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THE JUDICIARY
ELECTION PETITION SEMINARS FOR JUDGES AND MAGISTRATES
2011 Hon. Mr. Justice Robert Vincent Makaramba Judge-in-Charge, Commercial Division, High Court of Tanzania
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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 Monograph is in Three Chapters. It generally 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. Chapter One 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. Chapter One is divided into three main sections. Section one is an introduction. The importance of public elections is also 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 Two of Chapter One examines the procedure for trial of election petition. Part III of Chapter One discusses the grounds for avoiding election and standard and burden of proof; and what happens at the conclusion of trial of election petition.
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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 Peoples 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
4
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
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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.
Nipashe, ISSN 0856-5414 No.056946, of Monday March 7, 2011 page 4 Serikali yasikia ushauri wa waangalizi
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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.
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
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
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Article 25
THE 1977 CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA 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 monismdualism 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 monismdualism dichotomy. African common law countries, those which once were colonised by Britain, such as Tanzania, have traditionally been seen as dualist
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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).
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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.
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13
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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.
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12
Election of elective bodies of popular representation at state level and local government authorities bodies; and elective offices to be
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 NGUNI 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.
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It means real political pluralism, ideological diversity and a multiparty 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.
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.
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
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The participation of a citizen in elections is supposed to be free and voluntary 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. 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)
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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
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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
17
Article 21(1) of the 1977 Constitution of the United Republic of Tanzania as amended
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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:
18
Ibid. Article 21(2) Ibid Article 5 Art,66(1) Ibid Art. 77(1) & (2)
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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.
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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]
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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 14th 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
26
27
Misc Civil Cause No 7 of 1995 (High Court - Songea) (unreported) Misc Civil Cause No 25 of 1995 (unreported)
28
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[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.
Ibid. Misc Civil Cause No 1 of 1994 (Tabora) (unreported) [1982] TLR 69 (HC) Civil Appeal No. 64 of 2001 (unreported) (Samatta C.J.) at pp.17-18 now reported in [2004] TLR 14
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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
33
[1993] TLR.159
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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. Another principle of Constitutional interpretation is that in interpreting a legislation vis--vis the constitution, both the purpose and effect of the legislation must be given effect to. (See ATTORNEY GENERAL VS MOMODON JOBE.35
(11)
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
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
34
Civil Appeal No. 45 of 1998 now reported in [2004] TLR 44 [1984, AC 589]
35
Ibid. Article 5(3) The National Elections Act, No.1 of 1985 [Cap.343 R.E. 2010]
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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]
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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
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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),
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
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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
44
The constitutional entitlement to a fair hearing, appeal and any other remedy is constitutionally guaranteed under Article 13(6)(a) of the Constitution.
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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
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
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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. 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 CORPORATION55 quoting from FANUEL MANTIRI NGUNDA VS. HERMAN MANTIRI NGUNDA AND 20 OTHERS56 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
51
Section 110(1) of Cap.343 R.E. of 2010 Section of 109(1) of Cap.292 R.E. 2010 Section 108(2) of Cap.343 R.E. of 2010 Section 107(2) of Cap.292 R.E. 2010 (MZA) Civil Application No.3 of 2004 (unreported) (CAT) Civil Appeal No.8 of 1995 (unreported)
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Section of Cap.343 R.E. 2010 and section of Cap.292 R.E. 2010 Rule 4 of GN 447 of 2010 and Rule 3(1) of GN 448 of 2010 Section 110(1) of Cap.343 R.E. 2010 Section of Cap.292 R.E. 2010
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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.
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In ATTORNEY-GENERAL AND TWO OTHERS v AMAN WALID KABOUROU61 the Court of Appeal had occasion to deal with what constitutes grounds for nullification of elections [Section 108 of the Elections Act, 1985].
61
(ii)
(iii)
(iv)
(v)
(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. 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. 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.
(x)
(xi)
(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
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(ii)
The Court proceeded to dismiss with costs the application for the two injunctive reliefs, which are: (1) an order to restrain the second respondent, the Director of Elections, from declaring the Presidential elections in the ongoing general elections, and an order to restrain the same second respondent conducting the elections for Dar es Salaam Region. from
(2)
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.
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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 judicial definition in RETURNING OFFICER BUSANDA CONSTITUENCY AND THE ATTORNEY GENERAL VS FRENCH MANONI67, 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
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
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
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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. 67 [1998] TLR 131 68 Section 108(2) & (3) of Cap.343 R.E. 2010; Section 107(2) of Cap.292 R.E. 2010
71
Per Lord Diplock in Re Racal Communications Ltd [1981] A.C. 374 at 384
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72
Section 114(1) of Cap.343 R.E. 2010 Section 109(2) of Cap.292 R.E. of 2010 Rule 8(1) of GN 447 of 2010 Rule 6(1) of GN 448 of 2010 On filing of petition the fee payable is Tshs.200,000/= On filing of petition the fee payable is Tshs.100,000/= Rule 8(2) of GN 447 of 2010 Rule 8(3) of GN 447 of 2010 and Rule 6(2) of GN 448 of 2010 Rule 8(4) of GN 447 of 2010 and Rule 6(3) of GN 448 of 2010
73
74 75 76
77
78
79
80
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82
[1982] TLR 35
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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
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84
[1995] TLR 31
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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
85
Rule 6(1) of GN 447 of 2010 and Rule 4(1) of GN 448 of 2010 Rule 6(4) of GN 447 and Rule 4(4) of GN 448 of 2010 Rule 6(2) of GN 447 and Rule 4(2) of GN 448 of 2010 Rule 6(3) of GN 447 and Rule 4(3) of GN 448 of 2010 Rule 6(2) of GN 447 of 2010 Rule 6(3) of GN 447 of 2010 and Rule 4(3) of GN 448 of 2010 Rule 7(2) of GN 447 and Rule 5(2) of GN 448 Rule 7(1) of GN 447 and Rule 5(1) of GN 448
86
87
88
89
90
91
92
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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) B) The election officer together with prescribed notice (Form
(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,
93
Rule 9(1) of GN 447 of 2010 and Rule 7(1) of GN 448 of 2010 Rule 9(2) of GN 447 of 2010 and Rule 7(2) of GN 448 of 2010 Rule 10(1) of GN 447 of 2010 and Rule 8(1) of GN 448 of 2010 Rule 10(2) of GN 447 of 2010 and Rule 8(2) of GN 448 of 2010
94
95
96
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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
(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
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) (d) a declaration that any other candidate was elected; 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
97
Rule 10(2) of GN 447 of 2010 and Rule 8(2) of GN 448 of 2010 Rule 5(1) of GN 447 and Rule 3(2) of GN 448 Rule 5(2) of GN 447 and Rule 3(3) of GN 448
98
99
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(ii)
(iii)
(iv)
100
1997 TLR 250 (CA) [Mfalila JJA, Lubuva JJA and Samatta JJA]
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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
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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 GENERAL101 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
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)
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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].
www.kenyalawreports.or.ke/election_pe Rule 11(1) of GN 447 of 2010 and Rule 9(1) of GN 448 of 2010
104
105
Edition of the of the National Elections Act, Cap.343 printed on the 30th 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
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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.
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Miscellaneous Civil Application No.98 of 2010 Misc. Civil Cause No.20 of 2005
108
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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 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:
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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
110
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 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
111
Rule 22(2) of GN 447 of 2010 and Rule 19(2) of GN 448 of 2010 Rule 15(1) of GN 447 of 2010 Rule 13(2) of GN 448 of 2010 Rule 15(2) of GN 447 of 2010 and Rule 13(3) of GN 448 of 2010 Rule 15(3) of GN 447 of 2010 and Rule 13(4) of GN 448 of 2010
112
113
114
115
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Rule 16 of GN 447 of 2010 and Rule 14 of GN 447 of 2010 Rule 17(1) of GN 447 of 2010 and Rule 15(1) of GN 447 of 2010
117
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
120
Rule18(2) of GN 447 of 2010 and Rule16(2) of GN 448 of 2010. Rule 18(3) of GN 447 of 2010 and Rule 16(3) of GN 448 of 2010
121
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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...
122
Rule 19(1) of GN 447 of 2010 and Rule 17(1) of GN 448 of 2010 Rule 19(3) of GN 447 of 2010 and Rule 17(3) of GN 448 of 2010 Rule 19(4) of GN 447 of 2010 and Rule 17(4) of GN 448 of 2010 Rule 19(5) of GN 447 of 2010 and Rule 17(5) of GN 448 of 2010 Rule 20(1) of GN 447 of 2010 and Rule 18(1) of GN 448 of 2010
123
124
125
126
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127
Rule 21 of GN 447 of 2010 Rule 23 of GN 447 of 2010 and Rule 20 of GN 448 of 2010 [1983] T.L.R. 1 (CA) Rule 24(1) of GN 447 of 2010 and Rule 21(1) of GN 448 of 2010
128
129
130
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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 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
131
Rule 24(2) of GN 447 of 2010 and Rule 21(2) of GN 448 of 2010 Rule 24(3) of GN 447 of 2010 and Rule 21(3) of GN 448 of 2010 Rule25(2) of GN 447 of 2010 and Rule 22(2) of GN 448 of 2010 Rule 25(1) of GN 447 of 2010 and Rule 22(1) of GN 448 of 2010 Rule 26 of GN 447 of 2010 and Rule 23 of GN 448 of 2010 Proviso to Rule 26 of GN 447 of 2010 and Rule 23 of GN 448 of 2010
132
133
134
135
136
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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 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
137
Rule 27(1) of GN 447 of 2010 and Rule 24(1) of GN 448 of 2010 Rule 27(2) of GN 447 of 2010 and Rule 24(2) of GN of 2010 Rule 28 of GN 447 of 2010 and Rule 25 of GN 448 of 2010 Rule 29 of GN 447 of 2010 and Rule 26 of GN 448 of 2010 Rule 30(1) of GN 447 of 2010 and Rule 27(1) of GN 448 of 2010 Rule 30(2) of GN 447 of 2010 and Rule 27(2) of GN 448 of 2010 and the Proviso thereto. Rule 30(3) of GN 447 of 2010 and Rule 27(3) of GN 448 of 2010 (CIV/P/5 /2007) [2007] LSHC 80 (18 July 2007) http://www.saflii.org/ls/cases/LSHC/2007/80.html
138
139
140
141
142
143
144
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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 noncompliance 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
146
Rule 31(1)(a) & (b) of GN 447 and Rule 28(1)(a) & (b) of GN 448 of 2010 Rule 31(2) of GN 447 of 2010 and Rule 28(2) of GN 448 of 2010 Proviso to Rule 31(2) of GN 447 of 2010 and to Rule 28(2) of GN 448 of 2010 Rule 32(1) of GN 447 of 2010 and Rule 29(1) of GN 448 of 2010 Rule 32(2) of GN 447 of 2010 and Rule 29(2) of GN 448 of 2010
147
148
149
150
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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 Lawyers 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.
Table1: Summary of Schedule of Fees Payable in Election Petition S/ Item Amount of Fees Payable
151
Rule 32(3) of GN 447 of 2010 and Rule 29(3) of GN 448 of 2010 [19581 EA 765 [1911] K.B. 410 Rule 34 of GN 447 of 2010 and Rule 30 of GN 448 of 2010 Rule 11(2) of GN 447 of 2010 and Rule 9(2) of GN 448 of 2010
152
153
154
155
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1 2 3 4 5
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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
Secti on 108 The National Elections Act [Cap.343 R.E. 2010] (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 (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 (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 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; (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 noncompliance affected the result of the election; Secti on 107 The Local Authorities (Elections) Act [Cap.292 R.E. 2010] (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 namely (a)that by reason of corrupt or illegal practices committed in connection with the election, or 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) 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;
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(3) Notwithstanding the provisions of subsection (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 AttorneyGeneral or his representative an opportunity of being heard, that the candidate has proved to the High Court (a) that no corrupt or illegal practice was committed by the candidate himself or with the knowledge and consent or approval of such candidate; (b) that the candidate took all reasonable means for preventing the commission of any corrupt or illegal practices at such an election; and
(e) that the candidate was at the time of his election a person not qualified for election as a member. (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 (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; (b) that the candidate took all reasonable means for preventing the commission of corrupt or illegal practices at the election; and (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).
(c) that in all respects the election was free from any corrupt or illegal practice on the part of the candidate;
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).
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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.
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
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156
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It is rather curious however, that whereas under section 24(2) of the Elections Expenses Act, the liability for disqualification on ground of
159
[1997] T.L.R. 242 (CA) Section 107 of Cap.343 R.E. 2010; section 106 of Cap.292 R.E. 2010
160
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
161
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 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
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[1982] TLR 69 (HC) (Tanga)(Sisya J.) (Misc. Civil Cause No.13 of 1980
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163
[1967] E.A. 240 [1971] H.C.D. No.151 [1967] E.A. 234 [1967] E.A. 777
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165
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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: (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 MSABAHA168 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
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See Hon. Lady Justice Stella Mgasha paper at page 15 Civil Appeal No.24 of 1999 (unreported) discussed in the Paper by Hon. Lady Justice Stella Mgasha. [1951] 1 All E.R. 124 cited by Hon. Lady Justice Mgasha in her paper
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Ibid Misc. Civil Cause No.25 of 1995 (unreported) Civil Appeal No.83 of 1998 (unreported) discussed by Hon. Stela Mgasha J. in her Paper Misc. Civil Cause No.10 of 2005 [1986] TLR 53 (CA)
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172
173
174
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Civil Cause No.143 of 1995 c/f Misc. Civil Causes No.146 and 151 (unreported) discussed by Hon. Stella Mgasha in her Paper
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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; (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
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