Dismiss Notice
You are browsing this site as a guest. It takes 2 minutes to CREATE AN ACCOUNT and less than 1 minute to LOGIN

Hii ndiyo hukumu ya Igunga iliyomtoa jasho Dr Kafumu

Discussion in 'Jukwaa la Siasa' started by Asanteyeye, Sep 1, 2012.

  1. A

    Asanteyeye New Member

    #1
    Sep 1, 2012
    Joined: Aug 22, 2012
    Messages: 1
    Likes Received: 0
    Trophy Points: 0
    IN THE HIGH COURT OF TANZANIA
    AT NZEGA
    (TABORA REGISTRY)
    IGUNGA CONSTITUENCY BY-ELECTIONPETITION
    MISCELLANEUS CIVIL CAUSE NO. 10OF 2011
    IN THEMATTER OF AN ELECTION PETITION UNDER
    THE NATIONALELECTION ACT CAP 343 R.E. 2010 AND
    (ELECTIONPETITION) RULES

    HIGH COURTSESSION AT NZEGA
    ELECTIONPETITION
    JOSEPHMWANDU KASHINDYE …..….… PETITIONER
    versus

    1. DALALY PETER KAFUMU ………….........… 1[SUP]ST[/SUP] RESPONDENT
    2. THE RETURNING OFFICER
    IGUNGA CONSTITUENCY ………… 2[SUP]ND[/SUP] RESPONDENT
    3. THE ATTORNEY GENERAL …………….… 3[SUP]RD[/SUP] RESPONDENT


    06/08/2012 &21/08/2012

    JU D G E M E N T

    HON. MADAM,SHANGALI, J.


    This electionpetition emanates from the Igunga Constituency by-election campaign and resultsconducted between 2/09/2011 and2/10/2011 at Igunga Constituency Tabora. Several political parties contested the seat through theircandidates. The petitioner Joseph MwanduKashindye contested for that parliamentary seat in the sponsorship of hispolitical party Chama cha Demokrasia naMaendeleo, commonly known by its acronym as CHADEMA. The first respondent Dr. Dalaly Peter Kafumucontested for the same parliamentary seat in the sponsorship of his politicalparty Chama cha Mapinduzi commonlyknown by its acronym as CCM. At the end of election campaign and electionitself on 3[SUP]rd[/SUP] October, 2011 the first respondent was declared thewinner by the Returning Officer, (third respondent) hence a new member of Parliament for Igunga Constituency. He scoped 26,484votes while the petitioner got 23,260 votes. The petitioner was neither satisfiedwith the results nor the way the by-election was conducted. On 31[SUP]st[/SUP] October, 2011 he filedthis petition through the legal services of Prof. Saffari and Mr. Mwanayela LearnedCounsels intending to challenge the validity and outcome of the said by-electionon account of several malpractices and corruption. In his petition the petitioner alleges a goodnumber of election irregularities and misconducts committed during the electioncampaign which render the whole exercise to be not free, fair and transparent. AsI have pointed above the third respondent is the Returning Officer for theIgunga Constituency, Mr. Magayane Protas, while the second respondent is theHon. Attorney General who has been included by virtue of Rule 4 (1) of theNational Elections (Elections Petitions) Rules 2010. The first respondent was represented by Mr.Kayaga assisted by Mr. Kanyama Learned Counsels while the second and thirdrespondents were represented by Mr. Malata, Learned Principal State Attorneyassisted by Mr. Salum Malick, Learned State Attorney. Thepetitioner complain that on 28[SUP]th[/SUP] September, 2011, Hon. JohnMagufuli, the Minister of Works using his political position and influence at apublic campaign meeting, promised the residents of Mbutu in Igunga to constructa vital Mbutu Bridge if they voted in favour of the first respondent. That, on the same meeting he threatened Igunga voters that the Mbutu Bridgewould never be constructed if they voted against the first respondent. The petitioner further alleges that in thesame meeting Hon. Magufuli threatened Igunga voters that they would not beprovided with maize aid by the Government unless they voted for the firstrespondent. All these illegal promisesand threats, according to the petitioner influenced Igunga voters to vote forthe first respondent, the candidate of the CCM. Thepetitioner also claimed that Minister Magufuli intimidated the voters bytelling them that those who would vote against the first respondent wouldsurely be detected and severely dealt with. As a result many people who intended to vote for other political partiesnever turned up on the voting day. Thepetitioner complained that during the same election campaign, Hon. Sophia Simba,Minister of Women Gender and Children at Nkinga Nursing College, during lunchcalled upon voters not to vote for the petitioner because he is poor personwith no proper accommodation and unmarried. The statements intended to lower his dignity and embarrass him before thevoters. Thepetitioner also complained that on 28[SUP]th[/SUP] September, 2011 Hon. StephenWassira, the Minister of President’s Office responsible for Relations and Coordination,using his political position and influence, at a public campaign meeting atBukama , Isakamaliwa, Igurubi, Mbutu and Matinye in Igunga promised to supply maize to voters if they would vote for the firstrespondent. Again,on 1[SUP]st[/SUP] October, 2011, Hon. Ismail Aden Rage, CCM Member ofParliament for Tabora Constituency, made statements that the petitioner hadwithdrawn from the contest for the Igunga Parliamentary by-election. The statement which caused many people not tovote for the Petitioner. Thepetitioner complained that again on 22[SUP]nd[/SUP] September, 2011 the saidIsmail Aden Rage masqueraded with a pistol on his waist in the public meetingtelling voters that they would be locked up on election day if they never votedfor the first respondent. As a resultmany voters were disenfranchised and never turned up to vote for the firstPetitioner. Thepetitioner further claim that on 23[SUP]rd[/SUP]September, 2011, Baraza la Waislam Tanzania (BAKWATA) at Igunga District called upon all Muslims not to vote forCHADEMA candidate in the by-election of October, 2011 because CHADEMA followers had intimidated and assaulted a Moslem woman by undressingher “hijab.” That such desistance reduced the number ofvoters for the petitioner. The petitionfurther reveals that on 22[SUP]nd[/SUP] September, 2011, the General Secretaryof CCM, one Mr. Wilson Mukama falsely announced that CHADEMA had brought 33commandos from different countries to cause disturbance and chaos in the Igungaby-election. The petitioner alleges thatsuch announcements reduced the number of voters because they were scared. Theother allegations are to the effect that the first respondent and his agentsincluding the former President of the United Republic of Tanzania, Mr. BenjaminMkapa promised to provide maize to voters in consideration of voting for thefirst respondent. That the hungry votersof Igunga Constituency were subsequently supplied with such maize a day beforethe voting day. The petitioner complainedthat even on the voting day CCM Members supplied rice and meat to voters toinduce them to vote for the first respondent. Thepetitioner pleaded that during election campaign one, Mwigulu Nchemba, CCM Treasurerand campaign Manager for the first respondent distributed Two Million Four HundredThousands Shillings (2,400,000) to KKKT Church and another Four Hundred Thousand Shillings (400,000)was given to staff and students of Nkinga Secondary School to vote for thefirst respondent and further Primary School Teacher were given twenty thousandshillings each. Thepetitioner claims that in Majengo Village, Chabutwa Ward,CCM cadres were caught distributing money to voters few days before election inorder to induce them to vote for the first respondent. Thepetitioner strongly believes that the existence of such widespreadmalpractices, misconducts, bribery of voters, intimidation of voters, threatsand announcement of misleading statements contributed to his unfair downfalland therefore the election was not free and fair. Thepetitioner prays for the court to declare the Igunga by-election null and void,order for the re-election, costs of the petition and any other relief as may bedeemed appropriate by the court. Inhis reply to the petition, the first respondent denied all claims andallegations and stated that the by-election for the Igunga constituency wasfree and fair and in compliance with the relevant laws and procedure. He categorically stated that there wereneither malpractices nor corruption. However, the first respondent conceded that there was an election campaignmeeting at Mbutu on 28[SUP]th[/SUP] September, 2011 for CCM and that the saidHon. John Magufuli attended. He statedthat all other allegations and claims against Hon. Magufuli are strongly deniedand the petitioner is put to strict proof thereof. The first respondent also denied all allegationsrevealed against Hon. Sophia Simba and invited the petitioner to strictly proofthem. Regarding to the complaintsagainst Hon. Stephen Wassira the first respondent conceded that Hon. StephenWassira attended at the election campaign at those centres but the otherallegations including use of his political position and influence and promisesto supply maize aid to the voters are totally denied. Thefirst respondent further pleaded that all allegations and claims against Hon.Ismail Aden Rage are denied save for the fact that Hon. Rage was indeed foundin possession of his pistol at one of his campaign meeting but it did notaffect the by-election results. Theother allegations require strict proof. Thefirst respondent admitted that the former President of Tanzania, Hon. BenjaminMkapa did visit the Igunga Constituencyduring election campaign, but strongly denied the allegation that the formerpresident promised to provide maize to voters in consideration of voting for the firstrespondent. The first respondentpleaded that the hungry voters of Igunga were all supplied with maize aid bythe government irrespective of their political and religious standings and thatdid not affect the result of the by-election. Therest of the allegations and claims were totally denied and the petitioner wasrequired to prove the same. Intheir joint reply to the petition, both the second and third respondentscategorically denied all allegations and claims filed by the petitioner seekingfor the avoidance of the by-election results and pleaded that the by-electionwas conducted in accordance with the law, regulations and directives of the ElectoralCommission. They invited the petitionerto strictly proof his averments to the required standard. Failure of that, both respondents requestedthe court to dismiss the petition for lack of merits with costs. Inhis endeavour to proof his case the petitioner called a total of twenty twowitnesses including himself (PW1 – PW22) and produced a total of four Exhibits(P1 – P4). In defence, the respondentscalled a total of twenty six witnesses (DW1 – DW26) and produced a total ofeleven Exhibits (D1 – D11). Inthe preliminary hearing conducted on 30/04/2012 the parties agreed and signedon matters not in dispute and the court recorded the same as follows:-
    MATTERSNOT IN DISPUTE
    1. Addresses and personal informationon the parties as narrated in the paragraphs 1, 2, 4, 5 and 6 of the petition(save for the information about the second and third petitioners).2. That para 3 of the petition touchingon the second and third petitioners is now obsolete following thedecision/ruling of this court dated 28/03/2012. 3. The first respondent admits part ofpara 8 of the petition, namely that there was campaign meeting at Mbutu area on28 September, 2011 where Hon. Magufuli; The Minister of Works gave a speech. 4. The first respondent admits part ofpara 10 of the petition that Hon. Sophia Simba, Minister of Women Gender andChildren attended lunch at Nkinga Nursing College during campaign.5. The first respondent admits part ofpara 11 of the petition that Hon. Stephen Wassira, the Minister of President’sOffice responsible for Relations and Co-ordination did attend some campaign meetings.6. The first respondent admits part ofparagraph 13 of the petition that one Ismail Aden Rage masqueraded with apistol on his waist in one of the campaign meetings.7. The first respondent admits part ofparagraph 17 of the petition to the effect that the former President BenjaminMkapa did attend the campaign rallies at Igunga Constituency. 8. Parties admit the contents of para21 on the jurisdiction of this court. Inthe same sequence of events and before the commencement of the trial theparties deliberated and agreed on sixteen issues to be considered by the court. The sixteen issues which were framed and dulyendorsed by this court are:- 1. Whether on 28[SUP]th[/SUP]September, 2011 Hon. John Magufuli Minister of Works, using his politicalposition and influence as a Minister at a Public Meeting at Mbutu Igunga promised to the voters to constructthe vital Mbutu Bridge if they would vote in favour of the first respondent.2. Whether on 28[SUP]th[/SUP]September, 2011 Hon. Magufuli using his political position and influence as Minister of Works ata Public Meeting at Mbutu threatened voters that the Mbutu Bridge would never be constructed and they would never beprovided with maize as aid by theGovernment unless voted for the firstrespondent.3. Whether on 28[SUP]th[/SUP] September, 2011 Hon. JohnMagufuli; Minister of Works, by using his political position and influence at a Public meeting at Mbutu intimidated voters by tellingthem that those who would vote against the first respondent would be detectedand severely dealt with.4. Whether during election campaign atIgunga, Hon. Sophia Simba, Minister of Women, Gender and Children at a Nursing College in Nkinga during lunchtimecalled upon voters not to vote for the petitioner because he was poor with noproper accommodation and that he was not married. 5. Whether on 28[SUP]th[/SUP] September,2011, at a Public Campaign meeting at Bukama, Isakamaliwa, Igurubi, and Matinjein Igunga, Hon. Stephen Wassira, Minister of President’s Office Responsible forRelations and Coordination using his political position and influence promisedto supply maize to voters if they would vote for the first respondent. 6. Whether on 1[SUP]st[/SUP] October,2011, Hon. Ismail Aden Rage, CCM Member of Parliament for Tabora made statementto voters that the petitioner had withdrawn from the contest for the Igungaparliamentary by-election.7. Whether on 22[SUP]nd[/SUP]September, 2011 the said Ismail Aden Rage masqueraded with a pistol on hiswaist told voters that they would be locked up on Election Day if they nevervoted for the first respondent.8. Whether on Election Day many voterswere unlawfully prevented to vote. 9. Whether on 23[SUP]rd[/SUP]September, 2011, Baraza la Waislam Tanzania (BAKWATA) at Igunga called upon allMoslems not to vote for CHADEMA at the Igunga Parliamentary by-election ofOctober, 2011.10. Whether on 22[SUP]nd[/SUP]September, 2011 the General Secretary of CCM one Wilson Mukama falselyannounced that CHADEMA had brought 33 commandos from different countries whichstatement scared the voters hence reduced the number of votes for thepetitioner.11. Whether the former president of theUnited Republic of Tanzania, Hon. Benjamin Mkapa promised to supply maize tovoters of Igunga Constituency in consideration of voting for the said firstrespondent.12. Whether upon that promise by theformer President Hon. Benjamin Mkapa, the voters of Igunga Constituency were suppliedwith such maize a day before the voting day.13. Whether on the voting day CCMmembers supplied rice and meat to voters to induce them to vote for the firstrespondent.14. Whether during campaign one MwiguluNchemba, CCM Treasurer and campaign manager for the first respondentdistributed Two million Four Hundred Thousands shillings to KKKT Church andanother Four Hundred Thousand Shillings was given to staff and students of NkingaSecondary School while the Primary School Teachers were given twenty thousands shillings each tovote for the first respondent. 15. Whether at Majengo Village,Chabutwa Ward CCM cadres were caught-up distributing money to voters a few daysbefore Election Day.16. What reliefs are entitled to the parties? Inthe cause of the trial and specifically at the end of the trial both partiesdiscovered and agreed that there are some other issues which have cropped upfrom the recorded evidence and which should equally be determined by thiscourt. The parties requested this courtfor leave to frame the additional issues. Their request was granted under Order XVI Rule 5 (1) and (2) of theCivil Procedure Code, Cap 33 which empowers the court to amend or addissues. Also in the case of Tanzania Electric Supply Company Ltd Vs.Muhimbili Medical Centre (2003) TLR 276 and the case of Agro Industries Ltd Vs. Attorney General(1994) TLR it was held that when a trial court allows parties to address it onany issue, the court must conclusively determine those issues, notwithstandingthat the issues were not directly pleaded. In the result the parties proposed three additional issues which wereduly endorsed by this court as follows;- 1. Whether the attendance andparticipation of the Ministers in the election campaign may affect the free andfair election.2. Whether distribution of maize aidduring election campaign affected the free and fair election.3. Whether non-reporting of electionmisconducts or irregularities by a party or candidate to the Zonal Election EthicsCommittees set under the Law may bar judicial process. Ingeneral the crucial question is whether the entire exercise of the October,2011, by-election in Igunga Constituency was transparent, free and fair in linewith the Electoral Laws Procedures and Commission directives. Themandate of this court to determine and resolve the election petition is derivedfrom both the Constitution of the United Republic of Tanzania and the NationalElection Act, Cap 343 (herein after to be referred as the Act). Section 108 of the Act specifies when and howthis court can avoid an election. Thatsection provides:- “108 – (1) Pursuantto the limitation imposed by sub-article (7) of Article 41 of the Constitution,the provisions of this section shall apply only in relation to the election ofa candidate as a member of Parliament.(2) Theelection of a candidate as a member of Parliament shall be declaredvoid by only on an election petition if the following grounds is proved to thesatisfaction of the High Court and on no other ground, namely –(a) that,during the election campaign, statements were made by the candidate, or on hisbehalf and with his knowledge and consent or approval, with intent to exploittribal, racial or religious issues on differences pertinent to the electionrelating to any of the candidates, or, where the candidates are not of the samesex, with intent to exploit such differences.(b) Non-compliancewith the provisions of this Act relating to election, if it appears that theelection was not conducted in accordance with the principles laid down in suchprovisions and that such non-compliance affected the result of the election; or(c) Thatthe candidate was at that time of his election, a person not qualified forelection as a Member of Parliament.(3) Notwithstandingthe provisions of subsection (2), where upon trial of an election petitionrespect of an election under this Act, the High Court finds that corrupt or illegal practice in connectionwith the election has been committed by or with the knowledge and consent orapproval of any of the candidate’sagents and the High Court further finds, after giving the Attorney General orhis representative an opportunity of being heard, that the candidate has provedto the High Court –(a) thatno corrupt or illegal practice wascommitted by the candidate himself or with the knowledge and consent orapproval of such candidate;(b) thatthe candidate took all reasonable means for preventing the commission of anycorrupt or illegal practice at such an election; and(c) thatin all other respects the election was free from any corrupt or illegalpractice on the part of the candidate,then, if the HighCourt so determines, the election of such candidate shall not by reasons of any such practice bevoid. Fromthe outset the petitioner’s main complaints are grounded under subsection 2(a)and (b) above. Nonetheless, according tothe land mark decision in the case of AttorneyGeneral and two Others Vs. Aman Walid Kabourou (1996) LRT 156, the Court ofAppeal categorically found that section 108 of the Act is not exhaustive andthe court observed; “There are groundsother than those stated in section 108 of the Election Act for thenullification of election results. Suchother grounds include anything which renders the elections not free and fair aswell as any law which seeks to protect an election which is not free and fair,since such would be unconstitutional.” Thereforethe jurisdiction of this court to inquire into the legality of anything done orcommitted during election process is not fettered or limited under section 108of the Act. Even on the part of corruptpractices the Court of Appeal construed to the effect that;- “The mere removal of illegaland corrupt practices from section 108 does not have the effect of renderingsuch practices permissible in terms of the Election Act, 1985. Instead, the effect of such removal is thatsuch practices are no longer per se sufficient grounds for the nullification ofelection results. Such practices arestill relevant, however, in determining whether election were conducted feelyand fairly.” The most important and referablelegislation in this petitioner is The Election Code of Conduct, 2010 made undersection 124 A of the National Election Act. This Code provides for Ethical Conducts of Political Parties and theircandidates, the Government and Electoral Commission. It also provide for mechanism for enforcementof the Code during election campaign period. According to the petitioner’s pleadings and evidence most of the allegedmalpractices and irregularities are based on the said Code. Havingsaid that, in attempting to determine this matter, I am aware that in anyelection there should be strict observance and adherence of the election lawsand regulations by all participants in order to engender public confidence inthe entire process. But I am also awareof the seriousness and importance of Igunga voters to elect theirrepresentative of their choice, and indeed the court have no mandate to lightlyinterfere with democratic choice of the voters unless it is established andproved to the required standard of proving beyond all reasonable doubt thatthere were electoral irregularities and malpractices that rendered the saidelection void and thus subject to nullification. In law the burden of proof is upon thepetitioner who alleges the malpractices, and irregularities werecommitted. The standard of proof isbeyond reasonable doubt. See the casesof Chabanga Dyamwale vs Alhaji Masomo(1982) TLR, 69 and Yongolo vs Erasto and Attorney General (1971) HCD 259 where theCourt stated that the party which seeks to avoid election result has to proveto the satisfaction of the court non-compliance with Elections Act, and that proof to the satisfaction of theCourt means the proof beyond reasonable doubt. Perhaps the more realistic approach is found in the case of Abel Mwanga vs Eliasaph Lema, Misc.Civil Appeal No. 4 of 1982, CA Mwanza (Unreported) where it was held that “itis enough if the Court is satisfied that the evidence has proved thecase beyond reasonable doubt” because there is no need for proof beyond doubt. In that case the Court of Appeal cited the case of R vs. Dourado and Kikambaro where the court said: “In human relationsit is not easily to prove things beyond doubt. In reality it would not be possible for a person to demand proof beyonddoubts. And I do not think the lawdemands that a person proves beyond doubt. It is enough if a person is satisfied in his mind.” Inthe recent cases of Manju Salum Msambyavs The Attorney General and Kifu Gulamali Kifu, Civil Appeal No. 2 of 2002(CA) and Lutter Symphorian Nelson vs AGand Ibrahim Said Msabaha (2002) TLR (CA) it was emphasized that the burdenof proof is heavy on the person who assails an election petition which has beenconcluded, and the standard of proof thereof is beyond reasonable doubt. That principle is further expounded inlaw to the effect that it is not sufficient for the petitioner to establish theoccurrence of irregularity or malpractice only, for he must show how thealleged irregularity or malpractice substantially and materially affected theoutcome of the Electoral process. Seethe cases of Madundo vs Mweshemi and the Attorney General (1972) HCD 18. Perhaps the most exquisite exposition isfound in Chabanga Dyamwale’s case(supra) where the court observed: “In the light of theauthorities I would hold that the question whether non-compliance with theprovision of the Act relating to elections affected the result of the election woulddepend on the nature of the particular complaint or irregularity and on themargin of victory. Where a specificirregularity has been proved and the number of votes affected established with some precision, then allowance should bemade for that and if adjustment have been made the successful candidate stillretains some margin or victory, then the irregularity has not really affectedthe result of the election. Where however, the complaint goes to the roofof the election such as a case of organized campaign or undue influence and itappears that a substantial number of votes were obtained (or, I may add, mayhave been obtained thereby), then since the extent of such wrong practice maynever be known the court may be inclined to hold that it affected the result ofthe election without proof of actual reversal of the result.” Anothersignificant and important principle in election petition was stated in the caseof Joseph Sinde Warioba vs. StephenWassira and Another Misc. Civil Cause No. 25 of 1995 (unreported) where itwas stated that the franchise is the very corner stone of democracy; it is theone right more than any other, upon which all other Constitutional rightsdepend their effective protection. Whenthe right to vote is denied or abrogated, democracy and freedom fail. Democracy should always be conducted or putin action the way it is preached and accepted. One more principle which would beguiding in determining this petition is concerning minor discrepancies,contradiction and inconsistencies in evidence. It must be understood that minor discrepancies and even minorcontradictions by any witness or among witnesses can not be avoided in anyparticular case. In my consideredopinion the courts will totally and completely fail to protect, promote andassist the smooth growth of our young democracy from evils of premeditatedmalpractices, irregularities, non-compliances and corrupt practices if theypretend to look for absolute certainty, absolute assurance and holy writevidence. The court have a duty toreasonably consider and evaluate thepossibilities of minor discrepancies, contradictions and inconsistencies in thewitnesses testimonies which do not go to the roots of the subject matter oroccasion injustice. In the case of Dickson Elia Nsamba Shapwata & another vs Republic, CriminalAppeal No. 92 of 2007, Mbeya Registry (CA) (unreported), the Court adopted the meaning of the “discrepanciesin a case” as follows:- “Normal discrepancies inevidence are those which are due to normal errors of observation, normal errorsof memory due to lapse of time, due to mental disposition such as shock andhorror at the time of the occurrence and those are always there however honestand truthful a witness may be. Materialdiscrepancies are those which are not normal and not expected of a normalperson. Courts have to label thecategory to which a discrepancy may be categorized. While normal discrepancies do not corrode thecredibility of a party’s case, material discrepancies do.” Then the Court of Appeal went ahead andheld that: “In evaluating discrepancies,contradictions and omissions, it is undesirable for a court to pick outsentences and consider them in isolation from the rest of the statements. The court has to decide whether thediscrepancies and contradictions are only minor or whether they go to the rootof the matter.” Guided by the above legal principlesand observations let me turn to the framed issues. I will prefer to start with the additionalissue No. 3 whether non-reporting of election misconducts or irregularities bya party or candidate to the Zonal Election Ethics Committee set under the lawmay bar judicial process. I havedecided to start with this issue because non-reporting of the electionmisconducts or irregularities has been raised as a defence by the respondentsin many complaints. DW20, the ReturningOfficer and Chairman of the Zonal Election Ethics Committee testified to theeffects that according to the Election Laws all Election complaints aresupposed to be reported and registered with the Chairman of the EthicsCommittee. He stated that within theIgunga by-election campaign period he was able to receive only three complaintsnamely:- a. One, the complaint filed by CHADEMAagainst Ismail Aden Rage (DW15) who was found masquerading with a pistol in theone of the by-election campaign meetings. The Ethics Committee convicted Ismail Aden Rage and fined himTShs.100,000/=b. Two, complaint filed by CHADEMA against CCM alleging that the members of CCMhad assaulted members of CHADEMA anddestroyed CHADEMA campaign placards. CCM was convicted and warned.c. Three, complaints filed by CCMagainst CHADEMA that abusive language and insulting words were used by membersof CHADEMA against CCM. CHADEMA wasconvicted and warned. PW20 stated that all othercomplaints shown in the petitioners pleadings were not reported to his EthicsCommittee, and therefore non-reporting to the Ethics Committee means there wereno complaints. PW16 Benson Kigaila Singotestified to the effect that all complaints were reported to theirrepresentative to the Ethics Committee one Mr. Waitara and some were reportedat the Police Station. Paragraph 5.3 of the Electoral Code ofConduct, 2010 provides:- “Mgombea au Chama KilichosainiMaadili ya Uchaguzi na kuweka mgombea kinachoamini kwamba Maadili ya Uchaguziyamekiukwa kitawsilisha malalamiko kwaMwenyekiti wa Kamati ya Maadili ya Uchaguzi katika ngazi inayohusika kwamaandishi.” Then paragraph 5.4 states: “Malalamiko yoyoteyatakayotokea yawe yamewasilishwa kwenye Kamati ya Maadili ya Uchaguzi ya ngazihusika ndani ya saa arobaini na nane (48) tangu kutokea kwa tukio linalolalamikiwa.” The petitioner’s counsels submittedthat the above provisions do not exclude the possibility of instances wherecertain complaints may not be reported and there is no regulation thatexplicitly ousts the jurisdiction of courts of law from determining complaintsthat were not reported under the above provisions. They submitted that mere failure by the partyto report malpractice or unlawful acts can not justify the alleged unlawful acts. The petitioner counsels supported theirproposition by citing Article 13 (1) and 30 (3) of The Constitution of theUnited Republic of Tanzania 1977. Counsels for the respondentsconceded that non-reporting of misconduct or irregularity does not prevent orbar the judicial process in anyway. However, they submitted that where the law is mandatory then the partyhas no other option but to comply with the law. They stated that the petitioner must give sufficient explanation on whatprevented him from complying with the requirements of the law. They further agreed that since the petitionerand his agents were well aware of the procedures on the issue of reporting, andyet failed to report, it means that all the alleged misconducts andirregularities which were not reported are mere afterthoughts. I sincerely agree with the bothcounsels that non-reporting of the election complaints to the Ethics Committeesduring election process can not be used to white-wash all irregularities andmisconducts committed during election process. The doors of justice must always be left open and the courts shouldalways be envious of their inherent power to oversee that justice is not onlydone but is seen to be done. The courtswould keep its hands off only where itsjurisdiction has been categorically ousted by law. Secondly, I would prefer to distance myselffrom the submission made by the learned defence counsels that paragraphs 5.3and 5.4 of the Electoral Code of Conduct, 2010 are mandatory. There is nowhere in the said paragraphs orthe whole code which provides to that effect. The law is clear that the complainant has an option to report hiscomplaints to the Electoral Ethics Committees during the Election process or torefer the same to the Court after election process. May be, I can go further and say, even afterreporting the complaints to the Ethics Committee, the complainant has an option after the election process to refer his complaint to the courtagain if he believes the misconduct was serious enough to avoid the whole election process. In my considered view any efforts totake non-reporting of election non-compliances, and misconducts as a defence ora sanctuary for electoral misconducts would amount to efforts to suffocate thepromotion of democratic elections. I sayso because the law on this matter is clear. Reporting complaints to theprescribed Ethics Committees during election campaign is intended to keep thecourts away from electoral process, to maintain speed and smooth electionprocess and avoid vacuum in governance. Courts are allowed to deal with election complaints after completion ofelection process. See the case of Pannuswamivs. The Returning Officer Mamakal Constituency and Others AIR 1952 SC 64and Mahinder Singh Gill and Another vs.Chief of Election Commission New Delhi and Others AIR 1978 SC 851 where thecourt observed; “Having regard to the importantfunctions which the legislations have to perform in democratic countries, ithas always been recognized to be amatter of first importance that elections should be concluded as early aspossible according to time schedule andall controversial matters and all disputes arising out of electionsshould be postponed till the elections are over, so that the electionproceedings may not be unduly retarded or protracted.” Again in the case of ElectoralCommission of Indiavs State of HaryanaAIR 1984 SC 1406, it was held that; “The imminence of the electoralprocess is a factor which must guide and govern the passing of orders in theexercise of the High Courts writ jurisdiction. The more imminent such process, the greater ought to be reluctance ofthe High Court to do anything, or direct anything to be done, which willpostpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on inaccordance with the provisions of the Constitution.” In my considered view, that is theposition in Tanzania. Therefore non-reporting to the EthicsCommittee does not mean to condone violation and malpractices in electionprocess. There is no regulation or lawwhich explicitly ousts the jurisdiction of the court. The complainant is free to file a petition incourt after the election process and in order to buttress up his credence maygive reasons to show why he did not report to the Ethics Committee. I now turn to Issue Number I. The firstissue is “Whether on 28[SUP]th[/SUP]September, 2011 Hon. John Magufuli Minister of Works, using his politicalposition and influence as a Minister at a public meeting at Mbutu Igungapromised to the voters to construct thevital Mbutu Bridge if they would vote infavour of the first respondent.” This complaint falls under the ambit of paragraph 3.3. (b) (i) and (ii)of the Electoral Code of Conducts for Presidential, Parliamentary andCouncillors Election 2010, made under the provision of Section 124 A of theAct. Paragraph 3.3. (b) (i) and (ii)provides; “(b) Kuanzia kipindi chaKampeni za Uchaguzi mpaka kutangazwa kwa matokeo, mawaziri, watendaji namamlaka zingine za serikali hazitakiwi:- (i) Kutangazakatika vyombo vya habari au kwa namnayoyote misaada au ahadi ya aina yo yote.(ii) Kutoa ahadi za shughuli zamaendeleo ya jamii kwa mfano, kujenga barabara, kusambaza maji na mambo mengine kamahayo.”(emphasizemine) According to the reams of evidencefrom both sides there is no dispute that the MbutuBridge along the Mbutu Riverwhich divides Igunga South and Igunga North has been a menace to the Mbutupeople since 2006 when the bridge was destroyed by floods. Since the collapse of Mbutu Bridgepeople have been crossing that river by using locally made canoes, ropes andother unsafe means causing serious loss of life and properties. At the same time, since 2006 the Governmenthas been promising for the construction of the said bridge which was laterincluded in the parliamentary Budget speech of 2010/2011 and 2011/2012 (ExhibitD2 and D3). It is important to note thatduring the by-election campaign the construction of the Mbutu Bridgehad not commenced. To substantiate the complaint on thefirst issue the petitioner has relied on the evidence of PW1 (Joseph MwanduKashindye), PW2 (Masanilo Mbobho), PW3 (Gimbali Malale), PW4 (Mlenga Luhela),PW5 (Silvester Mhoja Kasulumbai), PW7 (Sharon Sauwa) and PW8 (Arodia Peter). I would prefer to concentrate on thetestimonies of the witnesses who alleged to have been present in Hon.Magufuli’s campaign meetings and heard him verbally. These were PW2, PW3, PW4, PW7 and PW8. The evidence of PW1and PW5 may onlybe used to support and add credence to the testimonies of the primary witnesses whose evidence is supposedto establish the allegation. According to the evidence theincident of promises by Mr. Magufuli happened in two campaign meetings. The first one was made on 28 September, 2011at Sabasaba grounds within Igunga District Council. Exhibit D7 campaign meetings timetableindicate there was such meeting. Thiswas witnessed by PW7 and PW8 the news reporters from NIPASHE and MTANZANIAnewspapers respectively. DW7 testifiedto the effect that she was appointed by her company, Guardian Limited to coverthe by-election campaign for Igunga Constituency. She testified that on 28[SUP]th[/SUP]September, 2011 at Sabsaba grounds, Igunga District Council, in a campaignmeeting she heard and witnessed Mr. Magufuli Minister of Works promising peoplethat he would construct the Mbutu Bridge if they voted forthe CCM candidate Mr. Kafumu. In her ownwords she said:- “Hon. Magufuli promised thepeople that if they voted for Mr. Kafumu of CCM he will build the Mbutu Bridge.” PW7 told the court that, as ajournalist she prepared her cover story and send it to her editor forpublication. Indeed the next day thestory was wide in the NIPASHE newspaper dated 29[SUP]th[/SUP] September,2011. PW7 was able to produce the saidNIPASHE newspaper dated 29[SUP]th[/SUP] September, 2011 which was admitted andmarked Exhibit P1. The full coveragesupporting the allegation against Mr. Magufuli is vividly in Exhibit P1. Likewise PW8, testified to the effectthat she was appointed by her Company, The News Habari 2006 to cover theby-election campaign for Igunga Constituency. In the News Habari 2006 Company she writes for the MTANZANIA Newspaper. PW8 testified to the effect that on 28[SUP]th[/SUP]September, 2011 at Sabasaba grounds, Igunga District Council she head andwitnessed Mr. Magufuli, Minister of Works promising people that he will build Mbutu Bridgeafter the election of the CCM candidate. In her own words she stated: “On 28[SUP]th[/SUP] September,201I was a public meeting at Sabasaba grounds – Igunga town. As a Media person I was there to witness thearrival of CCM helicopter and some Ministers including Mr. Magufuli. Magufuli arrived there and started to addressthe public, as a Minister he promised to build the Mbutu Bridgeafter the election of candidate from his party. As usual I prepared the news and send it to my editor at Dar es Salaam.” PW8 was able to produce the saidMTANZANIA Newspaper dated 29 September, 2011 as exhibit. It was admitted and marked Exhibit P3. PW8’s coverage story “MAGUFULI ATUA IGUNGA, AAHIDIKUJENGA DARAJA LA MBUTU” was vividly reported in Exhibit P3. Inspite of the intense cross examination bythe defence both PW7 and PW8 remained stable, consistent and reliable. From defence side there was no serious responseagainst the testimonies of PW7 and PW8 on this matter apart from the submissionfrom the defence counsels to the effect that their testimonies were engulfed incontradictions because each witness narrated her own version as to what Hon.Magufuli had said. With much respect tothe learned counsel s for the respondents, the testimonies of PW7 and PW8 werestraight forward and I could not discover any contradiction, inconsistence oromissions. It must also be noted that inevidence it is not possible for a witness to recall every specific word ordetail of a speech. It is enough for awitness to give the essential message or information intended by themaker. See Manju Salum Msambya (Supra). To me it is inescapable to believe these two witnesses. I term them as very reliable and crediblewitnesses. The second incident of Hon.Magufuli’s incident is that of Mbutu Villagein Mbutu Ward. This is supported byExhibit D7 Ratiba ya Kampeni za Uchaguzi Mdogo wa Ubunge Jimbo la Igunga.(Ratiba kuanzia tarehe 13/09/2007). According to the evidence, this campaign meeting was held on 30/09/2011and not 28/09/2011. The witnesses whoclaimed to have attended it and heard Hon. Magufuli promising for theconstruction of Mbutu Bridge in considerationof the electing the CCM candidate were PW2, PW3 and PW4. In his efforts to convince the court on whathe heard and witnessed, PW2 stated; “On that date of that meeting,Mr. Magufuli told the people that if they vote for CHADEMA candidate he willnot build Mbutu Bridge.” PW3,testified to the same effect that he heard and witnessed Mr. Magufuli promisingpeople that he will build the Mbutu Bridge if the candidateof CCM is elected. Although this witnessappeared to have forgotten the exact dates and names of all leaders whoattended the meeting his testimony on the facts at issue corresponds with thetestimonies of PW2 and PW4. Pw4testified to the effect that Hon. Magufuli called Wananchi to vote for CCMcandidate so that Mbutu Bridge may beconstructed. In his own words hesaid; “Campaign meeting for CCM wason 30/09/2011. Regarding the Mbutu Bridge,Hon. Magufuli claimed that if we don’t vote for CCM candidate the bridge wouldnot be constructed. He stated that, as aMinister for Works he will only construct it if CCM candidate is elected.” Ihave no reason to doubt the testimonies of PW2 and PW4. To me they are both credible witnesses. Also it is worth pointing out here that Exhibit D7(Ratiba ya Kampeni za Uchaguzi ya tarehe 13/09/2011) is clear that on28/09/2011 there was no CCM campaign meeting held at Mbutu Village although on the same date there were somecampaign meetings for CCM held in Mbutu Ward. Those campaign meetings covered only GanyawaVillage, BukamaVillage, MwabakimaVillage and Ibutamisuzi Village. Exhibit D7 further indicate that the CCMcampaign meetings for 30[SUP]th[/SUP]/09/2011 were held at Mbutu Ward coveringMbutu village, Bukama Village and Ibutamisuzivillage. Therefore what was conceded bythe parties in the pleadings and matters not in dispute was the CCM campaign meetings held on 28[SUP]th[/SUP] September, 2011in Mbutu Wardand not Mbutu Village. Therefore the evidence of DW19 YonaSamwel that he attended the campaign meeting on 28[SUP]th[/SUP] September, 2011whichwas attended and addressed by Mr. Magufuli at Mbutu Villageis unfoundable and concocted. Inhis testimony DW1 (Dalaly Peter Kafumu) clearly pointed out that; “at Mbutu village (Mbutu Ward) we landedthere with helicopter - - - -. Afterintroduction Mr. Magufuli talked about the Mbutu Bridgefor a long time. He told people that thebridge was in the government plan and that the tender has been floated and thebridge must be constructed as planned by the Government.” In the cross examination by Prof. Saffari, DW1 responded as follows:- “I am not saying we did notgive any promise. We promiseddevelopment and Magufuli promised to build the Mbutu Bridge- - - - - Magufuli was at the campaign. He was introduced as a Minister of Works but I knew he was there as acadre of CCM. The Ministers wereintroduced by their Ministerial positions - - -” Theallegation that Hon. Magufuli talked about building of the Mbutu Bridge or promised to build it becauseit is one of the outlined projects inthe CCM Election Manifesto have no legal support. Under the Electoral Code of Conducts, 2010,there is no provision giving exemption to the projects outlined in anyPolitical Party’s Election Manifesto. Therefore a Political Party’s Election Manifestos should not be couchedand used to defeat the requirements of the laws, regulations or provisions ofthe Electoral Code of Conduct. Paragraph 3.3. (b) (ii) is clearthat:- “(b) Kuanzia kipindi chaKampeni za Uchaguzi mpaka kutangazwa kwa matokeo, mawaziri, watendaji namamlaka zingine za serikali hazitakiwi:- (ii) Kutoaahadi za shughuli za maendeleo ya jamii kwa mfano, kujenga barabara, kusambazamaji na mambo mengine kama hayo.”(emphasize mine) Withall fairness the evidence in support of the first issue was not challenged and eventhe evidence of DW19, DW20 and DW22 has nothing to salvage the situation. In fact the evidence of DW19 (Yona Samweli)who purported to suggest that there wasa CCM campaign meeting at Mbutu village on 28[SUP]th[/SUP] September, 2011 wasproclaimed a liar by petitioners witnesses and Exhibit D7 (The programme whichregulated the campaign meetings) The submission by the defencecounsels that in those meetings Hon. Magufuli was speaking as a CCM cadre forhis political party explaining issues on the construction of the Mbutu Bridgewas in response to the people’s questions and was well within his politicalparty manifesto cannot advance the defence case nor cast a reasonable doubt onpetitioner’s evidence. There is ample evidence from the petitioner’switnesses and respondents witnesses particularly DW1 the first respondent thatMinisters were introduced in their capacities as Ministers. When DW1 wascross-examined by Prof. Saffari Learned Counsel for the petitioner he statedthat Hon. Magufuli was introduced as a Minister of Works. The impact of Ministers participation inelection campaign and how their campaign speeches may adversely affect theelection campaign was discussed in the case of Attorney General and 2 Others vs. Amani Walid Kabourou (1996) TLR156. It is unfortunate that Mr. JohnPombe Magufuli refused to appear before this court to defend the allegationsleveled against him. See the ruling ofthis court dated 28[SUP]th[/SUP] June, 2012. The counsel for the respondents hasattempted to capitalize on the issue of non-reporting but as I have pointed outabove on the position of the law regarding to the issue of non-reporting, I amsatisfied beyond reasonable doubt that the malpractice was indeedcommitted. Therefore, in thecircumstances non-reporting have no room to cast a doubt on the petitioner’scase. In consideration of the availablepetitioners evidence this court is inclined to invoke, for the interest ofjustice, its powers under Order 14 Rule 5 (i) of the Civil Procedure Code whichallows for the amendment of the framed issues where it is necessary. Issuenumber 1 is therefore amended to read as follows;- “Whetheron 28[SUP]th[/SUP] September, 2011 and 30[SUP]th[/SUP] September, 2011 Hon.John Pombe Magufuli Minister of works, using his political position andinfluence as a Minister at a Publicmeeting at Sabasaba grounds Igunga townand Mbutu Village, respectively promised to the voters to construct thevital Mbutu Bridge if they would vote infavour of the first respondent.” Basing on the above evidence I am inclined to answer that issue inaffirmative. I am therefore convinced that on 28[SUP]th[/SUP]September, and 30[SUP]th[/SUP] September, 2012 Hon. John Magufuli Minister ofWorks using his political position and influence as a Minister at a Publicmeeting at Sabasaba grounds Igunga town and Mbutu Village respectively promisedto the voters to construct the Mbutu Bridge if they would vote in favour of thefirst respondent. I further hold that such conductsaffected the attainment of a free and fair election results because it violatedsection 108 (2) (b) of the National Election Act and paragraph 3.3 (b)(i)(ii)of the Electoral Code of Conduct 2010. Such conducts amount to misuse of theministerial powers and Government development projects to the detriment ofother contesting Political Parties. TheMinister used earmarked government projects to wit construction of Mbutu Bridge,to influence voters to vote for his party’s candidate. That indeed affected the election results. The firstissue is resolved in favour of the petitioner. The Second Issue is“Whether on 28[SUP]th[/SUP] September,2011 Hon. Magufuli using his political position and influence as a Minister of Worksat a Public Meeting at Mbutu threatened voters that the Mbutu Bridge would neverbe constructed and they would never be provided with maize as aid by the Governmentunless voted for the first respondent.” This complaint falls under the ambit of paragraph 3.3. (b)(ii) of theElectoral Code of Conducts, 2010 made under section 124 A of the Act. According to the evidence of PW2, PW3 andPW4, this complaint originates from the sequence of events and speeches made byHon. Magufuli in the election campaign meeting held on 30[SUP]th[/SUP] September,2011 at Mbutu Village and not on 28[SUP]th[/SUP]September, 2011 as pleadings suggest. As I have pointed out above on the Issue Number 1 and evidenced by exhibitD7 there was no CCM campaign meeting held at Mbutu Villageon 28[SUP]th[/SUP] September, 2011. Insupport of this complaint, is the evidence of PW1 (Joseph Kashindye), PW2(Masanilo Mbobho), PW3 (Gimali Malale), PW4 (Malenga Luhela) and PW5 (SylvesterMhoja Kasulumbai). This issue containstwo limbs. The first one is whether Hon.Magufuli threatened voters that the Mbutu Bridge would never be constructedunless voted for the first respondent. The second limb is whether Hon. Magufuli threatened voters that theywould never be provided with maize as aid by the Government unless voted forthe first respondent. Letme start with the first limb. The firstlimb is somehow intertwined with the first issue because according to theevidence of PW2, PW3 and PW4, the main purpose of Hon. Magufuli was toinfluence voters through promises to construct the bridge in return of votingfor the CCM candidate. Nevertheless, itis on the evidence that Hon. Minister went further and announced theconsequences of not voting for the CCM candidate. That is what constituted threats to thevoters. The most crucial and reliableevidence on this allegation is that of PW2, PW3 and PW4. PW1 and PW5 were not primary and eyewitnesses. Accordingto the testimony of PW2 and PW3 the Hon. Magufuli assured the voters that ifthey vote for CHADEMA he will not build Mbutu Bridge. In his testimony PW4 also testified to haveheard and witnessed Hon. Magufuli saying to the voters that if they don’t votefor CCM candidate the bridge would not be constructed. He further stated that, the Hon. Magufuliwarned that as a Minister of Works he will only construct it if CCM candidateis elected. It is obvious that if one decidedto go by the assertion of the Hon. Minister the vital Mbutu Bridgewill never be constructed without voting for CCM candidate and that constituteimminent threat to the voters. Onthe second limb the evidence of PW2 reveals that Hon. Magufuli threatenedvoters that they would never be provided with maize if they voted for CHADEMAcandidate. According to the evidence ofPW2, Hon. Magufuli announced; “Mkichagua Chamakingine sitaleta mahindi, chagueni CCM.” Thereis evidence from both prosecution side and defence side to the effect that theGovernment was distributing maize aid to the Igunga people during the electioncampaign period. (I will discuss that matterlater when dealing with the additional framed issues). At this stage it is enough to say thatalthough the alleged maize aid was not being brought nor distributed by Hon.Magufuli there is evidence that he was speaking as a Minister of Works. (Seealso the testimony of DW1). Thereforethe submission made by the defence counsels that the allegations are fallaciousbecause Mr. Magufuli a mere CCM Cadre was not in the position to speak aboutthe said maize aid have no weight. Howeverthe defence counsels contended that the maize was under Government programmeand there were special maize distribution committees during the exercise. Hence, no threats were reported nor provedbeyond reasonable doubt. I disagree withthe learned counsel. There is ampleevidence to prove the complaint. We haveseen the cogent evidence of PW3, and that evidence is amply supported by thetestimony of PW4 who insisted that he heard and witnessed Hon. Magufuli tellingvoters that if they fail to vote for CCM candidate they will not receive maizeaid in Mbutu. Apartfrom nervous denials made by DW1 and DW19 on behalf of Hon. Magufuli there wasno reliable evidence to cast a doubt on the evidence of PW2, PW3 and PW4. As I have pointed above Hon. Magufuli refusedto appear before this court as a witness even after being summoned twice. Constantwith Issue Number 1, and in the interest of justice, I hereby invoke the powersof this court under Order 14 Rule 5 (1) of the Civil Procedure Code whichpermits the amendment of the drawn issues where it is essential. Issue Number 2 is hereby amended to read asfollows; “whether on 30[SUP]th[/SUP]September, 2011 Hon. John Magufuli using his political position and influenceas a Minister of Works at a public meeting at Mbutu Village threatened votersthat the Mbutu Bridge would never be constructed and they would never beprovided with maize as aid by the Government unless voted for the firstrespondent.” BeforeI conclude this issue, I must point out that the counsels for the respondentshave expediently relied on the non-reporting because there is no sufficientevidence to prove that the complaint was reported to the Ethics Committee. However, on the stance of law narrated aboveand the fact that there is sufficient and reliable evidence to prove the irregularity,non-reporting has failed to cast a doubt on the petitioner’s case. Inview of that and the above findings the secondissue is decided in favour of the petitioner. The question is whether non-compliance affectedthe Igunga by-election results? The answeris yes, I am satisfied that the threats vented to voters by Hon. Magufuli,Minister of Works could have forced somevoters to cast their votes in favour of CCM out of fear of loosing both theconstruction of the vital Mbutu Bridge and maize aid supply from theGovernment. Therefore, one can not say,with impunity that Igunga by-election was transparent free and fair. Issue Number 2 is resolved in favour ofthe petitioner. Issue Number 3 is “Whether on 28[SUP]th[/SUP] September, 2011,hon. John P. Magufuli, Minister of Works by using his political position andinfluence at a Public campaign meeting at Mbutu intimidated voters by tellingthem that those who would vote against the first respondent would bedetected and severely dealt with.” Thiscomplaint is equally pegged to paragraph 3.3. (b) (ii) of The Electoral Code ofConducts 2010 made under the provision of section 124 A of the Act. Themain petitioner’s witnesses in this complaint are PW2. PW3 and PW4. To say the least and for obvious reasons I amnot intending to take much time on this issue. According to the evidence of PW2, PW3 and PW4 this issue also originatesfrom CCM campaign meeting held on 30[SUP]th[/SUP] September, 2011 at Mbutu Villageand not CCM campaign meetings held on 28[SUP]th[/SUP] September, 2011 in MbutuWard. I have already shown above theposition of Exhibit D7 (Ratiba ya Kampeni za Uchaguzi mdogo wa Ubunge Jimbo laIgunga September 2011 ya tarehe 13 Septemba, 2011) which is the most reliabledocuments from the Electoral Commission. Therefore, to be fair and just the drawn issue should have reflected 30[SUP]th[/SUP]September, 2011 and place of meeting should have been Mbutu Villageand not Mbutu. According to Exhibit D7on 28[SUP]th[/SUP] September, 2011 there was no CCM campaign meeting at Mbutu Village. Forthat reason and for consistence with first and second issues I hereby exercisethe powers of this court under Order 14 Rule 5 (1) of the Civil Procedure Codewhich allows for the amendment of issues where necessary and amend issue No. 3to read as follows:- “Whether on 30[SUP]th[/SUP]September, 2011, Hon. John Magufuli Minister of Works by using his politicalposition and influence at a Public meeting at Mbutu Village intimidated votersby telling them that those who would vote against the first respondent would bedetected and dealt with?” According to the evidence availablethe gist of the petitioner’s complaintin this issue is the statement of Hon. Magufuli, Minister of Works in thecompaign meeting held on 30[SUP]th[/SUP] September, 2011 at Mbutu Villagethat “Ninyi mkichagua CHADEMAnitawashughulikia baadaye.” That wasthe evidence of PW2 who was present in that meeting. PW3 also stated that Hon. Magufuli told thecrowd that “if you vote for another party you shall be known andworked upon.” However there is further evidence fromPW2 to the effect that he heard and saw Hon. Magufuli announcing in thecampaign meeting that those who will vote for opposition would be detected anddealt with. However, in his own testimony andduring cross-examination PW2 clarified his words when he told the court that heunderstood the statement of Hon. Magufuli to mean that he would deal with themlater by denying them maize aid share. On the part of PW3, he categoricallystated in his examination in chief as follows:- “when Hon. Magufuli said that he will deal with those who fail to votefor CCM, I could not understand what he meant.” Equally PW4 categorically stated thathe was not sure of what Hon. Magufuli meant by the words “deal with” but for sure he never meant a good thing. PW3 and PW4 were not able to tell this courtwhat Hon. Magufuli meant in his statement and no further evidence was adducedto give further explanations. As I have pointed above, I see noreason to discuss much on this issue because, for sure there is no sufficientevidence to establish the allegation to the extent of discussing the defenceevidence. Suffice to say, I am inclinedto agree with the defence counsels submission that there is no sufficientevidence to proof on the complaint under IssueNumber 3. The same is herebyresolved in favour of the respondent. Issue Number 4is “Whether during election campaign atIgunga, Hon. Sophia Simba, Minister of Women, Gender and Children at a Nursing College in Nkinga during lunchtimecalled upon voters not to vote for the petitioner because he was poor with noproper accommodation and that he was not married.” Thiscomplaint is situated and specified under section 108 (2) (a) of the Act. The only witness for the petitioner tosubstantiate the alleged complaint against Hon. Sophia Simba, Minister ofWomen, Gender and Children was PW11 (Jane Mgema). In her testimony she told this court that inSeptember, 2011 while at Nkinga Nursing Collegewhere she is a teacher, Hon. Sophia Simba visited their college. That the alleged visit took place duringIgunga by-election campaigns. PW11claimed that in that visit Hon. Sophia Simba was in the company of the VillageExecutive Officer one Yona Ubapa and a good number of women. The witness stated that on that arrival allteachers including himself were invited to join lunch with the Hon. Minister inone of the classrooms. PW11 stated that in that class there weremore than fifty people and she could neither understand the intention nor thereasons for the Minister’s visit and the lunch invitation. Nevertheless privacy did not permit itselfin everyway for immediately after the lunch, PW11 says, the Minister asked theluncheones to move closer to the high table where she was seated with otherleaders. PW11 testified that theMinister started to give a speech on the by-election matters while advisingthem not to vote for the petitioner because he has no proper accommodation andthat he was not married. PW11 quoted theMinister saying; “Huyu mwalimumwenzenu anayegombea kwa CHADEMA hana mke wala nyumba na hatuachi kusema chaguaCCM.” Inthe cross-examination by defence counsels PW11 conceded that she did not knowwho invited the Minister to the lunch. PW11 could not even mention who invited herself to join the lunch. PW11 also claimed that she was not aware ifHon. Sophia Simba is also the Chairperson of the Umoja wa Wanawake Tanzania(UWT). Still in the cross-examinationPW11 said that most of the guests who arrived with Hon. Sopia Simba were womenand the lunch was prepared by them. FurthermorePW11 stated that she never heard Hon.Sophia Simba saying the candidate of CHADEMA is poor. Inher sworn testimony DW16, (Sophia Simba) testified that she is a Minister forWomen Gender and Children, a Member of Central Committee of CCM and Chairpersonof the U.W.T. She stated that sheparticipated in the Igunga by-election campaign and her main duty was to sensitizewomen, especially members of UWT and convince them to vote for the CCMCandidate and to induce other women to vote for CCM. DW16, claimed that she remember that on a certain date she went to Nkinga area where she was received by the UWTSecretary of the Branch and other leaders. While at Nkinga she was able to conduct a private conclave meeting withUWT leaders which was held under a tree because the small UWT branch officecould not accommodate the participants. The DW16 stated that after that conclave meeting she was invited by herhost for a lunch at Nkinga Nursing Collegeat about 01.00 p.m. DW16 testified thatshe went to the lunch with the members of UWT who attended the private meetingand were joined by other people who were not introduced to her although theywere able to greet her. DW16 stated thatthere was no public campaign meeting at Nkinga and she never gave speech andinsulted anybody. DW16 asked the courtto treat PW11 as a liar for giving false evidence against her. Intheir submission the petitioner’s counsels reminded the court on section 143 ofthe Evidence Act 1967 which provide that, subject to the provision of any otherwritten law, no particular number of witnesses shall in any case berequired for the proof of anyfact. What is important is thecredibility of such witness. Theycontended that PW11 was a credible witness and her evidence has proved thecomplaint beyond reasonable doubt. Thequestion is whether that position is correct. Intheir rebuttal submission the counsels for the respondent answered innegative. They submitted that thecredibility of PW11 was quietly shaken and her evidence was not sufficient toprove the alleged complaint. Onmy side and reading from the testimony of PW11, the only petitioner’s witness,it is obvious that the complaint stated in issue number 4 is still yawning forevidence. It is much so when it is readwith the testimony of DW16 who sufficiently narrated what transpired at Nkinga Nursing College. During the cross-examination by Mr. Kayaga,Learned Counsel for the firstrespondent, PW1 (petitioner) conceded that he is not married and stated that itis not offensive for unmarried man to be told that he is not married. Therefore even if there was such a statementfrom DW16 there was no harm. Secondly,PW11 conceded that she never heard DW16 saying that the CHADEMA candidate ispoor. Infact her credibility wassubjected to demeaning questions. Beit as it may, there is nothing serious in the evidence of PW11 to support issue No. 4. The testimony of DW16 has accurately meltedthe allegations. The Issue Number 4 is hereby decided in favour of the first respondent. The Issue Number 5is “Whether on 28[SUP]th[/SUP] September,2011 at a public campaign meeting at Bukama, Isakamaliwa, Igurubi, and Matinjein Igunga, the Hon. Stephen Wassira, Minister of President’s Office Responsiblefor Relations and Coordination using his political position and influencepromised to supply maize to voters if they would vote for the firstrespondent.” This ground is a non-compliancewhich falls under paragraph 3.3. (b) (ii) of the Electoral Code of Conduct,2010 made under section 124 (A) of the Act. The allegation was totally and completely denied by the respondent andthe petitioner was invited to strictly proof of the same to the satisfaction ofthis court, which is to prove beyond reasonable doubt. Theavailable evidence intended to substantiate this allegation was that of PW10(Dotto Lukeleshi). His testimony was veryshort to the effect that on 26/09/2011 he attended a CCM campaign meeting atIgurubi where Dr. Wassira, the Minister of Agriculture told people that “today is a day to distribute maize. I have come to distribute maize which hasbeen donated by CCM. Therefore if youdon’t vote for CCM I won’t distribute the maize.” Thatwas the gist of PW10’s testimony. Theonly evidence relied upon by the petitioner to prove the allegation which Ifind to be too lonesome and insufficient. In the first place the statement alleged to have been announced by Hon.Wassira is confusing because the utterer was Dr. Wassira, Minister ofAgriculture while the complaint is directed against Hon. Stephen Wassira,Minister of State in the President’s Office, Responsible for Relations andCoordination. Secondly, there is noevidence to prove that there was any maize donated by CCM fordistribution. During the crossexamination PW10 stated that he said maize was being distributed by CCM because that is what he was told byhis Ward Executive Officer before the arrival of Dr. Wassira. Thirdly, the alleged date was not a voting date and therefore theutterer could not have promised to distribute the maize contingent on votingfor that CCM candidate. Fourthly, theevidence of PW10 was directed to what transpired at Igurubi Ward, Mwakwangu Village on 26/09/2022 and not Bukama,Isakamaliwa or Matinje. In fact accordingto Exhibit D7, the programme or timetable regulating the campaign meetings, showsthat on 26/09/2011 there was no CCM campaign meeting fixed to take place at thealleged Igurubi Ward, Mwakwangu Village. Apartfrom the above observations which renders the testimony of PW10 valueless,there was defence evidence from DW21 (Hon. Stephen Wassira) who categoricallydenied to have attended any of the alleged campaign meetings. He also denied to have uttered the allegedstatements and even denounced the evidence of DW15 (Aden Rage) who claimed tohave received him at a CCM Office Igurubi on 26/09/2011. DW21 also clarified hisname as Mr. Stephen Wassira, Minister of State in the President’s Office. He askedthe court to lable PW10 incredible witness. DW21’s evidence was supported to some extent by the testimonies of DW7,DW8, DW20 and also DW11 who purported to have attended a CCM campaign meetingheld on 26/09/2011 at Mwakwangu Village, Igurubi Ward, of which according toexhibit D7, there was no such meeting. Tothat extent and given the pitfalls and serious discrepancies in the evidence ofPW10 it is vividly clear that the petitioner has miserably failed to prove theallegation made under issue number 5. IssueNumber 5 is resolved in favour of the respondents. Issue Number 6 is“whether on 1[SUP]st[/SUP] October, 2011Hon. Ismail Aden Rage, CCM Member of Parliament for Tabora made statement tovoters that the petitioner had withdrawn from the contest for the IgungaParliamentary by-election.” Thiscomplaint falls under the Electoral Code of Conduct paragraph 2.3.2 (a). Theevidence in support of this complaint is found in the testimonies of PW1(Joseph M. Kashindye), PW5 (Silvester Mhoja Kasulumbai), PW6 (Masunga Lugomela)and PW16 (Benson Kigaila Singo). Indefence we have the evidence of DW12(Michael Nicholaus), DW15 (Ismail Aden Rage), DW20 (Magayane Protas) and DW23(Sumera Manoti). According to thetestimony of PW1, on 2/10/2011 the very election day in the morning hours he wasin the company of CHADEMA campaign team including Hon. Tundu Lissu and SilvesterKasulumbai (PW5) visiting the polling stations at Mwagala, Igurubi,Kalangale and Ipembe. They were usingtheir motor vehicle driven by their driver Masunga Lugomela PW6. PW1 stated that while on the way their driverPW6 heard and saw a green motor vehicle Nissan Patrol driven by Hon. Aden Rageattached with speakers on top announcingto the voters to the effect that CHADEMA Candidate has withdrawn from thecontest for the Igunga Parliamentary Constituency by-election. PW1 testified that they all paid attention tothe announcement and witnessed the incident. PW1 stated that when Hon. Rage saw them he speedily drove away his motorvehicle from the scene. PW1 claimed thatthey ordered their driver PW6 to pursue Hon. Rage’s motor vehicle and a speed chaseensued until when Hon. Rage reached at Mwamagobo primary School wherethere was a polling station and drovestraight to the centre and stopped. PW1claimed that they also proceeded to thesame place and stopped their motorvehicle. PW1 stated that at that placethere were some policemen and several people including one Sumera Manoti (DW23)District Administrative Secretary – DAS of Igunga. According to the evidence of PW1, PW5, and PW6when Hon. Rage stopped his vehicle he quickly jumped out and rushed closer tothe policemen and DW23. It is on theevidence of PW1 and PW5 that having stopped their vehicle they also followedHon. Rage and started to question him as to why he was making such a false and unfoundablestatement to the voters claiming that the CHADEMA candidate had withdrawn from theby-election contest. Accordingto the evidence of PW1 and PW5 the matter was settled when DW23, DistrictAdministrative Secretary intervened and ordered Mr. Rage to disconnect his loud speakers from his motor vehicle and advised them, PW1 and PW5to report the matter to the Disciplinary Committee. Inhis testimony PW5 stated that it was when they reached at Ipembe Villagewhen they heard the announcement and then saw the motor vehicle, green incolour attached with speakers at the top. He claimed that the announcement went as follows:- “Msijihangaishekwenda kumpigia kura mgombea wa CHADEMA. Amejiuzulu kugombea kwa kunyimwa fedhaza ruzuku na viongozi wake wa chama.” PW5stated that they were very surprised with that statement and decided to followthe alleged vehicle. In thecross-examination by Mr. Kayaga, Learned Counsel for the first respondent, PW5stated that when Hon. Rage was confronted by him with questions he did not denythe truth because he was found ready handed making false announcements. Indefence DW15 (Ismail Aden Rage) stated that he participated in the Igungaby-election campaign as the CCMcandidate campaign coordinator for Igurubi Zone which covers Igurubi Ward,Kinungu Ward and Itunduru Ward. That on2/10/2011 in the morning hours he went to Igurubi to visit poling station driving his own motorvehicle. DW15 denied all allegationsleveled against him and stated that on the alleged day he was followed by PW5at Mwamagobo village. DW15 claimed thatPW5 was in his motor vehicle with Mr. Tundu Lissu, Mr. Kashindye (PW1) and fourother unknown people resembling “mungikisthugs” who were not speaking fluent Swahili language. He stated that there was also one reportercalled Joseph Senga. DW15 complainedthat suddenly the group led by Tundu Lissu (MP) started to challenge himinquiring on what he was doing while admiring him for being smart atracing. PW15 claimed that in thatprocess a fracas ensued and the police officers who were at the placeintervened and questioned both of them. DW15 stated that the group complained that he was announcing falsestatement to the voters that CHADEMA candidate has withdrawn from theby-election race. DW15 said that thegroup decided to chase him. The witnessstated that he denied the allegation and told the police officers that therewere neither amplifier nor microphone in his car to operate the loudspeakers. Then the police searched themotor vehicle and were not able to find any amplifier or microphone. DW15 claimed that PW1, PW5 and PW6 told liesagainst him. DW15 also stated that he doesnot know Sumera Manoti (DW23) and that the fracas at Mwamagobo was resolved bythe Police Officers. Inthe cross-examination DW15 stated that on that date he was coming from Itunduru Village but fumbled for answers when hewas asked what he was doing in those villages on the Election Day. He ended up saying on 2/10/2011 he stayedlong at his place, Igurubi. DW23,Sumera Manoti, the District Administrative Secretary of Igunga District andAssistant Returning Officer for Igunga Constituency testified to the effectthat on 2/10/2011 he was in his normal duties of supervising the election processas it was Election Day. He stated thathe was moving around with some police officers. He stated that when they were at Mwamagobo polling station and ready tomove to another station they suddenly saw two vehicles chasing each othertowards their position and the front vehicle stopped where they werestanding. DW23 said that quickly Hon.Rage (MP) alighted from the vehicle and ran to them as if he was beingchased. There and then the chasing motor vehicle arrived andstopped. DW23 stated that the other vehiclehad CHADEMA members including Hon. Tundu Lissu (MP), Mr. Kasulumbai (PW5) andone other person who was a bodyguard. They all alighted from the motor vehicle and started to question andaccuse Hon. Rage by saying: “Kwa niniunatangaza kuwa mgombea wa Chadema amejitoa kwenye Uchaguzi wakati sio kweli.” DW23stated that the exchange of words between them and Hon. Rage ensued followingdenial by Hon. Rage that he has not announced such statement. DW23 told this court that he decided to intervenethe matter and Hon. Rage insisted that his motor vehicle had no sufficientequipment like amplifier and microphones to enable the allegedannouncements. DW23 claimed that hechecked Hon. Rage’s motor vehicle and found that there were no such equipments. Then he ordered Hon. Rage to disconnect thetwo loud speakers fixed on top of his vehicle and the matter was settled. Fromthe above evidence there is no dispute that in the morning of the Election Daythere was motor vehicles chase as stated above. Although DW15 attempted to some extent deny that truth the testimony ofDW23, PW1, PW5 and PW6 demeaned him. DW23said it clearly that while at Mwamagobo they saw two vehicles chasing eachother in a high speed and when the first vehicle stopped DW15 alighted from thevehicle and rushed to them in a state of panic. The most significant aspect in the whole chase incident is whatinstigated or caused PW15 to start to run prior to any accusations or complaintsagainst him from PW1 and PW5. Thelearned counsel for the petitioner insisted that Hon. Rage (DW15) decided torun away from PW1, PW5 and PW6 because he was afraid after having committedoutrangers act. They referred thiscourt to section 122 of the Evidence Act Cap 6 R.E. 2002 which states;- “ A court may inferthe existence of any fact which it thinks likely to have happened, regard beingheard to common cause of natural events, human conduct, public and private business in theirrelation to the facts of the particularcase.” Thereasonable explanation or inference is obvious that PW15 started to run becausehe was caught ready handed disrupting election process by announcing to thevoters false and unfoundable statementsaimed to dissuade voters from voting for the petitioner on the ground that hehad withdrawn from the race. Theraised defence to the effect that there were no microphones nor amplifierscapable to transmit sound found in DW15 motor vehicles have no convincing valuebecause in the cross-examination DW23 stated that he could not tell for sure ifthere was such an announcement or not and further admitted that he is not an expertof sound instruments like amplifiers and microphones or wireless FMmicrophones. He also admitted that hedid not search DW15. However, witnesses includingDW15 admitted the fact that DW15’s motor vehicle was found fixed with two loudspeakers on the Election Day contrary to election regulations. Anotherpitfall in the defence case is the apparent serious contradictions in thetestimonies of DW15 and DW23. DW15claimed that when he reached at Mwamagobo it was the Police Officers and PoliceCommander of Igunga who intervened the fracas, questioned them, searched hisvehicle and settled the matter. However,DW23 stated that he was the one who did the whole job. Then there is a lone story in the testimonyof DW15 that in the motor vehicle of the PW1 and PW5 there were four “mungiki thugs” but DW23 never witnesssuch mungikis. Such seriouscontradictions and inconsistencies render the defence story doubtful.Incidentally DW15 denounced DW23 and claimed that he does not know him. However,as stated above, in election petition, it is the duty of the petitioner toprove his complaints beyond reasonable doubt. The counsels for the respondents attempted to point some few contradictionsin the testimonies of PW1, PW5, and PW6. They said that while PW1 claimed that he heard Hon. Rage broadcasting onMwagala, Igurubi, Kalangale and Ipembe PW5 and PW6 testified that they heardhim when they reached at Ipembe Village. Secondly, while PW1 said he heard Hon. Rageannouncing that he (petitioner) had withdrawn from the race, PW5 and PW6testified that they heard Hon. Rage announcing that the voters should not wastetheir time to vote because the petitioner had withdrawn his name after beingdenied his subsidies from his party leaders. The counsels submitted that the petitioner’s witnesses should not beheld credible because the contradiction goes to the root of the issue. Thelearned counsels also attempted to degrade the petitioner’s evidence on theclaims that there was no sufficient evidence to show that the complaint wasreported before the Electoral Ethics Committee. In myconsidered view, the said contradictions are minor and negligible compared withthe strength of the facts in issue. Bothwitnesses, PW1, PW5 and PW6 testified to have heard the broadcasting at Ipembe Villagewhere the chase started. Secondly, allthree petitioner’s witnesses gave evidence to the effect that Hon. Rage was dissuadingvoters from voting for the petitioner on the ground that he had infactwithdrawn from the election rally. On the issueof non-reporting, I have already stated above that one can not take advantageof non-reporting as a defence where the evidence establishing the complaint iswatertight and credible. In my opinionnon-reporting has failed to cast a doubt in the petitioner’s case. Perhaps Ishould point out one thing at this stage. I have noted a minor discrepancy on the framed issue vis-à-vis theevidence adduced by both parties regarding to the date of incident. According to the available evidence thisincident is alleged to have taken place on the very election date 2[SUP]nd[/SUP]October, 2011 and there is no dispute on that fact. Incidentally and I think inadvertently thesixth issue was drawn to indicate 1/10/2011. That date is hereby amended to indicate 2/10/2011 the day of theby-election. Inconclusion, and having seriously considered the testimonies of PW1, PW5 and PW6in regard to this complaint I am satisfied to the hilt that on 2[SUP]nd[/SUP]October, 2011 the day of election Hon. Ismail Rage, an agent of the firstrespondent in Igunga Constituency by-election did made false statement tovoters at Ipembe village that the petitioner had withdrawn from the by-electioncontest. Suchincredible announcement could have two major effects on the by-electionresults. One, many voters could have been influenced by the statement anddecide to vote for the remaining candidates and two, many voters could have been demoralized and shun to cast theirvotes to any candidate. As a result thestatement derailed the principle ofdemocratic participation and its pillars of free and fairness. Insuch circumstances no reasonable person would dare say the by-election was freeand fair. Ialso found that Hon. Ismail Aden Rage contravened section 91 A of the NationalElection Act which provides; “Any person, whoknowingly, print or broadcast, publishes any statement of the withdrawal of anycandidate for the purpose of promoting the election of another candidate,commits an offence of illegal practice and shall be liable on conviction to imprisonment for a term not exceeding twoyears.” Seethe case of Attorney General and 2Others vs. Aman Walidi Kabourou(Supra). This issue is thereforeresolved in favour of the petitioner. Issue Number 7is “whether on 22[SUP]nd[/SUP] September,2011 the said Ismail Aden Rage masqueraded with a pistol on his waist toldvoters that they would be locked up on Election Day if they never voted for thefirst respondent.” Accordingto the available evidence from PW1, PW16, PW12, DW15 and DW20 there is nodispute that on 22/09/2011 in a public election campaign meeting at IgurubiVillage Hon. Ismail Aden Rage was witnessed masquerading with a pistol fixed onhis waist. That was a clearnon-compliance with the paragraph 2.2. (c) of The Electoral Code of Conduct,2010 made under section 124 A of the Act. This matter of masquerading with a pistol in public was placed beforethe Zonal Electoral Ethics Committee on 28th September, 2011 and Hon. IsmailRage was convicted and fined as shown in Exhibit D5 and D6. Thequestion is whether in that public meeting Hon. Rage lamented to the votersthat they would be locked up on Election Day if they never voted for the firstrespondent. In support of thisallegation we have the evidence of PW13 George Mfaume who claimed to have attendedthe said meeting but stated that the meeting was held on 27[SUP]th[/SUP]September, 2011. He also claimed thatHon. Rage stated that “endapo mtachagua Chamakingine zaidi ya CCM maisha yenu yapo hatarini.” In the cross-examination PW13 claimed thatHon. Rage threatened them (voters). However he could not give further explanation on how Hon. Rage threatenedthe voters or what was the exactly meaning of his statement that “endapo mtachagua chama kingine maisha yenuyapo hatarini.” Inmy considered view, if at all, Hon. Rage did say so then its meaning is quitedifferent from the allegations leveled against him in this issue. This evidence is not sufficient at all tosubstantiate the claims. Despite that wehave defence evidence from Hon. Rage himself (DW15) who categorically deniedthe allegations and stated that on 27[SUP]th[/SUP] September, 2011 he neverattended any campaign meeting at Igurubi and there was no CCM campaign meetingat Igurubi on that date. He furtherstated that, at that material time his pistol was all ready in Police handssince 24[SUP]th[/SUP] September, 2011. In support of the evidence of DW15 there was the testimony of DW20, whostated that the incident of pistol happened on 22[SUP]nd[/SUP] September, 2011but there was nothing like threats against the voters as stated by PW13. DW15 also stated that there was no campaign meetingheld on 27[SUP]th[/SUP] September, 2010 as alleged by PW13. Onthe above evidence I am satisfied that the petitioner has failed to prove thecomplaint on the seventh issue. The same is resolved in favour of the firstrespondent. Issue Number 8 is “whetheron Election Day many voters were unlawfully prevented to vote.” Apartfrom the pleadings where the petitioners claimed that on the Election Day manyvoters were disenfranchised on unlawful grounds which affected the electionresults no evidence was adduced to substantiate and proof the claims. The counsels for respondents correctly movedthe court to find that the petitioner has failed to prove the allegation. So I find. The petitioner has failed to provethe complaints under Issue Number 8and the same is resolved in favour of the respondents. Issue Number 9is “whether on 23[SUP]rd[/SUP] September,2011 Baraza la Waislam Tanzania(BAKWATA) at Igunga called upon all Moslems not to vote for CHADEMA at theIgunga Parliamentary by-election of October, 2011.” Thiscomplaint is violation of section 108 (2) (a) of the Act and paragraph 2.2 (J)of Election Code of Conduct. Thepetitioner’s case is mainly based on the testimonies of PW17 (Anwar Kashaga)and PW18 (Siraji Nazir) These twowitnesses testified in common that on 23[SUP]rd[/SUP] September, 2011 Friday, they attended Igunga Mosque, “Masjid Aqswa” commonly known as‘Msikiti wa Ijumaa.’ On that date theprayers was conducted by Imam Swaleh (DW6). The witnesses testified to the effect that in the cause of conductingthe prayer Imam Swaleh announced to the worshippers that, due to the fact that themembers of the parliament for CHADEMA party and its followers have dared todefame and undress a Moslem woman our District Commissioner her “Hijab,” that conduct was a deliberate intimidation of Islamicreligion. The witnesses went furtherand stated that, for that reason Imam Swaleh called upon all Moslems not tovote for CHADEMA Party on the date of the by-election. In his own words PW18 quoted Imam Swaleh asfollows:- “Wislam wenzangu,Wabunge wa CHADEMA wanmemdhalilisha Mwislam mwenzetu ambaye ni Fatuma Kimario,DC wa Igunga. Wememvua Hijab, kwa hiyoWaislam tusiwachague CHADEMA katika Uchaguzi.” PW17and PW18 testified that on that date there were many people inside the mosqueand the announcement was also carried out by the speakers fixed outside themosque. PW18 further complained that the announcement caused a lot of argumentsand misunderstanding between Moslems and CHADEMA leaders because Moslems werehighly disappointed by the alleged act. In their testimony both PW17 and PW18 expressed their surprises to theannouncement because in their opinion there was no reason to introduce electioncampaign incidents in the mosque. PW17 told the court that Imam Swaleh oughtnot to have accused CHADEMA of being involved in the act for he never witnessedthe incident. On the other side PW18stated that according to the Islamic norms it is unethical for any person toundress a “hijab” from a Moslem womanbut clarified that when the announcement was made there was no evidence toproof the incident. Both witnessestestified to the effect that Hijab is an Islamic cloth which covers the body ofa Moslem woman from the head. Ondefence side we have the testimonies of DW5 (Hassan Ramadhan Kisuda) who is theIgunga District Deputy Secretary of BAKWATA and DW6 (Swaleh Hamisi) the Imam ofthe said Mosque. DW5 introduced himselfas a sheikh but he was later denounced by Imam Swaleh Hamis DW6 who said DW5 isnot a sheikh. The two defence witnessestestified to the effect that on 23/09/2011 they were present in the mosque andthat it was DW6 who conducted the prayers. They both claimed that the announcement made on that day was confined to casting CHADEMA as being the party which has tarnished theMoslems ethical values on Moslem woman and‘hijab’ but not to cast all Muslimsnot to vote for CHADEMA candidate asalleged by PW17 and PW18. Let mereproduce what DW5 told this court:- “On that particulardate there was announcement on the condemnation of the assault and intimidationconducted against our fellow Moslem, DC of Igunga. The information we got is that our DC, awoman was arrested and her head cloth called hijab was removed from herhead. We got that information fromworshippers, and later from newspapers that our District Commissioner, a womanwas assaulted and intimidated. There wasnews in the Alnur newspaper dated 23/09/2011 - - - - - - - - -. Having heard that information we condemnedthe act because it touched our religious beliefs. In fact we condemned the act and askedCHADEMA party to apologize but refused - - -.” DW5and DW6 also claimed that PW17 and PW18 were not present in the mosque on thealleged date because they (DW5 and DW6) never saw them. They boasted to have seen and identified allthe worshippers who attended that prayer notwithstanding that the mosquecarried more than 400 people at one time. In the cross-examination DW5 and DW6 stated categorically that they donot know if BAKWATA, Dar es Salaamcursed CHADEMA on that incident or asked the Moslems not to vote for CHADEMA. Onthis issue there is also the testimony of DW25 (William Mukama) the GeneralSecretary of CCM who stated that in his press conference held on 22/09/2011 hecondemned the incident where the Igunga District Commissioner was assaulted bysome members of CHADEMA party. In thecross-examination on how and where they obtained such information, DW25 claimedthat they gathered the information from their intelligence report within thearea. Atthis stage, the task of this court is not to find whether there was suchincident of assault or, intimidationagainst the district Commissioner or not. After all the said District Commissioner was not called to testify, andsecondly rumours however widespread do not in my opinion translate themselvesinto facts for purpose of law of evidence. The crucial question is whether upon the evidence adduced, on 23[SUP]rd[/SUP]September, 2011, Baraza la Waislam Tanzania (BAKWATA) at Igunga called upon all Moslems not to vote forCHADEMA. Iam very confident that there is no evidence to support the allegation againstBAKWATA, Igunga. It must be appreciatedthat the alleged statement was made by Imam Swaleh Hamisi of Masjid Aqswa. There is no evidence to establish that onthat date he was performing on behalf of BAKWATA Igunga. In my understanding Imam Swaleh Hamisi ofMasjid Aqswa and BAKWATA Igunga are two different entities with differentcapacities: The available evidence indicatesclearly that BAKWATA Igunga was not involved. However,that does not mean that the election laws were not violated. The testimonies of PW17 and PW18 were notcompletely challenged by the defence. Theonly matter in controversy is whether Imam Swaleh called upon Moslems not tovote for CHADEMA. Intheir written submission the learned counsels for the respondents argued thatthe petitioner’s witnesses misinterpreted the message announced by Imam Swalehwhom only condemned the immoral acts done by CHADEMA but never went furtherthan that. The counsels prayed the courtto dismiss the complainant for lack of sufficient evidence. Ihave a different view. It is not indispute that on 23/09/2011 Imam Swaleh Hamisi of Masjid Aqswa stronglycondemned CHADEMA leaders during Friday prayers to the extent of demanding forthe apology. The condemnation of thealleged molestation of Igunga District Commissioner by the Mosque leader wasalso amplified by the press conference held on 22/09/2011 (a day before the FridayPrayer) by DW25, (Wilson Mukama) General Secretary of CCM where he castigated andcondemned CHADEMA youths for assaulting the said District Commissioner. In fact in the cross examination by Mr.Mwanayela, learned counsel for the petitioner, DW6 replied:- “If what we have done is wrongthen we were misled by politics and propaganda.” Indeedthey were misled because there was no other reason for shifting election campaignmatter to the mosque and during prayers. I have no reason whatsoever to disbelieve the testimonies of PW17 andPW18. These witnesses told thetruth. The circumstances of the eventsurge for any reasonable mind to believe that Imam Swaleh Hamisi (DW6) did callupon all Moslems not to vote for CHADEMA. The common and bare denials by DW5 and DW6 have failed to cast doubt onthe evidence of PW17 and PW18. Inthe exercise of powers of this court under Order XIV Rule 5(1) of the CivilProcedure Code which allows for the amendment of the issues where necessary, I herebyamend issue No. 9 to read as follows:- “Whether on 23[SUP]rd[/SUP] September, 2011Imam Swaleh Hamisi of ‘Masjid Aqswa’ commonly known as “Msikiti wa Ijumaa” withinIgunga township called upon Muslims not to vote for CHADEMA at the Igunga parliamentary by-election of October, 2011.” Havingso amended the issue, I hereby answer the same in affirmative basing on theabove discussed evidence and findings. Iwish to point out here that election petition is not a matter betweenpetitioner, respondent and their agents only. It is a public matter touching all voters in the constituency andtherefore, the same should be taken seriously and determined onprinciples. We are told in evidence thatthe call statement made by Imam Swaleh Hamisi (DW6) did cause a lot of anxietyand misunderstandings among the voters especially Moslems. It spackled furry and religious sentiments inthe by-election process and derailed the road to fair and free election results. Iresolve the ninth issue in favour ofthe petitioner. IssueNumber 10 is “Whether on 22[SUP]nd[/SUP]September, 2011 the General Secretary of CCM Wilson Mukama falsely announcedthat CHADEMA had brought 33 Commandosfrom different countries which statement scared the voters hence reduced the number of voters for thepetitioner.” This complaint is the violation ofsection 108 (2) (a) of the Act and paragraph 2.2. (a) and (b) of the Electoral Code of Conduct, 2010. The petitioner marshaled three witnessesnamely PW8 (Arodia Peter), PW15 (WilfredMnanyizi Lwakatare) and PW16 Benson Kigaila Singo. PW8 is a journalist and reporter fromNew Habari 2006 Corporation writing for the Mtanzania News paper whoparticipated in the Igunga by-election. Shealso testified in regard to issue No. 1. Regarding to this issue she testifiedto the effect that on 22[SUP]nd[/SUP] September, 2011 at Igunga she attended apress conference called by Mr. Wilson Mukama, the Public Secretary for CCM atIgunga CCM office. She stated that thepress conference was attended by a good number of journalists and reportersfrom different media corporations. PW8stated that the main issue announced by Mr. Wilson Mukama (DW25) was thatCHADEMA has brought a good number of Commandos (33) trained in Libya, Pakistanand Afghanistanto scare people and disrupt the by-election campaign. PW8 stated that as a journalist she preparedher report and send it to Dar es Salaam for publication. She testified that on the following day, 23[SUP]rd[/SUP]September, 2011 the matter was reported in the Mtanzania Newspaper. PW8 was able to produce in court the saidMtanzania Newspaper dated 23[SUP]rd[/SUP] September, 2011 which was admittedand marked Exhibit P2. The news paper isheaded; “Mukamaaivaa CHADEMA, Adai imepeleka makomandoo 33 Igunga, Asema walipata mafunzoPakistan, Libya, Awalaumu Waandishi kushabikia uhalifu, CHADEMA yajibu mapigo,yaionya CCM” In cross-examination PW8 stated thatfollowing those information she decided to investigate and question a goodnumber of people about the claims but she was not able to find any informationabout the presence of commandos in Igunga. PW15, a member of CHADEMA NationalExecutive Committee and Director for Security matters testified to the effectthat CHADEMA has neither brought commandos from Pakistan,Afghanistan nor Libya to work forCHADEMA in the Igunga by-election. PW15denied all the copies of documents and letters listed in the first respondent’snotice to produce documents dated 30/04/2010. The said list of copies were marked Exhibit P4 collectively. PW15 stated that all documents and letterswere forged and concocted because they never originated from CHADEMA. He stated that the names therein were wronglyspelt, the email address of CHADEMA was wrongly written, the CHADEMA emblem wasincorrect and the signatures appearing on the document and letter are dubiousand unauthentic. PW15 prayed the courtto ignore such forged documents because they have no evidential value. In cross-examination, PW15 stated thatwhat is available in the structures of his party is the red brigade unit agroup of young volunteers who gathered when needed to assist in ordinary partyactivities including to protect party properties. PW16 Benson Kigaila Singo told the court thathe did report the complaint to Zonal Ethics Committee throughone Waitara because Mr. Mukama’s statement tarnished the reputation of CHADEMAto the public and reduced the number of voters who would ordinarily want tocast their votes to CHADEMA. In defence, we have the testimony ofPW25, (Wilson Mukama) secretary General of CCM. He admitted that on 22/09/2011 he called the press conference as allegedand talked to several journalists and reporters on three main issues touchingon the record of the member of parliament for Igunga who had resigned, thequalities of the CCM candidate and matters on the CCM election Manifesto. He stated that he also condemned and castigated the journalists’tendency to fan criminal activities because there were two bad incidents whichhappened in that campaign period. Thefirst one was when one youth was severely assaulted with acid and the secondwas when the District Commissioner for Igunga was assaulted by CHADEMA youths. DW25 denied to have said anythingconcerning commandos and claimed that the reporters had spinned and exaggeratedwhat he had said. However, he wentfurther in his testimony and stated thathe did tell journalists that they (CCM) have a confidential report from theirintelligence unit to the effect that one of the political party has spread redbrigades or red-guards in Igunga fromforeign country. Duringthe intensive cross-examination DW25 changed his assertion and claimed that heread about red-brigade and red-guards from CHADEMA Constitution. He also admitted to have equated the conductsof other political parties with Dhlakama activities which are dangerous to thesociety. In brief that was the salient featuresof evidence concerning complaint Number 10. The question is whether there issufficient evidence to prove the allegation beyond reasonable doubt. Counsels for the petitioner submittedthat DW25 conceded to many facts in this issue but made a blanket denial that henever used the word commandos. Thecounsels submitted that he admitted to have used “red brigades” which does not change the gravity of his statementsand in cross-examination he admitted to have said that CHADEMA employed theantics or methods of Dhlakama. Thecounsels for petitioner further submitted that Alfonso Dhlakama was a knowndangerous anti-communist RENAMO leader of Mozambique. The counsels requested the court to rely onthe credible evidence of PW8 who was focused, completely independent and notpartisan witness. The counsels for the respondents submittedthat the issue of commandos was fabricated by the newspaper reporter becauseDW25 spoke of red-brigades which is a unit within CHADEMA youth association forthe purpose of protecting leaders and properties of the party. The counsels also relied heavily on the issueof non-reporting and request the court to accord lesser weight to thepetitioner’s evidence. Honestly speaking I was impressed bythe testimony of PW8 because she appeared consistent, credible andreliable. She attended the pressconference, heard and witnessed DW25 announcing about the presence of 33commandos from Libya, and Pakistan, prepared a report and sent it to Dar es Salaam forpublication hence Exhibit P3. With much respect to the leanedcounsels for the respondents the “33commandos” story was not fabricated nor concocted by PW8 or any otherjournalist. In fact I am unable to seeany possibility for PW8 to concoct such a straightforward story against DW25who failed even to comment on Exhibit P4. In addition there is no evidence to show that CHADEMA brought anyred-brigade youths from any foreign country. I am also of the view thatnon-reporting of this issue to the Ethics Committee during the by-election periodhas not diluted or lessen the strong petitioner’s evidence. What is apparent is the fact that the defenceevidence has failed to cast a shadow of doubt on the strong evidence of thepetitioner witnesses. Tothat extent I also satisfied that the false statement lamented by DW25 wasmeant to interfere with the smooth election campaign process, tarnish the imageand reputation of CHADEMA before thevoters and scare the voters. That meansthe election was not free and fair and the results thereof must bequestionable. IssueNumber 10 is hereby resolved in favour of the petitioner. Issue Number 11is “Whether the former President of the United Republicof Tanzania,Hon. Benjamin Mkapa promised to supply maize to voters of Igunga Constituencyin consideration of voting for the said first respondent.” This complaint is based under section 108 (3)of the Act. Themain witness for the petitioner in this complaint is PW18 (Siraji Nazir) whoalso testified in regard to issue Number 9. He testified to the effect that on 10/09/2011 at Sokoine grounds within Igunga Townshipthere was an opening election campaign meeting for CCM which was addressed by theformer President Benjamin Mkapa. PW18stated that among the other leaders present was Hon. Wassira (DW21). PW18 testified to the effect that in the cause of his speechthe former President stated that his party has brought maize and therefore thedistribution of maize would continue regardless of the complaints fromCHADEMA who want people to die of hunger. PW18 stated that during election campaignmaize was being distributed by CCM Members who were in CCM clothes. Inthe cross-examination he claimed that several CHADEMA leaders were against theexercise of maize distribution including Dr. Wilbroad Slaa but they could notstop it because maize was brought by CCM. He also stated that during that period there was no serious problem ofhunger to the extent of distributingmaize to the voters. He also stated thatall the stations where distribution of maize was taking place like, Mtaa waStoo and Mtaa wa Kati there was a CCM flag, meaning that the exercise wasconducted by CCM members. Inresponse, the defence was marshaled by the testimony of DW1, DW7, DW8 andDW11. In the foremost DW1 (Dalaly PeterKafumu) testified to the effect that on the alleged day he was present in thatcampaign meeting and the former President William Mkapa was the guest of honour. DW1 stated that the former President insistedclearly that distribution of maize aid should proceed because it was the governmentexercise. He stated that the former Presidentdirected that the government should protect people from dying of hunger. DW1 said that there was no maize promise madeby the former President. However in thecross-examination by Prof. Saffari learned counsel for the petitioner he statedthat the former President promised the maize distribution to proceed. DW7(Kulwa Fidelis Kagolo) testified to the effect that the distribution of maizeaid was the Government exercise to assist Igunga people who were suffering fromhunger. He clearly stated that it wasthe opposition parties namely CHADEMA and CUF which were misleading people withgossips that the maize aid was from CCM. DW7 claimed that the distribution of maize in Igunga constituencystarted in early June, 2011 before the election campaign. His testimony was supported by evidence ofDW8, DW11, DW15, DW19, DW20 and DW21 together with Exhibits D8, D9 and D10. Inthis issue there is overwhelming evidence to establish that during the by-election campaign, the voters in Igunga constituencywere being dished with free maize. Secondly, there is no sufficient evidence to establish that the saidmaize aid was issued and distributed by CCM. I therefore agree with the submission made bycounsels for the respondents that the petitioner’s witnesses had misconstruedthe message that was availed by the former President Mkapa in defence of the Governmentdistribution of maize aid. The available evidence indicates and concludes thatit was the government which was distributing the said maize aid to the voters. The evidence further reveal that theformer President Mkapa and other CCMleaders were merely trumpeting, supporting and insisting with fully force onthe government’s programme of distributing free maize to the Igunga voters. Therefore there is no evidence tosupport the allegations by the petitioner and his witness (PW18) that theformer President promised to supply maize to voters of Igunga constituency inconsideration of voting for the said first respondent. IssueNumber 11 is resolved in favour of the respondents. The findings in issue number 11 takesus direct to the Issue Number 12 which is interconnected with issue number11. IssueNumber 12 states, “Whether upon thatpromise by the former President Hon. Benjamin Mkapa, the voters of IgungaConstituency were supplied with such maize a day before the voting day.” As I have pointed above, thedistribution of maize aid was a continuous exercise which started even beforethe first opening election campaign meeting for CCM held on 10/09/2011 at Igunga Townshipwhere the former President is alleged to have promised maize. One important aspect is that on the IssueNumber 11, I have found that there was no such a promise. Even if there was such a promise there was noparticular day fixed to fulfill the alleged promise. What is apparent is the stout support fromthe former President on the Government’s exercise of distributing maize to thevoters during election campaign. Thedistribution of maize by the government proceeded as shown in the testimoniesof DW14, DW18, DW19, DW20 and DW25 inspite of the resistance from severalpolitical parties including CHADEMA as shown in the testimonies of PW1, PW5, PW9,PW10 and PW12. Therefore the formerPresident can not be held liable for supporting the exercise or programmeinitiated by the Government. Issue Number 12 is therefore resolvedin favour of the respondents. Havingsaid that in regard to this taxing and sensitive issue of distribution of maizeaid I would prefer to deal with the additionalIssue Number 2 which states, “Whetherdistribution of maize aid during election campaign affected the free and fairelection.” In this serious issue we have the evidence of DW20 (Magayane T. Protas) thevery District Executive Director of Igunga, The Returning Officer of the Igunga, and the Chairman of theZonal Election Ethics Committee of the Igunga Constituency. He testified to the effect that the famineproblem in Tabora started in March, 2011. That was followed by an evaluation study directed by the Regional AdministrativeSecretary to discover the extent of the famine problem as shown in exhibit P8 (Tathimini ya kina ya hali ya Chakula kwabaadhi ya maeneo Nchini). DW20testified that in compliance with the directives, his district carried out andsubmitted its report to the Regional Administrative Secretary showing thatabout 10 wards had acute shortage of food. The said wards were Igurubi, Mwamashimba, Kininginira, Nguru, Ntobo,Mwanashiga and Mwashiku. DW20 statedthat later in June they were supplied with 1302 tones of maize instead of 9,500tones which they asked. They wereequally instructed on how to distribute the said maize aid to the people. That was duly shown in the Exhibit D9, (Mgao wa Chakula cha Msaada – Mahindi yaNjaa.) Exhibit D9 indicates that IgungaDistrict was allocated 1302 tones of maize by the Principal Secretary, PrimeMinister’s Office. The mode ofdistribution was that, 130 tones were to be distributed freely to the poorfamilies while 1,172 tones were to be sold at TShs.50 per kilo to those whowere less affected with famine. Furthermore the directives stated that the proceed of the sale was to becollected by the Village Executive Officers and later to be handed or submittedto the District Agriculture Officer (DALDO) who was supposed to transmit thesame to the Office of the Prime Minister On the mode of distribution of maizeDW20 stated that each village was required to have a gender sensitive, the village maize distribution committeecomposed of two members from each hamlet. PW2 stated that it was the maize distribution committee which wasresponsible to distribute maize but the whole exercise was to be supervised byboth the Chairman of Hamlets, Village Executive Officers and Ward ExecutiveOfficers. DW20 went further and saidthat in the whole exercise of maize distribution the committees workedindependently from any political party including CCM. PW20 further testified that, the firstconsignment of maize was brought and distributed in June 2011. This consignment was for three monthly namelyJune, July and August, 2011. It isfurther in the evidence of PW20 that having received and distributed the first consignmentthey were issued with the second consignment of maize aid on 07/09/2011. This was 1000 tones. The reason for being allocated with thesecond consignment, as stated by PW20 was that the first consignment wasbrought less hence not sufficient. Thiswas shown in Exhibit D10, (Maombi yaChakula cha Njaa Tani 8574 zilizobaki). The mode of distribution was stated to the effect that 100 tones werefor sale at TShs.50/= per kilo to the people who could afford while 900 toneswere to be distributed freely to poorsick and disabled – This is shown in exhibit D11, (Mgao wa Chakula cha Msaada – Mahindi ya Njaa). The testimony of PW20 further reveal thatthe September consignment was all distributed within September, 2011. DW20 told this court that it is not true thatthe said maize aid was supplied by CCM nor that the members of maize distributioncommittees were in CCM attire because members of the committees were not directedto wear any particular attire. The testimony of DW20, whom I believeto be a proper person to testify on this tantalizing issue was supported andcorroborated by DW7, DW8, DW13, DW14, DW19, DW24 and DW26. I have no reason to repeat what they said. The question on how the maize wasacquired from the Government is not a problem here. I am also certain that the maize aid wasneither distributed by CCM nor the first respondent. The maize aid distribution was done by the Governmentand therefore the matter falls under the hands of the second and thirdrespondents. The problem in this issueis whether it was correct and prudent to distribute maize aid to the votersduring the by-election campaign. The following simple questions wouldrequire honest and candid answers favourable to promote a free and fairelection campaign and election itself. Was there serious famine in Igunga Constituency to warrant distributionof maize aid during the by-election campaign? If the answer is in affirmative, was it proper for the second and thirdrespondents to conduct a by-election in a constituency where voters were dyingof hunger? Although there were several defencewitnesses and leaders like the former President Benjamin Mkapa who tried tojustify the distribution of maize during election campaign with statements like“people should not be left to die ofhunger,” there is no scintilla of evidence to support the claims thatpeople were dying of hunger. Also apart from allegations that the poorvoters were given free maize aid and those who could afford were sold maize atTshs.50/=, there is no scintilla of evidence to show that there was any maizesold at TShs.50/=. PW3and PW4 stated that prior to the by-lection maize was distributed on conditionof participating in public works like digging dams but during the by-electionperiod maize was freely distributed to influence voters. WhenDW20 (The Returning Officer) was cross-examined by Mr. Mwanayela, learnedcounsel for the petitioner on why did he fail to stop the distribution of maizeaid during the by-election period he replied to the effect that he was afraidof the consequences. I was not able tounderstand what he actually meant by the word consequences but the witnessappeared partisan and predisposed. However, DW24 (Shija Walwa) The Village Executive Officer of NtoboVillage was candid enough when he responded to the court’s examination andsaid:- “That distribution collided with campaignactivities. It is possible that thedistribution could have affected the campaign In my considered opinion it was wrongfor the Government to distribute maize aid to the voters during electioncampaign period. If there was seriousfamine and hunger the by-election should not have been conducted. Instead, the electoral fund aimed for theby-election exercise should have been used to fight the hunger problem facingthe Igunga people. Be it as it may, the evidence on recordreveal that the exercise of maize distribution was conducted to the voters whowere actively jaunty engaged in the election campaign and indeed some politicalparties managed to hijack the exercise for their own interests. While the first respondent, his agents andCCM members were supporting the government move to distribute maize donation tothe voters during election campaign, the petitioner, his agents and CHADEMAmembers were against the whole exercise to the extent of claiming that themaize distribution was part of CCM maneuvers to win the by-election. For instance, the former President BenjaminMkapa was quoted saying “the distributionof maize will continue because CHADEMA want Wananchi to die of hunger.” See the testimony of PW18, DW7 and DW8. Hon. Wassira was quoted saying “Wananchi wataendelea kupata mahindi kwasababu Igunga kuna njaa” (See testimony of DW1) while Hon. Magufuli wasquoted saying “Mkichagua Chama kinginesitaleta mahindi” and “maize which is being distributed is the idea of CCMalthough CHADEMA was attempting to stop the distribution of maize, CCM willcontinue” (See testimony of PW3). My question here is what was theactual significance of one political party in the by-election campaign tosupport the exercise and gain influence thereof to the detriment of otherpolitical parties in the by-election? Insuch situation it was not surprising to find CCM members who were also membersof the maize distribution Committees wearing their CCM attire as alleged bypetitioner’s witnesses namely PW1, PW5, PW9, PW12 and PW18. Such findings may be justified on threereasons. One, according to the available evidence, CCM leaders and theircandidates were adamantly supporting the exercise of maize distribution. Two,the exercise was conducted during the by-election campaign period when membersof political parties include CCM prefer to use and identify themselves by theirpolitical party’s attire, and three,according to the evidence of DW20, the Returning Officer, members of the maizedistribution committees were not directed to wear any particular type ofattire, which means they were not barred from wearing their political partiesattire or uniform. Furthermore,the evidence on record indicates that the first consignment of maize aid wasbrought in June and the same was earmarked to be distributed within three months namely June, July andAugust. The second consignment wasbrought exactly on the date when the by-election campaign started i.e.7/09/2011. It was quickly distributedwithin the same period of by-election campaign and amazingly the lastdistribution was the day before Election Day. Was it a coincidence? By allstretch of imagination any prudent mind would conclude that there was a foulplay orchestrated by whoever directed for the distribution of maize aid to thevoters during the by-election campaign period. Free and fair elections should notonly be conducted in terms of the laid down laws and procedure but should alsobe seen to be conducted in a doubtless atmosphere. Occurrence of suspicious incidents likedistribution of free maize donation to the voters during election campaignwould definitely cause grievances and mistrust. I am therefore satisfied that theexercise of distributing maize aid during the by-election campaign couldadversely affected the election results. The whole ‘maize case’ hascompromised the principles of transparency, free and fair election. As I have pointed above this illegalpractice has been orchestrated by the second and third respondents and inmy considered view it does neither fallunder the provisions of section 108 of the Act nor paragraph 3.3. of TheElectoral Code of Conduct, 2010. I amcertain that this is one of those grounds stated in the case of Attorney General and two Others vs. AmanWalid Kabourou (supra) where the Court of Appeal observed; “There are grounds other thanthose stated in section 108 of the Election Act for the nullification of electionresults. Such other grounds includeanything which renders the elections not free and fair as well as any law whichseeks to protect an election which is not free and fair, since such would beunconstitutional” On the basis of that, I hold that the‘maize case’ falls under the ambit ofthe above decision of the Court of Appeal of Tanzania. The additionalIssue Number 2 is resolved in favour of the petitioner. The Issue Number 13 is “Whetheron the voting day CCM members supplied rice and meat to voters to induce themto vote for the first respondent.” This is a complaint contrary tosection 108 (3) which deals with corrupt practices. In this complaint we have the evidence of PW4(Neema Emmanuel). The salient features of her testimony is that on 1[SUP]st[/SUP]October, 2011 at Igurubi village she wastold by her neighbour Pili Rajabu, Eva Ruben and Tatu Furaha that there was anannouncement on the distribution of free rice and meat at the house of DW11 (Edson Saadani). Then they both proceeded to the said houseand found one Mama Ngese (DW9) a Special Seats Councilor for CCM busy distributingthe free rice and meat to a lot of people who gathered at the house of DW11 whowas also a councilor of CCM. PW4 claimedthat the exercise started at 8.00 p.m. and everybody was getting 2 kilos ofrice and 1 kilo of meat. PW4 stated that all of them includingher neighbours Eva Ruben, Pili Rajabu and Tabu Furaha were given their sharesby Mama Ngese who reminded them to make sure they are well-fed in order to votefor CCM on the following day. In the intense cross-examination bydefence counsels she stated that on the material time Councilor Edison (DW11) wasnot at home. She also claimed that itwas her first time to see Mama Ngese and that she reached at the house of CouncilorEdison at 8.00 p.m. She also claimedthat it was Mama Ngese who was distributing the ration although she was beingassisted by two youths. She also statedthat the distribution was done in the night and there was no electricity lightbut distributors were using a torch. To contradict the testimony of PW14, thedefence called DW9 (Mwasiti Badru Ngesi) who was referred to as MamaNgese. DW10 (Tabu Furaha) the allegedneighbour of PW14, and DW11 (Edison Saadani) the CCM Councilor and owner of thealleged house. All four defencewitnesses denounced the testimony of PW14. DW9 stated that on the alleged day she went to Itumba, Lububu Villageand then proceeded to Igunga tofinalize campaign matters she categorically denied to have visited Igurubi todistribute meat and rice as alleged. Shealso stated that she does not know PW14 Neema but she is familiar with EvaRueben who is a member of UWT. DW9’s testimony was corroborated bythe testimony of Tabu Furaha (DW10) who was alleged by PW14 to have beentogether at the meat and rice jamboree. DW10denied to have witnessed the distribution and stated that it was impossible forher to go for meat and rice at Igurubi in the night as she was staying far awayat Maponda Hamlet. DW11 testify to the effect that on1/10/2011 at the alleged time i.e. 8.00 p.m. he was present at his house withhis family. He stated that there wasnothing like distribution of maize and rice conducted at his house by the useof torch light. He said his house isalways lighted by Solar Energy since 2008. DW11 wondered why PW14 decided to concoct such a false story. The counsels for the respondents submittedthat considering the strong evidence adduced by the respondents’ witnesses,there was no such distribution of meat and rice as alleged by the petitioner’switnesses. They pray the issue to beanswered in negative. By any standard one can not sayseriously that the testimony of PW14 is sufficient to prove the complaint. She stated that the meat rice jamboree wasdone in the night. That, there were alot people but she failed to explain or give details on how she managed toidentify each and everybody in that night by torch light. In my considered view PW14 was testifying toappease the audience and her evidence is too lonesome and doubtful on thisissue. If the incident was witnessed bya lot of people who were in that distribution extravaganza, one would haveexpected more witnesses to corroborate PW14’s testimony. I am therefore satisfied that thepetitioner has failed to prove the complaint under Issue Number 13. The same isresolved in favour of the respondents. IssueNumber 14 is “Whether during campaign one MwiguluNchemba, CCM Treasurer and campaign manager for the first respondent distributedTwo million Four Hundred Thousands shillings to KKKT Church and another FourHundred Thousand Shillings was given to staff and students of NkingaSecondary School while the primaryschool Teachers were given twenty thousands shilling each to vote for the firstrespondent.” This issue is made of three limbsand I think it is better to deal with each limb separately. The first limb is “whether duringcampaign, one Mwigulu Nchemba, CCM Treasurer and Campaign Manager for the firstrespondent distributed two million four hundred thousand shillings to KKKT Churchin order to vote for the first respondent.” Apart from the complaints in thepetitioners pleadings there was no evidence adduced to support thisallegation. In their submission, thelearned counsels for the respondents submitted that the petitioner has failedto assert and prove what he had narrated in the pleadings. I therefore hold that the petitioner hasfailed to prove the first limb of IssueNumber 14. The second limb is “Whether duringcampaign one Mwigulu Nchemba CCM Treasurer and Campaign Manager for the firstrespondent distributed Four Hundred Thousand Shilling to the Staff and Studentsof Nkinga secondary School to vote for the first respondent.” Again, apart from the allegationslined in the pleadings, the petitioner has totally and completely failed toadduce evidence to substantiate his complaints. For that reason the second limbof Issue Number 14 is resolved in favour of respondents. The third limb is “whether during campaign one Mwigulu Nchemba, CCM Treasurer andCampaign manager for the first respondent distributed to each Primary SchoolTeacher Twenty Thousand Shillings to vote for the first respondent.” In support of this limb, thepetitioner relied on the testimonies of PW19 (Seleli s/o Magida) who testifiedto be a Primary School Teacher at Nkinga English Medium primary School and PW20Aron Barongo also a teacher from thesame primary school. PW19 testified tothe effect that on unspecified date andduring the period of election campaign all teachers were called by theirHeadteacher, Betty Makinga who informed them that all were required to report at Nkinga Primary School in theafternoon. PW19 stated that they allproceeded to that school and upon arrival he noted that all teachers of NkingaWard were present. They were all invitedto sit in one class. Then later a personarrived and introduced himself as Mwigulu Member of Parliament for IrambaMashariki, CCM Treasurer and Manager of campaign for CCM. PW19 claimed that Mwigulu told them that hehad come to ask for their support in the election as employees. PW19 claimed that suddenly Mwigulu opened hisbrief case and started to distribute money to teachers. That each teacher was given 10,000/=. They were told the money was paid asdisturbance allowance (posho). PW19stated that Mwigulu insisted that CCM should retain the seat because if theconstituency shifted to other party even the President would not be happy. In the cross-examination PW19 stated thatMwigulu was in the company of two other people who did not introduce themselves. That evidence was supported by thetestimony of PW20, who stated that on 16/09/2011 there was a sudden seminar atNkinga primary School. All Primary SchoolTeachers of Nkinga Ward were assembled in one class room at noon. Then one Mwigulu Nchemba (MP - CCM) arrivedintroduced himself and introduced the topic of the seminar which was how tosave CCM in the by-election of Igunga. PW20 claimed that Mwigulu Nchemba told them that they have to save CCMbecause the by election was tense. Hereminded them that as employees who may get chance in supervision in thepolling stations they should make sure that a candidate of CCM is elected tosave the Government. He addressed themfor about half an hour. PW20 stated thatafter his speech Mwigulu opened his brief case and took some money. Then one of his youths started to distributemoney TShs.10,000/- to every teacher. PW29 claimed that he refused to take the money and some teacher booed athim but when the meeting was over he explained to his colleagues that herefused the money because it was a bribe and bribery is a sin. PW20 claimed that he believed that theseminar was suspicious because Mwigulu was the facilitator and the host. In rebuttal the defence called (DW17)Mwigulu Lameck Nchemba and DW18 (Leticia Sanga) the assistant Head Teacher ofNkinga Primary School. They alldenounced the evidence of PW19 and PW20. DW17 testified at length aboutcampaign budget for his party and people who are responsible with paymentsespecially what he called “petty cash.” He categorically denied to have attended anyseminar or campaign at any primary school. He called the evidence of PW19 and PW20 pack of lies because he has nevermobilized teachers and dish them with money. DW17 testified that as a Memberof Parliament and member of National Executive Committee of CCM and NationalTreasurer of CCM he could not do such a childish and dangerous thing of openly distributingcash to unknown people. DW17 counted thatit was not possible for him to conduct a seminar and ask few teachers of IgungaConstituency to rescue CCM because one constituency alone can not make thegovernment to collapse. The testimony of DW17 was supported bythe evidence of DW18, the Assistant Headteacher of Nkinga Primary School. She stated that during the campaign and atthe alleged period she was the Acting Headteacher of the school. She categorically denied to have received DW17or hosted any seminar for CCM or any political party within the schoolcompound. DW18 stated that PW19 and PW20lied to the court for the reasons best to themselves. In their submission counsels for the petitioner heavily attacked the demeanorof DW17 saying that he appeared arrogant, erratic and boastful but beneath that behaviour thewitness appeared incoherent and confused. They asked the court to find him not trustworthy witness. In my assessment I think DW17 was not thatmuch bad before the court. Being afairly youngman, Member of Parliament and Treasurer of the ruling party (CCM),he was simply trying to wield and exhibit his political powers and influence incourt superciliously. Nevertheless hewas able to testify and answer the questions. In the case of Goodluck Kyandovs. Republic Criminal Appeal No. 118 (unreported) the Court of Appeal Stated as follows;- “Every witness hisentitled evidence and must be believed and his testimony accepted unless thereare good and cogent reasons for not believing a witness.” I see no good reason for notconsidering and analyzing the testimony of DW17. Now the question is whether upon the above narratedevidence, the complaint has been proved beyond reasonable doubt? In resolving this issue I would like to beguided by the decision of the Court of Appeal in the case of Lutter Symphorian Nelson vs. Attorney General and Ibrahim Said Msabaha (2000) TLR419. The Court of Appeal observed; “Corruption is a gravemisconduct, and the allegation of it is a very serious charge. When it is proved in an election petitionvery serious consequences follow. Itmust, therefore be strictly proved.” In view of that observation courts aresupposed to carefully and closely analyze and weigh the evidence in order toavoid unjustifiable serious consequences. In the first place the evidence ofPW19 and PW20 is tainted with serious contradictions and inconsistencies on thematter. PW20 claimed that there was asudden seminar where there was a topic and a long speech by DW17, while PW19 claimedthat when DW17 arrived he introduced himself, asked them to support CCM andthen opened his brief case and started to distribute money. While PW19 claimed that DW17 distributed the moneyto the teachers himself PW29 stated that DW17 took money from the brief caseand gave one of his youths to distribute. PW19 stated that he was given the TShs.10,000/= as an allowance (posho)but not bribery. Furthermore, theevidence of PW19 and PW20 who alleged that they were informed by theirHeadteacher Betty Makinga to attend the alleged seminar or gatherer is watered downby the absence of the evidence of the said Betty Makinga who was not called as awitness to support such allegation. Betty Makinga was a material witness because she was the one who summoned and informed themabout the matter. There is also areasonable doubt lingering as to why only two teachers of same school PW19 andPW20 appeared to testify in such a serious allegation while money was allegedto have been distributed to all teachers of Nkinga Ward, amounting to 70teachers. Lastly, the defence made byDW17 and DW18 have managed to cast a doubt on the petitioner’s evidence. To conclude the third limb of the IssueNumber 14, I am certain that the petitioner has failed to prove thatMwigulu Nchemba DW17 was involved in any corrupt practices, to wit distributingmoney to Primary School teachers at Nkinga. IssueNumber 14 is therefore resolved in favour of the respondents. IssueNumber 15 is “Whether at Majengo Village, Chabutwa Ward CCM cadres werecaught-up distributing money to voters a few days before Election Day.” This complaint is in contravention ofsection 108 (3) of the Act which forbids all sorts of corrupt practices inelection process. In his endeavour to establish thisground the petitioner relied on the testimonies of PW21 (Leonard Raphael) andPW22 (Sudi Zahoro). PW21 testified to the effect that heis a resident of Majengo Village at ChabutwaWard. That on 1/10/2011 there was a lastCCM election campaign meeting held at Chapela Village. That meeting ended at 11.00 a.m. PW21 testified to the effect that later atabout 8.00 p.m. there happened an incident of bribery when he witnessed moneybeing distributed to voters at Chabutwa Dispensary. He stated that at that Dispensary there was alot of people gathered and some were in two queues, one for men and one forwomen. That the person who wasdistributing the said money was one Shaffir Sumar (CCM MP for TaboraRural). He was distributingTShs.10,000/= to each person and he wasbeing assisted by one person who washolding money bag. PW21 stated that theexercise was conducted in the night and that he identified Shaffir Sumar by thelight of his car and moonlight. Hestated that he is familiar with Shaffir Sumar because he was living at Igunga,Mwisi Ward before shifting to Tabora. PW21 further testified that he decidedto join the queue but the whole exercise was besieged when a group of people started chaos and disruption and policearrived. PW21 claimed that he was notexactly sure why people were being dished with cash but he suspected that theywere being bribed because the exercise was carried during election campaignperiod and in the night. In the cross-examination by thedefence counsels PW21 responded to the effect that he was not sure of thenumber of the people who were paid and that he was not invited to thatplace. That he joined the queue becausehe found and saw people being dished with money. PW21 also stated that he could not understandif Shaffir Sumar was paying CCM polling station agents or CCM local leaders forthe election exercise. PW21 claimed that when the police arrivedeven Shaffir Sumar disappeared. PW22 supported the testimony of PW21and stated that in that exercise Shaffir Sumar was in the company of AndreaKibuda the Chairman of CCM – Majengo Village, and hispublicity Secretary one Amani Omari (DW3). He further stated that the exercise went on for about 20 minutes beforethe thugs’ interception and arrival of the police. He stated that he was in the queue waitingfor his turn to get TShs.10,000/=. Hestated the exercise was being conducted by using motor vehicle light because itwas dark. PW22 claimed that when theywere invaded people dispersed and Shafir Sumar ran away while shooting in theair by his pistol. PW22 stated that there was nobody who toldhim the purpose of that money distribution and he does not know the reason. In the cross-examination by thedefence counsels PW22 stated that he does not know if Shaffir Sumar waspaying the CCM candidate representatives who wereinvolved in the election process. Heclaimed that he joined the queue without knowing the purpose of payments andwithout being invited. To counter the petitioners case, thedefence relied on the evidence of DW3 (Amani Omari), DW4 (Shaffir Sumar), DW17(Mwigulu Nchemba) and DW20 (Magayane Protas). DW3, CCM Ward Secretary for Chabutwa testified to the effect that theCCM campaign ended on 1/10/2011 at Chapera Village. Then he was called by the CCM DistrictSecretary Neema Adam and instructed to inform all their polling agents (Mawakala)in 7 polling stations of Chabutwa Ward including the CCM branch Secretaries andChairman to reportat a Ward Office at Majengo Villageimmediately after campaign. DW3 statedthat he reported at the said office at 4.00 p.m. and met Shafir Sumar (CCMCampaign Coordinator for Sungwizi, Mwisi and Chabutwa wards) who later wentaway while insisting him (DW3) to make sure all of them should wait for him forpayment of allowances. DW3 stated thatat 6.30 p.m. Shafir Sumar arrived and all shifted to the Dispensary building, aplace conducive for the payment exercise in that time. DW3 testified that they were more thanfifteen people and due to time constrain Shafir Sumar directed them to receive theirpayments quickly. The polling agentswere paid TShs.10,000/= each while Secretaries were paid TShs.5,000/= each. In the cross examination by counselsfor petitioner, DW3 stated that at the dispensary building there were only fewpeople eligible for payments. He statedthat he never saw PW21 and PW22 at the place because they were not eligible forpayments. He stated that there was nobribery issued to voters. He alsoproduced a chit showing the list of CCM polling agents and CCM leaders from hisward who were paid. That is Exhibit D4. DW4, Shaffir Sumar stated that he wasthe CCM Campaign Coordinator for Sungwizi, Mwisi and Chabutwa Wards during theby-election. That one of his duties wasto make sure all CCM polling agents and other CCM leaders who were busy in thecampaign were paid their allowances accordingly. He stated that the money which was paid wasissued by CCM Headquarters at Regional level. DW4 stated that the names of personsentitled for payments were listed in a special Form and verified by WardSecretaries and CCM Leaders of the Ward. He stated that he effected payments at Chabutwa Ward on 1/10/2011 in theevening as shown in Exhibit D4. Thewitness insisted that there was nothing like bribery at the Dispensary buildingas alleged. The testimony of DW3 and DW4 werecorroborated by the testimony of DW17 the CCM treasurer who confirmed that itwas the duty of a local area campaign coordinator (Mratibu) to pay the pollingagents and other eligible CCM members. Likewise DW20, the Returning Officer clarified the issue and stated thatagents are paid by the responsible party coordinators. Now, taking into consideration thecelebrated standard required to prove any issue in the election petition, canone say with impunity that there is sufficient evidence to prove the complaintleveled against the first respondent? The answer from this court is absolutely no. The defence story is not only probable but it also out rightly defeats theun-circumspect evidence of PW21 and PW22 on this issue. I agree with the defence counsels that theavailable evidence suggests that the said exercise had nothing to do withbribing the voters. Indeed it could havebeen an exercise of effecting payments to the CCM officials and CCM pollingagents. Therefore the evidence of PW21and PW22 remains to be a mere speculation without proof whatsoever and based onmisinterpretation of the whole exercise. The petitioner has failed to prove thecomplaints in Issue Number 15 andthe same is resolved in favour of the first respondent. I would now prefer to discuss additionalIssue Number 1 which says “Whether attendance and participation of theMinisters in the Election Campaign may affect the free and fair Election” This issue wassuggested and framed by the parties because of its serious prominence inseveral issues during the trials. Inthis by-election petition we had complaints leveled against three Ministers,namely Hon. Sophia Simba (DW16) Minister for Women Gender and Children, Hon.Stephen Wassira (DW21) Minister of State in the President’s Office and Hon.John Pombe Magufuli, Minister of Workswho refused to appear before the court. These Ministers are also cadres oftheir political party, CCM and they have different portfolios within theparty. Most of them are members of TheNational Central Executive Committee of the party as shown in the testimoniesof several defence witnesses. Therefore, it is said when they are performing their politicalactivities like attending elections campaigns they do so as cadres of theirPolitical Party CCM. The question is, at what time in law,a Minister is not a Minister or a Minister ceases to be a Minister and probablybe identified sorely as a cadre of a political party. Article 57 of the Constitution of theUnited Republic of Tanzania provides: “57(1). The tenure of office of a Ministershall commence on the date he isappointed to hold that office. (2) TheOffice of a Minister or a Deputy Minister shall becamevacant upon the occurrence of any of thefollowing:-(a) ifthe incumbent resigns or dies;(b) wherethe incumbent ceases to be a Member of Parliament for any reason not connectedwith the dissolution of Parliament;(c) wherethe President revokes the appointment thereby removing the incumbent fromoffice;(d) wherehe is elected Speaker;(e) wherethe Prime Minister resigns or his office becomes vacant for any other reasons;(f) immediatelybefore the President elect assumes office; or(g) whereThe Ethics Tribunal makes a decision confirming that he has contravened the lawconcerning ethics of Public leaders.” Thereforein law the Minister may cease to be a Minister in the above circumstancesonly. It goes without saying, therefore,that even when the Ministers are involved in the election campaign or electionprocess they are still Ministers. Furthermore there is no law or regulation which explicitly or impliedlyforbids the Minister to attend and participate in the election campaign asMinisters. Thisposition of the law is further broaden under Article 55 (4) and 77 (3) of theConstitution of the United Republic of Tanzania which indicate that in law theMinister has three active roles, namely; He is a cadre of a political party who can besent to perform activities of his political party, he is a member of aparliament representing the people of his constituency and thirdly, he is aMinister appointed by the President from within the Members of Parliament hencean agent of the Government responsibleto perform duties of Government. Intheir submission, the counsel for the petitioner innately submitted that mere attendance andparticipation of Ministers in election campaign may not affect free and fairelection unless they contravene the provision of paragraph 3.3 of the ElectoralCode of Conduct, 2010. The Learnedcounsels referred the court to the case of AttorneyGeneral and Two Others vs. Aman Walid Kabourou (supra) where the Court ofAppeal discussed the effects of Ministers participation in the electioncampaign basing on the fact that people of this country give respect to theirMinisters hence most trust what they say. The learned counsels warned thatin the case of organized campaign suchas the present case the Ministers aresupposed to be careful not to contravene the provisions of section 108 (2) (a) and 108 (3) of the National Election Act where they may easily seen to be agents of a candidate in a given election. Thelearned counsels for the respondents had the same view that mere involvement ofMinisters in the election Campaign doesnot in itself render the election un-free and unfair unless they acted contrary to how they were supposedto conduct themselves as provided underparagraph 3.3. (a) and (b) of the Code. Iagree with both counsels on the general proposition that mere attendance andparticipation of the Ministers in the Election Campaign may not affect free andfair election unless they contravene electoral laws, namely the provisions ofSection 108 of the Act and Provisions of paragraph 3.3. of the Electoral Codeof Conduct, 2010. In fact the principlepropounded in the case of AttorneyGeneral and Two Others vs Aman Walid Kabourou is enlightenment on thisissue. Thisadditional Issue Number 1 istherefore resolved in favour of both parties. Inthe final conclusion the petitioner has failed to prove issues No. 3, 4, 5, 7,8, 11, 12, 13, 14, and 15 which have been resolved in favour of the respondents. However,the petitioner has sufficiently challenged the electoral process on issue No.1, 2, 6, 9, 10 and the two additional issues namely Number 2 and Number 3. The petitioner has convinced this court thatthe by-election of Igunga constituency was not transparent free and fair. Iam equally satisfied that the proved non-compliances malpractices,irregularities and misconducts adversely affected the results of theby-election. As I have shown above eachproved issue is sufficient to render the whole by-election void save for thethird additional issue. However, the cummulativeof malpractices and irregularities shown above make things worse on the part ofthe respondents because theysufficiently proved beyond doubt that the by election was not free and fair. Atthis juncture I would like to adopt as my own what was stated in the case of James Omingo Magara vs. Manson OnyangoNyamwenya and Two Others (CA) Civil Appeal No. 8 of 2010 Kenya (unreported). The court said; “While the courtshould, as much as possible, seek to give effect to the will of electorate, itmust at all time act in accordance with the Constitution and other electorallaws and regulations made there under. Anomalies and incidents of non-compliance withthe electoral laws and regulations or incidents aimed to frustrate the electionprocess renders the election to be not free and fair. The same must be declared null and void.” On the basis of the above findings, I hereby declare Igunga Constituency by-election October, 2011 null andvoid. Having said so, and having gone thatfar, I now proceed to the last IssueNumber 16, Reliefs entitled to the parties as follows:- 1. The election of the first RespondentDr. DALALY PETER KAFUMU as a Memberof Parliament for Igunga Constituency in October, 2011 by-election is declared null and void.2. The Parliamentary seat for Igunga Constituencyis declared vacant.3. The Igunga by-election be repeated.4. All respondents are condemned to paythe costs of the petition to the petitioner.
    M.S.SHANGALI
    JUDGE
    21/08/2012
    ORDER
    Let the District Registrar for Tabora High Court Zone,immediately inform the Director of Election Commission about this decision andsupply him with a certified copy of this judgment for his further and necessaryactions.
    M.S. SHANGALI
    JUDGE
     
  2. dudus

    dudus JF-Expert Member

    #2
    Sep 1, 2012
    Joined: Feb 28, 2011
    Messages: 5,645
    Likes Received: 1,527
    Trophy Points: 280
    Huyu Mh. Jaji Shangali kweli ni kifaa cha uhakika. Unaweza kuona tofauti kati ya wale waliotajwa na Mh. Lissu na huyu ambaye ameingia pale kwa sifa. Hata hivyo, Tabora imebahatika kuwa na majaji wazuri sana. Nakumbuka kuliwahi kuwa na Jaji mmoja mtetezi wa haki za binadamu (nadhani siku hizi ni marehemu); mnyakyusa fulani hivi akiichachafya sana serikali.

    By the way, hata Mh. Kahwa Lugakingira lile gwiji la sheria na haki za binadamu nadhani pia amewahi kuwa Tabora kabla ya kuukwaa ujaji wa Rufaa. Hata Jengo la Kituo cha Sheria na Haki za Binadamu pale Kijitonyama, Dar limepewa jina la Jaji huyu (Lugakingira Hose) kumuenzi. Hongera sana Mh. Shangali tunafurahia kazi zako na hakika umekwisha kupata thawabu yako.

    Tofautisha majaji walioteuliwa enzi za Mwalimu na wa zama hizi.
     
  3. Ufipa-Kinondoni

    Ufipa-Kinondoni JF-Expert Member

    #3
    Sep 1, 2012
    Joined: Jan 3, 2012
    Messages: 3,039
    Likes Received: 815
    Trophy Points: 280
    Nitasoma kesho. The thing is so long and the language itself does no talk straight at my side. Sheria is professional!!!!!!!!!!!!!!!!!!!.
     
  4. Nicholas

    Nicholas JF-Expert Member

    #4
    Sep 2, 2012
    Joined: Mar 7, 2006
    Messages: 22,825
    Likes Received: 889
    Trophy Points: 280
    hapo penye red napata shida kupaelewa.tafdhali edit.
     
  5. m

    mwita ke mwita JF-Expert Member

    #5
    Sep 2, 2012
    Joined: Aug 13, 2010
    Messages: 4,181
    Likes Received: 528
    Trophy Points: 280
    ndio maana sikusoma sheria
     
  6. Ufipa-Kinondoni

    Ufipa-Kinondoni JF-Expert Member

    #6
    Sep 2, 2012
    Joined: Jan 3, 2012
    Messages: 3,039
    Likes Received: 815
    Trophy Points: 280
    MKuu nashukuru. It's direct translation sir.

    Thanx
     
  7. Lokissa

    Lokissa JF-Expert Member

    #7
    Sep 2, 2012
    Joined: Nov 20, 2010
    Messages: 6,981
    Likes Received: 77
    Trophy Points: 145
    mleta mda naomba uipange kwa paragraph isome viziuri
     
Loading...