IN THE HIGH COURT OF TANZANIA
AT ARUSHA
MISCELLANEOUS CIVIL CAUSE NO. 13 OF 2010
(IN THE MATTER OF AN ELECTION PETITION UNDER THE NATIONAL ELECTION ACT CAP 348
R.E. 2010 AND THE PETITION RULES, 2010)
MUSA HAMISI MKANGA . . . . . . . . . . . . . . . .1ST PETITIONER
AGNES GIDION MOLLEL . . . . . . . . . . . . . . . 2ND PETITIONER
HAPPY EMANUEL KIVUYO . . . . . . . . . . . . . . 3RD PETITIONER
VERSUS
GODBLESS JONATHAN LEMA . . . . . . . . . . . 1ST RESPONDENT
THE ATTORNEY GENERAL . . . . . . . . . . . . . .2ND RESPONDENT
Date of last order - 30/3/2012
Date of Judgment - 5/4/2012
J U D G M E N T
G.K. Rwakibarila, J.:
The three
petitioners are No.1 Musa Hamisi Mkanga, No.2 Agnes Gideon Mollel and No.3
Happy Emmanuel Kivuyo. Their major prayer is the nullification of the election
of respondent No.1 Godbless Jonathan Lema as a Member of Parliament (MP) for
the Arusha Urban Constituency on behalf of the Chama cha Demokrasia na Maendeleo
(CHADEMA) political party in the 2010 General Elections. Respondent No.2 is the
Hon. Attorney General who was joined in this petition in his capacity as the
principal legal adviser of the Government of the United Republic of Tanzania.
All the three petitioners were represented by Messrs Alute Mughwai and Modest
Akida, learned Counsel. And respondent No.1 was represented by Mr. Method
Kimomogoro, learned Counsel. But respondent No.2 was represented by Messrs
Timolin Vitalis, learned Principal State Attorney and Juma Masanja, learned
State Attorney.
There are two impressive witnesses in this petition who are using brave methods
to struggle to earn their living and improve their standards of their
lifestyles in this city of Arusha, irrespective of its high costs of living.
One of them is PW.14 Omari Bokolo. He retired voluntarily from the Tanzania
Peoples Defence Force (TPDF) in 1985, at the age of 35, already with the rank
of the captain. After his retirement, he settled in Arusha and secured a track
of land measuring 38 acres where he earns his living by cultivating maize and
beans, sometimes through irrigation therein. That track of land is situated at
Luis Nduruma ya Chini in Arumeru district and about 36 kilometers from this
Arusha city centre. He spends most of his time at his farm house there but
visits his home periodically along Makaburi ya Baniani area, in Unga Ltd Ward,
within this city.
Another typical impressive witness in this petition is PW.11 Amina Ali. She
lives in a wedlock with her husband in Sokoni I ward in this Arusha city.
During the subsistence of their marriage, she secured the capital from her
husband which she uses to buy in whole sale old clothes popularly nicknamed
“mitumba” or new ready-made clothes. From 10 a.m. up to 06 p.m. daily, she
conducts shuttle trips in the Arusha city streets, selling those clothes to
customers of various sources. She conducts that business like other unlicenced
vendors who are countrywide colloquially termed “wamachinga”
And there is a terminology which was often mentioned in proceedings of this
petition. It is “malaigwanani”. According to petitioner No.3 cum PW.3 Happy
Emmanuel Kivuyo, “malaigwanani” are prestigious men aged 40 years or above
among the Waarusha and Wamasai tribes. Men of that type are capable of taking
care of their families and keeping enough livestock. Therefore men of those
tribes who can not support their respective families or keep livestock don’t
fit to become “malaigwanani”. So that men of stray are automatically ruled out
from the category of “malaigwanani”.
Five political parties sponsored MP candidates for the Arusha Urban
constituency in the said 2010 General Elections. Their names, respective
political parties in brackets plus votes scored show that Joseph M. Mafuata (Demokrasia
Makini) scored 179 votes and Yusufu Baalamay Garib (CUF) scored 456 votes.
Others were Maximillian Elifatio Lyimo (TLP) scored 2,022 votes, Dr. Batilda
Salha Burian (CCM) scored 37,460 votes and Godbless Jonathan Lema (CHADEMA)
score 56,196 votes. That is why the CHADEMA candidate Godbless Jonathan Lema
cum respondent No.1 was declared the MP for Arusha Urban Constituency.
The election campaigns in that Arusha Urban Constituency were according to an
Exhibit P.1 timetable, conducted from 20-08-2010 up to 30-10-2010. PW.4 Salum
Mpamba who tendered it put it that it showed merely the timetable for MP seats
candidates in that constituency. He was, during that campaign period, a CCM
District Secretary for Arusha Urban Constituency. That timetable stretched on
fifteen pages, each with six columns which show the date (in column No.1), the
party (in column No.II), the ward (in column No.III), the place (in column
No.IV), the time (in column No.V) and finally the nature of meeting (in column
No.VI).
The three petitioners in paragraph 7(a),(b),(c) and (d) of the petition averred
that the election of respondent No.1 for that MP seat was void due to four
illegalities which respondent No.1 did during that campaign period as follows.
In paragraph 7(a) of the petition, the three petitioners averred that
respondent No.1 made in the first batch illegal statements at four stations
calling upon the electorate to refrain from voting for the CCM candidate Dr.
Batilda Salha Burian on the ground that she was a woman who is married in
Zanzibar and who, if elected, would go back to her husband and children in
Zanzibar. Five witnesses for petitioners who testified in support of this
ground are PW.1 Musa Hamisi Mkanga (petitioner No.1), PW.5 Arafa Mohamed, PW.9
Iddi Hussein, PW.11 Amina Ali and PW.12 Ramadhani Mohamed Senzige.
PW.1 in his evidence on this ground testified that, he heard respondent No.1
stating words in the scope of that paragraph 7(a) at Cheka – Ung’atwe station
in Sombetini Ward on the date which was not disclosed throughout his evidence.
Therefore it is difficult to track from an Exhibit P1 timetable about where and
when that meeting took place. For the purposes of this petition therefore, what
were testified by PW.1 on this ground are accredited little weight.
PW.2 in her evidence on that ground testified that she heard respondent No.1
stating words in the scope of that paragraph 7(a) at Elerai ward on 06-09-2010
at around 02.30 p.m. An Exhibit P1 timetable shows at its page 4 that, that
meeting duly took place there. It follows that during the evaluation of the
petitioners’ and respondents’ evidence, what transpired during that meeting
shall be referred to as an event No. 1.
PW.9 in his evidence on that ground testified that he heard respondent No.1
stating words in the scope of that paragraph 7(a) at the same Eleroi Primary
School on the same day of 06-09-2010 but at around 04 p.m. An Exhibit P1
timetable shows at its page 4 as well that, that meeting duly took place there.
It follows that during the evaluation of the petitioners’ and respondents’
evidence, what transpired during that meeting shall be referred to as event No.
2.
PW.12 in his evidence on that ground testified that he heard respondent No.1
stating words in the scope of that paragraph 7(a) at Sombetini Street in Sokon
I ward on the date which was not disclosed throughout his evidence. Therefore
it is difficult to track from an Exhibit P1 timetable about where and when that
meeting took place. And for the purposes of this petition therefore, what were
testified by PW.12 on this ground are accredited little weight. On the basis of
what have been clarified on allegations in paragraph 7(a) of the petition,
events Nos. 1 and 2 are fit for consideration and scrutiny later, during the
evaluation of the petitioners’ and respondents’ evidence.
In paragraph 7(b) of the petition, the three petitioners averred that
respondent No.1 made in the second batch illegal statements at four stations
exhorting a multiple of assembled “wananchi” not to vote for the CCM candidate
because she was a woman and therefore unfit to be their representative leader.
Four witnesses for petitioners who testified about five election campaign
meetings in support of this ground are PW.1 Musa Hamis Mkanga (on two instances
at one station), PW.6 Saidi Athumani, PW.5 Arafa Mohamed and PW.13 Gabriel
Maleko.
PW.1 in his evidence on this ground stated that he first heard respondent No.1
uttering words in the scope of that paragraph 7(b) at Mbauda street station in
Sombetini ward on 18-09-2010 at around noon during the CHADEMA Presidential
campaign meeting. An Exhibit P1 timetable does not cover that meeting because
it was for the CHADEMA Presidential candidate meeting and not in the ambit of
MP candidates’ meetings. It follows that, that meeting duly took place there
and during evaluation of the petitioners’ and respondents’ evidence, what
transpired during that meeting shall be referred to as an event No.3.
PW.1 further testified in his evidence on that ground that he heard respondent
No.1 stating words in the scope of that paragraph 7(b) at Kwa Mromboo station
in Terrat ward on 31-08-2010 at around 04.30 p.m. An Exhibit P1 timetable shows
at its page 3 that, that meeting duly took place there. It follows that later
during the evaluation of the petitioners’ and respondents’ evidence, what
transpired during that meeting shall be referred to as an event No.4.
PW.5 in her evidence on that ground testified that she heard respondent No.1
stating words in the scope of that paragraph 7(b) at Elerai Primary School in
Elerai ward on 06-09-2010 at around 02.30 p.m. An Exhibit P1 timetable shows at
its page 4 that, that meeting duly took place there. It follows that during the
evaluation of the petitioners’ and respondents’ evidence, what transpired during
that meeting shall be referred to as event No.5.
In his evidence PW.6 testified that he heard respondent No.1 stating words in
the scope of that paragraph 7(b), again at Kwa-Mromboo in Terrat ward on an
unspecified date at around 02 p.m. but in August, 2010. Therefore it is
difficult to track from an Exhibit P1 timetable about where and when that
meeting took place. For the purposes of this petition therefore, what were
testified by PW.1 on this ground are accredited little weight.
PW.13 in his evidence on that ground testified that she heard respondent No.1
stating words in the scope of that paragraph 7(b) at Makao Mapya area in Sokon
I ward on 28-10-2010, at around 02.30 p.m. But an Exhibit P1 timetable did not
disclose a meeting of that type at that venue during that time. As a result, it
is difficult to track from an Exhibit P1 timetable about where and when that
meeting took place. And for the purpose of this petition therefore, what were
testified by PW.13 on this ground are accredited little weight. So that on the
basis of what have been clarified on allegations in paragraph 7(b) of the
petition, events Nos.3, 4 and 5 are fit for consideration and scrutiny during
the evaluation of the petitioners’ and respondents’ evidence.
In paragraph 7(c) of the petition, the three petitioners averred that
respondent No.1 made in the third batch illegal statements at two stations to
incite religious sentiments of the potential voters against the said CCM
candidate on the ground that she was a muslim. Only two witnesses for
petitioners who testified in support of this ground are PW.1 Musa Hamisi Mkanga
and PW.6 Saidi Athumani.
PW.1 in his evidence deposed on this ground that he heard respondent No.1
stating words in the scope of that paragraph 7(c) at Kwa Mromboo area in Terrat
ward on 31-08-2010 at around 04.30 pm. An Exhibit P1 timetable shows at its
page 3 that, that meeting duly took place there. It follows that during the
evaluation of petitioners’ and respondents’ evidence, that transaction shall be
referred to as event No.6.
PW.6 Saidi Athumani in his evidence on that ground testified that he heard
respondent No.1 stating words in the scope of that paragraph 7(c) at Kwa
Mromboo area in Terrat ward on the date which was not disclosed throughout his
evidence. Therefore it is difficult to track from an Exhibit P1 timetable where
and when that meeting took place. So that for the purposes of this petition,
what were testified by PW.6 on this ground are accredited little weight.
On the basis of what have been clarified on allegations in paragraph 7(c),
event No.6 alone fits for consideration and scrutiny during the evaluation of
the petitioners’ and respondents’ evidence.
And in paragraph 7(d) of the petition, the three petitioners averred that
respondent No.1 made in the fourth batch illegal false, immoral and scandalous
statements against the CCM candidate Dr. Batilda Salha Burian that she was an
adulterous woman and therefore unfit to be elected to the high and respected
office of a Member of Parliament because she had borne a child by another male
person and was presently heavy with a baby by that same person. Six witnesses
for petitioners who testified in support of this ground are PW.1 Musa Hamisi
Mkanga (petitioner No.1), PW.2 Agnes Gidion Mollel (petitioner No.2), PW.7
Joseph Silvesta, PW.8 Iddi Hussein, PW.10 Salvatory Christopher and PW.14 Omari
Bokolo.
In his evidence on this ground, PW.1 testified that he heard respondent No.1
stating words in an ambit of that paragraph 7(d) at JR Street station in Sombetini
ward on 21-09-2010 at around 04 pm. PW1 put it that, the meeting which took
place there was for the CHADEMA councellors’ seat candidate. It means that,
that meeting is not reflected in an Exhibit P1 timetable. So that during
evaluation of the petitioners’ and respondents’ evidence, that endeavour shall
be referred to as event No. 7.
PW.2 Agnes Gidion Mollel in her evidence on that ground testified that she
heard respondent No.1 stating words in an ambit of that paragraph 7(d) at Big –
Sister station in Oloirien ward on 09-09-2010 at around 04 pm. But an exhibit
P1 timetable shows that, that meeting took place there previously on 01-09-2010
(and not 09-09-2010). For the purposes of this petition therefore, what were
testified by PW.2 on this ground are accredited little weight.
Then PW.7 Joseph Silvesta in his evidence on that ground testified that he
heard respondent No.1 stating words in an ambit of that paragraph 7(d) at Big
Sister station at Oloirien Ward on 01-09-2010 at around 03.55 pm. An Exhibit P1
timetable shows at its page 3 that, that meeting duly took place there. It
follows that during the evaluation of the petitioners’ and respondents’
evidence, that transaction shall be
referred to as event No. 8.
And PW.8 Aggrey Shitaeni Mushi in his evidence on that ground testified that he
heard respondent No.1 starting words in the scope of that paragraph 7(d) at
Sekei Taxi Park station in Sekei Ward on 25-10-2010 at around 04 pm. That
station was not recorded in an Exhibit P1 timetable because the campaign there,
according to PW.8, was for Sekei ward CHADEMA counsellors’ seat candidate Mr.
Chrispin Tarimo. Respondent No.1 was therefore, invited there to greet and
address that meeting briefly. It follows that, during the evaluation of the
petitioners’ and respondents’ evidence, that transaction shall be referred to
as an event No.9.
PW.10 Salvatory Christopher in his evidence on that ground testified that he
heard respondent No.1 stating words in an ambit of that paragraph 7(d) at
Ngwero station in Sombetini Ward on 26-08-2010 at around 04.30 pm. An Exhibit
P1 timetable shows at its page 2 that, that meeting duly took place there. It
follows that, during evaluation of the petitioners’ and respondents’ evidence,
that transaction shall be referred to as an event No.10.
Then PW.14 Omari Bokolo in his evidence on that ground testified that he heard
respondent No.1 stating words in the scope of that paragraph 7(d) at Ngusero
Mbugani station in Sombetini ward on 26-08-2010 at around 04 pm. An Exhibit P1
timetable shows at its page 2 that, that meeting duly took place there. It
follows that during evaluation of the petitioners’ and respondents’ evidence,
that transaction shall be referred to as an event No.11.
On the basis of what have been clarified on allegations in paragraph 7(d) of
the petition, events Nos. 7, 8, 9, 10 and 11 are therefore fit for
consideration and scrutiny during the evaluation of petitioners’ and
respondents’ evidence.
In his defence, respondent No.2 the Hon. Attorney General (AG) through Messrs
Timolin Vitalis, learned Principal State Attorney and Juma Masanja, learned
State Attorney opted not to call any witness. These learned representatives of
the Hon. AG opted merely to rely on the final submission at the end of hearing
this petition.
On his part, respondent No.1 Godbless Jonathan Lema staged the defence which
was, in most of the material facts, similar with what was testified by his
three witnesses namely RW.2 Viola Lazaro Likindikoki, RW.3 Gabriel Lucas and
RW.4 Maringu Samson Mwigumba.
In view of respondent No.1’s version, RW.3 was, inter alia, during the
elections campaign period, CHADEMA Publicity Secretary for Arusha Urban
District where Arusha Urban Constituency is situated. In course of that
function, he was coordinating all sixty (60) election campaigns which
respondent No.1 happened to address throughout the election campaign period,
i.e from 20-08-2010 up to 30-10-2010. He was also the Master of Ceremonnies
(MC) during those meetings.
According to what both RW.1 and RW.3 deposed, the former (respondent No.1)
never uttered any word calculated to exploit residence, gender or religions
differences envisaged in paragraph 7 (a), (b) and (c) respectively of the
petition. They put it too that respondent No.1 did not mention any scandalous
words envisaged in paragraph 7(d) of that petition against the CCM political
party candidate in Arusha Urban Constituency Dr. Batilda Salha Burian.
During that endeavour, RW.1 and RW.3 gave evidence to connote that allegations
from events No.1 up to 11 where respondent No.1 allegedly stated words in the
scope of paragraph 7(a), (b), (c) and (d) of the petition were not true. It is
important to note here that this court did not analyse each event which RW.1
and RW.3 referred to separately because, in their evidence, RW.1 and RW.3 did
not always reveal the date and venue of those events. So that they mentioned
dates or venues on few instances to wit, their narration can not be caused to
tally with an Exhibit P1 timetable in this format of narration.
The way RW.1 and RW.3 testified obviously cover events Nos.1 up to 11 which
were referred to by witnesses for petitioners. This is the position because
both RW.1 and RW.3 put it that they were jointly together, during all the
CHADEMA MP political party election campaign meetings which RW.1 happened to
address.
RW.2 was sponsored by the CHADEMA political party to contest for Lemara ward
counsellors’ seat. She deposed that she happened to attend eight CHADEMA political
party election campaign meetings during that period. She put it that during
those eight meetings, she didn’t hear respondent No.1 uttering illegal words
envisaged in paragraph 7(a),(b),(c) and (d) of the petition.
And RW.4 was during that period Arusha Regional Secretary for the CHADEMA
political party. He deposed that he happened to attend five CHADEMA election
campaign meetings during that period. He put it too that during the said five
meetings, he didn’t hear respondent No.1 uttering words envisaged in paragraph
7(a), (b),(c) and (d) of the petition.
There were ten issues which were framed at the commencement of hearing this
petition. For convenience purposes, issues Nos 1, 2 and 4 shall be consolidated
and dealt with jointly. But issue No.3 shall be dealt with alone. Then issues
Nos 5, 6, 7 and 8 shall be consolidated and dealt with jointly too. As usual,
issues No.9 and 10 which concern how to conclude the contentious matters in
this petition and remedies for parties respectively shall be the last to be
dealt with.
Issue No.1 was, “Whether the petitioners have the cause of action against the
first respondent”;
Issue No.2 was, “Whether the petition is a representative suit, in terms of
Order 1, Rule 8 of The Civil Procedure Code, Cap. 33 (Vol.1, R.E. 2002)”; and
Issue No.4 was, “Whether the petitioners are legally recognizable agents of the
CCM candidate Dr. Batilda Salha Burian, in terms of Order III, Rules 1 and 2 of
The Civil Procedure Code, Cap. 33 (Vol. II, R.E. 2002)”.
Issues Nos. 1, 2 and 4 on the face of it directly or impliedly tend to question
whether the three petitioners had the locus standi to institute this petition.
In order to show that petitioners had no powers to institute this petition, Mr.
Kimomogoro, learned Counsel for respondent No.1 put it at page 4 of 60 pages
final written submission that petitioners had a duty to set out the manner in
which their rights or interests were breached or interfered with by reason of
the statements allegedly made by the 1st respondent against Dr. Batilda Burian.
Then at pages 8 and 9 of the same final written submission, this learned
Counsel for respondent No.1 emphasized that a petitioner may come to court in
the capacity of a recognized agent in terms of Order III, Rule 1 of The Civil
Procedure Code, Cap. 33 (R.E. 2002) in terms of Rule 2(a) as recognized agents
who are not advocates.
It is a considered view of this court that the parent legislation in matters of
elections exhaustively deals with the criterion of people who are competent to institute
election petitions. So that under Section III (1) of The National Elections
Act, Cap. 343, it is provided that an election petition may be presented by
one, or more of the following persons namely –
“(a) a person who lawfully vote or had a right to vote at the election to which
the petition relates;
(b) a person claiming to have had a right to be nominated at such election;
(c) a person alleging to have been a candidate at such election; and
(d) The Attorney General.”
In the material petition, the petitioners therefore, have the statutory rights
under Section III(1)(a) of The Elections Act (supra) to institute this
petition. Their rights to institute the same, therefore, don’t necessarily rely
on other legislations due to the simple reason that they averred in paragraph 2
of the petition that they were registered voters and were entitled to vote at
the election to which this petition relates. Copies of their voters’ cards were
annexed thereto and marked A (1-3). And that paragraph 2 is in the scope of
matters which were found true by both the petitioners’ and respondents’ sides
during the preliminary hearing (PH). It follows that issues Nos.1, 2 and 4 are
answered in petitioners’ favour.
Issue No.3 was, “Whether the petitioners had the duty to plead the actual words
uttered by the first respondent during election campaign rallies specified in
the petition.”
In his final written submission at page 8, Mr. Kimomogoro, learned Counsel for
respondent No.1 put it that petitioners were supposed to plead actual words
allegedly uttered by respondent No.1 during election campaigns. He referred
this court to Halisbury’s Laws of England, 3rd Edn. Vol. 24 at page 90 where it
was pointed out that:
“In order that the statement complained of as being a libel or slander may be
construed or interpreted, it is essential that the actual words, not merely
their substance, should be set forth verbatim in the statement of claim or
indictment.”
A matter resembling what was raised in issue No.3 was previously dealt with by
my brother Hon. A.K. Mujulizi, J. who was my predecessor in this petition. And
in his ruling of 26-09-2011, his Lordship correctly pointed out at page 12 of
his well researched and reasoned ruling that what the petitioners pleaded in
the petition was quite in order as it revealed sufficient facts to enable the
first respondent to structure his defence. This court has no power and reason
to differ with Hon. A.K. Mujulizi, J. on the same because he was, by that time,
exercising jurisdiction at the same hierarchy like this court. Moreover Section
5(2)(d) of The Appellate Jurisdiction Act as amended by Section 2 of the
Written Laws (Miscellaneous Amendments) Act, No. 25 of 2002 provides that:
“No appeal or application for revision shall lie against or be made in respect
of any preliminary or interlocutory decision or order of the High Court unless
such decision or order has the effect of finally determining the criminal
charge or suit”.
And in addition, under Section 74(2) of The Civil Procedure Code, Cap. 33
(supra) as amended by Section 2 and the Schedule to The Written Laws
(Miscellaneous Amendments) Act, No. 3 of 2002, it is provided that:
“No appeal shall lie against or be made in respect of any preliminary or
interlocutory decision or order of the High Court unless such decision or order
has the effect of finally determining the suit”.
This petition is, up to this stage of writing this judgment, still sub-judice
before this court because Hon. A.K. Mujulizi’s ruling did not finally dispose
it. And in view of provisions in both legislations which have just been cited
above, his Lordship’s decision in that ruling can not be disturbed or altered
by this court. Issue No.3 is therefore also resolved in favour of petitioners’
side.
Issue No.5 was, “Whether during the election campaign rallies held in the
constituency, the first respondent made statements against the CCM
parliamentary candidate Dr. Batilda Salha Burian, a CCM candidate, that she was
unfit to be elected as Member of Parliament for the constituency because she
was married to a Zanzibari and who, if elected, would go back to her husband
and children in Zanzibar;
Issue No.6 was, “Whether during election campaign rallies, the first respondent
made statements that were calculated to exploit gender differences between
himself and a CCM candidate Dr. Batilda Burian;
Issue No.7 was, “Whether during election campaign rallies, the first respondent
made statements that were intended to exploit religions differences between
himself and the CCM candidate Dr. Batilda Salha Burian; and
Issue No.8 was, “Whether during election campaign rallies, the first respondent
made defamatory statements against the CCM candidate Dr. Batilda Salha Burian
that she was an adulterous woman who was not fit to be elected Member of
Parliament because she had born a child out of wedlock and she had another
pregnancy by the same man”.
Respondent No.1 in his evidence denied uttering all illegal words which he
allegedly made in paragraph 7(a) of the petition (in events Nos.1 and 2),
paragraph 7(b) of the petition (in events Nos.3, 4 and 5), paragraph 7(c) of
the petition (in event No.6) and paragraph 7(d) of the petition (in events
Nos.7, 8, 9, 10 and 11). He was supported in his version by RW.2, RW.3 and
RW.4.
In a situation like that, this court could have opined that respondent No.1’s
side rebutted the petitioners’ version. But the same is not the position
because all the four witnesses who testified for respondent No.1’s side had
rampant interests to serve, subject to results of this petition due to the
following grounds.
First, respondent No.1 who testified as RW.1, was also the CHADEMA political
party Elections Campaign Manager for the Arusha Urban Constituency during the
2010 General Elections. He was, in addition, the MP candidate for that
constituency under sponsorship of that party. Second is RW.2. She was the
candidate for the counsellors’ seat for Lemara ward in that constituency.
Third is RW.3 who is currently CHADEMA Publicity Secretary. He was a Master of
Ceremonies (MC) during all sixty (60) election campaign meetings for CHADEMA MP
candidate in that constituency which respondent No.1 addressed. And fourth is
RW.4. He was that political party’s Publicity Secretary during the elections
campaign period in 2010. He is currently CHADEMA’s Arusha Regional Secretary
and simultaneously that party’s Chief Accountant at its headquarters in Dar es
Salaam.
Mr.Kimomogoro, learned Counsel in his written final submission at page 57
prayed on this court on behalf of respondent No.1 to dismiss this petition
after he opined, inter alia, that there was no independent credible evidence to
prove to the satisfaction of the court that the 1st respondent ever made
prohibited statements at any of the nine campaign rallies in respect of which
the petitioners adduced evidence. He opined further that the proven
circumstantial evidence makes it highly improbable the making of such
prohibited statements and, therefore the petitioners’ oral evidence must have
been rehearsed and fabricated lies originating from PW.1 Musa Hamis Mkanga.
And Messrs Timolin Vitalis, PSA and Juma Masanja, SA in their 30 pages final
written submission added, at page 23 that, the police attended all the campaign
meetings where the 1st Respondent is claimed to have made the defamatory and
gender discriminatory statements. They clarified that there were no evidence to
show that the 1st Respondent was ever arrested or interrogated for using
discriminatory or abusive language in the campaign speeches.
This court has taken into account what all learned Counsel and Attorneys for
respondents Nos.1 and 2 respectively presented to try to exonerate respondent
No.1 from allegations of uttering illegal statements during election campaign
rallies. In addition to that, this court has further taken into account that
respondent No.1 is a reputable person who was respectifully granted sponsorship
by the registered CHADEMA political party to contest for the Arusha Urban
constituency MP seat. This situation suffices for this court to warn herself on
the same and then proceed to look into whether a person commanding
distinguished credibility in the society like respondent No. 1 could have
uttered those illegal words.
Messrs Alute Mughwai and Modest Akida learned Counsel for petitioners in their
33 pages written submission at page 3 pointed out that petitioners’ eleven
witnesses were credible because they were ordinary people who came from
different backgrounds, social status like peasants, farmers, food vendors (mama
lishe) and a retired army officer. Both learned Counsel for petitioners further
pointed out that among petitioners’ witnesses, there were men, women, party and
non party members and people of different religious faiths.
In view of what were presented by learned Counsel and learned Attorneys for
both sides, it is a considered view of this court that PW.1 could not have
influenced all witnesses who testified for petitioners in this petition because
it transpired in their examination in chief or cross-examination that he didn’t
know most of them before the 2010 election campaign period. After he heard
those witnesses stating their grudges about respondent No.1’s illegal
statements, he led or directed them to the chambers of Mughwai & Co.
Advocates where they voluntarily recorded their respective statements. It also
transpired during cross examination of petitioners’ witnesses that they
recorded their respective statements on different days, after travelling from
different wards in Arusha Urban Constituency. Therefore from this background,
it suffices to conclude that petitioners’ witnesses never got chances for joint
rehearsals on what they stated at the chambers of Mughwai & Co. Advocates,
when they visited there on different days from different sites for purposes of
recording their statements.
The petitioners’ version is added more weight by the evidence of PW.11 Amina
Ali and PW.14 Omari Bokolo who were referred to earlier as impressive
witnesses. On her party, PW.11 put it that she never belonged to any political
party. According to her evidence, she was on a shuttle trip for purposes of
selling clothes in form of a female “machinga”, when she arrived coincidentally
at Miembeni street in Sokon I ward on 28-08-2010 at around 04.45 pm and
happened to sight and hear respondent No.1 addressing the meeting and uttering
the illegal words. But PW.11’s evidence was granted little weight because she
mentioned the 28-08-2010 date, which was not reflected in an Exhibit P1 time
table.
Then there is another impressive witness PW.14 Omari Bokolo. He put it that he
never joined any political party in his lifetime, although he retired from the
TPDF in 1985 with the rank of Captain. He spends most of his time at his 38
acres farm, situated about 36 kilometers from the centre of this Arusha city
where he cultivates maize and beans. He happened to visit his sister at
Ngusero-Mbugani area on 26-08-2010 but when her sister was escorting him, he
passed by coincidence at the site where respondent No.1 was addressing the
election campaign meeting. This PW.14 clarified that at that juncture, when it
was at around 04 pm on that day, he heard respondent No.1 uttering illegal
words which constitute an event No.11. PW.14 in fact is more impressive to an
extent that he disclosed that during his services with the TPDF, he managed to
work at 42.KJ in Songea, 75.KJ in Arusha, Lugalo TPDF barracks, Msumbiji,
Uganda and China. He sincerely disclosed that he resigned from the TPDF when he
was briefly in Tanzania due to fear of what he stated in his own words that:
“Hapa niliona kanafasi ka kuninyemelea kwenda tena nje kangenilenga tena na
mwaka 1985 nikastaafu jeshi.”
Therefore the petitioners’ witnesses like PW.14 or PW.11 had no reason or time
to waste attending rehearsals on what to record in their respective statements
at the chambers of Mughwai & Co. Advocates or later to testify before this
court. It is a finding of this court that they freely testified on their own
will about what they happened to sight and hear in what were earmarked as
events Nos.1 up to 11. The claim that respondent No.1 was not arrested and
charged of offences relating to mischiefs of his words don’t set-off what the
petitioners’ witnesses testified. So that up to this juncture, respondent No.1
should consider himself lucky because in criminal prosecutions the time never
runs against the Republic.
In view of what were stated so far about evidence by the petitioners’ fourteen
(14) witnesses, it has been proved satisfactorily that respondent No.1 uttered
words which featured in events Nos.1 up to 11. It follows that what were stated
by four (4) witnesses of respondent No. 1 are mere afterthoughts and rejected
due to simple reason that all of them were found with interest to serve
depending on the results for this petition.
Next to consider is whether the words which respondent No.1 uttered in the
category of events Nos.1 up to 11 suffice to reflect what were alleged in
paragraphs 7(a),(b),(c) and (d) of the petition. Then the words which
respondent No.1 uttered in the category of paragraph 7(a) of the petition were
classified as events Nos.1 and 2.
At event No.1, PW.5 heard respondent No.1 stating at Elerai Primary School in
Elerai ward on 06-9-2010 at about 02.30 pm that:
“Msichague kiongozi ambaye hayuko kwenye jimbo la Arusha. Kiongozi huyo makazi yake
yako Zanzibar. Endapo mtamchagua akipata uongozi maendeleo yatakuwa hakuna
katika jimbo la Arusha. Ataondoka kwenda kukaa Zanzibar pamoja na familia yake
ya mume pamoja na watoto wake”.
And at event No.2, PW.9 heard respondent No.1 stating at Elerai Primary School
in Elerai Ward at around 04 pm that:
“Ndugu wananchi msikubali kuletewa mtu kwa mapenzi ya mtu binafsi. Batilda
Burian mimi namfahamu. Ameolewa Zanzibar. Ikifika kwenda kujifungua atatuachia
jimbo na nani?
At this era, it is a pride for most Tanzanians in the Mainland to stay in
Zanzibar or get spouses there and vice versa. So that allegations in paragraph
7(a) of the petition that the CCM candidate Dr. Batilda Salha Burian was
married to a Zanzibari did not constitute an illegal campaign. Therefore the
petitioners’ allegations in paragraph 7(a) of the petition are dismissed.
The words which respondent No.1 uttered in the category of paragraph 7(b) of
the petition were classified as events Nos.3, 4 and 5.
At event No.3, PW.1 heard respondent No.1 stating at Mbauda street grounds in
Sombetini ward on 18-09-2010 that:
“Tangu lini nyie waarusha mkaangozwa na wanawake”.
Then at event No.4, PW.1 heard respondent No.1 stating at Kwa-Mromboo in Terrat
ward on 31-08-2010 at around 04.30 pm that:
“Jamani ee, tangu lini mmeona kwa mila zetu za Kichaga na Kiarusha mwanamke
anaongoza malaigwanani?
And at event No.5, PW.5 heard respondent No.1 stating at Elerai Ward on
06-09-2010 at around 04.30 pm that:
“Waarusha msije mkakubali kuongozwa na mwanamke”.
Then events Nos.3, 4 and 5 depict that respondent No.1 uttered words which are
envisaged in paragraph 7(b) of the petition because they exploit gender
differences. Respondent No.1 is therefore responsible for that illegality.
The words which respondent No.1 uttered in the category of paragraph 7(c) of
the petition were classified in event No.6.
At that event No.6, PW.1 heard respondent No.1 stating at Kwa Mromboo in Terrat
Ward on 31-08-2010 at around 04.30 pm that:
“Chungeni sana wanaovaa viremba msije mkachagua alikaida”.
There are currently some women in Tanzania who prefer to dress veils on their
heads. Dressing in that manner mostly display that such women are decent to
wit, that habit don’t fit to be associated with women with specific religious
motives. Therefore the petitioners’ allegations in paragraph 7(c) of the
petition are also dismissed.
Then the words which respondent No.1 uttered in the category of paragraph 7(d)
of the petition were classified as events Nos.7, 8, 9, 10 and 11.
At event No.7, PW.1 heard respondent No.1 stating at JR street grounds in
Sombetini ward on 21-09-2010 at around 04 pm that:
“Dr. Batilda ameolewa Zanzibar. Mtakapomchagua atarudi Zanzibar kulea watoto
wake na mume wake na nyie hamtakaa mmuone”.
Then at event No.8, PW.7 heard respondent No.1 at Big Brother grounds in
Oleorien ward on 01-09-2010 at around 03.55 pm stating that:
“Asichaguliwe Dr. Batilda kwa kuwa ameolewa na Mzanzibari. Na hapa alipo Dr.
Batilda anayo mimba ya Lowasa. Akichaguliwa Dr. Batilda atafunga radio Safina
na kujenga msikiti mkubwa. Mkimchagua badala ya kuwawakilisha bungeni atakuwa
matenite Zanzibar”.
At event No.9, PW.8 heard respondent No.1 stating at Sekei Taxi park ground in
Sekei ward on 25-10-2010 at around 04 pm that:
“Mgombea wa CCM Dr. Batilda hafai kuchaguliwa kwa sababu ameletwa na hawara
wake Lowasa na ni mjamzito. Sasa tukimchagua ataenda Bungeni au kulea mtoto”.
And at event No.10, PW.10 heard respondent No.1 stating at Ngusero area in
Sombetini ward on 26-08-2010 at around 04.30 pm that:
“Ngoja niwaeleze udhaifu wa huyu mama Batilda Burian. Kwanza huyu mama sio
mwaminifu. Na ana ujauzito wa Mzee wa Monduli. Mama huyu hatufai kukamata
nafasi kama hii ya heshima katika jiji la Arusha. Kwa mtaji huu, nimebakizwa
kuapishwa. Vyama vingine ni wasindikizaji.”
Then finally in event No.11, PW.14 heard respondent No.1 stating at Ngusero
Mbugani ground in Sombetini ward on 26-08-2010 at around 04 pm that:
“Sasa ngoja niwaambieni. Huyu mwanamke anayegombea ubunge hapa Arusha mjini
kwanza sio mwaminifu katika ndoa yake.
Amezaa mtoto nje ya ndoa na Mheshimiwa Lowasa.”
The events Nos. 8, 9, 10 and 11 depict that respondent No.1 uttered words which
are envisaged in paragraph 7(d) of the petition because they display scandalous
statements against the CCM candidate Dr. Batilda Burian. Respondent No.1 is
therefore also found responsible for that illegality.
Then issue No. 9 was, “Whether if issues Nos 5 - 8 or any of them are proved,
suffice for voidance of election of first respondent as a Member of Parliament
for Arusha Urban Constituency.”
In fact what was established above shows that the petitioners failed to adduce
sufficient evidence to prove adequately allegations in paragraph 7(a) and (c)
of the petition. Instead, the petitioners have established adequate evidence to
prove allegations in paragraph 7(b) and (d) of the petition.
Under Section 108(1)(a) of The National Elections Act (supra) it is provided,
inter alia, that the election of a candidate as a Member of Parliament shall be
declared void if any of the following grounds is proved to the satisfaction of
the High Court and on no other ground, namely –
“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.”
In the material petition it has been proved satisfactorily that the person of
respondent No.1 is the one which physically uttered statements in the scope of
paragraph 7(b) of the petition (events Nos.3, 4 and 5) and paragraph 7(d) of
the petition (events Nos.7, 8, 9, 10 and 11). It means respondent No.1 uttered
during election rallies statements during eight events which were proved
satisfactorily. Under that section 108(2) of The Elections Act (supra) any of
those events could have sufficed to move this court to declare his election
void. On that basis this court is hereby declaring void the election of
respondent No.1 Godbless Jonathan Lema as Member of Parliament for Arusha Urban
Constituency during the 2010 year General Elections.
Issue No. 10 was, “What are remedies of parties”.
It has been proved satisfactorily that respondent No.1 alone uttered illegal
statements during eight events during election campaign rallies. In fact
respondent No.2 or his agents were not linked in any manner with respondent
No.1’s illegal statements. Therefore three orders are ultimately made as
follows.
The election of respondent No.1 Godbless Jonathan Lema as a Member of
Parliament for Arusha Urban Constituency in the 2010 year General Elections is
declared void.
Respondent No.1 alone is condemned in costs to wit, he shall shoulder costs for
all three petitioners; and
The Hon. District Registrar for Arusha High Court Zone should immediately
facilitate communication with the Director of Elections about this court’s
decision in compliance with Section 114(1)–(7) of The National Elections Act
(supra).
G. K. Rwakibarila
JUDGE
04/04/2012
Date: 5/4/2012
Coram: G.K. Rwakibarila, J.
1st Petitioner – Present in person
2nd Petitioner – Present in person
3rd Petitioner – Present in person
For the Petitioners – Messrs Mughwai and Akida, Advocate
1st Respondent – Present in person
For the 1st Respondent – Mr. Kimomogoro, Advocate
2nd Respondent
For the 2nd Respondent Mr. Masanja, SA for respondent No.2
B/C Grace Conega
Court: Judgment delivered at Arusha this 5th day of April, 2012 at presence of
parties as stated in the coram for today and right to appeal in time has been
explained thoroughly.
G. K. Rwakibarila
JUDGE
05/04/2012
