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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,
1
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.
2
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
3
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
4
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.
5
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
6
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
7
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
8
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
9
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
10
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
11
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
12
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.
13
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.
14
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
15
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
16
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
17
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
18
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
19
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
20
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
21
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
22
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.
23
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
24
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