IN THE HIGH COURT OF TANZANIAAT BIHARAMULO

ORIGINAL JURISDICTION

(Bukoba Registry)

MISC. CIVIL CAUSE NO. 10 OF 2005

In the matter of Election Petition under the National Elections Act (Cap. 34) and the Elections (Election Petitions) Rules

CHOYA ANATORY KASAZI ………………………….PETITIONER

VERSUS

1. KASHEMEZA PHARES KABUYE ……………1ST RESPONDENT2. THE ATTORNEY GENERAL …………………2ND RESPONDENT

JUDGMENT

27/8/2007 & 12/10/2007

MUSSA, J;

In the parliamentary elections held on the 14th day of

December 2005, the petitioner and the respondent, among others,

contested the Biharamulo West constituency as, respectively,

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candidates of Chama cha Mapinduzi (CCM) and the Tanzania Labour

Party (TLP). The other candidates were, namely, Rashid Issa Sadick

of CUF and Faustin Gerald Nzigu of CHADEMA.

At the end of the exercise, the election results were

pronounced by the returning officer according to which the

respondent polled 24,234 votes; the petitioner 23,032 votes; the CUF

candidate 1,575 votes and; the CHADEMA candidate 1,345 votes.

The respondent was, therefore, declared the winner with a majority

of 1,202 votes over his nearest rival, the petitioner.

The petitioner is at odds with the manner in which the

elections were conducted and; seeks to avoid the elections results

upon a petition comprised of fourteen grounds of grievance in which

he joints the winner as the first respondent and the Attorney General

as the second respondent. On the premises, the petitioner seeks a

variety of reliefs all of which culminate into a prayer for a declaration

that the election of the respondent as member of Parliament for

Biharamulo West was null and void.

Before me, the petitioner had the services of Mr. J.S.

Rweyemamu who was assisted by Mr. Chamani, both learned

advocates, while the first respondent was represented by Mr.

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Magesa, also learned advocate and; the second respondent had the

services of Mr. Vitalis, learned state attorney. The trial took over a

week or so in the course of which the petitioner fielded six witnesses

him inclusive as well as numerous documentary exhibits; the first

respondent eight and; the second respondent ten witnesses.

The petition conveniently falls into three distinct parts, that is,

allegations of defamatory statements; irregular counting procedure

and; illegal practice or intimidation by the first respondent and/or his

agents. At the outset, the following issues were agreed and framed

by the court for determination:-

1. Whether or not the petitioner vehicle was attacked by

the 1st respondent or his agents at Musenyi and

whether the supporters of the petitioner were

obstructed by the supporters of 1st respondent while

enroute from Musenyi at Biharamulo Bus stand.

2. Whether or not during the campaigns the 1st

respondent made allegations against the petitioner to

the effect that the petitioner has killed his mother in law

and his brother and buried a shrouded live cow so as to

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become an MP and further whether the 1st respondent,

during the campaigns, made statement to the effect that

the petitioner had sexual intercourse with one Humuds’

wife.

3. Whether or not the first respondent, during the

Campaigns, made allegations to the effect that the

petitioner had misappropriated a portion of the funds

aimed at the construction of Nyakahura Secondary School

and used that portion of the funds to construct his own

house and; further whether or not the 1st respondent

falsely alleged that the petitioner closed down a one year

nursing course programme at the Biharamulo Hospital

to the detriment of the votes.

4. Whether or not the 1st respondent made false

allegations against the petitioner to the effect that he did

file an objection to the returning officer to the effect that

teachers should not be used in the electoral process and

thereby cultivating an air of contempt between

the petitioner and teachers.

5. Whether or not the counting procedure as alleged

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in forms No. 21B was irregular and if this

irregularity affected the results.

6. Whether or not at Runazi, Nyarubungo, Biharamulo

town and Rusahunga polling stations votes were

intimidated, discouraged misled as well as scared

hence were so many spoilt votes and blank papers to

the effect that the elections were not free and fair.

7. Whether or not to suit the desired results, the

Presiding officer did not post the election results.

8. To what reliefs are the parties entitled.

As it, however, later became apparent, the petitioner did not

lead evidence in support of some of the allegations as contained in

the Petition. Mr. Rweyemamu concedes that much and, in effect,

abandons any further comment in pursuit of Issues Nos.6 and 7. I

will be loath to have to tread an abandoned course and; accordingly,

issues numbered 6 and 7 are straightaway answered in the negative.

I propose to consider the petition in the light of, and in the order of

the remainder of the issues.

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Issue No.1

This issue was the subject of the testimony of the petitioner

(PW1) and that of Andrew Bulimbalwa (PW2). It was said that on

the 13th day of December, 2005 around 6.00pm, the petitioner,

Andrew and several other CCM party officials were enroute from

Musenyi locality to Biharamulo township. All were in a private motor

vehicle belonging to and being driven by the petitioner . At some

place, just a little outside Musenyi, the driving party heard noises

from persons chanting with this:-

Kabuye Oyee, Kabuye Oyee, Kabuye

Ameshashinda, wewe unajisumbua tu.

The occurrence was in the heart of a forest where the road

was stony and; as a result, the petitioner was said to have been

driving very slowly. Next, the shouting intruding party was heard

counting:- moja, mbili, tatu, twende! And, all of a sudden, the

petitioners’ vehicle was studded with stones. In the ensuing fracas,

the vehicles’ right hand window glass was said to have been broken

and its body dented but; the petitioner drove on to eventually safely

arrive home. This being the evidence, it was the case for the

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petitioner that their assailants were agents of the first respondent.

This, he said, he figured from their speech at the time of the attack.

To this version as told by the petitioner and his witness, the

first respondent denied any involvement. His case was that, at all

the material times, he was at his residence and never moved out.

He knew nothing about the allegation of the petitioner being attacked

with stones and did not procure any of his agents to perpetrate the

attack.

On the evidence adduced on this issue, counsel for the

petitioner urges that the occurrence of the attack has been

established beyond peradventure. That may be so but, to me, it

would not really suffice to merely prove the occurrence of the attack.

It would have required proof of either the personal involvement of

the first respondent or his agents for the petitioner to carry the

allegation as contained in ground No. 5 of the petition. In the

matter presently before me, both eye witnesses conceded to not

having seen the first respondent at the scene of the attack. Neither

did they identify any of the assailants and one cannot positively

assert, then, that the stone throwers were known supporters of the

first respondent. As correctly formulated by Mr. Magesa, the

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pronouncements at the time of the attack cannot, alone, exclude the

possibility that the assailants were actually pretenders intent upon

disguising their own felonious purpose. In the light of the foregoing,

issue No. 1 is answered in the negative.

Issues Nos. 2, 3 and 4

A common question is involved on these issues and that is

whether or not the first respondent made certain scurrilous

statements pertinent to the petitioner. That being so, the issues are

conveniently and more appropriately resolved upon a unison

consideration than would if discussed separately.

The impugned statements were basically accusations allegedly

made by the first respondent at respective campaign rallies and

directed against the petitioner. It was said that the first respondent

made accusations, first, that the petitioner, ostensibly, by means of

witchcraft, killed his mother-in-law, brother and buried a shrouded

live cow at the backyard of his house in order to retain his

parliamentary seat; second, that the petitioner had an adulterous

association with one Humuds’ wife; third, that the petitioner

misappropriated a portion of funds aimed at the construction of

Nyakahura Secondary School and converted the same to the

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construction of his own house; fourth, that the petitioner unilaterally

closed down a one year nursing course obtainable at Biharamulo

Hospital and; fifth that the petitioner had objected to the use of

teachers in facilitating the electoral process.

These alleged accusations by the first respondent were

testified to by the abovenamed Andrew (PW2), Abdallah Zedi (PW3),

Emmanuel Mashahidi (PW4) and Joshua Ruhazwe (PW5). It was

thus, respectively, said that the first respondent spoke those words

on the 8th day of October, 2005 to a campaign gathering of 300 to

400 people at Ruziba Centre (PW2); On the 28th day of August, 2005

to a rally comprised of about 500 people at Biharamulo bus stand

(PW3); on the day of October, 2005 to a gathering of about 200 to

300 people at Ng’ambo area (PW4); on the 30th day of September,

2005 to an undisclosed number of persons at Bisibo Ward (PW5)

and; On the 5th day of September, 2005 to a gathering of about 800

people at Runazi (PW5).

More particularly, PW5 testified to the effect that the first

respondent told the Bisibo and Runazi gatherings that the petitioner

tried to block the income of teachers by writing to the returning

officer to disallow them from facilitating the electoral process but that

he will fight on until teachers were allowed to participate. He also

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was said to have posed a question at Bisibo as to whether a person

who kills his own relatives to win the seat should be elected? And,

actually told the Runazi rally to forget about the CCM candidate who

killed his own relatives to win the parliamentary seat.

The petitioners’ witnesses, that is, PW2, PW3, PW4 and PW5

all said that they believed the first respondents’ accusations including

the bit about the petitioner killing his own relatives as a ritual

sacrifice on account that the first respondent was a respectable

person in that locality and that the petitioners’ mother-in-law and

brother actually died in succession a few days before the campaigns.

The petitioner, for his part, testified that it is quite true that

one month before the primary nominations, his mother-in-law died of

what he conceived as a natural death while she was being during the

taken to hospital. His young brother also died of natural causes

elections campaigns. The petitioner refuted the accusation that he

buried a shrouded live cow at the backyard of his residence.

The petitioner additionally testified that he was the one who

conceived the idea of building Nyakahura Secondary School and

prepared a project appraisal towards the building of it which he

submitted to the Japanese Embassy for funding. He personally

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contacted the Japanese Ambassador who extended a USD 42,000

grant towards building the school. The money was transferred to a

Biharamulo account and used to construct the school without him

converting a single penny of the projects’ funds for personal gain.

To support the petitioner was Apolinary Gervas Mgalula (PW6), a

Nyakahura councilor who also provided the minutiae of the project.

As regards the discontinuation of the nursing course

obtainable at Biharamulo Hospital, the petitioner said he had nothing

to do with the course of action which was actually taken by the

Ministry of health itself. He also denied to have written the

returning officer to disallow teachers from facilitating the electoral

process.

The petitioner also denied the accusation of committing

adultery with the wife of a Mzee Humud. He said that the wife of

Mzee Humud who, presently, is a deceased person, was a councilor

who used to request a lift on his car to take her to various meetings.

As such, he had a good working relationship with Humuds’ wife but

denied ever having sex with her.

This being the evidence, it was the case for the petitioner that

the statements allegedly made by the first respondent tended to

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expose him to contempt or ridicule and injure his reputation before

the electorate.

These allegations are categorically denied by the first

respondent. More particularly, while he does not quite dispute

having addressed a campaign rally at Ruziba, the first respondent

refutes to have made the impugned statements against the petitioner

as held out by PW2. At the rally, of which he could not remember

the date, the first respondent talked about building a road from

Biharamulo to Kayeru; putting up a dispensary at Katerela; providing

electricity to Ruziba from Biharamulo town and; promoting Kagango

Secondary School to a High School status. The first respondent said

that PW2 told a falsified account and that the witness was not even

among those present at the rally.

The first respondent fielded a witness, namely, Joseph

Matabalo Stephan (RW3), the village Executive Officer, who said the

meeting at Ruziba was held on the 8th day of October and attended

attended by 300 people or so. All this witness heard was the first

respondent speaking about helping people in development activities

particularly towards building the road from Biharamulo to Chakende

and; that if elected, he would be a member of parliament for all

without regard to colour, religion or political affiliation. Joseph said

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he did not hear the first respondent pronouncing any of the

allegations against the petitioner. But this was also the witness who

yielded under cross-examination that he had specific instructions

from the first respondent on what to testify.

The first respondent further conceded to have presided over a

campaign meeting within Biharamulo township. Only he says the

rally was held at soko jipya from 3.00p.m to 6.00p.m. It should be

recalled that PW3 had said that the rally took place on the 28th day of

August, 2005 at Biharamulo bus stand. But Antidius Mwesigwa

(RW4) whom the first respondent called to testify for him clarified

that the place is also known as soko jipya.

The first respondent testified to the effect that he told the

gathering there about the need to complete construction of the road

from Kagoma to Lusahunga; to elevate Biharamulo to a town council

status and; again, the need to promote Kagango Secondary School

into a High School. He denied saying anything pertinent to the

petitioner and accused PW3 of having told lies. His witness, RW4,

that is, confirmed having heard the bit about the Kagoma –

Lusahunga road and additionally added that the first respondent

spoke about rallying people to combat poverty, Ignorance and

decease. He too did not hear the first respondent speaking anything

against the petitioner.

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As regards the Ng’ambo rally, the first respondent also

admitted to have addressed although he could not assign a date.

There, the first respondent allegedly expressed the need to have a

tarmac road from Biharamulo to Mwanza and from Kagoma to

Lusahunga. He denied uttering any of the statements referred to by

PW4 saying the latter told lies as he was not at the gathering. He

also imputed that PW4 was a campaign manager and a close

associate of the petitioner. But the first respondent did not deem it

opportune to call any of those present at the gathering to additionally

refute the allegations made by PW4 against him.

With respect to the rally allegedly convened at Runazi, the

first respondent would rather have it that the rally convened at

kikomakoma than was at Runazi which is five kilometers away. The

first respondent said that he addressed another meeting at the

neighbouring Rwekubo that same day but did not go to Runazi,

properly so-called. It should be recalled that PW5 held out in his

examination-in-chief that the meeting was convened at Runazi but;

not insignificantly, clarified under cross-examination that the meeting

was actually held at kikomakoma which is within Runazi ward. That

kikomakoma is within Runazi ward is a fact confirmed by the first

respondent himself. I should express at once that, for what it is

worth, there is no vast deal in this apparent misdescription or

whatever be it. This stance, I will later elaborate.

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In substance, the first respondent testified that all he spoke

about at kikomakoma was on the need to rally Government efforts in

building a tarmac road from Kalekezo to Bwanga. It was not true,

he said, that he accused the petitioner with any of the allegations

testified to by PW5. To support him was Jonas Kasigara (RW5) who

also claimed the first respondent did not utter those accusations at

the gathering. They also both said that PW5 was not at the

gathering for; had he been there, they would have seen him. As

regards the rally allegedly convened at Bisiko ward which was also

the subject of PW5’s testimony; the first respondent said nothing in

response. But his witness, namely, Francis Chasama, (RW6) did.

The witness confirmed that an election campaign meeting was held

at Bisiko on the 30th day of September, 2005 in which the first

respondent addressed a gathering of about 150 people. There, the

first respondent talked about the need to have a motor vehicle to

facilitate the Prisons, Biharamulo; the need to promote Biharamulmo

into a town council status; the need to promote Kagango Secondary

School into a High School; the need to build a road from Bisiko to

Musenyi and; the need to build a dispensary to cater for Musenyi and

Katerera. The witness did not hear the first respondent making any

of the alleged accusations against the petitioner.

Having denied all allegations of making statements pertinent

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to the petitioner including the detail about the petitioner having an

extra-marital affair; the first respondent, ironically though, introduced

Humud Salum (RW2) as his witness. Humud is the estranged

husband of the late Afisa Mussa Nshongwe whom was alleged to

have had an adulterous association with the petitioner.

His evidence was that his relationship with his late wife turned

sour with effect from year 2000 upon being informed that the latter

had an extra-marital affair with the petitioner. The witness

commenced his own investigations the results of which, often times,

he would see his wife being driven back home by the petitioner in the

latters’ car. The twosome would then spend quite a good while

talking in the car before moving into the matrimonial home where the

petitioner would stay up to midnight and drive off. Rather

dramatically, RW2 would hide somewhere outside his house and,

again, paradoxically, passively watch all this happen. Humud also

related to an occurrence in the year 2001 when his wife is said to

have traveled to Dodoma at the instance of the petitioner without

word to him. His late wife came back with a radio cassette recorder

which, she said, was given to her by the petitioner. Against this

backdrop, the way it appears, Humud figured that his wife was

having an extra-marital affair with the petitioner to which he

complained in writing to the District Commissioner and BAKWATA

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before the couple formally separated year 2003.

A good deal later, on the 2nd day of September 2004, Humud

had his vehicle broken at a place near his farm when the petitioner

and his estranged wife drove past. Apparently, to confirm his worst

fears, the petitioner is said to have slowed his car and; they both

laughed at him and drove off without offering assistance. As to

what this aspect of the case for the first respondent is all about,

would become apparent in the course of my determination of the

nitty-gritty of the matter, that is, if at all, the impugned statements

were made and their impact on the contested election.

Towards the resolve of the question involved, I have

subjected the whole of the evidence to anxious and careful

consideration. Quite obviously, the petitioners’ contention is

founded wholly on the respective claims of his witnesses, denied by

the first respondent and his witnesses; that the first respondent

actually made those pronouncements at campaign rallies. That

being so, the sustainability of the petitioners’ contention wholly

depends on the credibility and reliability of both the contending and

countering witnesses.

In this regard, Mr. Magesa for the first respondent singularly

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seeks to impugn the credit of PW5 and; although he does not

single out the remainder of the petitioners’ witnesses as particularly

unangelic, counsel does submit, in effect, that their testimony is

demolished by what he conceives strong evidence of rebuttal from

the first respondent and his witnesses.

I have already indicated the extent to which the first

respondent and his witnesses countered the case for the petitioner

with a diametrically opposed version. Expounding on his criticism of

PW5, learned counsel for the respondent singles out the fact that the

witness said in his in-chief that the campaign rally he was testifying

on took place at Runazi whereas in fact the same was held at

kikomakoma. On the premises, counsel urges that PW5 is a liar and

unworthy of credit. As hinted above, PW5 clarified this aspect of his

testimony with an explanation that the campaign rally was held at

kikomakoma but he referred to Runazi simply because the former is a

village within the latter Ward. As I have already said, there is,

afterall, no vast deal in learned counsel criticism and the

misdescription, if at all, is essentially a matter of deal rather than

substance which neither contributes to, nor detracts from, the

strength of the witnesses’ allegations against the first respondent.

Mr. Magesa goes so far as suggesting that PW5, a CHADEMA

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District publicity secretary, was just hired by the petitioner to

come and tell lies in court. With respect, there being not a speck

of evidence to that effect, the imputation is far fetched and hangs on

too thin a thread to hold. On the contrary, if the predominant

political into lerance is anything to go by, I cannot hide my being

impressed by PW5 who, as a CHADEMA stalwart, traversed

partisanship to come with what he conceived to be the factual truth

which, to me, adds to his credit.

On the whole PW5 and, indeed, the remainder of the

Petitioners’ witnesses, were unshaken in their telling of the

pronouncements of the first respondent in relation to the petitioner.

The witnesses, that is pw2, PW3, PW4 and PW5 were Ordinary,

simple citizens from different walks of life. From my own, respective

and singular, impression of their demeanor, manner and bearing in

the witness box, I am thoroughly convinced that the witnesses were

not only bent on truth but that they told this tale without the

slightest ill will or disfavour towards the first respondent. They all

expressed themselves in relatively strong terms on this matter and; it

seems to me inconceivable just as it is all the more unlikely, that

simple, ordinary personalities of the likes of the petitioners’ witnesses

would converge from different walks of like and fabricate a case

against the first respondent. Indeed, apart from PW4 whom the first

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respondent and his counsel attempted to depict as the petitioners’

stalwart, it was not suggested, if at all, the petitioners’ witnesses had

reason to manufacture the version against the first respondent.

As already indicated, the first respondent personally denied

the allegations and brought witnesses to counter them. The counter

allegation was that he did not pronounce the alleged specific

accusations against the petitioner in any of the respective campaign

rallies. The first respondent was subjected to focused cross-

examination from which, I would say, he was not entirely unscathed

by an accusation of being given to telling half truths. Upon being

reminded that he, on occasion, told parliament that he taught in

institutes and secondary schools, of which he had not; the first

Respondent preferred to bury his head unto parliamentary privilege

than furnish an elaboration. Quite frankly, such was an idle

approach designed to evade rather than meet the difficulty. But to

me, it augurs with the first respondents’ denial of the accusations

against him which, I find, were a belated invention designed to evade

his own folly. That such was the case, is in a way apparent from the

concession of RW3 to the effect that he had had his testimony

dictated to by the first respondent.

Having been impressed, as already indicated, by the version

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as told by the petitioners’ witnesses, I will, accordingly, dislodge the

account given by the first respondent and his witnesses to the effect

that he did not utter the statements presently sought to be impugned

by the petitioner.

To this end, I accept the account related to by PW2, PW3,

PW4 and PW5 to the effect that the first respondent uttered the

statements pertinent to the petitioner at the respective campaign

rallies. Accordingly, subject to the magnitude and effect of these

statements on the contested election, to which I will revert to later,

issues Nos.2, 3 and 4 are answered in the affirmative. As to what

the utterances are all about in law and, in particular, the electoral law

of this country, is a subject to which, as I said, I defer to a later

moment in my judgment. In the meantime, I will consider the

remainder of the framed issues.

Issue No. 5

This issue relates to an alleged irregular counting procedure

and is actually wholly the mainstay of the petitioners’ own testimony

which he sought to support with numerous documentary exhibits.

Briefly stated, the case for the petitioner is that in several

polling stations, the final entries in form No. 21B differed from that

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originally released to the polling agent which, to him, was indicative

that the counting process was a mess. But for a better appreciation

of the gist of the petitioners’ grievance and the rebuttal thereto, I

deem it instructive, in the first instance, to revisit the counting

procedure as laid down in the relevant provisions of the electoral law

and its regulations.

To begin with, unless directed otherwise, the counting of

votes immediately succeeds the closing of the poll and is done at the

polling station by the presiding officer assisted by the polling

assistants assigned to any given station. The counting is done in the

presence of polling agents, among others, if present. Each

complaint made which can be resolved or settled, is resolved or

settled at the stage at which it is made and the presiding officer

prepares an account to be submitted to the returning officer.

When it comes to counting, the presiding officer counts aloud

and records the votes in each lot and verifies their total with the total

of all the ballot papers which were found in the ballot box and the

number of voters who cast their votes at the polling station.

Upon the conclusion of the counting of the votes the presiding

officer is enjoined, inter alia, to require the polling agents or, the

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candidate, if present, to state any complaint or to confirm satisfaction

with the counting of votes; prepare a report of the results, in the

manner and form as the commission may direct, which shall be

signed by the presiding officer and the polling agents, if present; affix

in some conspicuous place a copy of the results and; if available in

sufficient numbers, give each of the polling agents present a copy of

the report of the results. It is commonplace that the commission

devised and prescribed Form No. 21B unto which results are posted

and which, in effect, constitutes what is termed by the National

Elections Act as a report of the partial results of the elections at the

polling station. Also common ground is the requirement to transmit

the so-called report of partial results to the returning officer at

the District Center where the addition process takes over from the

counting process.

That said and, naturally, upon the counting exercise being

well done at any given polling station, the entries posted in the

report transmitted to the returning officer ought to necessarily tally

with those on its copy posted at a conspicuous place at the polling

station just as they must dovetail with those on the copy availed to

the polling agent. The gist of the petitioners’ complaint is in the

claim that in several polling stations the contrary was true in that

entries in Form Nos. 21B transmitted to the returning officer were

different from those availed to his polling agents.

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The petitioner singled out sets of forms No.21B from several

polling stations to demonstrate his grievance. These were from

Biseko C and kabukoma B polling stations which were admitted,

respectively, as P1 and P2. The rest were from kabukoma B, Ofisi

ya kijiji Rusabya B, Shule ya msingi kisuma C, Shule ya msingi mizani

B, Zahanati ya Zamani Nyakahura, Ofisi ya kijiji Kagoma A, Mwamitiro

A, Ofisi ya kijiji Kagoma B, Shule ya msingi Nyamigogo and Ofisi ya

kijiji Kasozi Bakaya A. These were collectively admitted as exhibit P3

except for the one for ofisi ya Kijiji Kagoma B which was admitted

belatedly as exhibits P4. From each of these polling stations are two

forms No.21B comprised of the one availed to the petitioners’ polling

agent and acorresponding copy that was transmitted by the presiding

officer to the returning officer .

The case for the petitioner was that on each set of these

forms the details on the one transmitted to the returning officer do

not tally with those on the one availed to his polling agents. It was

his polling agents. It was his contention that the discrepancies were

a result of irregularities during the counting process.

To this contention, the returning officer, namely, William

Mgalula (RW9) vigorously countered in his examination-in-chief

saying that as there was no complaint pertaining to the counting

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process, the exercise was conducted without incident and that

therefore, the petitioners grievance was without merit. Upon being

cross-examined; however, and shown the impugned exhibits P1, P2,

P3 and P4; the witness conceded that there were some discrepancies

in the corresponding forms of which he could not explain. A

painstaking comparison of the corresponding forms No. 21B all but

confirms the petitioners’ contention.

In two of the sets of corresponding forms, for instance, the

one from Biseko C (exhibit P1) and the other from Shule ya msingi

Kisuma C (exhibit P3) the entries were made by two different

persons. In the report from Biseko C transmitted to the returning

officer, the presiding officer who signed on form No.21B was Debora

Kagashe whereas in the one availed to the petitioners’ polling agent,

the presiding officer indicated there was Novati Mathias.

Debora Kagashe (RW8) who was called by the second

respondent, clarified that the presiding officer was one Nestory

Tibasima and she was polling assistant No.1 whereas Novati Mathias

was polling assistant No.2. Debora did not elaborate on why form

No.21B transmitted to the returning officer was signed by her and

not the presiding officer and neither could she explain why the other

polling assistant signed on the form availed to the petitioners’ polling

25

agent. She conceded, however, that the entries on the

corresponding forms do not tally.

As regards Shule ya msingi Kisuma C polling station, the

report submitted to the returning officer was prepared and signed by

Boniface Dotto whereas the one given to the petitioners’ polling

agent was done by Benjamin Kanozi (RW12). It was the latter who

was the presiding officer assisted by Boniface Dotto and Josephat

Absolomu who were, respectively, polling assistants Nos. 1 and 2.

In the witness box, Benjamin was prevaricative but; all the same, he

could not explain the glaring difference on the entries in the

corresponding forms.

In the remainder of the forms produced by the petitioner,

discrepancies would be located on a column at the foot of the

prescribed form and the corresponding forms would differ in one or

several of the details pertaining to the number of registered voters;

the number of those who turned up to vote; the number of disputed

votes; the number of rejected votes and; the number of valid votes.

The odds are that the entries were doctored a good deal later, rather

wittingly, to, perhaps, synchronise figures and attain mathematical

precision. On the premises, the petitioner advises that the

irregularities went to the root of the election. Mr. Rweyemamu

26

submits, in effect, that the counting procedure was a total mess and

had a bearing on the election results.

For my part, I accept, without hesitation, that at the

time of counting there were non-compliance with the provisions of

the Act pertaining to counting procedure at several of the referred

polling stations. If such were not so, the glaring discrepancies

would have been easily explained. But, with respect, if the

petitioner succeeded in establishing irregularities pertaining to the

counting procedure; he miserably failed to establish, to the

satisfaction of this court, the magnitude to which the alleged

irregularities operated to affect the results of the election. It seems

to me that on each case where the issue of non-compliance with the

provisions of the Act is raised, such non-compliance must be shown

to have reference to the results of the election.

In this regard, I entirely subscribe to the submissions of

learned counsel for the first respondent on the note that, on the

evidence, all what was established was that there were some errors

in the recording of figures but that it was not sown that the errors

went to the root of the election. To the extent that the irregularities

are not shown to have effected the results, issue No.5 is answered in

the negative.

27

It is now opportune to revert to the deferred matter pertaining

to the statements pertinent to the petitioner uttered by the first

respondent at the referred campaign rallies.

In sum, I have found as an established fact that the first

respondent uttered the impugned statements referred to in grounds

Nos.6, 7 and 8 of the petition as well as issues Nos.2, 3 and 4 at

campaign rallies he addressed at Ruziba, Soko jipya, Ng’ambo, Bisibo

and kikomakoma. In their totality and effect, the first respondents’

utterances were that the petitioner was a witch who killed his own

mother-in-law, brother and buried a shrouded live cow to retain his

parliamentary seat; an adulterer; a thief who converted the

Nyakahura project funds to personal use; a person who unilaterally

closed a nursing course obtainable at Biharamulo hospital and; a

person who attempted to block teachers from facilitating the electoral

process.

It is beyond argument, I would say, that the utterances under

reference were, indeed, scurrilous much as they do contain, with

respect to the petitioner, matters likely to injure his reputation by

exposing him to hatred, contempt or ridicule just as they were likely

to damage his calling as a politician by such an injury to reputation.

28

To my understanding, defamation is the publication of a

statement which tends to lower a person in the estimation of right –

thinking members of society generally or which tends to make them

shun and void him. There was some evidence to the effect that up

until when he sought re-election, the petitioner has been member of

parliament for ten years and earlier also served a responsible

capacity in the immigration Department.

No doubt, to many, the effect of the utterances complained of

depicted him as irresponsible and, perhaps, unworthy of the trust of

his constituents. The utterances were amply publicised much as it is

clear from the narrative of the witnesses that the campaign rallies

attracted hundreds of listeners. The utterances of the first

respondent in those referred campaign rallies were, so to speak,

clearly defamatory of the petitioner. The reputation of the petitioner

was, accordingly, widely tarnished and in some of those remarks,

were matters abusive in nature that might have attracted the wrath

of criminal action.

The publication of a defamatory matter is, however, justified if

the matter is true and it was for the public benefit that it should be

published. In this regard and; particularly with reference to the

extra-marital accusation, the first respondent or, rather, his counsel,

29

was dithering between two courses of action, mutually exclusive.

While denying ever having accused the petitioner of having an extra-

marital affair, the first respondent, in the same breath, enlisted the

testimony of Humud who actually sought to justify that the petitioner

had an extra-marital affair with his wife. This attempt to justify

prompts an invitation from counsel for the petitioner for the court to

find, in the justification efforts, an implicit admission of the

utterances. With respect, I do not think I should go that a in as

much as it may be that the justification attempt was simply derived

of a lapse in tactics. More pertinently, Humuds’ account does not, at

all, appeal to me as sufficient to sustain or justify the accusation that

the petitioner had an adulterous affair with his wife. His was more

of the voice of a suspicious, lamenting husband than constituted

sufficient and conclusive evidence of an adulterous association.

A similar attempt, although hardly persued, was made by

counsel for the first respondent to justify the misappropriation

allegation in the course of cross-examining PW3. On the whole,

none of the impugned utterances was excusable or justifiable but;

the knotty issue is, here, whether or not defamatory utterances, as

such, qualify to avoid an election. It is a question to which both Mr.

Magesa and Mr. Vitalis struggled with a quite refreshing argument.

30

Both learned counsel contentions derive inspiration from the

provisions of the National Election Act, the relevant provision of

which is now embodied in section 129(2) of the revised edition 2002.

It was submitted, in effect, that only statements intended to exploit

tribal, racial, religious or sexual differences are within the

contemplation of the provision and; a complaint based on defamatory

statements, without more, would be both misconceived and

unfounded as the courts are no longer at liberty to use any other

ground to avoid an election. To appreciate the gist of learned

counsel contention it may be pertinent to take a brief account of the

route through which this provision has traveled.

For quite a good while, the relevant provisions were embodied

in section 108(2)(a) of the Act which stipulated thus:-

(2) The election of a candidate as a member

shall be declared void on any of the

following grounds which are proved to the

satisfaction of the court, namely –

a) that, during the election campaign,

statements were made by the

candidate or on his behalf and with

his knowledge and consent or approval

with intent to exploit tribal, racial or

31

religions issues or differences pertinent

to the election or relating to any of the

candidates or where the candidates are

not of the same sex, with intent to

exploit such difference;

On the 21st day of April, 1995 Parliament passed and effected

an amendment comprised in the Elections (Amendment) Act No. 8 of

1995 through which the whole of the introductory subsection (2) was

deleted and substituted for it the following:-

(2) The election of a candidate as a member

shall be declared void only where any of

the any of the following grounds is proved

to the satisfaction of the court and on no

other ground, namely:- (Emphasis supplied).

The introductory subsection as contained in section 129(2) of

the revised edition, 2002 now reads:-

The election of a candidate as a member of

parliament shall be declared void only on an

election petition if the following grounds are

32

proved to the satisfaction of the High Court

and on no other ground, namely:-

(Emphasis supplied)

It was not immediately clear to me as to exactly when the

expression only where washed down the drain to be replaced by

only on an election petition and; neither could I ascertain how

the words parliament and High were brought on board. Be that

as it may have happened, the relevant expression is here and on no

other grounds which, clearly, is still contained in the provision.

Mr. Rweyemamu urges that it is still open to challenge the

validity of an election on grounds not otherwise expressly provided.

To this view he partly relies and draws the courts’ attention to the

pronouncements of the Court of appeal in Attorney General and 2

others versus Aman Walid Kabourou [1996] TLR 156. Both

Mr. Magesa and Mr. Vitalis counter that Kabourou is no longer good

authority in as much as the decision was prior to the amendment

introducing the expression “and on no other grounds.”

Rather less straightforward, before I address learned rival

arguments and; needless to have to question the wisdom of the

33

legislature which is not my mandate, I feel entitled to my own

generalised comments on the effected amendment.

Quite frankly, to me, the expression “and on no other

ground” sounds very ill. For one thing, it is, if I may be excused to

express, a reflection of slovenly drafting not giving allowance to the

notorious fact that, more often than not, on account of sheer human

fallibility, a legislative invention suffers from in exhaustiveness and; it

is unwise, then, to clog a provision of the law with such expressions

as would limit the scheme and scope of the intendment. For

another, I am afraid to say, the expression is suggestive of some

anxiety by the legislature to exercise kind of unwarranted

superintendence over the judicial arm of the state. But, that was,

as I said, slightly besides the point.

Back to the point of contention, I entirely agree that

defamatory statements that have no bearing to tribal, racial, religions

or sexual issues are not within the contemplation of the provisions of

section 129(2)(a) R.E. 2002. True, as already indicated, at the times

of Kabourou the law read differently and upon consideration, the

court observed that the provision of the law was not intended to be

exhaustive, first, because it was then without the word “only”. My

34

emphasis on the word first is with design to underscore the point, as

will soon become apparent, that the court of Appeal had additional

reasons to sustain a ground of challenge on the validity of an election

not otherwise expressly provided.

It should be noted that, in addition, the court invoked a

jurisprudential argument derived from the spirit of the constitution

and the Act to the effect that democratic elections have to be free

and fair. It was thus held that anything coming in the obstruction of

free and fair elections would constitute a ground for avoidance of an

election. The court also took the stance that legally indefensible or

inexcusable defamation committed in furtherance of an election

campaign amounts to a breach of article 26 of the constitution which

categorically states that every person is obliged to comply with the

constitution and the laws of the United Republic. The court went

on:-

It is our view that this constitutional command

applies at all times. It follows, therefore,

that presidential and parliamentary elections

are required to be conducted not only with

due observance of the constitution and the

35

Elections Act, but also with due observance of

the general law of the land. (Emphasis mine).

This extract from Kabourou tells it all. To me, the

pronouncement of the superior court, being derived, as it was, from

a constitutional command, still holds even with the advent of the

1995 amendment. That the elections Act itself specifically submits

to the constitution is clearly the import of section 1(2) of the National

Elections Act which provides that the provisions of the Act relating to

Presidential and parliamentary elections are to be read as one with

the constitution. To this end and, with respect to learned counsel

for the respondents, despite the amendment, the position remains

intact and for avoidance of doubt an election result may be avoided

upon grounds of illegality other than those expressly provided under

section 129(2).

This court has actually done it before in the aftermath of the

amendment. In Joseph Sinde Warioba v Stephen Masatu

Wasira and another (unreported) Mwanza Regostry Misc. Civil

Cause No. 25 of 1995 Lugakingira, J as he then was, traveled to

great lengths to elaborate why Kabourou still holds. Warioba was

a decision heavily relied upon by counsel for the petitioner but I note

that both Mr. Magesa and Mr. Vitalis, apparently, carefully avoided

36

reference of it. It should further be noted that, in the aftermath of

the amendment, in Sebastian Rukiza Kinyondo v. Dr. Medard

Mutalemwa Mutungi (unreported) Civil Appeal No. 83 of 1998; the

court of Appeal also considered and sustained an election complaint

based on defamatory statements.

Mr. Vitalis for the second respondent additionally sought to

explain away defamatory statements upon a contested election thus:-

A complaint against ordinary torts whethe

committed during campaigns or not gets

into courts by way of ordinary civil suits

…A court cannot interfere with peoples’

democratic choice simply because defamatory

statements which can take course of ordinary

civil suit was made by the candidate whom

people preferred and elected.

With respect to the learned state attorney, the whole

intendment of the provisions of the Act is to protect the candidate

from foul play just as it is also intended to protect the voter from

being unduly influenced in his/her choice at an election. This court

and, I would say, if it is to be worth the name, cannot brook an

37

illegality and condone an election result simply on account that the

complainant has an alternative remedy in a civil court. That way,

the court would have lent itself in the enforcement of an illegality

and; both the candidate and the voters would not, then, have been

protected from such unjustified and ego motivated attacks.

I should, here, repeat the observations of the Court of Appeal

in Kinyondo that in multiparty elections of today as opposed to one-

party elections, the fight is not on personalities, but on the

contending party policies to which there should be no room to

campaigns characterised by character assassination. If a candidate

chooses scurrilous statements to characterise his/her campaign,

he/she should know the course is to his/her own peril.

To this end, having found that the first respondents’

defamatory utterances against the petitioner at the respective

campaign rallies were legally indefensible and inexcusable; I further

find that the same were poisonous to free, fair and civilised

campaigns. I should now be in a position to come to the final

question as to whether the illegalities constituted in the defamatory

statements affected the results of the election.

I propose to approach the question from two standpoints, that

38

is, first, the magnitude of the publication of the defamatory

statements and; second, the content of the statements.

To begin with the first, on the basis of the accepted evidence,

it is quite certain that the defamatory statements were uttered to

hundreds of people in the respective campaign rallies. From the

narrative of the witnesses, a pattern is revealed from which the first

respondent lent himself to dirty and unusual tactics of blurting out

systematic scurrilous statements against the petitioner. Taking into

account the large number of persons exposed to the statements and,

indeed, the respect the first respondent appears to command in this

locality; I am satisfied that the statements adversely affected the

petitioners’ campaign.

Coming to the second standpoint, the position is even more

complicated much as, here, some of the defamatory statements

uttered by the first respondent amount to the imputation of criminal

conduct against his political opponent. To this, I will do not more

than pay complete homage to the observations of the court of appeal

in Kinyondo thus:

…where defamatory statements which amount

to criminal conduct are made against a political

39

opponent in an election campaign. It cannot

be reduced to a simple arithmetical problem of

adding and substracting the campaign centres

where this took place from the total number of

centres in the constituency. Candidates at

elections, must be effectively protected by law

from such unjustified and ego motivated

attacks as was the case in the Bukoba Rural

Constituency in the 1995 general election.

If a candidate at an election chooses as his

election tactics to vilify his opponent by

accusing him of criminal conduct, and it is

proved that he did so, then, he will have done

so that his own risk. The courts will assume that

the allegations adversely affected the other

candidate’s election campaign unless the person

making the allegations proved that they did not.

This is the only way the courts can clean up

election campaigns so as to give the electorate

clean and fair elections…

In the light of the foregoing, I am satisfied beyond doubt that

the scurrilous utterances of the first respondent at the respective

40

campaign rallies adversely affected the result of the election. In the

end result, I allow the petition and; the election of Kashemeza Phares

Kabuye, the respondent, as a member of Parliament for Biharamulo

West Constituency is hereby, accordingly, declared void. For

avoidance of doubt, the petition is allowed with costs to be taxed.

Order accordingly.

K.M. MussaJUDGE

10/10/2007

Date: 12/10/2007Coram: K.M. Mussa, J;

Petitioner: Mr. Rweyemamu

1st Respondent: Mr. Ndjike holding brief for Mr. Magesa

2nd Respondent: Mr. Ndjike

B/C: Grace

Judgment delivered in open court in the presence of the parties.

K.M. MussaJUDGE

12/10/2007

AT BIHARAMULO12/10/2007

41