye Ndimila Saidi, PW.6, claimed to have been the Jumbe of the area incorporating Njisa and Mkongo - an area where the parents of First Responder settled. Their arrival was reported to him by Mwenye Linyago. He never B kept record of people moving into his area, although as a Jumbe, he was duty-bound to do so. PW.6 shows further that he could not tell where and when the First Respondent nor his parents were born. He cannot even recall these parents of First Respondent.
Saidi Hassani Mfaume, PW.7, schooled together with First Respondent at Makanya C Primary School but did not know First Respondent's parents.
Athumani Chingombe PW.8, is the only eye witness who claims to have seen the First Respondent's family cross into Tanzania from Mozambique. He even gave them fish to prepare a meal. PW.8 shows that the family was ferried across the river by one D Abdulkarim Chiwata, now deceased. At that time First Respondent was still an infant. He does not know where and when the First Respondent or his parents were born "however it was in Mozambique" he alleges. He states further:
I can't tell if all people who cross into Tanzania from Mozambique are not Tanzanian Citizens. E
He named one Binti Mpapako alias Binti Ayuba as being the Maternal grand mother of the first Respondent. That name is claimed not to be know to the First Respondent, let alone his witnesses. F
In his defence, supported by four witnesses, the First Respondent (RW.1) supports the correctness of the contents of his Written Statement of Defence. He shows further that he is a citizen by birth having been born at Masuguri - Lipunguru settlement (later, after the villagilisation, to be called Nanderu) in Masasi district. His mother was born at the G same village while his father, the late Athumani Pilika, was born at Sindano - Pataula village in Masasi district. His parents moved to Makanya and later on to Njisa. Eventually in 1974 his mother moved to Mikangaula.
As far as the election irregularities are concerned, contrary to the claims by the PW.5, H R.W.1 shows that all the procedure was complied with and people were given chances to file with the Returning Officer any objections they had. They never did.
R.W. 1 shows that Fatu d/o Mkori his mother, is a Mngoni by tribe. Her mother is Zainabu Matola. R.W.1's father was a Mmakua. Zainabu Matola is still alive, and she I is Mngoni by tribe as well. Binti Mpapaku,
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a name alleged to be of R.W.1's grandmother, is disputed. He knows nobody by that A name.
Omari Saidi, R.W.2 is said to be an uncle of RW.3. He was already born when Fatu Mkori (RW.3) was born at Lipunguru Masuguri area. In cross-examination RW.2 stated that both parents of Zainabu Matola were Tanzanians. Her mother was Mngoni B from Songea and her father a Myao from Tunduru. He was present when the parents of RW.1 got married at Lipunguru. When RW.1 was born, the Jumbe of their area was Lita Mtira and not Mwenye Ndimila of Njisa (PW.6) because Lipunguru and Njisa belonged to different Jumbes at that time.
Fatu Mkori, R.W.3, is the mother of RW.1 She testified that her mother Zainabu Matola C (and not Binti Mpapaku) came from Songea. RW.1 was born at Lipunguru - Masuguri and went to school at Makanya. Athumani Ilika used to tell her that he came from Sindano - Pataula.
Sadiki Saidi, RW.4 testified that his parents and those of RW.3 lived together at Lipunguru - Masuguri after having shifted from Matogoro in Songea. He, together with D RW.3 grew up together at Lipunguru Masuguri and knew her mother.
Abdulhman Mtamba, RW.5 was a young brother of the late Piliko, the father of RW.1. They shared the mother but are from different fathers. When RW.1 was born at E Lipunguru - Masuguri, Piliku informed them and RW.5 went to see the new born baby.
Vincent Allan Awasi, 2 RW.1, was the Returning Officer. He showed that during the special District Party Conference, the procedure was not properly followed in the sense the delegates themselves decided not to question the aspirants after each one's personal F particulars were read. According to him, he fulfilled his duties as a Returning Officer as provided for by the Law. He never received any complaints before the election or other irregularities especially on the issue of citizenship of First Respondent.
In their submissions, both Mr. Kaduri, Counsel for 2nd Respondent and Mr. G Kumbwembe, Counsel for the Petitioners raised similar allegations against the adverse party. These include inter alia:
1. The credibility of the evidence (and the witnesses themselves) of the adverse party. H
2. Both cited the case of In re Abdallah Salim Ali Ab-Salaam [1967] H.C.D No. 174 to support their cases.
On the part of Mr. Kumwembe - that the burden of proof of the citizenship of First I Respondent lies with him. Mr. Kaduri argued that the minimum requirement is one of the parents to be a citizen. Mr.
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Kumwembe raised the issue of laxity on the part of the Party, the Government and their A respective machineries. This laxity, he claims, led to a failure to get proper and correct particulars of aspirants like the First Respondent in the present case.
Before proceeding further, I will deal with the issues raised in the submissions, starting B with the question of laxity on the part of the Party, the Government and their respective machineries.
Party machineries which, according to the procedure provided for by the Law, which deal with the electoral process, are the Political Committee of the Party, the Electoral Conference, the National Executive Committee, the Central Committee, and others that C may be assigned special duties. Government organs, according to Mr. Kumwembe, include the State Security Machinery. The argument that there was laxity in all these machineries is not a subject matter at this stage and as the Elections Act shows under section 108: D
S.108 (1) The election of a candidate as a Member of Parliament shall not be questionable save on an election petition (emphasis mine).
But sub-section (2) of Section 108 precludes this Court from going deeper into that E argument. So whether or not there was laxity, this Court has no power to review or entertain such an argument - either by way of petition or otherwise.
Another argument raised in the submissions was on the issue of Citizenship as per Cap. F 512 amplified by the case of In re Abdallah Salim Ali Ab-Salaam [1967] H.C.D No. 174.
In that case, the Hon. P.T. Georges, C.J. (as then he was) stated inter alia:
The burden of proving Citizenship is on the applicant. G
Mr. Kumwembe argues that by virtue of that statement, the Petitioners in this case had a duty of just establishing that First Respondent is not a citizen. The burden of proof (beyond reasonable doubts) would then shift to the First Respondent. H
I differ with Mr. Kumwembe on this line of argument on the following grounds - First, the case of re Abdalla is remarkably different from the present one. In the former the applicant sought to establish his citizenship status. Therefore the duty was on him to do so. In the present case, the First Respondent's citizenship status is being challenged. It I is therefore left to those challenging it, the Petitioners, to prove their case. Secondly,
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the fact that First Respondent's particulars were admitted by all the relevant election A organs as being correct, the duty to prove the contrary lies with the one having the contrary views - that is the Petitioners. Therefore the burden of proof of the Citizenship of First Respondent lies with the Petitioners - to show that he is not a citizen of the United Republic as he claims. B
Then there is the issue of credibility of the witnesses. I start with Mr. Kumwembe's arguments against the Respondent's witnesses. It would be proper at this juncture to remark that the learned Counsel for the Petitioners tended to base the credibility of the petitioners' witnesses on the ground that all of them, except one, PW.8, are literate - a C dangerous ground from which to base one's case. Truth or lies can be told by a literate as well as by an illiterate witness. What is basic, in establishing the credibility of a witness is the witnesses' knowledge of facts, intelligence, integrity, veracity, ejusdem generis. Literacy is an added advantage but not a conclusive one. D
One may argue further and include matters such as powers of recollection, memory and perception. Be that as it may, Mr. Kumwembe has requested this Court to disbelieve the Respondent's witnesses on the following grounds: E
RW.5 - was at the time of the birth of First Respondent too young to know the background of the parents of the First Respondent and that he was not closely related to Piliku.
RW.3 - should not be trusted because she cannot read and write and her evidence was not F straight forward especially regarding the number of children she had in such a short time of 14 years. That the number of children was not corroborated. Concerning her birth, only RW.2 was to testify. No attempts had been made to bring her mother Zainabu Matola to testify. The G Counsel also suspected the real names of that witness, hence the true relationship between the two.
RW.4 - is said to be a mere distant neighbour and gave contradictory statements concerning H his origin (Songea) and that of First Respondent's mother.
I had the opportunity of seeing all these witnesses and recording their evidence. On certain aspects I do agree with the learned Counsel that contradicting information was given - for example: On the question of how many children RW.3 had - 4, 5 or 9. I Eventually it was settled to be
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9. But I note as well that the confusion may have emerged from the interpretation A between Kingoni and Kiswahili. At one stage she may have understood how many children were alive (the number 5) or how many were born of the late Piliku (the number 4). But I find her to be a credible witness.
Likewise the other Respondent's witnesses, their being illiterate notwithstanding, I did B not dispute their evidence especially on the basic testimony of where First Respondent and his parents were born. Other side issues, such as the educational background of the First Respondent, left much to be desired. But that was not the substantive issue before this Court. C
I now move to the issue of credibility on the part of the Petitioners' witnesses. The claims of Mr. Kaduri, for the Second Respondent, are not, strictly observing, related to the demeanour of the Petitioners witnesses but rather to the strength of their evidence in support of their Petition. This Court would agree with this line but to a certain extent. D Their evidence, of course, comes later for scrutiny when examining their case. However, in the case of recording evidence, the Court made note of PW.3's reluctance to establish in examination in chief as to when he met the other Petitioners so as to file their Petition. It was a crucial question - attempting to establish whether the Petitioners really wanted E to establish the Citizenship of First Respondent or were merely looking for ways to unseat him after the unexpected election results had occurred.
Again, the Court noted PW.6's attitude when being cross-examined by Kaduri, Counsel for the Second Respondent.
Be that as it may, the important point to note on this question of credibility of witnesses F on both sides is that at no stage the Petitioners succeeded in establishing a credibility gap on the fact of Respondent's witnesses on the place and time of birth of the First Respondent and that of his parents. The issues of the educational background of First G Respondents; the real names of RW.2; the number of children RW.3 had or the frontier nature of the Southern tribes, all are immaterial to the present case. Even if they were still they would not affect, to that extent, the crucial issue of the Citizenship of the First Respondent.
I now move to the crucial matter - the First Respondent-is he or was he at all material H times to the election a citizen of the United Republic of Tanzania?
Section 36 of the Election Act, No. 1 of 1985 simply refers the matter to Article 67 of the Constitution. The relevant portions of this Article are 67 (1) and 67 (2) (a). I
While aspiring to become a candidate, First Respondent filled in the following forms:
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1. Karatasi ya Uteuzi - Form No. 10 A
2. Tamko la Kisheria - Form No. 11 (Exh.D2)
3. Habari Binafsi - Form No.12 (Exh.P2)
In all these forms, First Respondent stated that he was a Citizen of the United Republic of Tanzania. B
In support of his case, First Respondent called four witnesses to show that he is a Citizen by birth, that both his parents were born in, and are Citizens of, Tanzania.
Fatu Mkori, RW.3, was born at Lipunguru - Masuguri. This is supported by Omari Saidi, RW.2, her uncle. Both testified that Fatu's grant parents originated from Songea C at a place (according to RW.4) called Matogoro. She grew up at Lipunguru - Masuguri, together with Sadiki Saidi, RW.4, whose parents had also originated from the same place, Matogoro in Songea. RW.4 was born earlier at Lipunguru Masuguri, so he knew RW.3 as she grew up at that village. This Lipunguru Masuguri later came to be D called Nanderu village.
The late Athuman Piliku, the father of First Respondent is said to have been born at Sindano Patakula. His only surviving brother, Abdulkarim Mtamba, RW.5, called this place Mwiti - Patakula. The change of name - Sindano or Mwiti - was raised by Mr. E Kumwembe only in his final submissions. He never cross-examined RW.5 on that point.
RW.2 stated further that Zainabu Matola's father was Myao from Tunduru and her mother was Mngoni from Songea. He was present when RW.3 married the father of First Respondent. The wedding took place at Lipunguru Masuguri. F
Both RW.2 and RW.5 testified that when First Respondent was born, they were informed. RW.2 shows First Respondent was born at Lipunguru during the "jumbehood" of one Lita Mtira - a traditional way of recording event, I believe. RW.5, stated that Piliku came to give notice of the birth of First Respondent and he G accompanied him to Lipunguru to see the child. RW.5 notes the place where Piliku and RW.5's other grand parents were born and lived at Patakula and because they are buried there. Patakula is in Tanzania.
In their allegations the Petitioners attempted to prove to the contrary. PWs 1 to 3 had H mere suspicions. The other witnesses would therefore be the relevant ones in their attempt to prove their claims.
As shown earlier in this judgment, Ali Masisa, PW.4, stated that he knew First Respondent after his parents had crossed into Tanzania and lived in a neighbouring village; He lived at Mkonona village. He however admitted that he did not know where I First Respondent was born. "It is
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likely that they went for a visit to Mozambique for a while and then returned". It is the A view of this Court that this witness does not have clear information as to where First Respondent nor his parents were born.
Likewise Hamisi Ismail Liuta, PW.5 was just told of guests from Mozambique. He never witnessed their coming. In fact when he came to Makanya, "I found his parents B had built a boma at Mkongo before they could build a permanent residence" - he stated. He admitted as not knowing the tribe or clan of First Respondent's father nor does he know where both parents were born. His evidence is also not conclusive in trying to establish the allegations before this Court.
Mwenye Ndimila Saidi, PW.6 a jumbe, admitted just to have been told of the coming of C First Respondent's parents by Menye Linyago. He said he visited them and saw First Respondent walking around, being a child of about 4 years. This piece of evidence contradicts all the others who claim to have seen the First Respondent as an infant, being D carried at the back of her mother. He could not tell where the parents of the First Respondent were born. Indeed this piece of evidence cannot be taken as conclusive proof or even corroborating the first two above. The most it can do is to contradict them. The credibility of this witness has already been discussed above. E
Saidi Hassan Mfaume, PW.7, merely went to school with First Respondent therefore his evidence is not relevant to the present issue.
Athumani Chingombe, PW.8, as stated earlier, is the only eye witness who may have seen the parents of First Respondent cross into Tanzania from Mozambique and settling temporarily at Mkongo. He could recall him later only after being introduced by Maalim Twalib Nyama. F
I had serious problems in trying to believe the evidence of this witness, especially after he had admitted in Court to have been "approached" by Stephen Rashid, PW.3, to come and testify on this issue. My doubts are centred on: G
1. He cannot tell or remember other similar immigrants who crossed into Tanzania.
2. He heard the family of First Respondent shout for help from across that part of a wide river.
3. At the same time he admits not to know where First Respondent and his parents were H born. He merely alleges "but it was in Mozambique". No further support is given. Admittedly he adds, "not all people who cross from Mozambique are not Tanzanian Citizens: It is therefore not sufficient proof to disqualify the citizenship of a person by relying on such general allegations. I
In view of the above PWs' evidence, it is not established beyond doubts as to where the A First Respondent and his parents were born. It is not enough merely to allege that they came from Mozambique. It should have been shown where in Mozambique. What is clearly shown all PWs 4 and 8 is that they do not know where First Respondent and his parents were born. B
On the other hand, I am convinced beyond doubts that the Respondent's witnesses have established beyond the blue skies (even though the burden is not on their side) that First Respondent is and was born in Tanzania. So were his parents. Therefore he is a citizen of Tanzania by birth. In consequence thereof and in accordance with the provisions of C section 113 of the Election Act No. 1 of 1985, I do declare that the election in Masasi Constituency in the Parliamentary Elections of October, 1985 was proper. I declare further that the nomination, election and declaration of First Respondent, Rajabu Athumani Mrope, was legally valid. Therefore I dismiss this Petition in its entirety with Costs. D
Petition dismissed.
E
