Election Avoidance II

THE UNITED REPUBLIC OF TANZANIA

THE JUDICIARY

ELECTION PETITION SEMINARS FOR JUDGES AND MAGISTRATES

AVOIDANCE OF ELECTIONS BY ELECTION PETITIONSPart I: PRESENTATION OF ELECTION PETITION AND PAYMENT OF SECURITY FOR COSTS; Part II:

THE PROCEDURE FOR TRIAL OF ELECTION PETITIONS; PART III: GROUNDS FOR AVOIDING ELECTION AND STANDARD OF PROOF

© 2011 Hon. Mr. Justice Robert Vincent Makaramba Judge-in-Charge, Commercial Division, High Court of Tanzania

Avoidance of Elections by Election Petitions © 2011 Makaramba, J. Page 1

Page

70

AVOIDANCE OF ELECTIONS BY ELECTION PETITIONS

PART I: PRESENTATION OF ELECTION PETITION AND PAYMENT OF SECURITY FOR COSTS“It is access to justice which gives life to the three state pillars.” Samatta C.J.

1.0 Introduction

In December 2010, Tanzania witnessed the fourth multiparty general elections, which by all measures was a rather exiting moment for the registered political parties participating and the majority of the registered voters especially the young generation who viewed the elections as their turn for holding the reigns of public power and state authority. However, contrary to the thinking and expectations of the majority of the people, not all the registered political parties fielded candidates to contest for the parliamentary seats and the presidential post. There was also very low voter turnout on election-day such that out of the more than 20 million registered voters only about 8 million actually came out to vote. In the aftermath of the 2010 general elections, a number of election petitions contesting the results of parliamentary elections have already been filed almost 43, both at the main registry of the High Court and its district registries.

This Paper Is in Three parts. Generally it examines some of the key articles in our Constitution, the electoral laws and election petition rules impinging on the “PRESENTATION OF ELECTION PETITION AND PAYMENT OF SECURITY FOR COSTS”; “THE PROCEDURE FOR TRIAL OF ELECTION PETITION” and “GROUNDS FOR AVOIDING ELECTION AND STANDARD OF PROOF.”

Part I give participants a glimpse of the procedure for avoiding parliamentary and Councilor elections, as well as that for payment of security for costs in an election petition. Part I is divided into three main sections. Section one is an introduction. The importance of public elections is discussed. A brief account of the history of election petitions in England, with some highlights on some constitutional and legal principles underpinning public elections and petitions in Tanzania is also given. Section two is a brief account of election petition courts. In section three the Paper discusses the procedure for presentation of election petitions followed by a conclusion.

Part II of the Paper examines the procedure for trial of election petition. Part III discusses the grounds for avoiding election and standard and burden of proof; and what happens at the conclusion of trial of election petition.

The discussion in this Paper is confined to Mainland Tanzania1 since election matters serve for presidential and parliamentary election of members from Tanzania Zanzibar2 for the Union parliament are not union matters. However, where necessary some parallels from the election petition law applicable in Tanzania Zanzibar are drawn. The reason for this approach is fairly simple and straightforward. The United Republic of Tanzania although constitutionally a “united sovereign state”, is enmeshed in duality in the legal and judicial systems.3 The management of elections and trial of election petitions also share in this dualism. Aside from the National Electoral Commission (NEC) exercising overall management over union presidential and parliamentary elections and over Councilor elections for Mainland Tanzania, the Zanzibar 1 As per Art.151(1) of the 1977 Union Constitution “Mainland Tanzania” means the whole of the territory of the United Republic which formerly was the territory of the Republic of Tanganyika;

2 Ibid. “Tanzania Zanzibar” means the whole of the territory of the United Republic which formerly was the territory of the People’s Republic of Zanzibar and which was previously referred to as “Tanzania Visiwani”

3 According to 4.-(1) of the 1977 Union Constitution, “All state authority in the United Republic shall be exercised and controlled by two organs vested with executive powers, two organs vested with judicial powers and two organs vested with legislative and supervisory powers over the conduct of public affairs”

Page

70


Electoral Commission (ZEC) has overall mandate over elections of members of the House of Representatives and local authority elections in Tanzania Zanzibar. The resultant dualism can be traced in the merger of the two erstwhile international entities known as Tanganyika and Zanzibar which ceased to exist as from 26 April 1964 because of the Articles of the Union. The two former sovereign States therefore merged to form a new international person called the United Republic of Tanzania.4 Thus, although a united republic state, the judicial architecture in Tanzania remains dual in nature, with the judicial system in Tanzania Mainland being distinct and separate from that of Tanzania Zanzibar save at the Court of Appeal except in dealing with appeals in Islamic matters originating from the High Court of Zanzibar. Appeals typically emanate from the Magistrates’ courts, or from the High Court of Tanzania and Zanzibar, depending on whether it is Islamic matter, before terminating at the Court of Appeal of Tanzania.

Furthermore, the discussion in this Paper does not touch on Presidential elections petitions, since courts of law are constitutionally barred from entertaining such elections.5 It is quite relieving however to note that the Government of Tanzania having heeded to calls from the populace and some strategic development partners, it is now prepared to have the issue of independent candidacy for presidential elections6 and contesting presidential elections in court form part of the constitutional debate, a process whose Bill is expected to be tabled in the next Bunge (parliament) session.7

4 SMZ V. MACHANO KHAMIS ALI AND 17 OTHERS [2002] TLR 338 (CA) – (Kisanga, Ramadhani and Lugakingira); MTUMWA SAID HAJI AND OTHERS VS ATTORNEY GENERAL [2001] TLR 426 (HCT - (Mapigano, Mackanja and Bubeshi, JJJ); see also HAJI V. NUNGU AND ANOTHER, [1987] LRC (Const.) 224 (CA), as authority for the principle of exclusive jurisdiction of Zanzibar over “non-union matters” in Zanzibar.

5 Article 41((7) of the Constitution: “When a candidate is declared by the Electoral Commission to have been duly elected in accordance with this Article, then no court of law shall have any jurisdiction to enquire into the election of that candidate.”(the emphasis is mine

6 See the decision dated 17th June 2010 of the Full Bench of the Court of Appeal of Tanzania in Civil Appeal No.45 of 2009 between THE HONOURABLE ATTORNEY GENERAL AND REVEREND CHRISTOPHER MTIKILA (Dar Es Salaam) (unreported) [Ramadhani, C. J.; Munuo, J. A.; Msoffe J. A.; Kimaro, J.A; Mbarouk, J.A.; Luanda, J. A.; and Mjasiri, J.A.], (Appeal from the Judgment of the High Court of Tanzania at Dar Es Salaam,) (Manento, J. K.; Massati, J. and Mihayo, J.) dated the 5 th

day of May, 2006 in Misc. Civil Cause No. 10 of 2005 determined that the issue was not fit for courts of law but Parliament, as it was more political than judicial. See a Lecture by former Chief Justice of Tanzania, Hon. Justice Barnabas Albert Samatta, titled “JUDICIAL PROTECTION OF DEMOCRATIC VALUES: THE JUDGMENT OF THE COURT OF APPEAL ON INDEPENDENT CANDIDATES”, A Public Lecture His Lordship delivered at Ruaha University College, Iringa, on November 25, 2010. The Lecture was reproduced in full in the Citizen newspaper of Saturday, 18th December, 2010.

7 Nipashe, ISSN 0856-5414 No.056946, of Monday March 7, 2011 page 4 “Serikali yasikia ushauri wa waangalizi”

Page

70


1.1 International Election Disputes Standards

There are no international election disputes standards per se. However, resolving election disputes involves international standards that are to be found across the wider spectrum of election related rights and rules and those associated with due process of law requirements and judicial independence. The right to challenge decisions, actions or failures to act in connection with an election, may therefore be considered as part of the voting rights. The right to seek redress however, is of little value without, among other things, an impartial and independent judiciary that can enforce the laws equitably and efficiently. This also infers that the requirements of due process of law are met by fair procedures, including notice to the defendant and an open trial before a competent tribunal with the right to counsel.

Generally accepted international standards, which have been developed based on international legal instruments such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the African Charter on Human and Peoples Rights find expression in our national law in the form of constitutional recognition under Article 9(f) of the Constitution, the upholding and preservation of human dignity in accordance with the spirit of the Universal Declaration of Human Rights as well as the enforceable Bill of Basic Rights and Duties in Part III of Chapter One of the Constitution.

1.2 Conceptual Framework

1.2.1 Election Elements

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)(1948)

Article 21

1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

2. Everyone has the right to equal access to public service in his country.

3. The will of the people shall be the basis of the authority of government; this will, shall be expressed in periodic and genuine elections which shall be held by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) to take part in the conduct of public affairs, directly or through freely chosen representatives ;

(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors ;

(c) to have access, on general terms of equality, to public service in his country.

THE 1977 CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA

Page

70


5.-(1) Every citizen of the Untied Republic who has attained the age of eighteen years is entitled to vote in any election held in Tanzania. This right shall be exercised in accordance with the sub article (2), and of the other provisions of this Constitution and the law for the time being in force in Tanzania in relation to public elections.

21.-(1) Subject to the provisions of Article 39, 47 and 67 of this Constitution and of the laws of the land in connection with the conditions for electing and being elected or for appointing and being appointed to take part in matters related to governance of the country, every citizen of the United Republic is entitled to take part in matters pertaining to the governance of the country, either directly or through representatives freely elected by the people, in conformity with the procedures laid down by, or in accordance with, the law.

(2) Every citizen has the right and the freedom to participate fully in the process leading to the decision on matters affecting him, his well-being or the nation.

A number of theories have been advanced to explain the relationship between international and domestic law. The relationship between international law and domestic law is often portrayed in terms of the monism-dualism dichotomy. The theory of dualism contends that international law and domestic law are separate legal orders. Accordingly, international law cannot 'operate directly' in the domestic sphere, needing to be 'transformed' into domestic law by the legal acts. On the other hand, the theory of monism views 'all law as part of the same universal normative order.' As such, international law does not need to be 'transformed' to apply in the domestic legal order. Monist theory essentially provides that international law and national law are manifestations of a single conception of law. As such municipal or national courts are bound to directly apply international law without any recourse to adoption by courts or transformation by the legislature. Upon ratification and publication at the domestic level, international treaties become part and parcel of the law of the land. Moreover, in cases of conflict, municipal law has, according to the constitutions, a subordinate position. International treaty law thus enjoys normative precedence over domestic law.

The United Republic of Tanzania is a member to and has ratified the ICCPR and a number of other global and regional human rights instruments. The main challenge Tanzania like most common law countries faces is to domesticate ratified international treaties. The relationship between international law and domestic law is often portrayed in terms of the monism-dualism dichotomy. African common law countries, those which once were colonised by Britain, such as Tanzania, have traditionally been seen as dualist where international law has no direct applicability compared to civil law countries, which are monist, where there is no direct applicability of international law in domestic courts. The doctrine of dualism evolved in England to check the prerogatives of the Crown in foreign affairs, especially the power to make law by entering into agreements with foreign states. Thus, the House of Commons needed to validate such solemn commitments before they could apply in England as law. The system of parliamentary democracy is thus a natural habitat for this doctrine.

The dualist theory provides that international law and domestic law are separate legal systems. If international law is not transformed into national law through legislation, national courts cannot apply it. Kenya, also a common law country, through its newly enacted 2010 Constitution has wriggled itself free of what Justice Ocran of the Supreme Court of Ghana once termed as the “albatross around our necks”,8

meaning the dualist theory bequeathed on African countries by the erstwhile English colonial government, by joining the likes of South Africa9 making it possible for national courts to apply self-executing provisions

8 M Ocran ‘Access to global jurisprudence and problems in the domestic application of international legal norms’, keynote address at the 2nd West African Judicial Colloquium, 8 October 2007, Accra, Ghana, http://www.brandeis.edu/ethics/pdfs/internationaljustice/WAfricaColloq.pdf (accessed 15 April 2011).

9 Section 231(4) of the South African Constitution

http://www.brandeis.edu/ethics/pdfs/internationaljustice/WAfricaColloq.pdf

Page

70


in international treaties even where they have not been enacted into domestic law. Prior to the enactment of the 2010 Constitution, Kenya subscribed to the common law doctrine of dualism.10 On 27 August 2010 Kenya enacted the new Constitution of Kenya. The major innovation of the 2010 Constitution is the provision that international treaties ratified by the state are a source of law in Kenya.11 In addition, the Constitution mandates the president to ‘ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.12 The Constitution further stipulates that the general principles of international law form part of the law of Kenya.13

In Grootboom’s case, the Constitutional Court of South Africa stated that “where the relevant principle of international law binds South Africa, it may be directly applicable.”14 The South African Constitution includes provisions on the role of international law with regard to the interpretation of the Bill of Rights and statutory interpretation. In terms of section 39(1)(b) of the South African constitution, courts ‘must consider international law when interpreting the Bill of Rights.’ This is the most important provision on the influence of international law on domestic law in the South African Constitution.

The Government of Tanzania still salutary to the weak dualist theory through the 1977 Constitution of the United Republic of Tanzania has incorporated a number of enforceable fundamental human rights in the Bill of Rights and Duties enshrined in the Constitution. Tanzanian courts have held that the Constitution incorporates the Universal Declaration of Human Rights as well as other global and regional human rights treaties, which courts should consult when interpreting provisions in the Bill of Rights and Duties.15

Article 25(b) of the ICCPR now finds some semblance of expression in Article 21(1) of our Constitution. The right to vote in Article 5(1) of the Constitution falls in the unenforceable part of the Constitution. The right to vote and participate in governance in my view creates “democratic legitimacy.” It recognizes and give force to the citizens' potential to participate in political outcomes and to elect officials who represent their interests or desires in representation bodies.

In terms of Article 25(b) of the ICCPR, there shall be the right and the opportunity “[t]o vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be

10 See the famous cases of OKUNDA V REPUBLIC [1970] EA 512 and PATTNI & ANOTHER V REPUBLIC [2001] KLR 262 which are salutary to the dualist theory.

11 The Constitution of Kenya 2010 article 2(6)

12 Ibid. Article 132(5)

13 Ibid. article 2(5)

14 GOVERNMENT OF RSA AND OTHERS V GROOTBOOM AND OTHERS (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46 (4 October 2000); ILDC 285 (ZA 2000) para 26.

15 There is a host of case law where reference to international human rights treaties is made including JOHN MWOMBEKI BYOMBALIRWA V REGIONAL COMMISSIONER AND REGIONAL POLICE COMMANDER, BUKOBA ANOTHER [1986] TLR 73, 84; LEGAL AND HUMAN RIGHTS, LAWYERS’ ENVIRONMENT ACTION TEAM (LEAT) AND NATIONAL ORGANISATION FOR LEGAL ASSISTANCE V THE ATTORNEY GENERAL High Court of Tanzania, at Dar es Salaam (Main Registry), Misc Civil Cause No 77 of 2005 (unreported) 39; DIRECTOR OF PUBLIC PROSECUTIONS V DAUDI PETE [1993] TLR 22, 34-35; PASCHAL MAKOMBANYA RUFUTU V THE DIRECTOR OF PUBLIC PROSECUTIONS, Miscellaneous Civil Cause No 3 of 1990 (unreported); N.I.N. MUNUO NG’UNI V JUDGE-IN-CHARGE AND THE ATTORNEY GENERAL [1998] TLR 464.; CHIKU LIDAH V ADAMU OMARI High Court of Tanzania, at Singida, Civil Appeal No 34 of 1991 (unreported) 8; BAWATA AND 5 OTHERS V REGISTRAR OF SOCIETIES AND 2 OTHERS, High Court of Tanzania at Dar es Salaam, Misc Civil Cause No 27 of 1997.

Page

70


held by secret ballot, guaranteeing the free expression of the will of the electors.” This provision contains at least two distinct matters: firstly, the necessary elements for elections, and secondly, the idea of an electoral cycle or a time-span during which the various elements for elections shall be implemented. The election elements/standards included in paragraph (b) of Article 25 of ICCPR can be organised in an order which is more or less chronological:

Periodic elections

o Election of elective bodies of popular representation at state level and local government authorities bodies; and elective offices to be held within the periods established by the constitution and laws. In our case, the presidential term is for two terms only. The life of parliament is five years with no limitation on re-election.

Genuine elections

o It means real political pluralism, ideological diversity and a multi-party system realized through the functioning of political parties whose lawful activity is under the legal protection of the state. In Tanzania only political parties with full registration can nominate and sponsor candidates for public elections. Political coalitions for purposes of election such as was the case previously in Kenya are not legally permissible in Tanzania.

Universal suffrage

o Each citizen, who has attained to the age established by the constitution, laws, has the right to elect and be elected. In the case of Tanzania the statutory age for being eligible to vote is eighteen years and the legally permissible age for contesting the post of Member of Parliament is 21 years and for that of presidential post 40 years.

Equal suffrage

o Each voter has one vote or the same number of votes as other voters.

Direct suffrage

o Citizens directly vote for the candidate and/or list of candidates or against the candidate, candidates, list of candidates or against all candidates and/or lists of candidates.

Page

70


Secret vote

o Exclusion of any control whatsoever over the expression of the will of voters, assurance of equal conditions for making a free choice.

Free expression of the will of the voters

o The supremacy of the constitution is the basis for holding free elections and for making it possible for citizens and other participants in the electoral process to choose, without any influence, coercion, threat of coercion or any other unlawful inducement, whether to participate or not to participate in elections in the forms allowed by law and by lawful methods, without fear of any punishment or mistreatment regardless of voting returns and election results, as well as the basis for the legal and other guarantees of strict observance of the principle of free elections in the course of the entire electoral process.

o The participation of a citizen in elections is supposed to be free and voluntary

o Candidates, political parties and other participants in the electoral process must bear responsibility to the public and the government in accordance with the constitution and law.

Fair Elections

There must be equal legal conditions to all participants in the electoral process. Fair elections guarantee:

(a) universal and equal suffrage;

(b) equal possibilities for participation of each candidate or each political party in an election campaign, including access to the mass information and telecommunications media;

(c) fair and public funding of elections, election campaigns of candidates, political parties; ( - in Tanzania as per the Elections Expenses Act, political parties themselves shoulder the burden of funding for the election campaigns)

(d) honest voting and vote counting;

(e) rapid provision of full information about voting results and timely official publication of all election results;

(f) organization of the electoral process by impartial election bodies, working openly and publicly under effective public and international observation;

(g) prompt and effective adjudication of complaints about violation of electoral rights and freedoms of citizens, candidates, political parties to be performed by courts and other duly authorized bodies within the time frame of the appropriate stages of the electoral process.

Page

70


1.2.2 Conduct of Elections by Election Bodies (Election Commissions)

In Tanzania public elections are managed by two institutions, the National Electoral Commission (NEC) which is established under Article 74(1) of the 1977 Union Constitution comprising of members appointed by the President and the independent Zanzibar Electoral Commission (ZEC) established under the 1984 Constitution of Zanzibar as amended. NEC manages the conduct of presidential, parliamentary (both on the Mainland and in Zanzibar) and councilor elections (on the Mainland) while ZEC manages the conduct of presidential and union parliament members as well as members of the House of Representatives and local authorities for Tanzania Zanzibar.

In terms of Article 74(12) of the Union Constitution, courts of law are barred from inquiring into “anything done by the Electoral Commission in the discharge of its functions in accordance with the provisions of this Constitution.” In order to give the National Electoral Commission some semblance of independence, Article 74(14) of the Constitution, categorically stipulates that “persons concerned with the conduct of elections” are prohibited from joining any political party, save only that each will have the right to vote. The National Electoral Commission is the only institution with the mandate to announce election results. In the case of AUGUSTINE LYATONGA MREMA AND OTHERS v ATTORNEY-GENERAL AND OTHERS16 (Maina J, Kyando J, Mackanja J) the issue of jurisdiction of the High Court to enquire into election of President came up for consideration where the Court stated categorically the provision of Article 41(7) of the Constitution, ousted the jurisdiction of the High Court to inquire into the election of the President once the National Electoral Commission had declared the election results.

1.2.3 Funding of Elections and Election Campaigns of Candidates and Political Parties

The Election Expenses Act No.6 of 2010

7.-(1) The term "election expenses" means all funds expended or expenses incurred in respect of the conduct and management of nomination process, election campaign and election by a political party, candidate or Government and include-

(a) in relation to nomination process, all expenses incurred by a political party during the nomination process;

(b) in relation to nomination of a candidate under the National Elections Act or all expenses or expenditure incurred by a political party for facilitating its candidate for nomination;

8.-(1) It shall be an obligation of each political party to conduct and fund its election campaign by utilizing its own funds from the sources stipulated under the Political Parties Act.

14.-(1) All expenses to be incurred during the nomination process within the political parties shall be borne out by a political party concerned.

1.2.4 The Electoral Cycle, Political Rights and Electoral Rights

On the basis of paragraph (a) of Article 25 of ICCPR, the right to participate in the conduct of public affairs is a continuous right. The attribution of a continuous character to the right to participate through elections strongly underlines the fact that the simple act of voting on Election Day does not exhaust elections nor consume this part of participation. Rather, the continuous character of elections implies that elections are an on-going process of a cyclical nature: when one election has been completed and those elected have assumed their seats, the process will start again from the beginning.

16 [1996] TLR 273 (HC)

Page

70


The extension of elections far beyond the immediate act of voting also has wider implications. It makes it necessary to take into account a number of other human rights closely linked to the right to participation. The so-called political rights of freedom of association, freedom of assembly and freedom of speech are brought into the election context in a more substantive manner by a cyclical understanding of elections and through the requirement of the genuine nature of the elections.

There is a reference in Article 25(b) of the ICCPR to the right to be elected. In comparison with Article 21 of the Universal Declaration of Human Rights, the provision is a novelty. It does not imply that citizens have a subjective right to become members of any elected body, but rather that all citizens qualifying under the provisions of the law should have not only the right but also the opportunity to stand as a candidate. The right to stand for election also includes recognition of the right to stand as an independent candidate but not in the case of Tanzania where political party membership, nomination and sponsorship is mandatory for Councilor, Member of Parliament and Presidential candidacy in an election.

1.3 The Importance of Public Elections

Elections not only do allow for political competition, participation and legitimacy, but also permit peaceful change of power, thereby making it possible to assign accountability to those who govern. This is why it is often argued that elections facilitate communication between the government and the governed, and also have symbolic purposes by giving voice to the public.

Generally, elections give the mass of the people opportunities to have a say in who governs them and how and with which policies they are governed. As means of giving accountability to citizens, elections are a constant reminder to public office holders of the limited nature of modern government. Public elections allow the citizenry the opportunity to exercise their broadly constitutionally guaranteed right to take part in the governance of the country, either directly or through representatives freely elected by the people in conformity with procedures laid down by the law.17 Public elections therefore are the periodically manner in which citizen exercise their right and freedom to participate fully in the process leading to the decision on matters affecting them, their well-being or the nation.18 The right to vote is not however, enjoyable by every citizen. It is a reserve of only those who have attained the age of eighteen years (the age of majority), who are entitled to register and vote in any election held in Tanzania.19 The right to vote however is subject to the Constitution and the law in force in Tanzania in relation to public elections.

Elections are primarily a contest among groups, mainly political parties. It is the existence of such groups, which Tanzania is not short of, organized and operated along democratic traditions that give meaning to the electoral process as the cornerstone of democratic politics. Electoral and party systems are, hence, necessarily intertwined as both are designed to facilitate peaceful and orderly transfer of political power. Party politics within a democratic setting are, indeed, "intrinsically electoral politics." Developments affecting the electoral system, method and rules of counting votes to determine the outcome of elections, winners may be determined by a plurality, a majority (more than 50% of the vote), an extraordinary majority (a percentage of the vote greater than 50%), or unanimity] of any country are therefore bound to reflect one way or the other on the party system, and vice versa. Tanzania adheres to a mix of the electoral system of “first-past-the-post”20, for members of parliament elected to represent constituencies and some semblance of “proportional representation” with respect to special member seats. Under the first-past-17 Article 21(1) of the 1977 Constitution of the United Republic of Tanzania as amended


19 Ibid Article 5

Page

70


the-post electoral system, the winner is determined by a plurality, that is, majority vote. Members of Parliament representing constituencies are elected by the people, on the principle of only one Member of Parliament in a constituency.21

1.4 The History of Election Petitions in England

The history of election petitions in Tanzania cannot be divorced from the history of election petitions in England particularly considering that our constitution which enshrines the right to vote is modeled on the Westminster model. In England in 1604, after a disputed election in Buckinghamshire, the Court of Chancery ordered a new election which took place; after the new election, the issue was referred to a Committee of the Commons which challenged the right of the Court of Chancery to annul an election to the Commons. The House and the King agreed a compromise reflected in a document drafted by the Commons Committee entitled The Form of Apology and Satisfaction passed on 20 June 1604, which concluded:

"Fifthly, That there is not the highest standing Court in this land that ought to enter into competency [competition], either for dignity or authority, with this High Court of Parliament, which with your Majesty's royal assent gives laws to other Courts but from other Courts receives neither laws nor orders.

Sixthly and lastly, We avouch that the House of Commons is the sole proper judge of return of all such writs and of the election of all such members as belong to it, without which the freedom of election were not entire: And that the Chancery, though a standing Court under your Majesty, be to send out those writs and receive the returns and to preserve them, yet the same is done only for the use of Parliament, over which neither the Chancery nor any other Court ever had or ought to have any manner of jurisdiction ..."22

In England from that time until 1868, the House of Commons was the sole judge over disputed elections. Many different procedures were tried. The court established to try parliamentary election petitions was not referred to as an "election court" in the 1868 Act. A court referred to as "the election court" was constituted under the Corrupt Practices (Municipal Elections) Act 1872 (the 1872 Act) which established a procedure for petitions questioning local elections. Under the provisions of the Judicature Act 1873, the jurisdiction of the Court of Common Pleas was transferred to the newly created High Court. The Parliamentary Elections and Corrupt Practices Act 1879 amended the 1868 Act so as to provide that parliamentary election petitions be tried by two judges of the High Court instead of one.23 At the end of the trial of a parliamentary election petition a very similar provision for finality and certification to the Speaker by the election court as was made in the 1868 Act.

In Tanzania, as is the case in many commonwealth countries, Parliament has entrusted to a “reluctant judiciary”, the limited task of determining disputed elections, which task is supposed to be carried 20 Art,66(1)

21 Ibid Art. 77(1) & (2)

22 Woolas, R (on the application of) v The Speaker of the House of Commons [2010] EWHC 3169 (Admin) (03 December 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/3169.html

23 According to Rule 15 of GN No.448 of 2010 the Chief Justice may order local government election petition to be tried by more than one magistrate and in terms of Rule 17 of GN. No.447 of 2010, the Chief Justice may also order a parliamentary election petition to be tried by more than one judge.

http://www.bailii.org/ew/cases/EWHC/Admin/2010/3169.html

Page

70


out by the High Court24 and subordinate courts.25 The constitutionally assigned role of the judiciary as custodian and guardian of standards of legality and due process is to interpret and apply the law to resolve among other disputes, election petitions contesting results of parliamentary and local government elections without fear or favour and expeditiously. The function of a court in an election petition however, is fairly a limited one. The court is required to determine the issues which have arisen on the election petition upon grounds and on consequences laid out in the electoral and petition laws and rules, which are the subject of our discussion in this Paper.

1.5 Constitutional and Legal Principles Underpinning Elections

The legal principles underpinning public elections and election petitions have been laid down in a number of court cases. I wish to associate myself with the succinct outline of the principles by Hon. Masanje J. (as he then was) in PRINCE BAGENDA VS. WILSON MASILINGI AND ANOTHER26 thus:

1. An election petition must be construed more strictly than a plaint in a civil suit. This is so because (1) the right to file an election petition is not a common law right but a statutory right; (2) one of the respondents is a person who has been declared by the Returning Officer to have the confidence of the electorate and the Courts are slow to interfere with such verdicts except when a clear case is made out; and (3) where the petitioner establishes corrupt practices, the successful candidate may not only be unseated but even disqualified to stand as a candidate in future elections' Mogha's Law of Pleadings 14 th Edition. Samatta J.K. (as he then was) endorses this view in PHILIP ANANIA MASASI VS. RETURNING OFFICER NJOMBE NORTH CONSTITUENCY AND OTHERS. 27

2. It is still available to challenge the validity of an election on the ground of illegalities that are otherwise not expressly stated under 108(2) of the Election Act. Secondly, there is the jurisprudential argument which derives from the spirit of the Constitution and the Election Act, and that is democratic elections have to be free and fair. This too, has not been effected and Parliament has no power to legislate against such principle. “An election riddled with chicanery” a criminality is not an election in the eyes of the law, because it does not express the true wishes of the electorate' (Lugakingira J, in JOSEPH SINDE WARIOBA VS. STEPHEN MASATU WASSIRA AND ANOR. 28

3. The franchise is the very cornerstone of democracy; it is the one right, perhaps more than any other, upon which all other constitutional rights depend for their effective protection. When the right to vote is denied or abrogated, democracy and freedom fail.29

24 Rule 2 of GN 447/2010 under which a court means the High Court

25 Rule 2 of GN 448/2010 defines “court” to mean the court of a Resident Magistrate; or the District Court specified in the Order made by the Chief Justice under section 5(3) of the Magistrates’ Courts Act, 1984 [Cap.11 R.E. 2002]

26 [1997] T.L.R. 220 (HC) at page 224 - the petition was allowed with costs to be taxed and the parliamentary elections held in Muleba South in November 1995 were declared null and void and set aside. The first respondent, Wilson Masilingi, was found not to have concerned with the irregularities and malpractices. It was ordered that he be paid costs by Attorney General, which costs were also to be taxed.

27 Misc Civil Cause No 7 of 1995 (High Court - Songea) (unreported)

28 Misc Civil Cause No 25 of 1995 (unreported)

29 Ibid.

Page

70


4. The legal position as stated by Court of Appeal in ATTORNEY GENERAL vs. WALID KABOUROU30is that:

`taking into account the principle which underlies the Constitution and the Elections Act 1985, that elections shall be free and fair, ... an election which is generally unfree and unfair is not an election as envisaged by the Constitution and the Election Act, and consequently anything which renders the election unfree and unfair is in law valid ground for nullification of such purported election.'

It is now the law that number of votes scored by candidates in an election may not per se be used to argue that “after all even if he was given those votes, numerically he will still lag behind” – So the cases of Dyamwale v Masomo31 and Kasusura v Kabuye are now, in advent of the incorporation of fundamental rights in our constitution, of no practical value.

6. As has been said in a number of cases on elections, in the end:

`the trial judge will have to take into account -- the cumulative effect on the election of the proved irregularity' [Samata JK in Masasis' case (supra).

The Court of Appeal in the case of George M Shambwe v Attorney General had observed that:

“…[the petition rested] entirely on the cumulative adverse effect of the series of alleged non-compliance or irregularities in the conduct of the electoral process.”

In the landmark case of JULIUS ISHENGOMA FRANCIS NDYANABO VS. THE ATTORNEY GENERAL32 the Court of Appeal of Tanzania also laid down five constitutional principles, which are also relevant in election petitions, namely, that:

(1) The Constitution of the United Republic is a living instrument, having a soul and consciousness of its own. Courts must therefore endeavor to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purpose for which its makers framed it.

(2) The provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions, but grows and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must therefore be strictly construed. So Courts have a duty to interpret the Constitution so as to further fundamental Objectives and Directives of State policy.

(3) Until the contrary is proved legislation is presumed to be constitutional. If possible legislation should receive such a construction as will make it operative and not in operative.

(4) Since there is a presumption of constitutionality of legislation save where there is a clawback or exclusion clause relied upon as a basis for constitutionality the onus is upon those who challenge the constitutionality of the legislation, they have to rebut that presumption.

30 Misc Civil Cause No 1 of 1994 (Tabora) (unreported)

31 [1982] TLR 69 (HC)

32 Civil Appeal No. 64 of 2001 (unreported) (Samatta C.J.) at pp.17-18 now reported in [2004] TLR 14

Page

70


(5) Where those supporting a restriction on a fundamental right rely on a clawback or exclusion clause in doing so, the onus is on them to justify the restriction. Although not expressly included in the fifth principle it was the Court's view also, adopting its own decision in KUKUTIA OLE PUMBUN AND ANOTHER VS ATTORNEY GENERAL AND ANOTHER33; as a rejoinder to that principle that:

"Whoever relies on a clawback or exclusion clause has to prove that the restrictions are not arbitrary, unreasonable and disproportionate to any claim of state interest."

The other principles of constitutional interpretation include the following, that: -

(6) Courts are not concerned with the legislative wisdom of Parliament. They are concerned only with its legislative competence.

(7) While parliament cannot directly override a decision of a Court of law declaring a statute unconstitutional and pronounce it to have been valid, it can make a fresh law, free from unconstitutionality.

(8) Courts do accept that civilization owes quite as much to those who limit freedom as to those who expand it. A Constitution must not be construed in isolation, but in its context which includes the history and background to the adoption of the Constitution itself. It must also be construed in a way which secures for individuals the full measure of its provisions. "

(9) In the case of THE JUDGE I/C HIGH COURT ARUSHA, and ATTORNEY GENERAL VS N.I.N. MUNUO NG'UNI34 the Court of Appeal of Tanzania, adopted with approval the following passage paraphrased by the trial Court:

"...that a Court should take liberal approach to rules of practice, and procedure where basic rights and freedoms are involved so as to give to the complainant a full measure of his rights. The rationale is that since the rights guaranteed by the Constitution are effectively enforced, and that to decline to examine the merits of a petition on the basis of a procedural technicality would be an abrogation of that duty."

(10)There is a presumption that every statute is constitutional unless proved otherwise (see LEONS NGALAI VS ALFRED SALAKANA & ANOTHER (CAT) CA. No. 381/96 (Unreported). It is the burden of the petitioner to show that legislation is unconstitutional. Once the petitioner alleges and proves, either by evidence or arguments as in this case, the burden then shifts to the Respondent to show that the impugned legislation is saved under Article 30 (3) of the Constitution.

(11)Another principle of Constitutional interpretation is that in interpreting a legislation vis-à-vis the constitution, both the purpose and effect of the legislation must be given effect to. (See ATTORNEY GENERAL VS MOMODON JOBE. 35

33 [1993] TLR.159

34 Civil Appeal No. 45 of 1998 now reported in [2004] TLR 44

35 [1984, AC 589]

Page

70


I cannot vouchsafe that the above set of principles are by no means exhaustive as there are other principles which courts have laid down but have escaped my attention and others may even emerge in the course of our discussion. In any event these principles are meant to guide judges and magistrates in determining case which come before them but are not a rule of thumb to be applied for reaching a decision either way.

1.6 Public Elections Law and Electoral Dispute Resolution Mechanisms in Tanzania

1.6.1 Public Election Law in Tanzania

The law in force in relation to public elections in Tanzania as we have seen is now embedded in legislation and attendant rules. It provides a peaceful way of succession to power. It is in this regard that the Constitution vested upon Parliament, a representative of people’s power (sovereignty), the legislative powers to ensure that it enacts such laws so as to make public elections freely and fairly conducted.36

Pursuant to this delegated power, the Parliament of Tanzania passed laws which make provisions for election procedures for presidential, parliamentary37 and local authorities Councilors.38 The Chief Justice of Tanzania exercising delegated powers39 has promulgated election petition rules to regulate the procedure and practice and prescribing the fees to be paid and in relation to petitions and applications.40

In THE MATTER OF A PETITION TO CHALLENGE AS UNCONSTITUTIONAL SECTIONS 98(2) AND 98(3) OF THE ELECTORAL LAW (MISCELLANEOUS AMENDMENT) ACT 4/200041 (Kimaro, J; Massati, J and Mihayo, J) (HCT DSM –unreported), (famous as the Takrima Case) the court made the following observation:

“Before we proceed, we take judicial notice under section 58(1)(a) of the Law of Evidence Act (Cap.6 R.E. 2002) that we now have a revised edition of Laws of Tanzania. The revised edition is for the year 2002 and it was prepared on the authority of The Laws Revision Act (Act N0.7 of 1994), which was made operative retrospectively by Government Notice N0.124 published on 6/5/2005. The Act provided for the preparation and publication of a revised edition of the Laws of Tanzania and for continuous revision and maintenance up to date. The Elections Act is now known as The National Elections Act, (Cap 343 R.E. 2002). It incorporates all amendments up to 2001. In 2005, Act N0.3 of 2005 amended it again.”

We may hasten to add that the National Elections Act and the Local Authorities (Elections) Act as promulgated by Parliament are 'comprehensive' pieces of legislation designed to harmonize all the previous


37 The National Elections Act, No.1 of 1985 [Cap.343 R.E. 2010]

38 The Local Authorities (Elections) Act, No.4 of 1979 [Cap.292 R.E. 2010]; some provisions in the Local Government (Urban Authorities) Act, No.7 of 1982 [Cap.287 R.E. 2002] and the Local Government (District Authorities) Act, No.8 of 1982 [Cap.288 R.E. 2002]

39 In terms of section 117 of Cap.343 of 2010

40 The National Elections (Election Petitions) Rules, 2010 GN.No.447 published on 19/11/2010 and The Local Authorities (Election Petitions) Rules, 2010 GN. No.448 published on 19/11/2010 (The Election Petition Rules),

41 Re: Constitution of the United Republic of Tanzania, 1977 (77 of 2005) [2006] TZHC 4 (24 April 2006) http://www.saflii.org/tz/cases/TZHC/2006/4.html

http://www.saflii.org/tz/cases/TZHC/2006/4.html

Page

70


election laws with a view to streamlining the legal framework for elections in Tanzania. It is worth noting however that although public elections have been frequently held in Tanzania since independence, and despite a plethora of case authorities on the subject, there is dearth of scholarly work on election petitions. It is not the intention of this Paper however, to fill that gap.

1.6.2 Electoral Dispute Resolution Mechanisms in Tanzania Mainland

The role of courts in determining disputed elections is indeed very limited. This is so because courts have to carry out the role carved for them by the Constitution to determine whether the grounds for avoiding the election as set out in the petition have been established to the standard required in the law, which in an election petition as we shall later come to realize is much higher than in normal civil suits. Under our Constitution, it is for the judiciary to determine the meaning of the law enacted by Parliament. The courts in dispensation of electoral justice therefore do no more than to discharge these limited functions under the Constitution and the electoral laws.

It should be emphasized here that it is for the electorate to determine whom it wishes to elect in a free and fair election. This is entirely consistent with the constitutional principles derived from the doctrine of separation of powers42 and the rule of law, that it is for the courts to determine the meaning of the law enacted by Parliament and apply it to a set of given material facts. In discharging its fact finding and law interpreting role in an election petition limited as it is, this is consistent with the constitutional principle that it has always been the role of courts of law to determine the meaning of the law enacted by Parliament. 43

It should be emphasized here also that the general principle underpinning trial of election petitions is that they must be determined with utmost urgency, which is why the amended electoral laws and the new 2010 Election Petition Rules contain very strict time lines for hearing and determining election petitions. Finality in the determination of an election petition is of great importance for the electors to have a representative in Parliament or in the local authority council, particularly where majorities are small, in which case the absence of a Member or a Councilor can be significant. Furthermore, we should not lose sight also of the fact that the decision of a court in an election petition declaring the status of the election is a judgment in rem, and in that sense it is final and binding on the whole world.

The most critical issue in a trial of an election petition is to consider whether the outcome of the election will be such that most “participants” (both voters and candidates) will perceive the officially announced results as reflecting the wishes and aspiration of the voters, and that where this was not the case, that there is a capable and honest judiciary to assuage the grievances of the losers. The 1977 Constitution of the United Republic of Tanzania actually contain provisions for judicial outlets for the resolution of electoral grievances. These judicial outlets have been complemented by institutional reforms aimed at insulating the judiciary and judges from politics and political influences particularly by prohibiting membership in political parties by judicial officers. This probation is now constitutionally provided for in Article 113A of the Constitution as follows:

“113A. It is hereby prohibited for a Justice of Appeal, a Judge of the High Court, a Registrar of any grade or a magistrate of any grade to join any political party save only that he shall have the right to vote which is specified in Article 5 of this Constitution.” (the emphasis is mine).

42 The principle of separation of powers (executive, judicial and legislative) is firmly embodied in Article 4(1) of the Constitution. Each of the three organs of government are enjoined to discharge its functions in accordance with the Constitution and the relevant laws of the land.

43 Article 107A of the Constitution which declares the Judiciary as the authority with the final decision in dispensation of justice

Page

70


The above provision of the Constitution not only cements the constitutional principles of separation of powers but also that of independence of the judiciary and judicial officers in their actions. The bar on active participation in politics by judicial officers does not affect exercise of their right to vote. It is only through the ballot box judicial officers can express their political preference and since this is secret it is hard to tell who preferred which political party in the election.

Our Constitution stipulates clearly that in election matters, all election complaints, except complaints pertaining to a presidential election, shall first be heard by the High Court in respect of parliamentary elections.

“83.-(1) Every proceeding for the purposes of determining the question whether –

(a) the election or appointment of any person to be Member of Parliament was valid or not; or

(b) a Member of Parliament has ceased to be a Member of Parliament and his seat in the National Assembly is vacant, or not, shall, subject to the provisions of sub-article (2) of this Article, first be instituted and heard in the High Court of the United Republic.”

The jurisdictional basis for the High Court in conducting trial of election petitions not only is statutory but constitutional. Article 83(4) of the Constitution provides further that a petitioner dissatisfied with the decision reached by the High Court can appeal to the Court of Appeal,44 which has the final say in all matters including election petitions, except presidential elections, which under the Constitution cannot be contested in any court of law. Despite this limitation, the courts in Tanzania have worked relatively well to secure the neutrality, independence of and respect for the judiciary when it comes to dealing with election petitions. I wish however to bring to your attention the wise words of our former Chief Justice, the late Francis Nyalali with regard to independent candidacy for presidential post, which he stated in Kaborou Case [1996] TLR p176 as follows:

“The last point we need to point out, in view of the forthcoming presidential and parliamentary elections is a lacunae or gap in the Elections Act concerning presidential elections. Section 108 deals only with challenges to elections of constituency members of the Parliament of the United Republic. This is clear under s 2 which defines a `member' as being ìn relation to the National Assembly, a constituency member'. We can find no provision concerning disputed Presidential elections. We cannot understand why this lacunae was not remedied under the Elections (Amendment) (No 2) Act, 1992 (Act 21 of 1992) which amended the provisions of the Elections Act, 1985 concerning presidential elections. The amendments therein contained went as far as they apply to presidential elections, the provisions of Chapters IV and V of the Elections Act, 1985 which deal with qualification of candidates and election procedure respectively. Chapter VII which deals with invalidation of election results was not applied to presidential elections. The omission is puzzling, since in multi-party Presidential Elections, such lacunae is an invitation to political chaos. We hope appropriate amendments of the relevant law would be made before the forthcoming multi-party presidential elections.” (the emphasis is mine).

The 2010 general multiparty elections brought with it a number of new challenges. The sheer number of political aspirants and parties participating meant the quantity of post election petitions, now already standing at 43 which have been filed at the High Court and its district registries. Thus, while most of the petitions brought before the courts might fail to scale through, mainly for failure by petitioner to raise money 44 The constitutional entitlement to a fair hearing, appeal and any other remedy is constitutionally guaranteed under Article 13(6)(a) of the Constitution.

Page

70


for payment of security for costs and lack of evidence, several landmark decisions are expected to be taken by the courts which will go to prove that Tanzania has entered a new era of judicial independence and courage. Perhaps it is worthwhile to revisit some judicial outburst as could be gathered from AUGUSTINE LYATONGA MREMA AND OTHERS v ATTORNEY-GENERAL AND OTHERS45 where MACKANJA J. (as he then was) stated at page 294 thus:

“Another matter we have found necessary to address is Dr Lamwai's conduct in court. At one stage during his submissions a question was put to him and he gave a very unexpected answer. He wanted the Court to tell him whether to answer that question in his capacity as a politician or as an advocate. We did not expect that Dr Lamwai, a distinguished advocate of this Court, would have wanted to turn a session of the High Court into a political circus. We consider that attitude as being very discourteous to this Court and we do not expect him to behave in the manner he did.

What is more grave, however, is when he informed the Court during his submissions that followers of his clients will not accept a decision which will not be in their favour! We consider those remarks to constitute an act of intimidation of this Court and an interference in the due process of the law. Those remarks will not in any way influence our decision one way or the other; we reaffirm our resolve to dispense justice fairly, without fear or favour. In the same vein we decry and deprecate any act which, though unwittingly, will have the effect of inciting members of the public to disobey the constitutional authority of this Court. We are satisfied, however, that Tanzanians are a peaceful people who are sufficiently mature politically and who will not be influenced by those unfortunate remarks.”

In WILLIAM SHIJA v FORTUNATUS MASHA46 the respondent had been granted an extension of time by the Court of Appeal within which to file an appeal after his appeal had previously been struck out on the ground that it was incompetent for not having the extracted order attached. The single judge of the Court of Appeal held that the delay on the part of the respondent had been technical and not actual and that the original appeal, though incompetent, had been lodged in time. In the present reference the applicant contended that the application ought not to have been granted because it lacked the requisite notice of intention to appeal as with the striking out of the appeal the notice of appeal had also disappeared. In that case it was held that:

“(i) Applicant was correct in contending that when the appeal had been struck out the notice of appeal was also struck out: in that situation if a party still wished to appeal a fresh application had to be filed in the High Court seeking extension of time in which to give notice of appeal;

(ii) In determining whether the application should nonetheless be granted, the court took into account that counsel had been negligent in adopting the correct procedure and this could not constitute sufficient reason for the exercise of the court's discretion.”

In ARUSHA INTERNATIONAL CONFERENCE CENTRE V DAMAS AUGUSTINE NDEMASI KAVISHE, 47 the Court of Appeal had occasion to consider the effect of striking out an appeal. In that case it

45 [1996] T.L.R. 273 (HC)

46 [1997] T.L.R. 213 (CA)

47 Civil Appeal No 34 of 1988 (unreported)

Page

70


was stated that the application for extension of time to file the memorandum and record of appeal presupposes that there is already a notice of appeal in existence. But the notice of appeal which brought into being the appeal which has just been struck out, disappeared with the striking out of that appeal.'

In HON. B.P. MRAMBA v LEONS S. NGALAI AND THE ATTORNEY GENERAL48 the matter was before the Court of Appeal for a decision on a preliminary matter. At the stage of pleadings in an election petition between the appellant and the respondent the High Court ordered that further and better particulars be furnished relating to dates and places of alleged illegal campaigns, the precise character of such campaigns and the alleged other enticements and corrupt practices. It was argued in the Court of Appeal whether or not such further and better particulars were matters of fact or of evidence. It was held that:

“(i) The further and better particulars ordered by the High Court were not matters of evidence but matters of fact;

(ii) the particulars were necessary to substantiate the relevant allegations made in the petition.”

The legal position concerning the giving of particulars of allegations made in an election petition case is stated under Order 6 Rules 4 and 5 of the Civil Procedure Code, 1966 which apply to election petition cases by virtue of the provisions of Rule 22(1) of GN 447 of 2010 and Rule 19(1) of GN 448 of 2010 of the Election Petition Rules. Since Order 6 Rules 4 and 5 are exact reproductions of corresponding provisions of the Indian Civil Procedure Code, 1908, the commentaries to the Indian Code as well as the decisions by competent Indian Courts are undoubtedly of great value and assistance to courts in understanding the relevant provisions of our Civil Procedure Code. Similar values attach to English authorities, since in the final analysis, the Indian Civil Procedure Code, 1908, was an application of English law to the sub-continent of India. Under Order 6 Rule 4 of our Civil Procedure Code, it is mandatory to state in the pleading the particulars necessary to substantiate any allegation. Under Rule 5, further and better particulars may be ordered by the court, subject to terms, such as costs, as may appear just.

In the Commentary to the corresponding Rule 4 of Order 6 of the Indian Civil Procedure Code, 1908, in Sarkar's Civil Procedure Code, Eighth Edition, Vol. I, it is stated,

"The object of this rule is to furnish the opposite party with such particulars regarding the suit as are necessary to enable him to find out what case he has to meet. It is but right and proper that each party should have any and every particular that will enable him to know his opponent's case and prepare himself accordingly, but he is not entitled to have any information as to the evidence by which they are intended to be proved..."

Furthermore, the Commentary cites the English case of Humphries & Co. v The Taylor Drug Co. 39 Ch. D. 693, 695 where it was stated:

"The courts have uniformly endeavoured to prevent the plaintiff, or the defendant, as the case may be, from prying into the brief of his opponent or finding out which is to be the evidence which is to be produced at the trial. On the other hand the Courts have uniformly said that the plaintiff or the defendant is entitled to be told any and every particular which will enable him prepare his case for the trial, so that he may not be taken by surprise."

48 [1986] T.L.R. 182 (CA)

Page

70


Two more English decisions, that is, in the case of Zierenberg vs. Labourchere49 and Marriot vs. Chamberlain50 were cited by Counsel in that case in support of the proposition that names of witnesses have to be given if the names constitute material facts.

The Court observed that looking at these authorities, it is apparent that the basis for the rule requiring the giving of particulars necessary to substantiate allegations made in pleadings is the need to ensure a fair and expeditious trial. As stated in Halsbury's Laws of England, 4th Edition, Vol 36, paragraph 38:

"The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs."

In that case, Mustafa, J.A. stated that there are no precise rules concerning what particulars are to be furnished to the other party but the general principle is clear. It is that only material facts constituting a party's case, not the evidence in support thereof, are given. And if names and dates and other matters form part of such material facts, then such particulars would be ordered. What particulars should be ordered would depend on the facts of each case. The principle is clear, but its application can often be quite difficult.

2.0 CHALLENGING OR AVOIDING ELECTIONS IN TANZANIA

2.1 Courts with Jurisdiction to Conduct Trial of Election Petitions in Tanzania

In Tanzania perhaps different from England, there is no “Election Court” in the sense of a court specifically constituted to hear only an election petition whose task terminates with the finalization of the petition. Across the border in Kenya, the Chief Justice is empowered to constitute the court for hearing election petitions.

In Tanzania, courts for conducting the trial of election petitions are a matter of legislation. There are two courts specifically vested with original jurisdiction in election petitions, namely, the High Court of Tanzania for the trial of parliamentary election petitions51 and the Resident Magistrates’ Courts or designated District Courts for the trial of local authorities (Councilor) election petitions.52 These courts are not referred to in the electoral laws specifically as “election courts.” However, for our purposes we may safely refer to the High Court as a “parliamentary election petition court” (PEPC) and a Resident Magistrates’ Courts or District Court as “local authorities election petition court” (LAEPC) respectively. Both courts enjoy original jurisdiction in parliamentary and local government election petitions respectively and are the only courts specifically enjoined by law to declare void the election of a Member of parliamentary53 or a Councilor election54 upon stipulated grounds.

49 (1893) 2Q.B. 183

50 17 QBD.154

51 Section 110(1) of Cap.343 R.E. of 2010

52 Section of 109(1) of Cap.292 R.E. 2010


54 Section 107(2) of Cap.292 R.E. 2010

Page

70


At this juncture I wish to insist on the necessity of courts to act within their vested jurisdiction. The Court of Appeal of Tanzania in RICHARD LUKAS RUKAMBURA V. ISAAC NTWA MWAKAJILA & TANZANIA RAILWAYS CORPORATION 55 quoting from FANUEL MANTIRI NG’UNDA VS. HERMAN MANTIRI NG’UNDA AND 20 OTHERS 56 pondering over the centrality of jurisdiction had this to say at page 17 of the typed judgment:

“The question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature....the question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial...it is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case.”

The issue of jurisdiction of a court to entertain certain matters is so fundamental such that, as the Court of Appeal observed in RICHARD LUKAS RUKAMBURA case (supra), “where a subordinate court wrongly assumes jurisdiction the proceedings will be a nullity.” The principle of law that on such a fundamental issue such as jurisdiction, that a court can raise it suo motu and decide the case on the ground of lack of jurisdiction without even hearing the parties is now fairly well settled.

The question of jurisdiction in election petitions may arise where a court wrongly may assume jurisdiction to hear a petition not within its mandate. Both under the principal election legislation57 and the 2010 Election Petition Rules58, the avoidance of election has to be only by way of an election petition presented either to the High Court for challenging the election of a member a Member of Parliament, or to the Resident Magistrates’ Court for challenging the election of a Councilor. The NATIONAL ELECTIONS ACT stipulates clearly that every election petition “shall be heard and determined by the High Court.”59

Similarly, the LOCAL AUTHORITIES (ELECTIONS) ACT provides categorically that “every election petition under the Act shall be heard by the Resident Magistrates’ Court.”60 This means that in Tanzania there is no any other way of contesting the election of a candidate save by election petition and only in the High Court or the Resident Magistrates’ Court depending on the kind of the election sought to be contested.

COURTS WITH JURISDICTION IN ELECTION PETITIONS: NIGERIA

In election matters, all election complaints, except complaints pertaining to a presidential election, shall first be heard by State Election Petition Tribunal, SEPTs, to be established in all the 36 state of the federation. These tribunals are to be constituted by the President of the Federal Court of Appeal. Petitioners who are unsatisfied with the decisions reached by the SEPTs can appeal to the Federal Appeal Court, which has the final say in all matters relating to all elections, except presidential elections. Petitions relating to Presidential elections, on the other hand, will first be heard by the Presidential Elections Tribunal (equivalent to a federal Appeal Court) sitting in Abuja. Further appeals will go straight to the Federal Supreme Court, which is the highest court in the land. Both courts are

55 (MZA) Civil Application No.3 of 2004 (unreported)

56 (CAT) Civil Appeal No.8 of 1995 (unreported)

57 Section of Cap.343 R.E. 2010 and section of Cap.292 R.E. 2010

58 Rule 4 of GN 447 of 2010 and Rule 3(1) of GN 448 of 2010

59 Section 110(1) of Cap.343 R.E. 2010

60 Section of Cap.292 R.E. 2010

Page

70


to be constituted by the Chief Justice of the Federation. Judicial Reform and Democratic Consolidation in Nigeria: 1999-2009 by David U. Enweremadu, Department of Political Science, University of Ibadan, Ibadan, Nigeria at page 6

http://www.nimd.org/documents//J/judicial_reform_and_democratic_consolidation_in_nigeria_-_1999-2009.pdf

Emanating from the foregoing, as we have seen, the only legally allowed procedure for challenging the election results of Member of Parliament or a Councilor in Tanzania is by way of an election petition presented either to the High Court to the Resident Magistrate Court depending on what kind of election one is challenging. In the case of avoiding the election of a Member of Parliament, section 108(2) of the National Elections Act [Cap.343 R.E. 2010] provides as follows:

“108(2) The election of a candidate as a Member of Parliament shall be declared void only on an election petition if the following grounds is proved to the satisfaction of the High Court and on no other ground, namely-“ (the emphasis is mine).

In the case of election of a Councilor, section 107(1) and (2) of the Local Authorities (Elections) Act, [Cap.292 R.E. 2010] provides as follows:

“107(1) The election of a candidate as a member shall not be questioned except on an election petition.

(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.

It is particularly interesting however, to note that whereas the National Elections Act combines the questioning of election of a Member of Parliament with the grounds for voiding election in one subsection of section 108 of the Act, the Local Authorities (Elections) Act delineates such matters in two subsections of section 107 of the Act, one subsection (1) providing for the mode of contesting the election of a Councilor and the other, subsection (2) stipulating the basis for avoiding such election, which is by proving to the satisfaction of the court any of the grounds stated under the law, which grounds are more or less similar to those for avoiding the election of a member of parliament.

In ATTORNEY-GENERAL AND TWO OTHERS v AMAN WALID KABOUROU 61 the Court of Appeal had occasion to deal with what constitutes grounds for nullification of elections [Section 108 of the Elections Act, 1985].

In that case the High Court at Tabora had allowed a petition by the Respondent filed under Section 108 of the Elections Act, 1985, as amended, and duly declared the results of a certain parliamentary by-election null and void. The Third Appellant, Azim Suleman Premji, had as a result of the by-election been declared the new Member of Parliament for Kigoma Urban Constituency. The appeal was a consolidation of two separate appeals which begun, on the one hand, by the aggrieved Third Appellant, and on the other hand, by the First and Second Appellants jointly. The First Appellant was joined as a respondent in the High Court petition as a necessary party, pursuant to rule 4(1) of the Elections (Election Petitions) Rules, 1971. The Second Appellant, Radio Tanzania Dar es Salaam, was sued in the petition because the Respondent alleged that its broadcasts had affected the results of the by-election. On 28 December 1994, the Court of Appeal dismissed the appeal with costs, including those incurred in the Court below and supplied its reasons on 31 January, 1995. In dismissing the appeal, the Court of Appeal held that:61 [1996] TLR 156 (CA)

http://www.nimd.org/documents//J/judicial_reform_and_democratic_consolidation_in_nigeria_-_1999-2009.pdf

Page

70


(i) The High Court of this country has a supervisory jurisdiction to inquire into the legality of anything done or made by a public authority, and this jurisdiction includes the power to inquire into the legality of an official proclamation by the Electoral Commission (tamko rasmi).

(ii) The Electoral Commission is empowered in terms of the Elections Act to make only such regulations as are in furtherance of specific provisions of the Act or in furtherance of the purpose of the whole Act. This power of the Commission is, however, to be exercised subject to the underlying constitutional principle which requires democratic elections to be free and fair, and this principle should be read into the Elections Act.

(iii) Although, in casu, the tamko rasmi was issued in the furtherance of free and fair elections, it is invalid due to the Vice-Chairman of the Electoral Commission having signed it instead of the Chairman, as is required by Section 3 of the Act.

(iv) There are grounds other than those stated in Section 108 of the Elections Act for the nullification of election results. Such other grounds include ànything which renders the elections unfree (sic) or unfair', as well as any law which seeks to protect ùnfree (sic)' or unfair elections, since such would be unconstitutional.

(v) The mere removal of illegal and corrupt practices from Section 108 does not have the effect of rendering such practices permissible in terms of the Elections Act, 1985. Instead, the effect of such removal is that such practices are no longer per se sufficient grounds for the nullification of election results. Such practices are still relevant, however, in determining whether elections were conducted freely and fairly.

(vi) A `corrupt practice' for the purposes of the Elections Act is not necessarily the same as corruption under the Prevention of Corruption Act, 1972. A `corrupt practice' under the Elections Act may be construed either as being a failure to abstain from committing the offence of bribery, as defined in Section 97 of the Elections Act, or as being a misconduct which renders the election unfair.

(vii) In casu, the maintenance work of the Kigoma-Ujiji road during the election campaign constituted non-compliance with the prohibition against electoral bribery, and was executed with the corrupt motive of influencing voters to vote for the CCM candidate and accordingly affected the results of the election.

(viii) In casu, further, the political campaigning by Mrema and Kiula (both M.P.'s) prior to the permissible campaigning period having begun, was illegal and must have affected the results of the by-election.

(ix) Radio Tanzania Dar es Salaam was purely a government department, at the material time, with no separate legal personality enabling it to be joined as a party to the petition separately from the Attorney General (First Appellant), who represents the government.

(x) CCM was given more air-time on Radio Tanzania Dar es Salaam than were given other political parties, and its broadcasts generally were biased in favour of the CCM candidate, such that it must have influenced the by-election results in favour of the CCM candidate.

Page

70


(xi) When a candidate in an election or a counting agent expresses dissatisfaction following the counting process, Section 78 of the Act grants a recount to the dissatisfied individual as his only course of action.

(xii) The public statements made by various officials of the CCM in respect of opposition parties generally, and the Respondent's party specifically, were clearly defamatory, and such statements cannot be justified during electioneering since elections are required to be conducted not only with due observance of the Constitution and the Elections Act, but also of the general law of the land which forbids defamation.

(xiii) In deciding matters of citizenship, the law on the subject is contained in the Citizenship Act, 1961 Cap. 512, and the British Nationality Act, 1948. The three factors which determine citizenship by birth are firstly, being born in Tanganyika by 8 December 1961; secondly, being a citizen of the U.K. and Colonies or being a British protected person on 8 December 1961; and finally, having at least one parent born in Tanganyika.

(xiv) According to the law of this country, the Third Appellant at birth acquired the nationality of both his parents, which nationality continued until he was required to choose between his original Indian citizenship and Tanzanian citizenship. The Third Appellant accordingly lost any Tanzanian citizenship since he failed to renounce his Indian citizenship.”

I would like to point out here the finding of the Court of Appeal in that case with respect to the “tamko rasmi.” The Electoral Commission exercising its powers granted by the Constitution and the Elections Act 1985, made and issued a number of directives, regulations and notifications, including the “Tamko Rasmi” for compliance or observance by all those concerned. In this way, the Electoral Commission prescribed and specified the period for election campaigns, mandated all contesting political parties to refrain from inter alia, using abusive or defamatory language or intimidation, and to educate voters about democracy and political tolerance.

In its reasons in support of the findings on ground number one in both memoranda of appeal concerning the validity of the Tamko Rasmi the Court naturally started by considering whether courts of law have jurisdiction to inquire into the validity of the “Tamko Rasmi” in view of the provisions of sub-article (12) of article 74 of the Constitution, which as amended by Act 4 of 1992 states that:

“No Court shall have jurisdiction to inquire into anything done by the Electoral Commission in the exercise of its functions according to the provisions of this Constitution.”

The Court observed that, at [1996] TLR p171 per NYALALI CJ (as he then was), “on the face of it, it appears that the Constitution expressly prohibits the courts from inquiring into the validity of such things like the Tamko Rasmi, but on a deeper consideration of the principles that underlie the Constitution, it is obvious that such an interpretation of the Constitution is wrong.” One of the fundamental principles of any democratic constitution, including ours, is the Rule of Law, the Court noted. The Principle is so obvious and elementary in a democracy, that it does not have to be expressly stated in a democratic constitution, the Constitution further observed. However, the Court further stated, “perhaps for purposes of clarity, there is an express provision to that effect under the Constitution of the United Republic of Tanzania.” It is Sub-Article (1) of Article 26 which states:

Èvery person is obliged to comply with this Constitution and the laws of the United Republic.'

Page

70


In the light of this principle, the Court of Appeal respectfully agreed with the submission of Mr. Werema, Learned Senior State Attorney (as he then was) to the effect that sub-article (12) of Article 73 of the Constitution cannot be interpreted so as to protect unconstitutional or illegal acts or deeds [see the recent famous case of ANISMINIC LTD VS. FOREIGN COMPENSATION COMMISSION]. Since Tanzania has reverted to de jure multi-party democracy, it is time the same was similarly articulated here, the Court observed. The Court was satisfied and made a finding that the High Court in this country, like the High Court in England, has a supervisory jurisdiction to inquire into the legality of anything done or made by public authority, such as the Tamko Rasmi. As a collorary, this Court has similar jurisdiction to do so in a matter properly before it, as in the present case, the Court further reiterated.

In AUGUSTINE LYATONGA MREMA AND OTHERS v ATTORNEY-GENERAL AND OTHERS62

(Maina J, Kyando J, Mackanja J) the issue of jurisdiction of the High Court to enquire into election of President came up for consideration. As we note earlier, jurisdiction of the High Court in such matters is ousted by article 41(7) of Constitution.

In that case, the petitioners sought declaratory orders in the High Court that the whole electoral process nationwide be nullified; that the electoral Commission be reconstituted after some condition was fulfilled; that fresh general elections be held nationwide; that the third and fourth respondents be barred from participating in any elections for five years; and for ancillary relief. The petitioners contended that the misconduct complained of had been made throughout the country and in almost every constituency; that the Presidential election was involved in the petition; and that once a Presidential candidate was declared elected, the jurisdiction of the Court was ousted.

In that case the respondents raised preliminary objections that the application was incompetent because the supporting affidavit did not conform with the provisions of order XIX rule 3(1) of the Civil Procedure Code; that the application should be dismissed because on a balance of convenience the second respondent would suffer greater injury than his adversaries; and that the petitioners had not shown that they were likely to succeed in their petition. It was contended that the founding affidavit contained assertions of fact which were not in the deponent's personal knowledge.

It was held that:

(i) What was contained in the founding affidavit was knowledge obtained by the deponent from other people who allegedly witnessed the misconduct. In those circumstances the affidavit did not comply with rule 3(1) which required the affidavit to be confined to facts of which the deponent had personal knowledge. Where an affidavit was based on the deponent's beliefs, grounds for such beliefs had to be disclosed. Failure to disclose the source of information rendered the affidavit defective. The petition had to fail on this ground alone.

(ii) Article 41(7) of the Constitution, in unambiguous language, ousted the jurisdiction of the High Court to inquire into the election of the President once the National Electoral Commission had declared the election results. If it was necessary to vest in the court powers it was asked to exercise, then Parliament should have made it clear in the Constitution in relation to this very important matter.”

The Court proceeded to dismiss with costs the application for the two injunctive reliefs, which are:

62 [1996] TLR 273 (HC)

Page

70


(1) an order to restrain the second respondent, the Director of Elections, from declaring the Presidential elections in the on-going general elections, and

(2) an order to restrain the same second respondent from conducting the elections for Dar es Salaam Region.

In that case the first objection was that the affidavit does not conform to the clear provisions of Order 19, Rule 3(1) of the Civil Procedure Code which lays down a mandatory condition that:

“3 ...

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements of his belief may be admitted:

Provided that grounds thereof are stated.”

The Court observed that it is a statutory requirement that where an affidavit is based on the deponent's beliefs, grounds for such beliefs must be disclosed. The Court observed further that so also, it is now settled law in this country that where an affidavit is based on information received from others, the source of that information must be disclosed. The Court noted that decisions of the Court of Appeal and this Court on this issue abound, but the most recent authority is the Court of Appeal decision in SALIMA VUAI FOUM V REGISTRAR OF CO-OPERATIVE SOCIETIES & THREE OTHERS. 63 Their Lordships had this to say at p 4 of their typed judgment:

`The principle is that where an affidavit is made on (an) information, it should not be acted upon by any court unless the sources of the information are specified ...'

The Court ruled that failure to disclose the source of information renders the affidavit defective and therefore since the affidavit which supported the application was incurably defective, the application had been rendered incompetent and would fail on that account alone.

The Court noted further that more importantly, courts in this country have always been cautious in their approach in considering applications for restraining orders such as is in that case. The Court thought that this is a sound approach because as it was observed in the Indian case of LAKSHMINARASMHIAH AND OTHERS V YORAKKI GOWDER 64 while quoting an excerpt from 28 American Jurisprudence at 217:

`... The extraordinary character of the injunctive remedy and the danger that its use in improper cases may result in serious loss or inconvenience to an innocent party require that the power to issue it should not be lightly indulged in, but should be exercised sparingly and cautiously only after thoughtful deliberation, and with a full conviction on the part of the court of its urgent necessity. In other words the relief should be awarded only in clear cases, reasonably free from doubt, and, when necessary, to prevent great and irreparable injury. The Court should therefore be guided by the fact that the burden of proof rests upon the complaint (sic) to establish the material allegations entitling him to relief.”

63 Civil Appeal no 36 of 1996 (unreported)

64 [1965] AIR 310 at 312

Page

70


The Court applying the above “sound principle of law” to the facts of the case before it observed that it has been argued for the applicants that there is justification for the injunctive remedy because their chances of success are overwhelming and that there is a serious question to be determined. The Court observed further that Dr. Lamwai, Counsel for the Applicants had pointed out several instances which he considered pertinent, namely that elections were not conducted on one day; that up to now elections are going on. The Court noted that maybe it is so, but these are statements which were made from the Bar - they do not constitute evidence and the issues they raise do not appear in the affidavit which supports the application. The Court after a careful consideration of the law and the application as whole, was satisfied that the applicants have failed to show the existence of any serious question which is to be determined in the petition. The Court observed further that in any case, it found it difficult to say affirmatively that the petitioners had a strong case in respect of which, on the facts, there was a probability of succeeding in their enterprise. The Court based its conclusion on the following grounds:

Firstly, the petitioners had not shown how, individually or as a group, they were going to suffer any mischief or any hardship should the presidential elections results be declared or should the Dar es Salaam Region elections be held. Secondly, no proof had been led to show that who, of the presidential candidates, will win. Thirdly, as Dr Lamwai correctly pointed out at some stage in his submissions while referring to Marwa's case, the applicants must show that on the facts alleged there is a serious question to be determined.

The Court further observed that finally it had to consider if it was vested with the necessary jurisdiction to issue the equitable remedy in the form of a restraining order which was sought. The Court noted that it was fully aware that jurisdiction is a creature of legislation. The Court observed further that Dr Lamwai referred it to s. 2(2) of the Judicature and Application of Laws Ordinance which gives to this Court unfettered civil jurisdiction in cases where there are no specific provisions. The Court while agreeing with Dr. Lamwai in principle generally, found specific provisions in the Elections Act, 1985 which confer jurisdiction on the Court in respect of specified electoral issues. On the other hand, however, the Court further observed, article 41(7) of the Constitution in an unambiguous language, ousts the jurisdiction of the Court to inquire into the election of the President once the National Electoral Commission has declared the election results. The Court after quoting the provision of article 41(1) to (7) of the Constitution observed that while it makes provision for the election of the President, it does not grant jurisdiction to any court to inquire into the fact of that election. The Court stated that it was mindful of the fact that its duty is to interpret and to implement the law as it finds it and not to question the validity of that law unless a petition has been lodged in the appropriate manner, the purpose of which is to challenge the validity of a particular piece of legislation. It is therefore open to the applicants to see how they can challenge article 41(7) of the Constitution, the Court surmised. In the meantime, it was its view that if it was necessary to vest in this Court powers it is asked to exercise, then Parliament in its undoubted wisdom should have made it clear in the Constitution in relation to this very important matter, the Court cautioned.

2.2 The Procedure for Avoiding Elections

The term “election petition” does not find any definition in the electoral laws or in the 2010 Election Petition Rules. In the context of Tanzania, however, an election petition refers to the procedure for challenging or “avoiding” the results of a Parliamentary65 or Councilor elections.66 An attempt at giving a

65 Rule 4 of GN 447 of 2010 provides that “Avoidance of election of a member of Parliament shall be by way of an election petition.”

66 Rule 3(1) of GN 448 of 2010 stipulates also that: “Avoidance of election of a Councillor shall be by way of an election petition.”

Page

70


judicial definition in RETURNING OFFICER BUSANDA CONSTITUENCY AND THE ATTORNEY GENERAL VS FRENCH MANONI 67 , by the High Court of Tanzania culminated into moving in cycles by defining the phrase to mean “a petition that seeks to avoid an election”, which somewhat takers us back to the broad definition in the electoral laws. The election of a candidate as a Member of Parliament or Councilor can be declared void only on an election petition upon proof to the satisfaction of the High Court or the Resident Magistrates’ Court as the case may be, of the grounds stipulated in the electoral laws and on no other ground.68

The procedure for avoiding Parliamentary or Councilor elections in Tanzania is sui generis. In a trial of an election petition, the petition and the reply are what in normal civil suits, could be termed as “the pleadings.” I wish here to underscore the words of Rutakangwa, J. (as he then was) in his ruling in JOSEPH LAURENT HAYMU, EMMANUEL DENIS BURA AND THOMAS LULU IRAFAY VS. THE ATTORNEY GENERAL AND DR. WILBROAD PETER SLAA,69 when dealing with section 26(1) of the National Elections (Election Petition) Rules (then), which stipulated as follows:

“26(1) Subject to the provisions of the Act and these Rules, the practice and procedure in respect of a petition shall be regulated, as nearly as may be, by the rules regulating the practice and procedure in a civil suit.”70

In his ruling, his Lordship stated at page 8 of the typed ruling as follows:

“The presence of rule 26 in the Rules is impeccable proof that even election petitions fall within the ambits of the C.P.C. for those matters not specifically covered either by the Act or the Rules.”

It would appear therefore that despite the fact that the practice and procedure for election petitions is a special one as specifically provided for in the electoral laws which designate which courts are to conduct the trial in an election petition and elaborated in the 2010 Election Petition Rules which provide for the practice and procedure in election petition, still the practice and procedure is to be regulated “as nearly as may be” by the rules regulating the practice and procedure in a civil suit. In Tanzania the practice and procedure in a civil suit in the High Court and courts of district and resident magistrates’ courts is regulated by the Civil Procedure Code [Cap.33 R.E. 2002] as amended.

In Tanzania, a judge or judges of the High Court sitting as a judge or judges for purposes of conducting a trial in a parliamentary election petition exercise(s) the powers, jurisdiction and authority of judge/judges of the High Court, subject to the provisions of the National Elections Act. This means that that the sitting judge/judges can exercise the same powers as any of the judge/judges of the High Court but within the limited jurisdiction of the parliamentary election petition as stipulated in the electoral laws and governing election petition rules. In conducting an election petition the judges are therefore exercising their powers and jurisdiction as High Court Judges.

67 [1998] TLR 131

68 Section 108(2) & (3) of Cap.343 R.E. 2010; Section 107(2) of Cap.292 R.E. 2010

69 Misc. Civil Cause No.20 of 2005 (High Court) (Arusha Registry) (unreported)

70 The relevant provisions now are Rule 22(1) of GN 447 R.E. of 2010 and Rule 19(1) of GN 448 R.E. of 2010

Page

70


Courts can be designated as "superior" or "inferior" or as "courts of record" or as "courts not of record" (see Halsbury's Laws of England vol. 10 para. 306-9). The High Court is a “superior court” of record, compared to the District Court/Resident Magistrates’ Court, which are also a court of record with powers of courts to commit for contempt. The High Court and the Resident Magistrates’/District Court in relation to the Court of Appeal of Tanzania are both “ inferior courts.” After hearing an election petition the High Court may make several consequential orders. However, in Tanzania different from England a loser in an election petition cannot seek a judicial review of the decision in the High Court, but may only appeal against it to the Court of Appeal. Similarly, a loser in a local government election petition if dissatisfied with the decision of the lower court may appeal against it to the High Court. This is so because judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. 71 Mistakes of law made by judges of the High Court acting in their capacity as such in an election petition can be corrected only by means of appeal to an appellate court. In terms of section 109(1) of the Local Authorities (Elections) Act [Cap.292 R.E. 2010], every election petition and application under the Act has to be tried by the Resident Magistrate's Court within one month of the date of declaration of the result by the Returning Officer.72 All appeals from the decision of the Resident Magistrates’ Court in a trial of election petition lie to the High Court.73

2.2.1 Presentation of Election Petition

In the case of parliamentary election, the petition is to be presented by lodging it with the Registrar74

and for Councilor election, by the court75 upon payment of the prescribed fee. The fees for lodging a parliamentary election petition76 are as prescribed in the Second Schedule to G.N. No.447 and for councilor election77 as in the Second Schedule to G.N. No.448. In respect of parliamentary election petitions the Rules provide further that where the constituency to which the petition relates lies wholly within the jurisdiction of a District Registry of the High Court, the petition has to be presented to the Registrar of such District Registry.78

The petition is to be presented either by the petitioner himself or by his advocate.79 In the case of parliamentary election petition the petitioner has to supply the Registrar,80 and in the case of Councilor election petition, the court, with three copies of the petition and with such additional number of copies as there may be respondents.

71 Per Lord Diplock in Re Racal Communications Ltd [1981] A.C. 374 at 384

72 Section 114(1) of Cap.343 R.E. 2010


74 Rule 8(1) of GN 447 of 2010

75 Rule 6(1) of GN 448 of 2010

76 On filing of petition the fee payable is Tshs.200,000/=

77 On filing of petition the fee payable is Tshs.100,000/=

78 Rule 8(2) of GN 447 of 2010

79 Rule 8(3) of GN 447 of 2010 and Rule 6(2) of GN 448 of 2010


Page

70


2.2.2 Time for Presentation and Determination of Election Petition

2.2.2.1 Parliamentary Election Petition

The electoral laws provide very strict time lines for the courts to determine parliamentary and Council election petitions. In this regard therefore the Law of Limitation Act has very limited application in so far as election petitions are concerned particularly in relation to applications under the electoral laws whose limitation is not provided for therein. In terms of section 115 of the NATIONAL ELECTIONS ACT [Cap.343 R.E.2010], the time for presentation and determination of election petition in respect parliamentary election is as follows:

“(1) Every election petition shall be presented within thirty days from the date of the declaration of the results of the election by the Returning Officer.

(2) The Court shall hear and determine each election petition within twelve months from the date of filing a petition.

(3) The Court shall hear and determine an appeal within twelve months from the date of lodging the appeal.

(4) An appeal lodged pursuant to this section shall lie to the Court of Appeal.

(5) Where the election case is unlikely to be determined within twelve months, the Minister responsible for legal affairs may, after consultation with the Chief Justice and by notice published in the Gazette extend the prescribed time for further period not exceeding six months as he shall determine.”

In a recent ruling of the High Court of Tanzania at Dar es Salaam between JAMES FRANCIS MBATIA AND THE HON ATTORNEY GENERAL, HALIMA JAMES MDEE AND THE RETURNING OFFICER FOR KAWE PARLIAMENTARY CONSTITUENCY,81 Hon. Utamwa, J. dealt with the issue of an election petition filed within the prescribed time but without payment of the full prescribed fee within time. In that case, Mr. Malata, Senior State Attorney had lodged a preliminary objection against the petition. He argued that under the provisions of section 115 of the National Elections Act [Cap.343 R.E. 2010] a petition is required to be filed within 30 days from the date of the declaration for the election results. He also argued that the petition must also comply with the mandatory requirements in Rule 8(1) of the Elections (Election Petitions) Rules for the payment of a prescribed filing fees of TZS 200,000/= for lodging such petition.

The facts of that case relevant to our discussion are that the petition was presented for filing on the 23/11/2010, which was within the prescribed period of 30 days from the date the election results were pronounced, which was on 03/11/2010. The Petitioner paid a filing fees of Tshs.25,000/= on the same day and further that a payment of fees of TZS 724,500/= was made the 06/12/2010, apparently for what the Petitioner claims to be a top-up amount of the previously lesser fee of TZS 25,000/= and payments for annextures attached to the petition each for TZS 50,000/=. Mr. Malata contended that the payment of the top-up fees could not cure the irregularity as it is not clear under which law it was made. The petitioner’s Counsel argued that at the time they presented the petition for filing the responsible Court Registry Officer assessed the filing fees at the tune of TZS 25,500= basing on Rule 31 and Fourth Schedule to the former National Election Rules, GN.No.66 of 1971, since repealed and replaced. Further, that upon following up of the matter on 24/11/2010, the Registry Officer informed them of the Chief Justice having introduced new

81 Misc. Civil Cause No.101 of 2010

Page

70


Election Rules which raised the filing fees for election petitions in respect of parliamentary elections from TZS 25,000/= to TZS 200,000/= and TZS.50,000/= for each annexture. It was the contention of the Petitioner that on the 06/12/2010 they paid the additional amount of TZS 724,500/= on the basis of declaration the Registry Officer made to them of the new fee structure. The new Election Rules were signed by the Chief Justice on 19/11/2010, hardly four (4) days before the presentation of the petition to court for filing.

In the course of his deliberations on this matter, Hon. Utamwa J. observed that on the 23/11/2010 when the petition was presented before the court for filing the statutory period of 30 days from the date of pronouncing the election results had not yet elapsed. Further, that on the 06/12/2010 when the petitioner paid the top-up amount of TZS 724,500/=, the 30-days prescribed time had already expired, since 03/12/2010. His Lordship observed further that at the time the petition was lodged it was still within the prescribed period and payment of the prescribed fees had been done under repealed rules, which were replaced with new rules which became effective four days after the petition had been presented providing a new fee structure of TZS 200,000/= replacing the old fees of TZS 25,000/=, which the petitioner had paid at the time of presenting the petition.

In his ruling, Hon. Mr. Justice Utamwa considered the effect of time limitation for presenting a petition which is prescribed under statute, which he considered to be a matter of substantive law; and other requirements including that for payment of prescribed fees which is laid down in the Rules, which he considered to be a matter of procedural effect, which is not that fatal to vitiate election petition. His Lordship amplified his reasoning by stating that the legislature in its wisdom did not intend to make a default by a petitioner who lodges/presents a petition within the prescribed time (in this case 30 days from the date of declaration of the election results) as prescribed under the statute, which is substantive, and pay partial filing fees in time as stipulated under the Rules, which is procedural, but only delays to top-up the prescribed fees, a matter of procedural irregularity, as being that fatal to vitiate an election petition, which is not like any other normal civil suits where procedural irregularity may be considered fatal. His Lordship having reduced the irregularity as being merely procedural and thus not that fatal resorted to Rule 32(1) of the Rules to find and pronounce that the breach complained of by the Respondent in this petition was a procedural irregularity not fatal to vitiate the petition, and in any event did not occasion any miscarriage of justice to warrant dismissal of the petition. It is worth noting that in terms of Rule 32(1) of the Rules, “no petition shall be dismissed for the reason only of non-compliance with any of the provisions of the Rules or for the reason only of any other procedural irregularity unless the court is of the opinion that such non-compliance or irregularity has resulted or is likely to result in a miscarriage of justice.”

In considering the issue whether or not an election petition was time barred merely by failure of the petitioner to pay the prescribed fees within the prescribed period, His Lordship Utamwa J. draw much inspiration from the decision of the Court of Appeal in MARTHA MICHAEL WEJA vs. HON ATTORNEY GENERAL AND 3 OTHERS82, where the Court authoritatively pronounced that payment of fees in respect of election petitions, which is provided for in the election rules is a matter of procedure and practice and not of substantive law. In the end, His Lordship held that the delay by the petitioner to pay the top-up of the prescribed filing fees was not fatal enough to vitiate the petition and dismissed the preliminary objection, of the Respondent.

82 [1982] TLR 35

Page

70


2.2.2.2 Councilor Election Petition

In accordance with section 114 of the LOCAL AUTHORITIES (ELECTIONS) ACT [Cap.292 R.E. 2010], the time of presentation of election petition in respect of Councilor election is as follows:

“(1) Every election petition shall be presented within one month of the date of declaration of the result by the Returning Officer:

Provided that an election petition questioning the election upon the ground of a corrupt practice and specifically alleging a payment of money or other act to have been made or done since the date of declaration of the results by the Returning Officer by or with the knowledge and consent or approval of the member whose election is questioned or by or with the knowledge and consent or approval of an agent of the member, in the pursuance or in furtherance of that corrupt practice, may be presented at any time within twenty-eight days after the date of that payment or act.

(2) Without prejudice to the provisions of any rules of court made under section 116, an election petition presented in due time may, for the purpose of questioning the election upon an allegation of a corrupt or illegal practice, be amended with the leave of the court within the time within which an election petition questioning the return or the election upon that ground may be presented.

(3) The Court shall hear and determine every election petition within eighteen months from the date of filing a petition.”

As regards appeals, section 109(2) of the LOCAL AUTHORITIES (ELECTIONS) ACT [Cap.292 R.E. 2010] stipulates categorically that all appeals under the Act shall lie to the High Court.

I wish to point out what might befall a long drawn out appeal in an election petition. In ASHERY FRED UTAMWA V. ATTORNEY GENERAL AND ANOTHER 83 – (Kisanga, Lubuva and Lugakingira), the issue was whether the Court of Appeal has jurisdiction to hear appeal seeking a declaration that election results were null and void where appeal called up for hearing after Parliament is dissolved. The Court observed that without current parliament and sitting members of parliament no order could be made to avoid the parliamentary election of Mufindi North Constituency because there was no existing member of parliament from the general election in question. The Court further noted with great concern that the inordinate delay in preparing the record of appeal largely attributed to Court Registrar at Songea who took 970 days, and not the appellant. The appeal arose from 1995 General Elections, where the High Court delivered its judgment on 15/11/1997; and the ruling by CA was rendered 10/11/2000, at a time when Parliament had already been dissolved and the 2nd Respondent no longer Member of Parliament. The Court of Appeal declined to hear and determine the appeal on merits since it lacked jurisdiction as entertaining it would be impracticable given that the relief sought could not be granted. The Court did not award any costs.

83 [2002] TLR 310

Page

70


2.2.3 Limitation Period under Law of Limitation Act in Election Petitions

In terms of section 43 of the Law of Limitation Act, there are certain proceedings which are excluded from the application of the Act. Section 43(f) of the Law of Limitation Act, which is most relevant to our case under discussion provides as follows:

“This Act shall not apply to–

(f) any proceeding for which a period of limitation is prescribed by any other written law, save to the extent provided for in section 46.”

Section 46 of the Law of Limitation Act on the other hand, which relates to the application of limitation periods prescribed by other written laws, stipulates as follows:

“Where a period of limitation for any proceeding is prescribed by any other written law, then, unless the contrary intention appears in such written law, and subject to the provisions of section 43, the provisions of this Act shall apply as if such period of limitation had been prescribed by this Act.”

In view of the above provisions therefore, it is my considered opinion that section 14(1) of the Law of Limitation Act which relates to extension of period of limitation for institution of appeal or application does not apply in election petitions. For purposes of refreshing our memories, section 14(1) of the Law of Limitation Act provides as follows:

“14.(1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application.”

A petitioner who has sat on his rights until the time prescribed in the electoral laws for bringing a petition or an application has expired cannot avail himself or herself of the provisions of section 14(1) of the Law of Limitation Act to bring an application for extension of the strict time limits prescribed in the electoral laws for lodging an election petition or applying for determination of security for costs for that matter, whether before or after the expiry of the period of limitation prescribed for bringing the petition or application under the National Elections Act and the Local Authorities (Elections) Act respectively has expired. The provisions of the said electoral laws, in terms of section 46 of the Law of Limitation Act, “apply as if such period of limitation had been prescribed” by the Law of Limitation Act, unless the contrary intention appears in such written electoral law. This means that for a party seeking to avail himself of the provisions of the Law of Limitation Act he or she has to establish that there appears to be a contrary intention in such other written electoral laws that the law of limitation will apply.

2.2.4 Who May Petition in an Election?

The Constitution under Article 83(3) delegates to Parliament legislative powers to make law in certain matters relating to the procedure in election petitions in the following terms:

“83(3) - Parliament may enact legislation providing for the following matters:

(a) persons who may institute proceedings in the High Court seeking for determination of any question in accordance with the provisions of this Article;

Page

70


(b) the grounds and times for instituting such proceedings, procedure for instituting proceedings and conditions which have to be fulfilled in respect of every such proceeding; and

(c) prescribing the powers of the High Court over such proceedings and specifying the procedure for the hearing of the matter itself.”

(4) There shall be a right of appeal to the Court of Appeal of Tanzania against a decision of the High Court in any matter which was heard in accordance with the provisions of this Article.” (the emphasis is mine).

Pursuant to those powers Parliament has enacted the principal election law which in turn delegated on the Chief Justice the powers to make subsidiary legislation detailing rules of practice and procedure in election petitions. The provisions of the law regarding who is eligible to launch a petition after an election if dissatisfied with the result or the conduct of the election are stipulated under section 111(1)(a)-(d) of the NATIONAL ELECTIONS ACT [Cap.343 R.E. 2010] for parliamentary elections and section 110(1)(a)-(d) of the LOCAL AUTHORITIES (ELECTIONS) ACT [Cap.292 R.E. 2010], in terms of which an election petition may be presented to the High Court (for parliamentary elections) or the Resident Magistrates’ Court (for Councilor election) by one or more of the following persons-

“(a) a person who lawfully voted or had a right to vote at the election to which the election petition relates;

(b) a person claiming to have had a right to be nominated as a candidate or elected at the election to which the election petition relates;

(c) a person claiming to have been a candidate at the election to which the election petition relates;

(d) the Attorney-General.”

The above provision therefore outlines persons eligible to launch an election petition as person who lawfully voted or had a right to vote at the election; person claiming to have had a right to be nominated as a candidate or elected; a person claiming to have been a candidate at the election to which the election petition relates; and the Attorney General. The Rules however do not bar other persons from being joined in the petition after it has been launched by the persons mentioned above. It is also worth mentioning here that the common law rule on locus standi so ably and succinctly stated by Lugakingira, J. (as he then was) in the landmark case on independent candidacy for presidential post, REV. CHRISTOPHER MTIKILA V ATTORNEY GENERAL 84 , somewhat are more relaxed when applied to an election petition.

84 [1995] TLR 31

Page

70


2.3 Parties to an Election Petition

The 2010 Election Petition Rules which were made pursuant to the Election Petition Laws provide that in every petition, the Attorney General must be must be made a party as the respondent except for a petition presented by the Attorney General85, where the Attorney General may make all such persons parties to the petition as respondents who are “likely to be adversely affected in the event of the relief sought by the Attorney General being granted.”86

Furthermore, the Rules provide that where a petition alleges any misconduct or contravention of any provisions of any written law by the successful candidate or by any person acting for or on behalf of the successful candidate,87 or by the election officer,88 the successful candidate89 and such election officer90

has to be made a party to the petition in addition to the Attorney General.

In an election petition the Attorney General plays the unenviable dual role of being either a petitioner or a respondent. Perhaps this could partially explain the reason for the Attorney General being exempted from paying security for costs for election petition.

2.4 Addition and Substitution of Parties in an Election Petition

The Rules91 make provisions for the adjournment of the proceedings to enable unsuccessful candidate or any other person made a party where the only party made a party to a petition is the Attorney General to be served with a copy of the petition. The inclusion of the unsuccessful candidate or any other party is predicated upon the opinion of the court that it is desirable for such inclusion for purposes of determination of the issues involved.92

Under the Rules, the Attorney General enjoys the liberty of advising the court in writing that he has no interest in the petition where he has been joined as a party with the unsuccessful candidate. If the court is satisfied that no misconduct on the part of any election officer is alleged then it may order that the Attorney General ceases to be a party and the petition to be proceeded with between the petitioner and the remaining respondent or respondents as the case may be.


86 Rule 6(4) of GN 447 and Rule 4(4) of GN 448 of 2010



89 Rule 6(2) of GN 447 of 2010


91 Rule 7(2) of GN 447 and Rule 5(2) of GN 448


Page

70


2.5 Rejection or Amendment of Petition during Admission

In case the petition is not drawn up in the manner prescribed in Rules 8 of GN 447 of 2010 and Rule 6 of GN 448 of 2010 as outlined above, it may be rejected or be returned to the petitioner for the purpose of being amended within the time to be fixed by the Registrar93 or the court as the case may be. The reasons for rejection of the petition by the Registrar or the court must be given and recorded accordingly.94

2.6 Service of Petition Election

Service of a petition which has not been rejected or returned is to be done either by the Registrar in the case of parliamentary election or the court in the case of Councilor election petition. 95 The Rules provide for service to be effected on the following persons:

(a) The election officer together with prescribed notice (Form B)

(b) Each of the respondents together with prescribed notice (Form C)

(c) Posting on the court notice board a certified copy of the petition.

The general rule as regards service of the petition and prescribed documents upon the respondent is that it has to be by personal service.96 The Rules however provide further that where the court is satisfied of the following, namely, that:

(a) the respondent cannot be found; or

(b) the respondent has refused to accept service of the documents; or

(c) personal service cannot be effected without considerable delay or expense; or

(d) that it is otherwise desirable so to do,

Then it may direct that the documents be served by substituted service in such manner as the court may direct.97

2.7 Particulars in an Election Petition

It is mandatory under the 2010 Election Petition Rules that an election petition must be presented in the special forms (Form A) prescribed in the First Schedule to the Rules98, which must state the following:

(a) The name and address of the petitioner







Page

70


(b) The name and address of the respondent or where there are two or more respondents, of each of the respondents

(c) The grounds upon which the petitioner relies for the relief sought by him; and

(d) The nature of the relief or reliefs sought by the petitioner.

The 2010 Election Petition Rules provide further that every petition has to be divided into paragraphs numbered consequently, each of which must as nearly as possible, be confined to a distinct portion of the subject matter.99 According to section 112(a) to (d) of Cap.343 R.E 2010 and section 111 (a) to (d) of Cap.292 R.E. 2010, upon instituting an election petition, a petitioner may claim all or any of the following reliefs to which he may be entitled, namely–

“(a) a declaration that the election is void;

(b) a declaration that the nomination of the person elected was invalid;

(c) a declaration that any other candidate was elected;

(d) where the seat is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes, a scrutiny.”

The term "scrutiny" does not find any definition in the law. The term means an enquiry as to the validity of the votes cast, and includes the determination of the number of valid votes cast for each candidate in the election in respect of which the application for a scrutiny is made. Sections 116(1) of Cap.343 R.E. 2010 and section 115 of Cap.292 R.E. 2010 respectively provide for votes to be struck off at scrutiny. The term has been a subject of judicial consideration in the case of ARUSHA KALWA AND FIVE OTHERS v WILBROAD SLAA AND ANOTHER.100 In that case the appellants were the unsuccessful petitioners in the High Court in an election petition. The relief sought in the High Court was for a `scrutiny by way of recount'. The judge in the High Court held that the relief sought was misconceived and incompetent in law and the application was therefore dismissed. The issue for determination on appeal was whether the relief sought was available under the Elections Act, 1985. It was held that:

(i) The matter had been complicated and confused by the manner in which the relief sought had been handled at the trial: scrutiny and recount had been confused as issues;

(ii) The element of recount was not provided for under the Elections Act. Whether the English law concept applied in Tanzania was governed by the Judicature and Application of Laws Ordinance, Chapter 453, which prescribed two conditions, viz that the statute concerned had to be of general application and there should be no specific legislation in Tanzania dealing with the matter in question. In the instant case neither condition was met;

(iii) Section 112(d) of the Elections Act provided that scrutiny could be obtained where a seat was claimed for a candidate on the ground that he had a majority of lawful votes. In the present case it had not been indicated in the pleadings that any of the


100 1997 TLR 250 (CA) [Mfalila JJA, Lubuva JJA and Samatta JJA]

Page

70


unsuccessful candidates had a majority of votes. Scrutiny had in fact been sought in such generalised form that it amounted in effect to re-doing the whole exercise of counting the votes in the whole constituency;

(iv) Recount was not one of the reliefs set out under s 112(d) and it was logically incorrect to introduce in the pleadings the element of a recount of votes as a relief in an election petition. As regards scrutiny, the application was properly rejected on the grounds that the conditions under s 112(d) of the Act and Rule 12 of the Elections (Election Petitions) Rules, 1971 were not satisfied. [1997] T.L.R. p251

The issue in that case was whether the relief sought, namely scrutiny by way of recount of votes is available under the Election Act, 1985. The law in Tanzania provides for the relief of scrutiny in an election petition and not a recount. Under the Judicature and Application of Laws Act, [Cap 453 R.E. 2002], two conditions are necessary for an English statute to apply in Tanzania. First, the statute concerned must be a statute of general application. Secondly, there should be no specific legislation enacted in Tanzania dealing with the matter in question. In that case, the first condition was not satisfied because, the legislation involved was not a statute of general application. The second condition was not met either. This is because in Tanzania there is the Elections Act, 1985, which specifically provides for election matters. In that situation, there can be no basis for applying the English law in Tanzania. The applicable law was the Elections Act, 1985. The English law on parliamentary elections though in part is similar to the Elections Act, 1985 of Tanzania is not applicable for the reasons outlined above. In that case the Court held that the amendment to the pleadings which was effected on the authority of the English law was misconceived under the law in Tanzania.

On the issue whether the English law would be applicable in order to avail the relief of a recount, Norman and Schefield on Parliamentary Elections, Third Edition was quoted at page 536 wherein `scrutiny' is described as follows:

`Scrutiny is the term used to describe a reviewing of ballot papers following an order of the Court.

The petitioner, respondent, their Counsel, solicitors and agents are at liberty to be present at the inspection which takes the form of a recount.

Each side makes its own list of ballot papers which it objects to or claims to be added.'

In that case the Court observed that the new element of a recount is not provided under the Election Act, 1985 as one of the reliefs to be sought in an election petition. However, the learned trial judge had allowed the amendment which, to some extent, contributed towards the confusion that ensued in the proceedings that culminated in the ruling, the subject of the appeal in that case.

In that case the Court also addressed the question of scrutiny in greater details. Scrutiny is one of the reliefs that may be claimed under s.112 (d) of the Elections Act, 1985 then, (same section 112 (d) of National Elections Act, [Cap.343 R.E 2010] and section 111 (d) of Local Authorities (Elections) Act, [Cap.292 R.E. 2010]). In that case the question was whether in terms of the provisions of the Elections Act, scrutiny as sought in the petition was warranted.

From the provisions of sub-clause (d) of s 112 of the Elections Act, 1985, a necessary requirement is that the pleadings should indicate that a named particular candidate who was unsuccessful in the

Page

70


election had a majority of lawful votes. In other words, if certain identified votes which are objected to are to be added, such an unsuccessful candidate would be the winner. In that case, apart from the prayer for scrutiny which was qualified with the request for a recount of votes, it was not indicated in the pleadings that any of the unsuccessful candidates, had a majority of votes. Because of this omission in the pleadings, the learned trial judge held that the application was misconceived in terms of s.112 (d) of the Election Act, 1985. The Court of Appeal quoted the words of the trial judge who addressed himself in these words:

“On a careful interpretation of the above quoted provisions in relation to this petition on the issue of scrutiny, I find that the petitioners did not comply with Section 112(d) of the Elections Act in that they omitted to plead in their petition that a particular unsuccessful candidate in the Karatu Parliamentary elections had a majority of lawful votes. ... Four of the candidates were defeated. Now which one of these four unsuccessful candidates are the petitioners claiming for scrutiny to be held in his favour?' (Emphasis supplied).

In considering the requirements of the law under s 112(d) of the Act as shown in the above extract of the judgment, the learned judge took into account further conditions which are provided under Rule 12 of the Elections (Election Petitions) Rules 1971 which provides:

“12 (1) -- `Where scrutiny under the provisions of paragraph (d) of s 112 of the Act is sought wither by the petitioner or a respondent, the party seeking such scrutiny shall not less than six days before the day fixed for the hearing of the petition, lodge with the Registrar a list of votes intended to be objected to by him and of the objections to each vote. . . . “

The Court of Appeal considered the provisions of this Rule to be clear and unambiguous. It is a mandatory requirement that in processing the petition, the party seeking scrutiny shall lodge with the Registrar of the High Court a list of votes intended to be objected to not less than six days before the date fixed for hearing the petition. In that case no list at all of votes intended to be objected to was lodged, let alone the time prescribed of not less than six days before the day fixed for hearing the petition. The Court of Appeal observed that it was ridiculous and impractical to seek a scrutiny of all the votes in the whole constituency of Karatu, which to their minds, was not the objective of the legislature in providing in the Elections Act, 1985 for scrutiny. Needless to overemphasize, the Court of Appeal further observed, scrutiny is aimed at disputed and specified votes which are the subject of scrutiny in order to ascertain the claim by the petitioner that he had a majority of votes. The Court of Appeal concluded that in sum total, in that case, scrutiny was sought in such generalised form that it amounted in effect to re-doing the whole exercise of counting the votes in the whole constituency. It is for that reason that the Court of Appeal was satisfied that the learned judge was justified in his conclusion that the conditions set out under s.112(d) of the Elections Act, 1985 and Rule 12 of the Election Rules, 1971 were not satisfied. The Court rejected the respondent’s Counsel claim that the omission in the pleadings to specify that a particular unsuccessful candidate among the petitioners had a majority of lawful votes was a mere slip. The Court of Appeal was satisfied to be the position of the law that it is a fundamental and mandatory requirement which goes to the very root of the matter with which failure to comply renders the granting of scrutiny untenable. The Court of Appeal found that that being the legal requirement which was not complied with the respondent’s Counsel assertion that the learned judge erred in holding that the prayer for scrutiny by recount of the votes was legally misconceived and incompetent could not be accepted.

In that case, the Court of Appeal also paused to consider the distinction between recount and scrutiny observing that from the record, it was apparent that the learned trial judge referred to recount of votes and scrutiny interchangeably. This is why it was desirable for the Court of Appeal to briefly address

Page

70


on the difference between scrutiny and recount in relation to the law in order to clear the confusion. The Court of Appeal noted that from the outset it should be made clear that the two reliefs are distinctly different and available under the Elections Act, 1985 at different stages of the process of counting of votes and the period after the declaration of the election results. The Court observed further that these differences have to be looked into against the background of the major changes that have been effected on the Elections Act, 1985.

The Court observed further that it is common knowledge that the Elections (Amendment) Act, 1990 and the Elections (Amendment) Act, 1992 together with other subsequent amendments were aimed at, among others, ensuring close supervision and monitoring of the process of voting by presiding officers, polling assistants and polling agents at every stage in the course of counting votes. In the process of counting votes Sections 78 and 80 of the Elections Act, 1985 provide for the recount of votes at two stages. First at the stage when the counting of votes is being completed at the polling station . At that stage a presiding officer may be requested for a recount of votes by the candidate or his counting agent present when the counting of votes takes place. Second, when the addition of votes takes place at the office of the Returning Officer, the candidate or the polling agent present at the polling station may request the Returning Officer to check the addition in order to ascertain the accuracy of the disputed report of the results from the polling stations.

After the addition of votes and declaration of the results, the Elections Act, 1985 does not provide for the recount of the votes. That is, s 80(3) of the Elections Act, 1985 for the last stage when a recount of votes is sought. The Court observed that for the period that follows after the declaration of the results, to seek a recount of votes as a relief as it happened in that case would be untenable and misconceived in law. The period that follows after the declaration of results may well involve the time an election petition is filed in Court, the Court of Appeal further observed. It is common knowledge that in an election petition, one of the reliefs that may be claimed is a scrutiny. Section 112 (d) of the Elections Act, 1985 provides for scrutiny among other reliefs. Recount is not one of the reliefs set out under this section. The Court observed further that for this reason, it was in its view legally incorrect to introduce in the pleadings the element of a recount of votes as a relief in an election petition. The Court concluded that on that basis and with due respect, they thought the learned judge confused and mixed up the two reliefs which are, as already indicated, available at different stages. In part, he stated:

“Consequently, on the totality of my findings based on the interpretation of the Election Act, 1985 I rule that the prayer for scrutiny by recount of the votes in the 1995 Parliamentary elections for Karatu Constituency is both misconceived and legally incompetent” (emphasis added)

The Court observed that in its view, on the face of this statement, the general impression which emerges is that both the reliefs for recount and scrutiny were legally incompetent. This, with respect, the Court observed, is not correct because, one of them, namely, scrutiny was a competent prayer allowed by law in an election petition. The Court observed further that as already observed, it is the recount of votes that the law does not provide for. It was this relief which was incompetent and misconceived in law because it was being sought at a stage when the law does not allow as correctly held by the learned judge. In short, the Court further observed, it was its view that the two reliefs have been described in such a way that it is misleading and confusing. The Court was however, satisfied that as regards scrutiny the application was properly rejected on the grounds that the conditions under s.112(d) of the Elections Act, 1985 and Rule 12 of the Elections (Election Petitions) Rules, 1971 were not satisfied. In the result, the Court held that despite

Page

70


the mix up and confusion on recount and scrutiny, it agree with the final conclusion that scrutiny was not in the circumstances, available.

Finally, the Court dismissed the appeal with costs to the respondents. The case was remitted to the High Court for continuation of the hearing of the petition where the Court hoped it will proceed expeditiously from the point where the ruling of the High Court of 25 November 1996 which was the subject of appeal was delivered.

SECTION II: PAYMENT OF SECURITY FOR COSTS IN ELECTION PETITION

1.0 The Constitutionality of Security for Costs in Election Petition

In the aftermath of the second multiparty general elections in Tanzania held in 2000, the issue of security for costs in an election petition had a field day in courts of law which culminated into the landmark decision of the Court of Appeal of Tanzania in a constitutional petition in 2001 in JULIUS ISHENGOMA NDYANABO VS. ATTORNEY GENERAL 101 which declared the provisions of Section 111(2), (3) and (4) of the Elections Act, 1985 unconstitutional102, following an appeal from a decision of the High Court dismissing a petition filed by the appellant for a declaration that Section 111(2), (3) and (4) of the Elections Act, 1985 as unconstitutional for being violative of Article 13(1), (2) and 6(a) of the Constitution of the United Republic of Tanzania in relation to access to justice.

In the general election held in this country in October 2000 the appellant, an advocate by profession (now deceased), entered into a contest for the parliamentary seat in Nkenge Constituency. According to the results of the contest announced by the Returning Officer, the appellant lost the election. He was aggrieved by those results. As he was entitled under section 111(1) of the Act, he filed an election petition before the High Court, questioning the validity of the declared victory of one of his opponents in the election. The Registrar of the Court has not, in compliance with the provisions of Section 111(2) of the Act, fixed a date for the hearing of the petition. The subsection, as amended by the Electoral Laws (Miscellaneous Amendments) Act, 2001, reads:

"(2) The Registrar shall not fix a date for the hearing of any election petition unless the petitioner has paid into the court, as security for costs, a sum of five million shillings in respect of the proposed election petition."

In that case, the Court of Appeal of Tanzania held as follows:

(i) In our view, the statutory provision is a class legislation. It is also arbitrary and the limitation it purports to impose on the fundamental right of access to justice is more than is reasonably necessary to achieve the objective of preventing abuse of the judicial process. Plainly, Parliament exceeded its powers by enacting the unconstitutional provision. Legislative competence is limited to making laws which are consistent with the Constitution. These conclusions are sufficient to dispose of the appeal, but we consider it useful to say a word or two on the arguments addressed to us concerning the exemption granted to the Attorney General by Section 111(3) of the Act.

101 (Civil Appeal No. 64 Of 2001) [2002] TZCA 2 (14 February 2002) (Now Reported as [2004] TLR 14

102 For a ddiscussion of the case refer to Administrative law in Tanzania: a digest of cases - B. D. Chipeta (2009)

Page

70


(ii) The importance of the role of the Attorney general in his capacity as the guardian of public interest cannot, in our opinion, be over-emphasized. But the problem arising from Section 111 of the Act is not that the statutory provision purports to exempt the Law Officer from giving security for costs, but, by repealing Rule 11(3) of the Rules, that it purports to deprive a petitioner of his right, under the sub-rule, to apply for an exemption.

(iii) As far as legislative discrimination is concerned, what is decisive is not the phraseology of the statute but the effect of the legislation. However, since we have held that subsection (2) of the Section is unconstitutional, it follows, as day follows night, that Rule 11(3) is still in force, and, therefore, a petitioner still has a right to apply for an exemption. In practical terms, therefore, an ordinary petitioner cannot be said to be subjected to discrimination by Section 111(3) of the Act. In the circumstances, we agree with Kyando and Ihema, JJ, though for different reasons, that the subsection is not violative of the provisions of Article 13(2) of the Constitution. For the foregoing reasons, in our opinion, this appeal must succeed. Allowing the same with costs, we reverse the decision of the High Court and declare that Section 111(2) of the Elections Act, 1985, is unconstitutional and, therefore, devoid of any legal force ab initio, that is to say, from the date of its enactment.

(iv) For the avoidance of doubt, it must be distinctly stated that, since the subsection has been so declared, the provisions of Rule 11(3) of the Elections (Elections Petitions) Rules, 1971, as amended, are still in force and, therefore, the powers conferred upon the High Court by those provisions may, in appropriate cases, be invoked by the Court in favour of petitioners. One of the results of Section 111(2) being struck down for being unconstitutional is that the sum of money which a petitioner is required to pay as security for costs in a parliamentary election petition is still five hundred shillings.”

The provisions of the Electoral Laws (Miscellaneous Amendments) Act, 2001 amending section the National Elections Act, 1985 have now been fully incorporated in section 111 of the revised edition of the NATIONAL ELECTIONS ACT [Cap.343 R.E. 2010].

The issue of security for costs has also attracted the attention of courts in Kenya. In the case of Nakusa vs. Tororei (Returning officer, Turkana South Constituency103 it was held that a deposit of Kshs.250,000/= for security of costs of the election petition was an unlawful intrusion by the Legislature into the judicial function.

1.1 Rules of Practice and Procedure for Payment of Security for Costs

According to the Election Petition Rules,104 the procedure for deposit of security for costs in respect of parliamentary election petitions is regulated by the provisions of the National Elections Act and in respect of Councilor elections, the LOCAL AUTHORITIES (ELECTIONS) ACT respectively.

In the aftermath of the decision of the Court of Appeal of Tanzania in Julius Ishengoma Ndyanabo vs Attorney General, striking down section 111(2) of the National Elections Act, 1985 for being unconstitutional and declaring that the sum of money which a petitioner is required to pay as security for costs in a parliamentary election petition is still five hundred shillings, the Government tabled a Bill in

103 www.kenyalawreports.or.ke/election_pe


http://www.kenyalawreports.or.ke/election_pe

Page

70


Parliament which finally was passed as the Written Laws (Miscellaneous Amendment) Act No.2 of 2002 amending section 111 of the National Elections Act [Cap.343 R.E. 2010]105 which now provides as follows:

“(1) …..(not relevant)

(2) The Registrar shall not fix a date for the hearing of any election petition unless the petitioner has paid into the court as security for costs, an amount not exceeding five million shillings in respect of each respondent.

(3) The petitioner shall within fourteen days after filing a petition, make an application for determination of the amount payable as security for costs, and the court shall determine such application within the next fourteen days following the date of filing of an application for determination of the amount payable as security for costs.

(4) Where a person is made a respondent pursuant to an order of the court, the petitioner shall within fourteen days of the date on which the order directing a person to made a respondent was made, pay into the court a further amount not exceeding three million shillings, as shall be directed by the court in respect of such person.

(5) Where on an application made by the petitioner, the court is satisfied that compliance with the provisions of subsection (2) or (4) will cause considerable hardship to the petitioner, it may direct that:-

(a) the petitioner give such other form of security the value which does not exceed five million shillings, as the court may consider fit; or

(b) the petitioner be exempted from payment of any form of security for costs.

(6) No order shall be made under subsection (3), (4) and (5) unless an opportunity has been given to the respondent, or, where there are two or more respondents, to each of the respondents to make representations in that behalf.

(7) In the event of security for costs not being paid into the court within fourteen days from the date of determination by the court of the amount payable as security for costs , not further proceedings shall be heard on the application.

(8) The provisions of subsection (2) and (3) shall not apply to the Attorney General in any case in which the Attorney General is the petitioner or one of the petitioners.

(9) The amount of money deposited as security for costs or the balance of it shall, where the petitioner succeeds in the petition or on appeal and where no order as to costs lies against the petitioner, be immediately refunded to the petitioner”

Section 110(1) of the LOCAL AUTHORITIES (ELECTION ACT) NO.4 OF 1979 [Cap.292 R.E. 2001], which was also amended by Act No.2 of 2002 contains more or less similar provisions as section 111 of the NATIONAL ELECTIONS Cap.343 R.E. 2010 on security for costs with respect to Councilor elections which is set at an amount not exceeding Tshs.500,000/=106 I wish to point out here that the amendment of the two principal legislations on elections ushered in by the Written Laws (Miscellaneous Amendment) Act No.2 of

105 Edition of the of the National Elections Act, Cap.343 printed on the 30 th June 2010 incorporating all amendments made up to and including 30th June 2010 and printed under the authority of section 4 of the Laws Revision Act, Cap.4

Page

70


2002 which amended section 111 of the National Elections Act has dealt a severe blow on would be petitioner who will now have to dig deep in their pockets to raise money for security for costs.

Previously, subsection (2) of section 111 of the Act which had been amended by the Electoral Laws (Miscellaneous Amendments) Act, 2001, read as follows:

"(2) The Registrar shall not fix a date for the hearing of any election petition unless the petitioner has paid into the court, as security for costs, a sum of five million shillings in respect of the proposed election petition." (the emphasis is mine).

However, following the amendment brought about by the Written Laws (Miscellaneous Amendment) Act No.2 of 2002, the provisions of section 111(2) now provides as follows:

(2) The Registrar shall not fix a date for the hearing of any election petition unless the petitioner has paid into the court as security for costs, an amount not exceeding five million shillings in respect of each respondent.

On the basis of the above amendment, a petitioner in a parliamentary election petition now has to pay into court a security for costs to the maximum amount of Tshs.5,000,000/= “in respect of each respondent”, and not “in respect of the election petition ” as previously was the case. A petitioner in a Councilor election petition is in similar situation as per section 110(2) of the LOCAL AUTHORITIES ACT, which is similarly worded as section 111(2) of the NATIONAL ELECTIONS ACT, under which a petitioner is required to pay a maximum of Tshs.500,000/= as security for costs in respect of each respondent, before the court can fix a date for hearing of the petition. The import and reach of section 111(2) and section 110(2) of the NATIONAL ELECTIONS ACT and the LOCAL AUTHORITIES ACT, respectfully is that in an election petition be it for avoiding the results of Parliamentary or Councilor election, if there are, let us say three respondents, the petitioner has to pay into court an amount of Tshs.5,000,000/= as security for costs in respect of each respondent, which translates to Tshs.15,000,000/= in total. Some petitioners in the election petitions filed in some of the High Court registries have already started testing the bitter pill of the provisions of section 111(2) of the NATIONAL ELECTIONS ACT by being required to pay into court the maximum amount of security for costs in respect of each petitioner.

The provisions of section 111 of the NATIONAL ELECTIONS Cap.343 R.E. 2010 have received judicial consideration in a number of court decisions, including JOYCE A. CHITENE VS. DR. ZAINAB A. GAMA & ANOTHER Misc. Civil Cause No.194 of 2005 (H.C. DSM) (unreported); JOHN J. MNYIKA VS CHARLES N. KEENJA & ANOTHER Misc. Civil Application No.1 of 2006 (H.C.)(DSM)(unreported) and JOMBA J. KOYI VS CHRISTOPHER OLE SENDEKA & ANOTHER Misc. Civil Application No.1 of 2006 (H.C.) (Arusha Registry) (unreported). I wish here to associate myself fully with the words of His Lordship Mr. Justice Rutakangwa J. (as he then was) in his ruling in the case of Misc. Civil Cause No.20 of 2005 between JOSEPH LAURENT HAYMU, EMMANUEL DENIS BURA AND THOMAS LULU IRAFAY VS. THE ATTORNEY GENERAL AND DR. WILBROAD PETER SLAA, (High Court) (Arusha Registry) (unreported) as well as his observation in JOHN J. MNYIKA VS CHARLES N. KEENJA & ANOTHER Misc. Civil Application No.1 of 2006 (H.C.)(DSM)(unreported) with respect to section 111(2) of the Act. His Lordship observed as follows:

106 The pecuniary jurisdiction of courts of resident magistrates under the Magistrates Courts Act 1984 as amended by Act No.4 of 2002 is now Section 40(2)(a) instead of 12 million to read 150,000,000/= Section 40(2)(b) instead of 10 million to read 100,000,000/= for immovable and movable property respectively.

Page

70


“…Any petitioner, therefore, who genuinely believes that he/she cannot meet the requirements of section 111(2) must make an application for determination of the amount payable as security for costs.”

His Lordship observed further as follows:

“…It will be a risible matter for a petitioner coming to court seeking for determination of the amount payable while admitting being able and capable to pay the maximum fixed by the law. It would also be a waste of the court’s precious time and resources as well the parties’ time and money. Such frivolous applications would also militate against the scheme of this Act which aims at early disposal of these petitions.”

In a recent ruling of the High Court in FRED TUNGU MPENDAZOE VS THE ATTORNEY GENERAL; DR. MILTON MAKONGORO MAHANGA and THE RETURNING OFFICER, SEGEREA CONSTITUENCY107, Hon. Justice Prof.Dr.Juma I. agreeing in principle with the decision by Justice Rutakangwa in JOSEPH LAURENT HAYMU, EMMANUEL DENIS BURA AND THOMAS LULU IRAFAY VS. THE ATTORNEY GENERAL AND DR. WILBROAD PETER SLAA 108 , emphasized the fact that in the case where a petitioner is able and willing to deposit the maximum security for costs without considerable hardship, there is nothing in law that require the court to make any prior determination before the petitioner deposits the maximum amount of the security for costs stipulated in the law. In his ruling His Lordship Juma, made another pertinent observation to the effect that “the law as it is now reflected in subsections (2), (3) and (4) of section 111 of the National Elections Act confer distinct and separate procedures for depositing of security for costs before the Registrar fixes a hearing date.” His Lordship then surmised by stating at pages 9-10 of the typed ruling thus:

“Parliament in its wisdom after the land mark decision of the Court of Appeal in Julius Ishengoma Ndyanabo vs Attorney General [2004] TLR 14 amended the National Elections Act to recognize different abilities of petitioners to pay security for costs. Gone are the times when every petitioner, rich or poor had to pay TZS 5 million regardless of ability. When a petitioner feels that he or she cannot raise the maximum amount under sections 111(2) or (4), then the petitioner concerned can seek determination by this court under section 111(3) read together with subsection (5) (a) and (b) of section 111.”

Given the sensitivity surrounding section 111 of the NATIONAL ELECTIONS ACT on payment of security for costs, I wish to emphasize the following points:

1. The law does not provide a specific time within which to pay the maximum security for costs of Tshs.5,000,000/- stipulated in subsection (2) of section 111 of the Act. However, the said amount must be paid within a reasonable time.

2. A petitioner able and capable of complying with the requirement of paying the maximum amount mentioned in section 111(2) and (4) as security for costs does not need to apply to court for the determination of the said amount under section 111(3) of the Act.

3. An application for determination by the court of the amount payable as security for costs is only intended for a Petitioner whose means makes it difficult for him or her to comply. A

107 Miscellaneous Civil Application No.98 of 2010


Page

70


petitioner capable of paying the maximum sum does not need the indulgence of the court’s discretion to determine the payment of a lesser sum or total exemption of security for costs as stipulated under section 11(5) of the Act.

4. After the court has made a determination of the amount payable and the petitioner still believes that paying the determined amount will cause considerable hardship to him/her, he or she should proceed to take advantage of subsection (5) of section 111 of the Act.

5. Similarly a petitioner who has been directed to pay a certain amount of money, not exceeding three million, as security for costs under subsection (4) can also take advantage of subsection (5).

I wish also to point out here one issue which relates to the provisions of subsection (7) of section 111 of the National Elections Act, which is to the effect that:

“111(7) In the event of security for costs not being paid into the court within fourteen days from the date of determination by the court of the amount payable as security for costs, no further proceedings shall be heard on the application.” (the emphasis is mine).

The phrase “no further proceedings shall be heard on the application” in section 111(7) of the National Elections Act is subject to judicial interpretation. One possible interpretation is that it may mean that in the event the applicant fails to raise the determined amount of security for costs within the statutorily prescribed period of fourteen days following determination by court of the amount payable as security for costs, there will be no more proceedings for the applicant to be heard on the matter of security for costs. In my view, it seems very clearly that different from normal civil suit where a party can apply for extension of time if the prescribed time for doing an act has expired, the provisions of section 111 of the National Elections Act, is silent on the course to be taken not only by the Applicant but also the court. Since the said provision is couched in mandatory terms, in my view, the question of the court exercising its discretion to entertain the application does not arise. The fate of the application is quite clear – no further action is to be taken by the court. Does this mean that the application will be struck out? In my view, since the law does not enjoin the court to exercise its discretion to entertain the application after the applicant has failed to meet the deadline set out in the law for paying into court the determined amount for security, surely the application cannot be left to sit in court idly after the lapse of the prescribed period of fourteen days. It is worth remembering that the fixing of the date for the hearing of the petition by the Registrar is predicated upon payment by the applicant of the determined amount for security for costs be it by the court or otherwise, failure by the applicant to pay the amount of security so determined within the prescribed period will mean that the petition cannot be fixed for hearing. In such situation the petition also run the risk of being struck out for being incompetent by reason of failure by the applicant/petitioner to pay the determined amount of security for costs.

It is my sincere hope that what I have endeavoured to explain above will relieve judges and magistrates of the pain of having to deal with frivolous applications for determination of the amount payable as security for costs under section 111(3) of the National Elections Act, [Cap.343 R.E. 2010 and section 110(3) of the Local Authorities Elections Act, [Cap.292 R.E. 2010] respectively. In my view, these provisions are meant for genuine indigent petitioners and the rigours imposed on them are mitigated by subsection (3) and (5) of section 111 of Cap.343 R.E. 2010 and section 110 of Cap.292 R.E. 2010 respectfully.

The Attorney General though a potential respondent in every petition is exempted from payment of security for costs and therefore does not run the risk of cutting down the number of respondents he would

Page

70


wish to drag to court. Curiously, whereas a petitioner suffers costs for withdrawing a petition, the Attorney General does not carry the burden of costs in the event he applies to cease to be a respondent or withdraws a petition he has lodged in court. I wish to reiterate further that what the Court of Appeal of Tanzania stated in Julius Ishengoma Ndyanabo vs. Attorney General109 with regard to section 111 which exempt the Attorney General from payment of security for costs, in my view, is still valid today. In that case the Court of Appeal apart from showing its concerns over the logic behind the Attorney General being exempted from payment of security for costs while indigent petitioners have to stated also that:

“It is also arbitrary and the limitation it purports to impose on the fundamental right of access to justice is more than is reasonably necessary to achieve the objective of preventing abuse of the judicial process. Plainly, Parliament exceeded its powers by enacting the unconstitutional provision. Legislative competence is limited to making laws which are consistent with the Constitution.”

Despite the fact that the Government went ahead and enacted law essentially killing the reach of the decision of the Court of Appeal with respect to the amount payable as security for costs in an election petition, this however, does not prevent a search on the issue whether under the current constitutional dispensation in Tanzania, it is the Constitution or Parliament which is supreme. Perhaps the ongoing debate on the new constitutional order making will provide some answers to some of these burning questions and the potential of judges and magistrates, given their experience, to contribute to the debate cannot be overemphasized.

1.2 CONCLUSION

It is entirely critical for judges, registrars and magistrates to pay particular attention to the mandatory requirements in the electoral laws and the election petition rules with respect to presentation and determination of election petitions. Of particular importance are the provisions on jurisdiction statutorily conferred on courts of law to hear and determine election petitions, the time for presentation and determination of such petitions, and the determination of payment of security for costs.

I wish to underscore here further that it is of great essence that election petitions are disposed off justly and expeditiously while at the same time ensuring strict compliance by petitioners with the strict requirements in the electoral laws and rules of procedure in election petitions. Courts need to be vigilant while preserving their independence to ensure also that justice is served while at the same time serving the precious time not only of the courts’ but parties’ as well.

It is my sincere hope and belief, also that you have been able to pick a leaf or two from this Paper for use in your respective jurisdictions. Let me also wish you all the best of luck and success in handling election petitions. As the statistics on election petitions already filed would indicate, this year our courts have received a substantial number of petitions which pose special challenges on us but with the kind of knowledge you have acquired in this Seminar, certainly you shall be able to manage them.

PART II: THE PROCEDURE FOR TRIAL OF ELECTION PETITIONS

1.0 Introduction

In this Part a brief overview of the trial and election petitions procedure is given. This Part has an introduction and wherein some explanation on the application of the Civil Procedure Code in proceedings in

109 (Civil Appeal No. 64 of 2001) [2002] TZCA 2 (14 February 2002)

Page

70


a trial of election petition is given. This is followed by a discussion on the practice and procedure in proceedings in a trial of election petition and finally a conclusion.

1.1 The Applicability of the Civil Procedure Code in Election Petitions

We already saw in Part One on “Presentation of Election Petitions” that the trial of election petition for challenging the results of the election of a Member of Parliament is to be conducted by the High Court, and for contesting the results of election of Councilor by the Resident Magistrates’ Court. In Part One I alluded also to the fact that the procedure in proceedings in a trial of election petition is sui generis and which is as outlined in the electoral laws and the election petition rules. In case of a gap in the electoral laws and rules on the procedure applicable in election petition, the Rules attempt at filling the gap by providing as follows:

“Subject to the provisions of the Act and of the Rules, the hearing, practice and procedure in respect of a petition shall be regulated, by the rules regulating the practice and procedure in a civil suit.”110

The 2010 Election Petition Rules also mention some specific areas of the Civil Procedure Code [Cap.33 R.E. 2002] which apply in proceedings in a trial of election petition, by providing as follows:

“Without prejudice to the generality of the provisions of sub rule (1) of this rule, the provisions of section 80 and of the First Schedule to the Civil Procedure Code, which relate to the discovery and inspection of documents, admissions, production, impounding and returning of documents, transfer of proceedings, settlement of issues and determination of suits, summoning of witnesses, admissibility of affidavits, awarding of costs, judgments and execution of a decree, shall apply mutatis mutandis to the proceedings on a trial of a petition and to the enforcement of an order for costs made by the court.”111

It is trite to note here also that apart from what is stated above, there are other specific areas of the Civil Procedure Code (C.P.C.) [Cap.33 R.E. 2002], applicable in proceedings in a trial of election petition mentioned in the Rules, particularly Order XIII of the C.P.C. with respect to production of documents [Rule 18(3) of GN 447 & Rule 16(3) of GN 448]; Order XIV of C.P.C. with respect to framing of issues [Rule 20(2) of GN 447 & Rule 18(2) of GN 448; as well as rules regulating payment of fees in a civil suit before the High Court or the Resident Magistrates Court. In any event other laws such as the Law of Evidence Act [Cap.6 R.E. 2002] are also applicable particularly with respect to admissibility of documentary evidence and examination of witnesses.

1.2 Procedure and Practice in Trial of Election Petitions

1.2.1 Place and Time of Trial

The time and place for the trial of election petition is determined by the Registrar in the case of parliamentary elections112 and by the court in the case of Councilor elections.113 The Registrar or the court as the case may be is enjoined in the Rules to give notice to each of the parties of the day, time and place



112 Rule 15(1) of GN 447 of 2010

113 Rule 13(2) of GN 448 of 2010

Page

70


of the trial and post it on the court notice board or in newspapers as the Registrar deems fit or as the court may direct.114

It is categorically insisted in the Rules that every petition must be tried in open court.115 It should be noted here however, that in the case of chamber applications in an election petition, these are normally heard in chambers as is in a civil suit as provided for under the Civil Procedure Code.

1.2.2 Consolidation of Election Petitions

The concept of consolidation in a trial of election petition comes into play where two more or more petitions are presented in relation to the same election. In case of such eventuality the court may direct that some or all of such petitions be consolidated and tried as one petition. 116 The main reason for consolidation is to avoid multiplicity of trials and to save the precious time of both of the court and the parties as well as costs.

1.2.3 Election Petition Tried by More Than One Judge or Magistrate

In the event that a petition is likely to raise complicated questions of law or of fact, the Rules vest on the Chief Justice with discretionary powers to direct the petition to be tried by three or five judges in the case of parliamentary election petition or two or more magistrates in the case of Councilor election petition.117

Where a petition is tried by three or five judges or two or more magistrates as the case may be, the petition is to be determined in accordance with the decision of the majority of the judges or the magistrates as the case may be.118

1.2.4 Documentary Evidence at First Hearing of Election Petition

All the documentary evidence of every description in the possession or power of the parties on which they intend to rely and which has not already been filed in court and all documents which the court has ordered to be produced must be produced by the parties or their advocates at the first hearing of the petition.119

The general principle is that the court has to receive the documents so produced, provided they are accompanied by an accurate list prepared in “such form as the High Court or the court directs.” 120 The



116 Rule 16 of GN 447 of 2010 and Rule 14 of GN 447 of 2010


118 Rule 17(2) of GN 447 of 2010 and Rule 15(2) of GN 448 of 2010. It should be noted that there is a drafting error in Rule 15(2)of GN 448 of 2010 where it is stated that “where a petition is tried by three or five magistrates..” instead of “…where a petition is tried by two or more magistrates.”

119 Rule 18(1) of GN 447 of 2010 and Rule 16(1) of GN 448 of 2010. It is noted that there is a drafting error in Rule 18(1) of GN 447 of 2010 which make reference to “...first hearing of the suit..” instead of “...first hearing of the petition...”

120 Rule18(2) of GN 447 of 2010 and Rule16(2) of GN 448 of 2010.

Page

70


procedure for production of documents is to be regulated “as nearly as possible” in accordance with Order XIII of the Civil Procedure Code.121

1.2.5 Preliminary Hearing in Election Petition

A preliminary hearing is conducted as soon as the pleadings are complete. This is done in the presence of the parties or their advocates. The main purpose of conducting a preliminary hearing is to consider “such matters as are not in dispute between the parties and which will promote a fair and expeditious trial.”122 The court has to ascertain from the parties of which legal or factual material propositions that are not in dispute.

Upon conclusion of the preliminary hearing, the court has to prepare a memorandum of matters agreed, which is to be read over and explained to the parties or their advocates123 and signed by the parties or their advocates and the judge or the magistrates124 as the case may be.

Any fact or document admitted or agreed in a memorandum filed is deemed to have been duly proved. However, during the course of the trial where the court is of the opinion that interests of justice demand, it may direct that any fact or document admitted or agreed in the memorandum be formally proved.125

1.2.6 Framing of Issues in Election Petition

In the trial of an election petition, the framing of issues is done by the court after the conclusion of the preliminary hearing, having ascertained matters of which the parties are at variance and record them.126

The right decision of the petition is therefore predicated on the issues as ascertained and recorded by the court. The Rules however stipulate that the framing of issues is to be regulated as nearly as possible in accordance with Order XVI of the Civil Procedure Code.

1.2.7 Witnesses in Election Petition Trial

The summoning and swearing in of witnesses in a trial of election petition is to be in the same manner “as nearly as circumstances admit, as in a trial by the court in the exercise of its original civil jurisdiction.” Witnesses in a trial of election petition are subjected to the same penalties for giving false evidence (perjury) or for non-attendance as witnesses a civil suit.127 However, there is no similar provision on witnesses and consequences of giving false testimony or non-attendance in the Local Authorities (Election Petitions) Rules.

1.2.8 Grounds Taken at Election Petition Trial121 Rule 18(3) of GN 447 of 2010 and Rule 16(3) of GN 448 of 2010






127 Rule 21 of GN 447 of 2010

Page

70


You probably still remember what I stated in Part One in relation to “Presentation of Election Petitions” on the requirement of Rule 5(1) of GN 447 and Rule 3(2) of GN 448 for the election petition to state among other things the following:

(c) the grounds upon which the petitioner relies for the relief sought by him; and

(d) the nature of the relief or reliefs sought by the petitioner.

The Rules insist that the petitioner cannot argue or be heard in support of any ground not set in the petition save with leave of the court. In determining a petition however, the court is not confined to the grounds set in the petition.128 The general principle in civil suit which by equal measure will apply to election petition is that parties are bound by their own pleadings.

Furthermore, it is upon the thrust of the facts as stated in the petition or pleadings upon which the court then proceeds to frame issues for the right determination of the petition. In JOHN M. BYOMBALIRWA VS AGENCY MARITIME INTERNATIONALE (TANZANIA) LTD 129 Kisanga J.A (as he then was) observed that:

“in considering whether or not the plaint discloses a cause of action only the plaint should be looked at; the reply must be ignored.”

1.2.9 Postponement of trial

Postponement happens before the commencement of the trial of an election petition. The Rules make provisions for the court to postpone the beginning of the trial of the petition. The postponement of the commencement of the trial by the Court could be either on its own motion or upon application by a party supported by an affidavit made by a party and after notice to the other parties.130 A copy of such notice and of the order issued by the Court must be sent to the Registrar to each of the parties to the petition and another copy is to be posted on the court notice board.131

Where the trial of the election petition cannot commence on the day appointed date due to absence of the judge or magistrate it will stand adjourned to the following day, and so on from day to day, until a judge or magistrate is available to try it.132

1.2.10 Adjournment of Trial of Election Petition

Adjournment of a trial of an election petition occurs after the trial of the petition has already commenced but for some reasons the court cannot continue with the trial. The general principle is that the trial of election petition must continue until its conclusion.133 The court however, has discretion to adjourn


129 [1983] T.L.R. 1 (CA)




133 Rule25(2) of GN 447 of 2010 and Rule 22(2) of GN 448 of 2010

Page

70


the trial from time to time.134 We should insist here that the exercise of the discretion by the court to adjourn the trial has to be judicious in the sense that sufficient reasons have to be assigned for the adjournment.

As I intimated to earlier in Part One of this Paper on “Presentation of Election Petitions”, election petitions must be determined with urgency since their finality is of great importance for the electors to have a representative in Parliament or in the local authority council.

1.2.11 Illness of a Magistrate or Judge

The Rules make it possible for a successor judge or magistrate to deal with any evidence or memorandum taken down or made by his or her predecessor who has begun the trial of a petition who has been prevented by reason of illness, death or other reasonable cause from concluding the trial, as if such evidence or memorandum has been taken down or made by the predecessor judge or magistrate and may proceed with the suit/petition from the stage at which his or her predecessor left it. 135 A Judge or magistrate may pronounce a judgment written but not pronounced by his or her predecessor.136

1.2.12 Failure of Petitioner to Appear

Failure by a petitioner to appear before the court on the day on which the petition is to be heard may lead to dismissal of the petition.137 However such dismissed petition may be re-admitted by the court upon the petitioner satisfying the court that his or her failure to appear on the day of the hearing was due to a reasonable cause.138

1.2.13 Failure of Respondent to Appear

Failure by the Respondent to appear on the day on which the petition is to be heard, entitles the court to proceed to try the petition despite the absence of the Respondent and the decision of the court will be binding upon the Respondent.139

The Rules make it categorically clear that appearance by advocate where a party is represented by an advocate is deemed to be appearance by the party whom the advocate represents.140

1.2.14 Withdrawal of Election Petition

The Rules make it possible for the petitioner to withdraw the petition lodged before the decision has been delivered. The withdrawal has to be in writing addressed to the Registrar or the court as the case



136 Proviso to Rule 26 of GN 447 of 2010 and Rule 23 of GN 448 of 2010


138 Rule 27(2) of GN 447 of 2010 and Rule 24(2) of GN of 2010



Page

70


may be. The withdrawal of the petition by the petitioner however, is subject to costs as the court may deem fit to order.141

The Rules provide generally that withdrawal bars the Petitioner from filing fresh petition in respect of the same petition. The only instance however, where the court may allow the petitioner to lodge a fresh petition in respect of the same petition is if it is satisfied that the petition was withdrawn for the reason that it would have been defeated on the ground of any procedural irregularity.142 In the case of two or more petitioners, the withdrawal of the petition is only by application in writing by all the petitioners.143

In MOKHOSI V MOTHEBE AND OTHERS144 a case from Lesotho, concerning application for withdrawal of election petition, the issue was whether withdrawal can be made unilaterally without notice to the other party and/or leave of the Court. The High Court of Lesotho was dealing with the provisions of Section 107 (1) of the National Assembly Elections Order 1992 of (as amended) which enjoins the Court to make a final determination thereof. The Court refused the withdrawal and dismissed the petition and made a consequential order. In this petition, at the time the petitioner purported to withdraw it, the matter had already been set down for hearing not to mention that it had previously been postponed at his instance. Further, the petitioner had neither obtained the consent of the other parties to the proceedings nor had he sought leave of the Court to withdraw the applications. The presiding judge found that the petitioner acted in contravention of Rule 107(1) of the National Assembly Elections Order 1992. In addition, the reasons that were advanced on behalf of the petitioner for the purported withdrawal were vehemently denied by the respondents, to wit, that the political parties in Lesotho were in the middle of negotiations and the same would only continue if there were no pending cases regarding the elections. Under the circumstances, the Court accepted the version of the respondents in light of the principle in PLASCON-EVANS PAINTS V VAN RIEBEECK [1984] ZASCA 51; 1984 (3) SA 623. The presiding judge noted that authority is legion in this regard, not to mention that there was no proper evidence before the Court with the application only being made from the bar on the date of hearing. The Court also considered the case of MATHABA & ORS V LEHEMA & OTHERS (infra) at page 408 which was quoted to the Court, where one of the issues for consideration by the Court therein was that of withdrawal of an election petition. The presiding judge noted further that the law recognizes that by their very nature, election petitions are matters of public interest so that there has to be a judicial pronouncement regarding same and that it is on account of this recognition that authorities are at a consensus that election petitions should be determined to finality even in the form of a dismissal. To this end, Counsel referred the Court to the case of ABEL MOUPO MATHABA & OTHERS vs. ENOCH LEHEMA & OTHERS145 The Judge then made the following observation:

“On the strength of the above case, it is my view that allowing the petitioner in the matter to unilaterally withdraw the petition and the ancillary applications would be tantamount to deferring a decision on the merits of the petition to some future and unspecified date. This would clearly be contrary to the trite position of the law that due to their special nature and the fact that they are not matters inter partes but ones of public policy, election petitions must be expeditiously heard and judgments therein timely delivered. In the light of the


142 Rule 30(2) of GN 447 of 2010 and Rule 27(2) of GN 448 of 2010 and the Proviso thereto.


144 (CIV/P/5 /2007) [2007] LSHC 80 (18 July 2007) http://www.saflii.org/ls/cases/LSHC/2007/80.html

145 1993-94 LLR / LB 402 at 408

http://www.saflii.org/ls/cases/LSHC/2007/80.html

Page

70


decisions in the quoted cases and those referred to therein, we accordingly found that the petition and the ancillary interlocutory applications stood to be dismissed.”

1.2.15 Abatement of Election Petition

The general rule in civil suits that death does not cause a civil suit to abate also finds expression in election petitions. There are two situations which make a petition to abate. These are (a) death of sole petitioner or of the sole surviving petitioner; or (b) death of the successful candidate.146

In the event of the petition abating by reason of the death of sole petitioner or the sole surviving petitioner, the Rules provide that if the court considers it equitable and just so to do, may award such costs to the respondent or to each of the respondents where there are two or more respondents, as it may deem proper.147 The amount of costs awarded to a respondent however, are not to exceed the amount of costs for which the petitioner had given security in respect of that respondent.148

The general principle is that all costs, charges and expenses of and incidental to the presentation and trial of an election petition shall be borne in such manner and in such proportions as the High Court or the court may order and in particular, any costs which in the opinion of the High Court or the Court have been caused by any vexatious conduct or by any frivolous or vexatious allegations or objections on the part of the petitioner or of the respondent/respondents, may be ordered to be paid by the party by whom such costs have been caused.

1.2.16 Dismissal of Election Petition for Reason of Irregularity

The Rules make it categorically clear that non-compliance with the Rules or other procedural irregularity should not be the reason for dismissing a petition unless such non-compliance or irregularity in the opinion of the court has resulted or is likely to result in a miscarriage of justice.149

The court has some discretion where there has been any non-compliance with the Rules or irregularity to require the petitioner to rectify the non-compliance or the irregularity but subject to such terms as to costs or otherwise as the court may direct.150 Where the petitioner fails to comply with an order of the court for rectification within the specified time, the court may dismiss the petition.151

In connection with dismissal of petition perhaps it is worthwhile to consider the dictum in the Ugandan case of KATIKIRO OF UGANDA vs. ATTORNEY GENERAL OF UGANDA152 that a plaint should not be rejected where a serious and important point of law is to be determined. There, Sheridan J was considering O.VII rule 11 of the Uganda Civil Procedure Rules, which is in pari materia with our Civil

146 Rule 31(1)(a) & (b) of GN 447 and Rule 28(1)(a) & (b) of GN 448 of 2010


148 Proviso to Rule 31(2) of GN 447 of 2010 and to Rule 28(2) of GN 448 of 2010




152 [19581 EA 765

Page

70


Procedure Code 1966 (O. VII rule 11) and quoted with approval the observation of MAULTON J, in DYSON vs. ATTORNEY GENERAL153 that:

“It is not in accordance with the practice of the Court, nor is it desirable, to refuse to allow cases raising points which involve serious arguments to go to trial so that the parties may have them decided in the ordinary way at the trial and may enjoy the right of appeal following from their being so decided. "

1.3 PAYMENT OF FEES IN ELECTION PETITION

The Rules contain prescribed fees in the Second Schedule payable in respect of specified matters in relation thereto.154 The prescribed fees must be paid in relation to the specified matter before the Registrar or the court, as the case may be, take any action in respect of the matters in relation to the fees.

It should be noted here that the Rules has granted exemption from payment of security for costs to a petitioner who has been granted legal aid under the Legal Aid Scheme of either the Faculty of Law, University of Dar es Salaam, the Tanganyika Law Society, the Tanzania Women Lawyer’s Association or the Legal and Human Rights Centre or the Commission for Human Rights and Good Governance, or the National Organization for Legal Assistance or the Women Legal Aid Centre or the ENVIROCARE. 155 The Rules however, are silent on whether these legal aid organizations are also exempt from payment of fees for election petition.

153 [1911] K.B. 410



Page

70


Table1: Summary of Schedule of Fees Payable in Election Petition

S/N Item Amount of Fees Payable

Under GN 447 of 2010 for Parliamentary election petition

Under GN 448 of 2010 for Councilor election petition

1 Filing a petition 200,000/= 100,000/=

2 Filing an amended petition or on amending a petition

50,000/= 50,000/=

3 Filing list of objected votes 50,000/- 50,000/=

4 Filing list of objections/complaints (list of polling station election results)

50,000/= 50,000/=

5 Filing of documentary evidence to be relied upon/documents ordered by court to be produced

The same as payable for a corresponding matter in a civil suit before the Court.

6 For any other matter The same as payable for a corresponding matter in a civil suit before the High Court.

The same as payable for a corresponding matter in a civil suit before the Court.

PART III: GROUNDS FOR AVOIDING ELECTION AND STANDARD OF PROOF

1.0 Introduction

This Part discusses the grounds for avoiding an election and the required standard of proof.

1.1 The Law on Avoiding Elections

The relevant sections of the electoral laws on the grounds for avoiding elections are found under section 108 of the National Elections Act, [Cap.343 R.E. 2010], and section 107 of the Local Authorities (Elections) Act, [Cap.292 R.E. 2010]. These provisions are reproduced hereunder for easiness of reference and for comparison purposes.

Table II: Provisions of the law on grounds for avoiding elections

Section The National Elections Act [Cap.343 R.E. 2010] Section The Local Authorities (Elections) Act [Cap.292 R.E. 2010]

108 (1)Pursuant to the limitation imposed by sub-article (7) of Article 41 of the Constitution, the provisions of this section shall apply only in relation to the election of a candidate as Member of Parliament

107 (1) The Election of a Candidate as a member shall not be questioned except on an election petition.

(2)The election of a candidate as a Member of Parliament shall be declared void only on an election petition if the following grounds is proved to the satisfaction of the court and no other ground, namely—

(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

(a)that by reason of corrupt or illegal practices committed in connection with the election, or

Page

70


his knowledge and consent or approval with intent to exploit tribal, racial or religious 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;

other circumstances, whether similar to those enumerated or not, the majority of voters where or, may have been prevented from election the candidate whom they preferred.

(b) non-compliance with the provisions of this Act relating to election if it appears that the election was not conducted in accordance with principles laid down in such provisions and that such non-compliance affected the result of the election;

(b) 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 religious 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;

(c) that the candidate was at the time of his election a person not qualified for election as a member.

(c) non-compliance with the provisions of this Act relating to election if it appears that the election was not conducted in accordance with principles laid down in such provisions and that such non-compliance affected the result of the election;

(3) Notwithstanding the provisions of sub-section (2), where upon trial of an election petition respect of an election under this Act the High Court finds that corrupt or illegal practice in connection with the election has been committed by or with the knowledge or approval of any of the candidate' agents and the High Court further finds, after giving the Attorney-General or his representative an opportunity of being heard, that the candidate has proved to the High Court—

(d) that corrupt or illegal practice was committed in connection with the election by or with the knowledge and consent or approval of the candidate or with the knowledge and consent or approval of any of his agents; or

(a) that no corrupt or illegal practice was committed by the candidate himself or with the knowledge and consent or approval of such candidate;

(e) that the candidate was at the time of his election a person not qualified for election as a member.

(b) that the candidate took all reasonable means for preventing the commission of any corrupt or illegal practices at such an election; and

(3) Notwithstanding the provisions of sub-section (2), where upon trial of an election petition respecting an election under this Act, the court finds that corrupt or illegal practice in connection with the election has been committed by or with the knowledge or approval of any of the candidate' agents and the court further finds, after giving the Attorney-General or his representative an opportunity of being heard, that the candidate has proved to the court—

(c) that in all respects the election was free from any corrupt or illegal practice on the part of the candidate;

(a) that no corrupt or illegal practice was committed by the candidate himself or with the knowledge and consent or approval of such candidate or his agent;

then, if the High Court so recommends, the election of such candidate shall not by reason of any such practice be void.” (the emphasis is mine).

(b) that the candidate took all reasonable means for preventing the commission of corrupt or illegal practices at the election; and

Page

70


(c) that in all respects the election was free from any illegal practice on the part of the candidate and of his agent;

then, if the court so recommends, the election of that candidate shall not by reason of any that practice be void.” (the emphasis is mine).

There are two critical issues which arise from the above provisions of the law. The first one relates to the use of the phrase “…and no other grounds” in sub-section (2) of section 108 of the National Elections Act [Cap.343 R.E. 2010], which seems to be restrictive as compared to the phrase “on any of the following grounds…” appearing under subsection (2) of section 107 the Local Authorities (Elections) Act [Cap.292 R.E. 2010] which does not seem to restrict the grounds on which an election can be annulled.

The second issue relates to the legal position on corrupt or illegal practice as ground for avoiding an election. The law stipulates very clearly that the election of a candidate “shall not by reason of any corrupt or illegal practice be void but only for the court to certify to the Director of Elections or the returning officer as the case may be with the consequence of only deleting such person from the voters register. However, if a person is found guilty of corrupt or illegal practice he or she is disqualified to contest presidential, parliamentary, and councilor elections for a period not exceeding five years.

2.0 GROUNDS FOR AVOIDING ELECTION

2.1 “On any of the following grounds”

The phrase “on any of the following grounds” appearing in subsection 107 of the Local Authorities (Elections) Act does not feature in section 108(2) of the National Elections Act. The “slovene drafting” of section 108 of the National Elections Act came under attack Hon. Justice Kipenka Mussa in CHOYA ANATORY KASAZI AND KASHEMEZA PHARES KABUYE AND THE HON ATTORNEY GENERAL,156

where His Lordship observed that the provision is “clogged with phrase limiting the legislative scheme and scope of the intendment.”157

In my view, the provision of section 108 could be a recipe for conflicting interpretations whether the petitioner has to prove any or all of the grounds for avoiding the election of a Member of Parliament to the satisfaction of the Court. A court faced with such a situation in my view, will most probably be inclined more to interpreting the provisions of section 108(2) of the National Elections Act with a view to avoid absurdity and to bring consistency in the application of statutory provisions within the same schema, which are the grounds for avoiding the elections, be it of a member of parliament or a councilor.

Courts will also be more inclined, in my view to interpret the provisions of section 108(2) of the National Elections Act in favour of avoiding an election of a member of parliament upon prove to the satisfaction of the court of any of the grounds and not necessarily all of them. It was not the intention of Parliament, in my view, that in the case of avoiding the election of a member of parliament, the petitioner should prove all grounds while for avoiding the election of a Councilor the petitioner to prove any of the grounds stipulated under the law.


157 See Hon Lady Justice in her seminal paper “Grounds for Declaring an Election of Member of parliament Void, Burden of Proof and Standard of Proof in Election Petitions” an undated Paper presented at the Judges Election Petition Seminar at Kunduchi Beach Hotel, Dar es Salaam, 2011 at page 5

Page

70


The issue whether all the grounds or only some need to be proved came for consideration by the Court of Appeal in [1996] T.L.R. p. 175-176].” where the Court stated as follows:

“As to the reasons in support of our finding on ground number one of the two appeals, these are connected to the reasons which support our finding on ground number 4 of the Attorney-General's Memorandum of Appeal, which is number 6 of the Third Appellant's Memorandum of Appeal. Our finding on these grounds concurs with that of the trial court to the effect that there are grounds other than those stated under s 108 of the Elections Act for nullification of election results. The finding is based partly on the reasons relied upon by the learned Trial Judge and partly on additional reasons.” (the emphasis is mine).

In ATTORNEY-GENERAL AND TWO OTHERS vs. AMAN WALID KABOUROU158 the Court of Appeal agreed with the reasoning of Mchome J, that the grounds listed under paras (a) to (c) of subsection (2) of section 108 of the Elections Act, 1985 (now Cap.343 R.E. 2010) are not exhaustive by reason of the fact that the word ònly' is not used therein. His Lordship was also of the opinion that the defences provided under paras (a) to (b) of subsection (3) for illegal practice necessarily imply that illegal practices are grounds for nullification of election results though not expressly stated to that effect under section 108.

The Court of Appeal of Tanzania concurred with the reasons given by Mchome J, and stated that the Court had additional reasons for upholding his finding. First, they were satisfied that the established rule of interpretation embodied in the Latin Maxim Èxpressio Unius Est Exclusio Alterius' that is, where matters are expressly stated, then any other matters of the same class not so expressly stated are excluded, does not apply to s. 108 because that section provides defences to matters which are not expressly stated therein. Second, taking into account the principle which underlies Constitution and the Elections Act, 1985 that elections shall be free and fair, we are of the considered opinion that an election which is generally unfree and unfair is not an election at all as envisaged by the Constitution and the Elections Act, and consequently anything which renders the elections unfree or, and unfair is in law valid ground for nullification of such purported election. We are further of the considered opinion that any law which seeks to protect unfree and unfair elections from nullification would be unconstitutional.

The Court of Appeal stated further that for purposes of clarity they pointed out that the removal of illegal practices and corrupt practices from section 108 by the Elections (Amendment) Act 1992 (Act 6 of 1992) as specific grounds for nullification of election results cannot be construed as having the effect of making illegal practices or corrupt practices permissible under the Elections Act, 1985. What the amendment achieved, the Court of Appeal further stated, was to make illegal practices and corrupt practices per se no longer sufficient grounds for nullification of election results under the circumstances stipulated under section 108(3)(a) and (d) as it then was before the amendment. Paragraph (a) of subsection (3), as it then was, stated:

“that by reason of corrupt or illegal practices committed in circumstances whether similar to those before enumerated or not the majority of voters were, or may have been, prevented from electing the candidate whom they preferred.”

As to para (d) it stated:

“that a corrupt or illegal practice was committed in connection with the election by or with the knowledge and consent or approval of the candidate or by or with the knowledge and consent or approval of any of his agents;”

158 [1996] TLR 156 (CA)

Page

70


In the considered opinion of the Court of Appeal, illegal and corrupt practices are still relevant either as non-compliances or as electoral misconduct which renders elections unfree or, and unfair, contrary to the principles and objectives which underlie the Constitution and the Elections Act. The Court of Appeal stated further that:

“It is pertinent to point out for purposes of clarity that it is conceivable to have generally free and fair elections but which are afflicted with a non-compliance of specific provisions of the Elections Act and which affects the results of the elections. In other words not every non-compliance which affects the results of an election necessarily makes an election unfree and unfair. A case in point is where a significant number of unregistered persons are allowed to vote in an election but not for any particular candidate. Such an incident would clearly be a non-compliance with the provisions of s 61(a) and (b) concerning methods of voting. A non-compliance of this nature may affect the results but does not necessarily make the election unfree and unfair [1996 T.L.R. p. 175-176].”

In the case of ARCADO NTAGAZWA vs. BUYOGERA BUNYAMBO159 (Kisanga JJA, Mfalila JJA and Mroso AgJA), which was an appeal against the decision of the High Court (Mackanja, J) nullifying the election of the appellant as a Member of Parliament for Muhambwe constituency during the 1995 general election, on the ground that the appellant, Mr. Arcado Dennis Ntagazwa, is a foreigner i.e a citizen of Burundi, and hence a person not qualified for election as Member of Parliament under our law, the Court of Appeal reversed the decision and ordered the trial to proceed in the High Court.

2.1.1 Corrupt or illegal practice

Under both the National Elections Act and the Local Authorities corrupt or illegal practice is not a ground for avoiding an election, but only attracts deletion from the register of voters, in respect of a person registered in a polling station. The court upon convicting a person of corrupt or illegal practice what it is required to do is only to report the conviction to the Director of Elections, in the case of parliamentary election or to the registration officer in the case of election in local authorities who the cause the deletion of that person’s name from the register.160

159 [1997] T.L.R. 242 (CA)

160 Section 107 of Cap.343 R.E. 2010; section 106 of Cap.292 R.E. 2010

Page

70


2.1.2 Prohibited Practices

According to section 3 of the Elections Expenses Act, "prohibited practices" means any offence mentioned in and punishable under the provisions of Part V of the Act. Under the Act, the commission of a prohibited practice by a person or a political party not only is a ground for disqualification from participation in the nomination process or election as per section 24(2) of the Act, but also a ground for institution of criminal proceedings or an election petition under section 24(7) of the Act by the Attorney General. The relevant sections in the Election Expenses Act provides as follows:

“24.-(2) Any candidate who, by himself, his agent or by his political party which commits an act amounting to a prohibited practice as stipulated in this Part shall himself or itself liable for disqualification from participation in the nomination process or election.”

“24(7) Where a candidate, or his agent or his political party commits an act which amounts to a prohibited practice in respect of which no action was taken, the Attorney General may institute criminal proceedings or an election petition against that candidate.” (the emphasis is mine).

It is rather curious however, that whereas under section 24(2) of the Elections Expenses Act, the liability for disqualification on ground of commission of prohibited acts is mandatory, under section 24(7) of the Act, the Attorney General has discretion over whether to institute criminal proceedings or an election petition against a candidate alleged to have committed acts amounting to a prohibited practice. In my considered view, a “prohibited practice” under the Elections Expenses Act amounts to a “corrupt practice” under the Prevention and Combating of Corruption Act and also comes within the broad rubric of corrupt and illegal practice under the National Elections Act particularly given that the Attorney General may institute an election petition against a candidate who has committed an act which amounts to a prohibited practice under the Elections Expenses Act.

2.1.3 Non-disclosure of Funds

In terms of section 14.-(1) of the Election Expenses Act161 all expenses to be incurred during the nomination process within the political parties shall be borne out by a political party concerned. Similarly, according to section 8.-(1) of the Act, the obligation to conduct and fund its election campaign by utilizing its own funds from the sources stipulated under the Political Parties is placed squarely on a political party. In terms of section 9.-(1)(b)(i) and (ii) of the Act, a candidate is required, in the case of a candidate for the post of Member of Parliament, to disclose to the District Party Secretary of a political party which sponsored that candidate, the amount of funds the candidate has in his possession; and expects to receive or intends to use as election expenses, at least seven days before the nomination day. In terms of section 18(4) of the Elections Expenses Act, failure to disclose source of funds for political campaigns is a ground for challenging the nomination of a candidate by a political party or election of a candidate. That section provides as follows:

“Without prejudice to the preceding provisions of this section, the Attorney General, a person who was a candidate, voter or a political party which sponsored a candidate, may file an election petition challenging the nomination of a candidate by a political party or election of a candidate who contravened the requirement for disclosure of funds under this Act.”

161 Act No.6 of 2010

Page

70


Clearly, as could be gathered from the provisions of section 18(4) of the Elections Expenses Act, non-disclosure of funds for political campaigns has been added as another possible ground for avoiding an election lodged by the Attorney General.

2.1.4 Disqualification for Election

The general grounds for disqualification of a Member of Parliament are stipulated in the 1977 Constitution of the United Republic of Tanzania as amended. In terms of Article 71(1) of the Constitution, a Member of Parliament shall cease to be Member of Parliament and shall vacate his seat in the National Assembly upon the occurrence of any of the following matters:

(a) where anything happens which, had he not been a Member of Parliament, would have disqualified him from election, or would make him lose the qualifications for election, or would disqualify him from election or appointment in accordance with the provisions of this Constitution;”

In terms of Article 67.-(1)(h) of the Constitution, any person shall be qualified for election or appointment as a Member of Parliament if he –

(h) in accordance with a law enacted by Parliament dealing with offences concerning election of any kind such person has been disqualified from registering as a voter or from voting in a Parliamentary election.” (the emphasis is mine).

It is clear from the foregoing above provisions of the Constitution that the grounds for a person ceasing to be a Member of Parliament would also constitute grounds for avoiding an election under the electoral laws. Clearly, the categories of grounds for avoiding an election are not closed as there are other grounds stipulated under other written laws. The emerging jurisprudence from our courts of law on judicial interpretation within the bounds of judicial activism has contributed immensely to extending the categories of grounds for avoiding an election. This comes out more clearly from our discussion on the specific grounds of election petition which follow below after we have examined the standard and burden of proof in trial of election petition.

2.2 STANDARD OF PROOF

2.2.1 “Proved to the satisfaction of the court ”

The provisions of section 108(2) of the National Elections Act and 107(2) of the Local Authorities (Elections) provide the standard of proof in trial of election petition. It is proving any or all of the grounds for avoiding the election to the “satisfaction of the court.” I should hasten to point out here that the level of the standard of proof is more or less that which is applicable in trial of criminal cases, which is, beyond any reasonable doubt. I shall revert back to this point at a later stage in our discussion. Let me albeit very briefly explain on the required standard of proof in trial of election petition.

The law regarding the measures of proof in election cases is fairly settled now. In the case of CHABANGA M. HASSAN DYAMWALE vs. ALHAJI MUSA SEFU MASOMO AND THE ATTORNEY GENERAL162 it was stated that the standard of proof required to avoid an election is proof beyond reasonable doubt. In that case Sisya J. (as he then was) observed that the term “proved to the satisfaction of the court” means that the standard of proof must be such that no reasonable doubt exists

162 [1982] TLR 69 (HC) (Tanga)(Sisya J.) (Misc. Civil Cause No.13 of 1980

Page

70


that one or more of the grounds set out in the relevant section have been established. His Lordship paid tribute to this principle which was laid down by Georges C.J. (as he then was) in MBOWE vs. ELIUFOO.163

The case dealt with section 99 of the National Assembly (Elections) Act, 1964 as amended in 1965 which was repealed in 1970 and replaced by Elections Act No.25 of 1970 whose section 123 corresponds to section 99. The same meaning of the term and measures of roof laid down in Mbowe’s case (supra) was discussed in NG’WESHENI vs. THE ATTORNEY GENERAL.164 The phrase “affected the result” was a also judicially considered in the case of BURA V. SARWATT165 and the case of In RE K.A. THABIT166, which Onyiuke J. (as he then was) quoted in NG’WESHENI vs. THE ATTORNEY GENERAL (supra) which Sisya J. quoted in Dyamwale’s case at p.73 as follows:

“In the light of the authorities I would hold that the question whether non compliance with the provisions of the Act relating to elections affected the result of the election would depend on the nature of the particular complaint or irregularity and on the margin of victory. Where a specific irregularity has been proved and the number of votes affected established with some precision, then allowance should be made for that and if after adjustments have been made the successful candidate still retains some margin of victory then the irregularity has not really affected the result of the election. Where however, the complaint goes to the root of the election such as a case of organized campaign or undue influence, and it appears that a substantial number of votes were obtained (or, I may add, may have been obtained thereby), then since the extent of such wrong practice may never be known the Court may be inclined to hold that it affected the result of the election without proof of actual reversal of the result.”

On the issue of estimation of voters who failed or were prevented to vote and the consequences thereof, it seems that there are two guiding principles. The first is the one which was stated in NG’WESHENI vs. THE ATTORNEY GENERAL (supra) that where a specific irregularity has been proved and the number of votes affected established with some precision, then allowance should be made for that and if after adjustments have been made the successful candidate still retains some margin of victory then the irregularity has not really affected the result of the election.

The other principle which seems to be current in the multiparty elections is to make pro rata apportionment of the estimated votes between the contesting candidates and if the outcome of such exercise eliminates or considerably reduces the margin of victory, the court may hold that the election result is affected.167

2.3 BURDEN OF PROOF

The general principle in civil litigation is that he who alleges or asserts must prove on a balance of probabilities the existence of material facts by adducing cogent evidence to the satisfaction of the court. This principle is well captured under the provisions of section 110(1) and (2) of the Tanzania Evidence Act [Cap.6 R.E. 2002] which stipulates thus:

163 [1967] E.A. 240

164 [1971] H.C.D. No.151

165 [1967] E.A. 234

166 [1967] E.A. 777

167 See Hon. Lady Justice Stella Mgasha paper at page 15

Page

70


“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. “

In the case of an election petition which is sui generis, the standard of proof is over and above the normal standard and it is bet=yond any reasonable doubt. This means that a petitioner in an election petition has tough burden of bringing cogent evidence which will enable the court to be satisfied beyond any reasonable doubt that an election is void. The rationale is that since the court in an election petition is being asked to annul the choice of the electorate and turn down their will while at the same time unseating a candidate. This should not therefore be taken lightly but with the seriousness it deserves. As it was stated in LUTTER SYMPORIAN NELSON AND THE HON ATTORNEY GENERAL AND IBRAHIM MSABAHA 168

the burden is heavy on him who assails on election which has been concluded – he must prove his case beyond any reasonable doubt. The standard of proof however depends upon the seriousness of the allegation made and what is reasonable doubt is always difficult to decide and varies in practice according to the nature of the case as was succinctly stated by Lord Oakley at page 133 in PRESTON VS. JONES.169

2.4 SPECIFIC GROUNDS FOR ANNULING AN ELECTION

It is now settled law that the grounds stated in the electoral law for avoiding election of a candidate are not the only grounds as the courts have developed other grounds which are not expressly stated in the law and there are other grounds stipulated in other laws including but not limited to the Constitution, the Election Expenses Act and the Prevention and Combating of Corruption Act. Let us examine some of the specific grounds for avoiding election as gathered from case law jurisprudence.

2.4.1 Abusive and Defamatory Statements

The law targets statements made during the election campaign by a candidate or his agents with knowledge, consent or approval of the candidate with intent to exploit tribal or religious differences during the election campaign pertinent to the election. The case of LUTTER SYMPORIAN NELSON AND THE HON ATTORNEY GENERAL AND IBRAHIM MSABAHA170 perhaps depicts the best example where tribal differences were claimed to have been exploited during election campaign rallies by agents of the 2nd

Respondent urging the people to vote for the 2nd Respondent, their fellow “Mzaramo”, and not the Appellant, whom they described as “Mhaya wa kuja.”

The use of abusive and dehumanizing language during election campaigns as exemplified in the case of JOSEPH WARIOBA vs. STEPHEN WASSIRA AND TWO OTHERS171 or the use of defamatory statements as was the case in SEBASTIAN RUKIZA KINYONDO vs DR. MEDARD MUTALEMWA MUTUNGI172 or in CHOYA ANATORY KASAZI AND KASHEMEZA PHARES KABUYE AND THE HON

168 Civil Appeal No.24 of 1999 (unreported) discussed in the Paper by Hon. Lady Justice Stella Mgasha.

169 [1951] 1 All E.R. 124 cited by Hon. Lady Justice Mgasha in her paper

170 Ibid

171 Misc. Civil Cause No.25 of 1995 (unreported)

172 Civil Appeal No.83 of 1998 (unreported) discussed by Hon. Stela Mgasha J. in her Paper

Page

70


ATTORNEY GENERAL173, where they adversely affected the other candidate’s election campaign constitute grounds for annulling an election.

2.4.2 Non-Compliance with Electoral Law

In MUJUNI JOSEPH KATARAIA vs SAMWEL NTAMBALA LUANGISA AND ANOTHER 174 one of the complaints the appellant raised before the Court of Appeal was that there was an irregularity arising out of failure of the Assistant Returning Officer to follow the guidelines given in a booklet titled "Guide to the Presiding Officers on the Election Procedure." The said guidelines required the officers to record on the counterfoils of ballot papers three numbers - the registration centre number, the constituency number and the voter's serial number. In that case it was alleged that the officer had recorded the voter's serial number only and this was in compliance with s.61(c)(iii) of the Elections Act, 1985. It was held that the Elections Act requires only that the number of the voter be recorded.

In TALAZI ANTONI YOWELI AND 3 OTHERS VS ATTORNEY GENERAL AND ALLY RAMADHANI KIHIYO,175 Mapigano, J. (as he then was) held that where the National Electoral Commission fails in its duty to organize free and fair election by not providing adequate ballot papers thus rendering the citizens unable to vote due to shortage of ballot papers the election cannot be conducted in terms of the law and the citizens thereby fail to enjoy their basic right to vote. In that petition the election results for the Temeke Constituency in the 1995 general multiparty election was being challenged. Apparently a large number of voters could not vote due to shortage of ballot papers and the National Election Commission had to postpone the election.


174 [1986] TLR 53 (CA)

175 Civil Cause No.143 of 1995 c/f Misc. Civil Causes No.146 and 151 (unreported) discussed by Hon. Stella Mgasha in her Paper

Page

70


2.4.3 Candidate Unqualified at Time of Election

In terms of section 36 of the National Elections Act, the qualification for election or appointment as a Member of Parliament are as stipulated in Article 67(2) of the 1977 permanent Constitution of the United Republic of Tanzania as amended from time to time. According to Article 67(2) of the Constitution, for a person to qualify for election or appointment as a Member of Parliament, he or she must be a citizen of the United Republic who has attained the age of twenty-one years and who can read and write in Kiswahili or English; and is a member and a candidate proposed by a political party.

The qualifications for election as a member of a local government or stand as a candidate at an election for local government authorities are clearly stated under section 39 of the Local Authorities (Elections) Act. They include citizenship of the United Republic; attainment of age of twenty one years; and member of and sponsored by registered political party.

The issue of citizenship as a qualification for election as Member of Parliament came for thorough discussion in ATTORNEY GENERAL AND TWO OTHERS VS AMAN WALID KABOUROU176 where it was held among other things that the three factors which determine citizenship by birth are firstly, being born in Tanganyika by 8 December 1961; secondly, being a citizen of the UK and colonies or being a British protected person on 8 December 1961; and finally having at least parent born in Tanganyika. In ARCADO NTAGAZWA v BUYOGERA BUNYAMBO (supra), the issue of citizenship of a candidate for election purposes was also discussed in depth.

3.0 CONCLUSION OF TRIAL OF ELECTION PETITION

3.1 Certification by Court as to Validity of Election

In terms of section 113(1) of the National Elections Act and section 112 of the Local Authorities (Elections) Act, at the conclusion of the trial of an election petition or an appeal (in the case of the High Court or Court of Appeal) the court has to make the following determinations:

- Whether the member (MP or Councilor) whose nomination or election is complained of, or any other person; or

- Which person was duly nominated or elected or

- Whether the election was void.

After making such determination, the court then has to certify it to the Director of Elections in the case of parliamentary election or the Electoral Authority in the case of election in local authorities. Upon such Certificate being given, the determination becomes final and the election will either be confirmed or a new election will be held as the case may require in accordance with the certificate.

It is worth noting the provisions of section 111 of the National Elections Act and section 112 of the Local Authorities (Elections) Act relating to the reliefs which a petitioner is entitled to claim in an election petition namely:

(a) A declaration that the election is void;

(b) A declaration that the nomination of the person elected was invalid;176 [1996] TLR 156 (CA)

Page

70


(c) A declaration that any candidate was duly elected;

(d) Where the seat is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes, a scrutiny.

Under the existing electoral laws, it is not open for a court after trial of an election petition to declare any other candidate other than the one whose election has successfully been challenged as having been duly elected. The only recourse open is therefore for the electoral authority to call for and hold of a bye-election, which as we all know comes with a price on the economy. The issue is whether the law should be changed to empower the court to declare another candidate duly elected instead of only certifying and thereafter a bye-election is held.

4.0 GENERAL CONCLUSION

This Part has dealt with the grounds for avoiding an election and the standard of proof. The business of a judge or a magistrate in a trial of an election petition is to be satisfied that the grounds for annulling an election have been proved to the required standard. Election petitions are a seasonal business in our courts. They are not an everyday business of the court and hence the need for this training. The need for judges and magistrates to be armed with requisite tools of their trade including relevant electoral laws and rules and guidelines to effectively and efficiently administer electoral justice cannot be overemphasized.

THANK YOU FOR YOUR ATTENTION!

Documents

Election Avoidance II