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[Nikupateje]

IN THE HIGH COURT OF TANZANIA​

DAR ES SALAAM DISTRICT REGISTRYAT DAR ES SALAAM​

MISCELLANEOUSCIVILAPPLICATIONNO 98 of 2010In the matter of Election Petition under the National Elections Act(Cap. 343) and the National Elections (Election Petitions) Rules, GN No. 447of2010​

1. THE ATTORNEY GENERAL2.DR. MILTON MAKONGOROMAHANGA...3. THE RETURNING OFFICER,SEGEREA CONSTITUENCY ...​

JUDGMENT​

Date​

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of last Order: 05/04/2012​

Date of Judgment:​

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02/05/2012​

JUMA, J.:​

The National Electoral Commission (hereinafter referred toas the Commission) specified 31​

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st October 2010 as the ElectionDay. This was the day when the Presidential, Parliamentaryand Councillors' elections were held in Tanzania. A total ofeleven candidates contested the Segerea Constituency seat.Mr. Fred Tungu Mpendazoe (the Petitioner) also contested thesame election for Member of Parliament for Segereaconstituency as a Chama Cha Demokrasia na Maendeleo​

(Chadema)​

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candidate. Mr. Mpendazoe obtained a total of39,639 votes. Dr. Milton Makongoro Mahanga (the 2nd​

respondent) was sponsored by​

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Chama Cha Mapinduzi (CCM)tocontest the Segerea Parliamentary seat. Dr. Mahanga obtaineda total of 43,839 votes and was on early morning of 3rd​

November 2010 declared by the Returning Officer​

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(3rd​

Respondent) as the Member of Parliament for Segereaconstituency.The electoral map of Segerea Constituency during the2010 General Elections had a total of 749 polling stations,which were spread out in eight (8) administrative Wards of-Segerea Ward, Kipawa Ward, Kimanga Ward, Tabata Ward,Kiwalani Ward, Buguruni Ward, Kinyerezi Ward andVingunguti Ward. The Returning Officer was assisted by twocategories of Assistant Returning Officers. The two AssistantReturning Officers who were based in each administrativeWard of the Constituency constituted the first category. I shallhereinafter refer to these Assistant Returning Officers at theWards as​

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AROs-Ward. The second category was the AssistantReturning Officers at constituency level (hereinafter referred toas AROs-Constituency). AROs-Constituency were eachassigned to specific administrative Wards to coordinated, andthey additionally assisted the Returning Officer at SegereaConstituency headquarters at Arnautoglu Hall.By an Amended Petition he filed on 17 December 2010,Mr. Mpendazoe (the Petitioner) challenged the outcome of theSegerea Constituency election. Mr. Mpendazoe alleges that the​

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election results which the Returning Officer for SegereaConstituency​

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(3rd Respondent) declared on 3rd November 2010,were fundamentally flawed. The Petitioner claims that votes'figures were incorrect; vote tallying, counting and resultsdeclaration process was fraught irregularities. All these,according to the Petitioner amounted to non-compliance withnot only the provisions of the National Elections Act Cap 343​

(hereinafter referred to as the Act), but were also not incompliance with the Directives which the Commission hadissued. The Petitioner also claims that the principles of free,transparent and fair elections were not complied with. ThePetitioner made the Attorney General his 1​

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st respondentbecause Rule 6-(1) of the National Elections (ElectionPetitions) Rules, GNNo. 447 of 2010 (hereinafter referred toas the Election Petition Rules) prescribes that in every petitionthe Attorney-General shall be made a party to the petition asthe respondent.The Petitioner gave several examples of incidents of noncompliancewith the electoral law. The Petitioner claims thatthe Returning Officer declared the results without taking intoaccount the results from 120 polling stations in Kiwalani Wardand another 129 results from polling stations in VingungutiWard. Late distribution and lack of prescribed forms forrecording of polling station results (hereinafter referred to asForms No. 21B) are other examples of non-compliance withthe law the Petitioner pleaded. The Petitioner alleges that latedistribution and lack of Form No. 21B prevented vote tallying​

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to be conducted in respect of results from 120 polling stationsin Kiwalani Ward and another 129 polling stations fromVingunguti Ward. The Petitioner pleaded that the problem oflack of Forms No. 21B was so acute that polling station resultshad to be recorded in ordinary sheets of papers. Petitionerbelieves that writing of Parliamentary election results on sheetsof ordinary papers instead of using the prescribed​

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Forms No.21B raised the spectre of distortions and rigging ofParliamentary election.The Petitioner supported his allegation of lack of FormsNo. 21B by annexing two ordinary pieces of paper (annexure​

FM-2)​

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to Paragraph 7.5 of the Amended Petition which his ownpolling agents had to use to enter results because of lack of​

Forms No. 21B. I​

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should point out here that these pieces ofpapers (annexure FM-2) mentioned in Paragraph 7.5 werenever exhibited by the Petitioner as his documentary evidence.The Petitioner has included the arrest of Ms ImeldaKafanabo amongst the examples of incidents of noncompliancewith the law governing elections in Tanzania.According to paragraph 7.6 of the Amended Petition, MsKafanabo was arrested for possessing fake and doctored​

Forms No. 21B.​

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She was allegedly charged at the CentralPolice Station Dar es Salaam. In the same paragraph 7.6, thePetitioner also made reference to a copy of a video taperecording which he claims that it shows the arrest, initialquestioning and subsequent hand-over of Ms Imelda Kafanaboto the Central Police Station. I should pause and point out that​

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although the Petitioner shows that he had annexed the videorecording of the incident as​

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Annexture FM-3 to his petition,the Petitioner neither annexed the video tape recording nor didhe exhibit it later as his documentary evidence.In his Amended Petition, the petitioner also revisited anincident which was allegedly captured in yet another videotape recording where an individual was arrested at Arnautoglufor unlawful possession of Forms No. 21B as well asCommission official stamps. Although this video recording wasshown as Annexture FM-4 to the petition, it was neitherannexed by the Petitioner nor was it exhibited by the Petitioneras his documentary evidence.Petitioner has also laid his claim over possible tamperingwith ballot boxes. The Petitioner alleges that Buguruni WardBallot Boxes No. 15134, 151305, 151083, 15144, 15109,15129, 151302 had no seals, and this incident of noncompliancewith the law affected the integrity of votes and theintegrity of the final results which the Returning Officerdeclared.Petitioner also claims that he and candidates sponsoredby two other political parties, the Civic United Front (hereinafterreferred to as CUF) and Sauti ya Umma (hereinafter referred toas SAU) who were also contesting the Segerea Parliamentaryseat raised their verbal objections that the Returning Officershould not declare results without first taking into account themissing polling station results Forms No. 21B fromVingunguti, Buguruni and Kiwalani Wards. According to the​

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Petitioner, the Returning Officer ignored their objections,refused to allow them to lodge formal complaints and wentahead and declared the results.​

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The Petitioner believes that the final results which theReturning Officer declared and his own chances to win theelection were adversely affected by all these flaws, irregularitiesand non-compliances. The petitioner illustrated his belief thathe ought to have been declared the winner by referring to hispolling agents' tally of votes projecting that he had obtained​

56,962​

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votes against the Dr. Mahanga's 44,904 votes. Thepetitioner would like this court to avoid the election of Dr.Mahanga as Member of Parliament for Segerea Constituencyand to either order a by-election or in the alternative this courtshould be pleased to declare him, Fred Tungu Mpendazoe as alawfully elected Member of Parliament for SegereaConstituency.In their respective replies to the Amended Petition, allthree respondents pleaded that the claim by the petitionerseeking the avoidance of the election results of the SegereaConstituency has no basis. As far as the respondents areconcerned, the Parliamentary election results which saw Dr.Mahanga being elected was conducted in compliance with theAct, Regulations and Directives of the Commission.This petition was heard in open court at Oar es Salaam asrequired by Rule 15 (2) of the Election Petition Rules. ThePetitioner was represented by Mr. Peter Kibatala, learned​

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Advocate. The Attorney General and the Returning Officer forSegerea Constituency (1​

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st and 3rd Respondents) wererepresented by Mr. David Zacharia Kakwaya, the learnedSenior State Attorney; assisted by Mr. Seth Mkemwa, thelearned Senior State Attomey. Two learned Advocates, Mr.Jerome Msemwa, assisted by Mr. Aliko Mwamanengerepresented the Dr. Mahanga (2nd Respondent). In support ofhis Amended Petition, the Petitioner called a total of thirteenwitnesses. A total of fifteen witnesses including the 3rd​

respondent testified for the 1​

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st and 3rd respondents. Dr. MiltonMakongoro Mahanga testified on his own behalf. ThisJudgment has greatly been enriched by the industry andcommitment shown by the five learned Counsel. I am similarlyindebted to the very detailed written submissions which theselearned Counsel filed on 19th April 2012 to support theirrespective positions.The following eleven Issues were agreed upon by thelearned Counsel and endorsed by this court:​

1. Whether the exercise of votes counting, addition ofvotes and announcing of election results for SegereaConstituency were respectively conducted inaccordance with the law, regulations and directivessetforth by the law;2. Whether the entire election exercise in SegereaConstituency was free, fair and in line with the lawregulating general elections;3. Whether, with respect to 120 polling stations inKiwalani Ward and​

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129 polling stations in VingungutiWard; the tallying of votes and the use of pollingstation election results form number 21B compliedwith the law;4. Whether the election results for a Member ofParliament for Segerea were declared by theReturning Officer without taking into account pollingresults for 120 polling stations in Kiwalani Ward and129 polling stations in Vingunguti Ward;5. Whether Imelda Kafanabo) the Tabata Ward ExecutiveOfficer responsible for Tabata Ward) wasapprehended whilst in possession of fake anddoctored election results form number 21B)subsequent to which she was charged at Dar es​

Salaam Central Police Station;6. Whether an individual was arrested at ArnautogluVote Counting and Results Declaration Station forunlawful possession of election results Forms number21B) NEC Official stamps) and subsequent to which hewas questioned and charged by the police;7. Whether ballot boxes number​

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15134) 151305)151083) 15144) 15109) 15129 and 151303 werefound without seals thereby affecting the integrity ofvotes therein;8. Whether the petitioner)s polling agents and othercandidates of CUFand SAU political parties requestedbut were denied election official forms to lodge theircomplaints over the missing votes from Vingunguti)Buguruni and Kiwalani Wards;9. If the answer to issues 1 to 8 or anyone of the issuesis in affirmative) whether it amounts to non-compliancewithin the meaning ascribed by the Act) and if so)whether these non-compliances affected the results ofelection;10. Whether the Petitioner had a majority of votes asalleged in paragraph 9 of the Amended Petition;11. Which candidate) on the basis of valid votes) wasentitled to be declared a Member of Parliament forSegerea Constituency?​

It is perhaps pertinent to begin by expressing my fullagreement with the five learned Counsel who prefaced theirrespective written submissions by identifying some of thesalient principles of law which they suggest should guide thiscourt when determining this election petition. Mr. ZachariaKakwaya and Seth Mkemwa have submitted that this courtshould bear in mind that election petitions emanate fromelection processes. It is through elections where the citizensexpress their choice of their leaders. Courts have a duty torespect the choice which the citizens have made through freeand fair elections.Another salient principle is the recognition that electionpetitions are no ordinary suits. Mr. Jerome Msemwa and Mr.Aliko Mwamanenge the learned Counsel representing Dr.Mahanga agree with the two learned State Attorneys insubmitting that election petitions are not ordinary suits.Election petitions should not be taken lightly since they aredisputes of great public importance with economic, financialand social ramifications to the constituents and the Tanzaniaat large. The four learned Counsel for respondents alsosubmitted on the duty of the petitioner to prove the allegedincidences of non-compliances to the satisfaction of the court.This satisfaction of the court has been interpreted in severalCourt of Appeal decisions to mean proving the alleged noncompliancesbeyond reasonable doubt.As urged by the Learned Counsel, I shall seek theguidance of salient principles of law as set forth byConstitution, the Act, and the general principles governing theconduct of elections in Tanzania which this court and the​

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Court of Appeal of Tanzania, have articulated through anumber of case law. The first guiding principle which the fiveleaned Counsel are all in agreement with, arises from theessence of our Republican Constitution of United Republic ofTanzania. In any Republic, it is the citizens through regularelections who elect their President, their Members ofParliament and their Councilors. The role of this court comesinto prominent play to ensure that the will of the people isproperly expressed through the procedure prescribed by theConstitution, the Act and its Regulations. The Act has throughsection 108 specify when High Court can avoid an election of aduly elected Member of Parliament. An election petition filedunder section 108 of the Act is the only avenue through whicha petitioner may come to court and seek to avoid an election ofa Member of Parliament. Section 108 states:​

108.​

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-(1) Pursuant to the limitation imposed by subarticle​

(7)​

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of Article 41 of the Constitution, theprovisions of this section shall apply only inrelation to the election of a candidate as a Memberof Parliament.(2) The election of a candidate as a Member ofParliament shall be declared void only on anelection petition if the following grounds is proved​

to​

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the satisfaction of the High Court and on noother ground, namely-(a) that, during the election campaign, statementswere made by the candidate, or on his behalf andwith his knowledge and consent or approval, withintent to exploit tribal, racial or religious issues ordifferences pertinent to the election or relating to​

any of the candidates, or, where the candidatesare not of the same sex, with intent​

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to exploit suchdifference;(b)-non-compliance with the provisions of this Actrelating to election, if it appears that the electionwas not conducted in accordance with theprinciples laid down in such provisions and thatsuch non-compliance affected the result of theelection.(c) that the candidate was at that time of hiselection, a person not qualified for election as aMember of Parliament.​

An important principle arising from section 108 of the Actis to the effect that the grounds for overturning the election ofa Member of Parliament are not open ended. That is, thechoice of the citizens as expressed in an election cannot beoverturned by courts that easily. Section 108 of the Actprovides the circumstances where an election petition courtmay be petitioned to overturn the choice of a Member ofParliament which citizens expressed in an election. It IStherefore important for this Court at the very outset, to situateand specify under which of the paragraphs of subsection (2) ofsection 108 of the Act Mr. Mpendazoe (the Petitioner) hasgrounded his present petition.It is clear from its pleadings, this petition is not groundedon any complaints arising from election campaigns. Thispetition IS also not concerned with complaints over anystatements exploiting tribal, racial or religious Issues ordifferences envisaged under paragraph (a) of subsection (2).​

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This present petition does not have any complaint that at thetime of his election as a Member of Parliament for SegereaConstituency, Dr. Mahanga was not qualified for election as aMember of Parliament. This present petition seeks to avoid theelection of Dr. Mahanga through the avenue that is providedby paragraph (b) under subsection (2) of section 108 allegingthat there was non-compliance with the provisions of this Act,its Regulations and Principles relating to election:​

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(2) (b)-non-compliance with the provisions ofthis Act relating to election, if it appears that theelection was not conducted in accordance with theprinciples laid down in such provisions and thatsuch non-compliance affected the result of theelection.​

Having situated this petition under section 108 (2) (b) ofthe Act, it is important to set out what is expected of apetitioner who grounds his petition on the issue of noncompliancewith the Act. The law under section 108 (2) (b) ofthe Act requires the petitioner who pegs his grounds ofcomplaint on non-compliances to show to the satisfaction ofthis court two things. First, he must satisfy this Court that theelection was not conducted in accordance with the Act,Regulations and any Directives issued under the Act. Secondly,the Petitioner must show such non-compliance affected theresult of the election of Dr. Mahanga as a Member ofParliament. It seems to me that the law in Tanzania throughsection 108 (2) (b) of the Act recognizes the fact that noelectoral system in the world is 100 percent perfect for thereare certain incidents of non-compliance which do notnecessarily lead to the avoidance of an election of a Member ofParliament if in the final analysis the election petition court issatisfied that the incidents of non-compliance which thepetitioner has proved, did not in fact affect the result of theelection. The words​

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"such non-compliance affected theresult of the election" in section 108 (2) (b) of the Actrecognizes that no election can be conducted without someminor incidents of non-compliance with the law. What isimportant is the electoral process to substantially conform tothe Act, Regulations and directives issued by the Commission.Since Mr. Mpendazoe has based his petition on section 108 (2)(b) of the Act, he must prove both that there were noncompliancesand also the effect of such non-compliances onthe election result that was declared by the Returning Officeron 3rd November 2010.Section 108 (2) (b) of the Act which the Petitioner hasbased his petition also underscores the principle that theburden of proof in election petitions lies on the petitioner toprove to the satisfaction of this court that there those incidentsof non-compliance and also that these non-compliancesaffected the results of the election. The Court of Appeal ofTanzania sitting at Mwanza in Manju Salum Msambya vs.The Attorney General and Kifu Gulamhussein Kifu, CivilAppeal Number 2 of 2002, has described this burden of proofon the shoulder of the petitioner to be a heavy one:​

" the burden of proof placed on a petitioner​

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a heavy one: he​

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is required to prove his allegationsto the satisfaction of the court, which has beeninterpreted as proof beyond reasonable doubt.. .."·​

page​

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Similar sentiments on heavy burden placed on thePetitioner was expressed in the case of​

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Lutter SymphorianNelson vs. AG and Ibrahim Said Msabaha [2002] TLR. 419​

where the Court of Appeal restated that the burden is heavy onhim who assails an election which has been concluded. Sucha Petitioner must prove his case beyond reasonable doubt. TheCourt of Appeal in​

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Manju Salum Msambya vs. The AttorneyGeneral and Kifu Gulamhussein Kifu (supra) underscoredthe legal principle that the choice the citizens have made onwho should be their member of Parliament should not beoverturned by courts so easily. The Court of Appeal reasonedwhy the law should place such a heavy burden on thepetitioner:​

(( The reason for putting the standard that high​

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not far to seek. An election is the exercise of aconstitutional right and the fulfilment of anobligation by the citizenry. It is perhaps the onlyoccasion when the people are enabled directly toparticipate in running the affairs of their country.The courts, therefore, have a duty to respect thepeople's conscience and not to interfere in theirchoice except in the most compellingcircumstances. "-page 4.​

In my evaluation of evidence on record I shall always bearin mind the settled principles of law that I have outlined.​

Third Issue:​

Having set forth some of the salient legal principles whichshall guide my evaluation of evidence that was presented byboth sides, I will now begin with the third issue, which revolvesaround paragraph​

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7.5 of the amended petition. The petitionerhas through this paragraph made two distinct claims. The firstclaim centres on alleged lack of election results Forms No.​

21B​

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in the 249 polling stations of Kiwalani and Vingunguti.The second claim revolves around the complaint that thetallying (addition) of votes in 120 polling stations in KiwalaniWard and in 129 polling stations in Vingunguti Ward did notcomply with the law. I will restrict myself to the lack of electionresults Forms 21B. I will address the complaint over complainttallying (addition) of votes in 120 polling stations in KiwalaniWard and in 129 polling stations in Vingunguti Ward whendealing with the fourth issue.In the pleading which gave nse to the third issue, thepetitioner claims that in the whole of 120 Kiwalani WardPolling Stations and the whole of the 129 Vingunguti WardPolling Stations did not conduct votes tallying at the votingstations because there was a lack of NEe election results​

Forms No.​

21B ​

which made Petitioner's polling agents to writepolling station results on ordinary pieces of paper.There is no doubt in my mind that lack of electionmaterials in 249 polling stations of Vingunguti and Kiwalani ifproved, has the potential to substantially interfere with thecorrect choice by voters of their Member of Parliament. By​

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alleging lack of election results​

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Forms No. 21B the petitionerimplied that polling stations in 249 polling stations of Kiwalaniand Vingunguti Wards were not sufficiently prepared for thevoting and counting of votes on the Election Day. To appreciatethe seriousness of this allegation one only needs to look atmandatory provisions of the law directing the distribution ofelection materials to polling stations should be done wellbefore voting begins, and the recording of parliamentarypolling station results in prescribed Forms No. 21B. Mr.Mpendazoe the petitioner (PWl) told this court that he wasinformed through his network of polling agents and WardCoordinator that Election Results Forms No. 21B werebrought late. This occasioned delay, forcing his polling agentshad to fill yellow forms (of disputes) instead of prescribedelection results Form No. 21B.​

It is significant to note that Mr. Mpendazoe has in hisevidence conceded that the basis of this claim over lack of​

Forms No.​

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21B ​

is information he received from his network ofpolling agents and coordinating agents who were stationed inthe two Wards of Kiwalani and Vingunguti. The Court ofAppeal of Tanzania sitting at Mwanza in the case of ManjuSalum Msambya vs. The Attorney General and KifuGulamhussein Kifu, (supra) has furnished guidance on role ofa petitioner testifying in his support of his own electionpetition:-​

".. A petitioner in an election petition merelyintroduces his case; he states the grounds uponwhich his case is based and calls his witnesses toprove those grounds.​

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He is not required to name hissources of information in advance and to specify thenature of their evidence, for to do so would beengaging in hearsay. "-page 8.​

From this guidance of the Court of Appeal in the abovecitedcase of​

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Manju Salum Msambya, after the Petitioner hadintroduced his claim over the lack of election results Forms​

No.​

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21B ​

in the 249 polling stations in the two Wards ofKiwalani and Vingunguti; this court should expect hiswitnesses to testify and prove these claims to the prescribedstandard of proof. Witnesses who were brought by the 1st and3rd respondents vehemently denied the allegation that therewas lack of election results Forms No. 21B at Kiwalani andVingunguti Wards. Yunus Cleophas Ndado (RW1)was an AROWard​

responsible for Kiwalani Ward during the 2010 GeneralElections. There were no such shortages of election results​

Forms No. 21B​

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at Kiwalani, according to Mr. Ndado. And ifthere were any such shortages, he added then the pollingagents would have filled Complaint Forms No. 14 and 16.To show that there were no such shortages; Mr. Ndadoelaborated how he collected election materials before theElection Day. Mr. Ndado related how on 29th October 2010 heand other election officials were summoned by the ReturningOfficer to go to a warehouse at an area he described as"Karume". It took them the whole morning of 30th October2010 to collect the election materials from that warehouse. TheReturning Officer handed over ballot boxes, rubber stamps,​

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No. 16.​

The evidence of Mr. Ndado with regard to electionmaterials was supported in material particulars by theevidence of Charles Mang'ombo Kimario (RW2). Mr. Kimariotestified how as a Presiding Officer he attended pre-electionseminars where he was reminded of his duty to take care of hisPolling Stations and polling materials. Mr. Kimario testifiedthat he took up his assignment on the night of 30​

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th October2010 when took his consignment of three ballot boxes, Forms,envelopes, lamps, rubber stamps and other election materials.Mr. Ndado and Mr. Kimario made no mention aboutshortages of election results Forms No. 21B in the 249 pollingstations of Kiwalani. These two witnesses were similarly nevercross examined on the lack of election materials at Kiwalani.Protas Paul Tarimo (RW5) was as an ARO-Ward ofVingunguti Ward. On 29th October 2010 Mr. Tarimo received acall from Returning Officer inviting him and other AROs-Wards​

to go to the warehouse to collect the election materials forpolling stations in his Vingunguti Ward. Each​

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ARO-Ward​

verified if all their equipment were all in order. Transporting ofelection materials began on the morning of 30th October 2010to take materials from the warehouse to the office of the WardExecutive Officer and then from 03.00 a.m. (31st October2010) transporting of materials to polling stations begun.On Election Day Mr. Tarimo visited all polling stations. Nopolling station reported any shortage of election materials. The​

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only conceSSIon Mr. Tarimo made during cross examinationwas that distribution of election materials went on till dawn ofthe Election Day (31st October 2010). He further conceded thatit was true that the Act directs the distribution of materialsshould be made one day before Election Day.Evelyn Mgonja (RW9) was a Presiding Officer of KomboA2 Polling Station in Vingunguti Ward. According to MsMgonja (RW 9), she not only gave all the polling agents atKombo A2 Polling Station their respective copies of electionresults forms number 21B, but she also posted a copy of theresults outside her polling station.The Learned State Attorneys are with due respect correctin pointing out that the Petitioner did not exhibit the ordinarysheets of paper​

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(Annexture FM-2) wherein his polling agentswere forced to record polling station results because of lack ofelection Forms No. 21B. The Petitioner brought no pollingagents to testify on shortages of election materials in any of thepolling stations in Kiwalani and Vingunguti Wards. Theevidence of articulate Gervas Barandaje (PW2)is not helpful inso far as proof of lack of election results Forms No. 21B inKiwalani and Vingunguti Wards is concerned. Mr. Barandaje(PW2) was not a polling agent at any polling station. Theevidence of Mr. Ndado (RW1), Mr. Kimario (RW2) and MsEvelyn Mgonja suggesting adequate voting materials for bothKiwalani and Vingunguti Wards' polling stations was notcontradicted by the witnesses who testified on behalf of thePetitioner.​

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Although Mr. Barandaje (PW2)described himself as theChief Coordinator of CHADEMA'spolling agents and as a votetallyingcoordinator at Kiwalani Ward; in my opinion, only thepolling agents at polling stations, or presiding officers inKiwalani and Vingunguti who are better placed to testify onlack of election results​

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Forms No. 21B.​

Jackson Adam Ndahani (PW3) described himself as analternate agent of Chadema at Kiwalani. Mr. Ndahani (PW3)acted as a polling agent for brief spell of less than two hours atKilagila B Polling station. If indeed the election results​

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Forms​

No. 21B​

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were missing at Kilagila B, at very least Mr. Ndahani(PW3) would have mentioned it in his evidence. He did not.It is also important to note in my evaluation that theclaim by the Petitioner that there were shortage of electionresults Forms No. 21B in Kiwalani and Vingunguti PollingStations was not supported by James Haule (PWll) who likethe petitioner also contested the Segerea Parliamentary seat onthe TLP ticket. In his examination in chief, Mr. Haule (PW11)testified that visited polling stations during the Election Dayand he also had polling agents at polling stations who updatedhim on regular basis what transpired at polling stations.According to Mr. Haule, after the counting of votes, electionresults Forms No. 21B were posted on the notice boardsoutside each polling station. In my opinion, if in fact pollingstation results Forms No. 21B were posted at notice boards,the question of shortage of these forms should not have beenraised by the Petitioner.​

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Edwin Mwakatobe (PW13) was a​

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Chadema countingagent. He was stationed at Arnautoglu where the addition ofpolling station results for Presidential and Parliamentary wascarried out. From his vantage position, Mr. Mwakatabe wasbest placed to testify whether Chadema's polling agents givehim their copies of election results Forms No 21B. But uponhis cross examination by Mr. Kakwaya, Mr. Mwakatobecandidly told this court that he did not receive any informationfrom polling agents complaining about lack of election results​

Form No. 21B.​

I cannot but agree with the submissions of the LearnedState Attorneys contending that the petitioner has brought noevidence satisfying this court that there were shortages ofelection materials including election results​

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Forms No. 21B atany of the polling stations of Kiwalaniand Vingunguti Wards.I should also say a few words on question whetherelection results of a polling station in Tanzania can be provedby tendering ordinary pieces of paper like Annexture FM-2 asan alternative to election results Forms No. 21B. Forms No.​

21B​

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have been prescribed by Regulation 60 (1) of the​

Elections (Presidential and Parliamentary Elections)Regulations, 2010 GNNo. 279 of 2010​

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(hereinafter describedas Elections Regulations). Regulation 60 states:​

60.-(1) The Presiding officer at the polling station shall,after counting all votes under this regulation, recordelection results for the polling station in respect ofPresidential election and Parliamentary election inForms Nos. 21A and 21B as set out in the FirstSchedule​

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to these Regulations, respectively.​

The Act and the above cited Regulations has an in-builtsystem of recording important electoral stages in prescribedForms. These forms are invariably completed, signed andaffirmed by primary witnesses to various electoral stages.Election Results​

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Forms No. 21 has been prescribed by the Actas primary evidence on the state of facts stated in that form.This means, for Parliamentary election, Form No. 21B​

provides the best evidence regarding the results of a pollingstations, names of candidates in that election, total number ofvoters registered at that polling station, total number of voterswho actually turned up to vote, total number of valid votes andtotal number of rejected votes. I cannot but express my deepsurprise why the Petitioner did not at very least bring his ownpolling agents from Kiwalani and Vingunguti to specificallytestify on what has been claimed under Paragraph 7.5 of theAmended Petition. Presiding officers, polling assistants, andpolling agents of political parties are best placed persons totestify on what actually happened inside the polling stationsand highlight the alleged shortage of election results forms​

​

​

​

No.21B. The Forms prescribed by the Act and its Regulationsembody the 'best evidence' rule - that best evidence ought to beplaced before this Court to prove a fact.The petitioner has clearly failed to shake the evidence ofMr. Ndado (RWl) and Mr. Kimario (RW2) (AROs-Wards forKiwalani and Vingunguti respectively) who testified how they​

22​

received their voting materials from a warehouse at Karume.The evidence of these two witnesses In my opInIOnpreponderates over the tenuous evidence of the Petitionercomplaining over shortages of election results Form No. 21B inKiwalani and Vingunguti Wards. The Court of Appeal on anoccasion provided in the case of​

​

​

​

Lutter Symphorian Nelsonvs. AG& Ibrahim Said Msabaha [2002] TLR. 419 stated thatthe burden is heavy on him who assails an election which hasbeen concluded. The petitioner must prove his case beyondreasonable doubt.With regard to the third issue, my conclusion is that thePetitioner has not satisfied this court that there were thealleged lack of polling station results Forms No. 21B atKiwalani and Vingunguti Wards to constitute a noncompliancewith the Act.​

Fourth Issue:​

Having disposed of the third issue, let me now turn myattention to the fourth issue which relates to the question as towhether or not the election results for a Member of Parliamentfor Segerea were declared by the Returning Officer withouttaking into account polling results from 120 polling stations inKiwalani Ward and another 129 in Vingunguti Ward. Whiledealing with the third issue​

​

​

​

I left the determination of thequestion whether the tallying of votes in the 120 pollingstations in Kiwalani Ward and 129 polling stations inVingunguti Ward complied with the law be determined togetherwith this fourth issue. The Petitioner; in paragraph 7.3 of hisAmended Petition, has correctly observed that the law requiresthat election results should include all the votes from each andevery polling station from each and every Ward. Throughparagraph 7.4 of the Amended Petition, the Petitioner claimsthat contrary to what the law requires, the Returning Officerdeclared the results without including results from 120 pollingstations that were in Kiwalani Ward and another 129 pollingstations that were in Vingunguti Ward.In their evidence, the witnesses who were brought by thePetitioner told this court that there was non-compliance withthe procedure for tallying of polling station results both at theKiwalani and Vingunguti Wards and also at the Constituencyheadquarters at Arnautoglu Hall. The witnesses who testifiedon behalf of the first and third respondents insisted that notallying or addition of election results from polling stationstook place at the Wards before these additions/tallies wereforwarded to the constituency headquarters at ArnautogluHall.Mr. Mpendazoe (PW1)testified that the tallying of votesfrom polling stations situated In the Kiwalani Ward wassupervised by AROs-Ward and In presence of his countingagent who was based at the Ward Executive Officer's Office(WEO)at Kiwalani. Mr. Mpendazoe testified that with regard tothe polling stations' results from Vingunguti, this tallyingexercise was initially supposed to be at Vingunguti PrimarySchool but was later transferred to the office of the Ward​

24​

Executive Officer. The Petitioner believes that after the tallyingof the polling station results at the level of the Wards, the nextstep was, to decide on disputed votes after discussionsamongst the agents and election officials.According to Mr. Mpendazoe, it is after the completion oftallying at the Ward when the constituency polling stationresults are to be forwarded to the constituency-tallying level.Mr. Mpendazoe also testified that the interests of transparencydemanded that candidates' polling agents should accompanyballot boxes and polling station results that had been tallied atWard level to the Constituency-addition station. In hisevidence Mr. Mpendazoe believed that the problems whichfaced the addition of polling station results at the KiwalaniWard tallying centre which prevented the​

​

​

​

AROs-Ward fromcarrying out the addition of all the 120 polling stations resultsof Kiwalani Ward. These problems were disturbances by pollingassistants who were agitating over unpaid allowances. This,according to the petitioner weakened the supervision of theaddition of polling station results. The petitioner in otherwords would like this court to find that the disturbances overallowances created so much confusion that twenty-threeelection results Forms No. 21B could not be traced andaddition of votes at Kiwalani Ward could not be done.When asked by David Kakwaya to identify polling stationswhose results were missing Mr. Mpendazoe could only statethat he saw no need to memorize the names of the pollingstations whose results Forms No. 21B were missing.​

25​

Mr. Gervas Barandaje (PW2)was the Chief Coordinator of​

Chadema's​

​

polling agents in Kiwalani Ward. It was Mr.Barandaje who received the Chadema polling agents' copies ofelection results Forms No. 21A, 21B and 21C from 120polling stations. Mr. Barandaje in turn forwarded these copiesof polling station results to Mr. Mwakatobe at Constituencyheadquarters. Mr. Barandaje also testified on dispute overallowance which took place when polling station results werebeing forwarded to the Ward headquarters. He described it allas a misunderstanding between the polling assistants and​

ARO-Ward​

​

​

​

​

over allowances which affected the addition ofresults at the Ward headquarters. Mr. Barandaje also testifiedon how the ARO-Ward (Kiwalani Ward) found that electionresults Forms No. 21A, No. 21B, and No. 21C from twentythreepolling stations were missing when the process of tallyingwas about to start. It was until 16:00 hrs on 2nd November,2010 when the ARO-Ward managed to get 16 of the 23 pollingstations results which were missing. In other words 7 pollingstations' results remained missing.In so far as results from polling stations of VingungutiWard are concerned, Mr. Mpendazoe regards as a noncompliancewith the law the decision to move the tallyingcentre from Vingunguti Primary School to office of the WardExecutive Officer. And there was the complaint by thepetitioner and his witnesses that at the office of the WardExecutive where they moved to, tallying could not proceedbecause nine election polling station results forms number​

26​

21B were missing. Mr. Mpendazoe told this court that he didnot know how the Returning Officer​

​

​

​

0btained the missingpolling stations' results which he included in the final totalConstituency Election Results Form Number 24B.The version evidence of Mr. Mpendazoe is supported byBazil Ng'oholope (PW4). Mr. Ng'oholope was a ChademaCouncillor Election Candidate who contested the VingungutiWard's Councillor Election. Mr. Ng'oholope claims that tallyingof parliamentary votes was suspended when they arrived at theoffice of the Ward Executive Officer because the ReturningOfficer discovered some election results forms from pollingstations were missing. Because the problem of the missingresults had not been solved by 2nd November 2010, Mr.Ng'oholope testified that the ARO-Ward contacted theReturning Officer who directed them all to go to ArnautogluHall where the final decision would be made. According to Mr.Ng'oholope, they did not identify the name of the nine pollingstations whose results were missing at the Vingunguti Wardtallying. It is the evidence of Mr. Ng'oholope that all the 129polling stations results from Vingunguti polling stations werenot added in total constituency results.Evidence on behalf of the Petitioner suggesting that theaddition of Parliamentary election results took place at Wardheadquarters was disputed by the witnesses who testified onbehalf of respondents. Protas Paul Tarimo (RW5) was as an​

ARO-Ward​

​

​

​

​

of Vingunguti Ward during the 2010 GeneralElections. Mr. Tarimo insisted that he took to Arnautoglu a​

27​

total of 129 Parliamentary Election Results​

​

​

​

Forms No. 21B​

from Vingunguti Ward. A total of 128 of these forms wereoriginals and one was a photocopy Mr. Tarimo made fromagents' copy he obtained from Mr. Gerald Shayo.Mr. Tarimo explained the administrative role of the​

​

​

​

AROs-​

Wards​

​

​

​

​

stationed at the Wards was merely to assemble ofelection materials and polling station results before forwardingthese to the Returning Officer at Constituency Headquarters.According to Mr. Tarimo, by 22:00 p.m. and before 23:00 p.m.on the Election Day all materials and election results formsfrom far off polling stations of Vingunguti Ward had beenbrought by the Presiding Officers to the assembling point atVingunguti Primary School.Expounding the scope of the administrative role of AROs-​

Ward​

​

​

​

​

responsible for Vingunguti Ward, Mr. Tarimo testifiedthat the next role of Assistant Returning Officers (Wards) afterassembling of election materials was to receive Election ResultsForms Numbers 21A, 21B and 21C from the Presiding Officers.This role began from 03.00 a.m. till few minutes 5 a.m. of 1stNovember 2010. Mr. Tarimo and his team took some time off torest till 08:00 a.m. of 1st November 2010 when he and otherofficers arranged Election Results Forms No. 21A and 21B​

from all the 129 polling stations in Vingunguti Ward. It wasafter the arrangement of the election results forms No. 21Bwhen Mr. Tarimo realized that there were only 128 electionresults​

​

​

​

Forms No. 21B instead of 129 forms. He took the listof polling stations and discovered that the missing election​

28​

result​

​

​

​

Form No. 21B was from Zahanati polling station. Therewere several polling stations under the names Zahanati As,​

Zahanati​

​

​

​

Bs etc. Election result form from Zahanati A2 PollingStation was missing. From his list, Mr. Tarimo found thePresiding Officer of Zahanati A2 Polling Station was Ms.Josephine Hassan.Mr. Tarimo phoned Ms. Josephine Hassan. Ms. JosephineHassan explained that she had handed over the electionresults form and that Mr. Tarimo had signed to have receivedthis form. Mr. Tarimo decided to contact the Returning Officerover the missing Form No. 21B. According to Mr. Tarimo, itwas Mr. Gerald Shayo (a Chadema Counting Agent) who gavehim polling agent's copy of the missing election result FormNo. 21B of Zahanati A2 polling station. Gerald Shayo prepareda photocopy which Mr. Tarimo compared and verified Mr.Gerald Shayo's copy with a photocopy he had made out of thatagents' copy. After verifying that the two documents compared,Mr. Tarimo used that photocopy results form from Zahanati A2Polling Station as 129th polling station results from pollingstations situated in Vingunguti Ward. Mr. Tarimo insisted thathe took to Arnautoglu a total of 129 Parliamentary ElectionResults Forms from Vingunguti Ward. According to Mr.Tarimo, a total of 128 of these forms were originals and onewas a photocopy he made from agents' copy he obtained fromGerald Shayo.In their submissions, the Learned State Attorneys urgedthis court to look at the evidence of Mr. Mpendazoe claiming​

29​

that twenty-three (23) election results​

​

​

​

Forms 21B weremissing in Kiwalani Ward and another nine (9) results Forms21B which were missing from Vingunguti Ward. The LearnedState Attorneys submitted on the discrepancy on the countfrom Mr. Haule (PWll) the TLP Parliamentary candidate whotestified that more than 20 election results Form No. 21B weremissing at Kiwalani and 11 from Vingunguti Ward. And undercross examination, Mr. Haule testified that 12 election results​

Forms No. 21B​

​

​

​

​

were missing from Vingunguti. Of moresignificance to the State Attorneys' submission was that noneof the witnesses who testified for the petitioner could identifythe names of polling stations whose Forms 21B were missing.In his submissions, Mr. Kibatala urged this court to findthat the witnesses who testified on behalf of the petitionerproved to the satisfaction of this court that no tallying ofForms No. 21B (Parliamentary results for SegereaConstituency) were carried out.From evidence and submissions by the learned Counsel itseems to me that there are two versions of evidence. Oneversion is one advocated by the petitioner and his witnessescontending that addition or tallying of polling station resultswas not properly concluded at tallying centres at Vingungutiand Kiwalani because of missing election Forms No. 21B andother interferences on electoral process. The first versionfurther contends that the addition of election results atConstituency headquarters did not include results fromKiwalaniand Vingunguti Wards.​

30​

The second version of evidence is advocated by Mr. Ndadoand Mr. Tarimo the AROs-Wards responsible for pollingstations in the two Wards of Kiwalani and Vingungutirespectively. The two witnesses suggest that no tallying oraddition of parliamentary results was scheduled to take placeat the Wards' headquarters. They contended that addition ofpolling station results took place at Constituency Headquarters(Arnautoglu Hall) and their role at their respective Wards wasmerely to assemble the Parliamentary and Presidential resultstogether with election materials like ballot boxes and toforward these to the Returning Officerat constituency additionhall.Tallying or addition of parliamentary results from pollingstations is a distinct electoral process which is not left to thediscretion of election officials. It, therefore, goes without sayingthat only the law can prescribe what electoral activity takesplace at the Ward headquarters and also what electoralactivities take place at the Constituency headquarters. Tallyingor addition of polling station results is an electoral process thatis governed by specific statutory provision. I am obviouslyanxious to determine the provision of the Act which thePetitioner and his witnesses have relied to contend that theprocess of addition was supposed to take place at the Wardsand that this process was not completed at the Wards as lawdirects.It is therefore prudent to find out first what the law saysabout where and how the addition of Parliamentary results​

31​

from polling stations takes place. I can state without fear ofcontradiction that in Tanzania, Parliamentary results frompolling stations as reflected in Election Results​

​

​

​

Forms No.21B, constitute the statutory basis of final election resultswhich the Returning Officer ascertains and declares undersection 81 of the Act. I propose to look into the provisions ofthe Act to determine at what stage addition of Forms 21B​

takes place and who are supposed to be present at that stage.In terms of sections 79A, 80 and 81 of the Act,Parliamentary election results​

​

​

​

Forms No. 21B pass throughfour stages from the moment the presiding officers concludethe counting of votes at polling stations to the moment whenthe Returning Officer declares the results under section 81.The four main stages leading towards the declaration ofparliamentary election results are specifically provided for bysection 80 (3)of the Act:​

(3) After all the reports of the results and ballot boxescontaining ballot papers relating​

​

​

​

​

to the Parliamentaryelection have been received from the polling stations inthe constituency, the Returning Officer shall, afterdetermining the validity of any disputed votes andbefore the addition of the votes, announce aloud theresults of each polling station in the constituencyseriatim.​

In terms of the above-cited provIsIon, receiving by theReturning Officer at constituency headquarters of all​

​

​

​

FormsNo. 21B and ballot boxes containing ballot papers relating tothe Parliamentary election is the first stage leading to thedeclaration of the results. This is the stage where the​

32​

Retuming Officer ascertains that Parliamentary electionresults​

​

​

​

Forms No. 21B and ballot boxes from all the 749polling stations of Segerea have been received at constituencyheadquarters at Arnautoglu. The plain meaning of the word​

"ascertains"​

​

​

​

​

in my opinion implies that it is the ReturningOfficer and not the AROs-Wards who at this stage bears theultimate responsibility to find out whether there any pollingstation results from any polling station that are missing. TheReturning Officer may receive these results and ballot boxeseither in person or through his AROs-Constituency.​

The second stage is for the Returning Officer to determinethe validity of disputed votes if any. The third stage towardsthe declaration of results is to announce aloud the electionresults​

​

​

​

(Forms No. 21B) of each polling station in theconstituency seriatim i.e. "one polling station after another asin series." The law through subsection (3) of section 80 obligesthe Returning Officer to cause the loud announcement of theresult of each polling station in series.The fourth stage is the addition, getting the final totals ofelection results of all polling stations in the constituency andthe filling of Form 24B. Addition can be simultaneously donetogether with loud pronouncements of the results. TheReturning Officer, his AROs-Constituency, candidates andtheir counting agents are all allowedunder section 80 (2)of theAct, to be present at determination of the validity of disputedvotes, loud announcements of polling station results seriatimand the addition of votes.​

33​

In my understanding, the four stages of ascertainment ofthe Parliamentary results, determination of the validity ofdisputed votes, loud announcements of polling station resultsseriatim and addition of the results are clearly designed to takeplace at Constituency headquarters. In my opinion theactivities of​

​

​

​

AROs-Ward performed at the Wards were to allintents and purposes performed on behalf of the ReturningOfficer of the Constituency. While it is possible for the AROs-Wards to ascertain that no election results Form No. 21B ismissing from any polling station in his administrative Ward,this ascertainment is nothing but part of the duties of the​

AROs-Ward​

​

​

​

​

performed on behalf of the Returning Officerwhobears the ultimate responsibility over any missing results restson the Returning Officer.Evidence of Herick Aza Foya (RW13) and Samwel Bubegwa(RW14)confirm the position of the law that ascertainment ofany missing results and addition of Parliamentary pollingstation results were done at Constituency headquarters levelbut not at the headquarters of the administrative Wards. Mr.Foya was an ARO-Constituency of Segerea who alsocoordinated the two Wards of Segerea and Kimanga toalongside AROs-Ward responsible for these two Wards ofSegerea Constituency. Mr. Foya confirmed that addition ofParliamentary polling station results took place at ArnautogluHall but not at the administrative headquarters of the Wardsas alleged by the Petitioner.The failure of the Petitioner to specifically identify thenames of the polling stations whose election results Forms No.21B were missing confirms that no Parliamentary pollingstation results was announced loudly seriatim at the WardsHeadquarters. Had the addition of Parliamentary electionresults from polling stations been carried out at theheadquarters of a Ward, the Petitioners would have identifiedthe missing polling station results at the time of seriatimannouncement of every polling station's results.I am prepared also to find that the Segerea Constituencyheadquarter at Arnautoglu Hall was the only place where allParliamentary results from all polling stations could beascertained to determine whether any polling station resultwas missing for inclusion into final results. The disturbancesby Polling Assistants who were agitating over unpaidallowances had nothing to do with addition of Parliamentaryresults which by the terms of section 80 (3) of the Act takesplace at Constituency headquarters. The Petitioner has notestablished to the satisfaction of this Court that thedisturbances over allowances affected the Parliamentaryresults from polling stations. And this court cannot questionthe merit of the decision of the ARO-Ward responsible forVingunguti Ward to move the tallying centre of Councilorelection results Forms No. 21C from Vingunguti PrimarySchool to the officeof the Ward Executive Officer.Having reached the conclusion that the addition ofParliamentary results Forms No. 21B can only take place at​

35​

constituency headquarters in terms of section 80 (3) of the Act;there are remaining two inter-related questions I shouldaddress my attention to under the fourth issue.The first question is whether the Returning Officerdeclaredthe Parliamentary results of Segerea Constituency undersection 81 of the Act without including 120 polling stationresults from Kiwalani Ward and another 129 polling stationresults from Vingunguti Ward. The second question is whetherthe Petitioner and his counting agent- Mr. Edwin Mwakatobe(PW13) exercised their statutory right to be present atimportant statutory stages of determination of the validity ofdisputed votes, loud announcements of polling station resultsseriatim and at the addition of votes taking place atArnautoglu Hall.Mr. Fred Mpendazoe testified how around 23.30 p.m. of 2​

​

​

​

nd​

November 2010 he returned back to Arnautoglu Hall from theCentral Police Station and he found the addition ofParliamentary results already underway. He went looking upfor the Returning Officer. According to Mr. Mpendazoe, aroundmidnight the Returning Officer told him that they should getready for declaration of results. This information surprised himbecause Mr. Mpendazoe believed that the results from pollingstations of Kiwalani Ward had just arrived. Mr. Mpendazoegave his own reasons why he thought that the ReturningOfficer failed to comply with four stages towards declaration ofresults shown under section 80 (3) of the Act. According to Mr.Mpendazoe the Returning Officer did not report to the​

36​

candidates on any incidents that had occurred and did notresolve the issue of disputed votes. Mr. Mpendazoe claimedthat polling station results from 749 polling stations were notread aloud seriatim.Mr. Mpendazoe' allegations were supported by Mr. JamesHaule (PW11) who like Mpendazoe, was a Parliamentarycandidate sponsored by the TLP. Mr. Haule claimed thatresults from Kiwalani and Vingunguti were not added in thefinal results because he was at the addition round table and hewitnessed what happened step by step. During crossexamination by Mr. Kakwaya, Mr. Haule insisted that he waspresent when the results and ballot boxes from Vingungutiarrived at Arnautoglu at 22:00 on 2​

​

​

​

nd November 2010. Mr.Haule claimed that he witnessed the ballot boxes arrivingwithout election results forms.Edwin Mwakatobe (PW13) a Chadema counting agentstationed at Arnautoglu testified that the ballot boxes fromKiwalani arrived at Arnautoglu at around 22:00 p.m. on 2nd​

November 2010. According to Mr. Mwakatobe, when the ballotboxes from Vingunguti arrived at 22:00 Mr. Mpendazoe wasalso presen t. Mr. Mwakatobe and Mr. Mpendazoe afterconsulting agreed that Mr. Mwakatobe should attend theaddition of Councilor election results scheduled to take placeat Arnautoglu. Mr. Mwakatobe was present during the additionof the Kiwalani Ward Councilor election results at Arnautoglu.Mr. Mwakatobe further testified that Parliamentary electionresults forms from Kiwalani polling stations were missing.​

37​

According to Mr. Mwakatobe the addition of councilors votesbegun at Arnautoglu around 23:00 p.m. The CCM agent wasalso in attendance during that addition. Mr. Mwakatobealleged that all polling station results from SegereaConstituency were not added at all to reach the results thatwere declared by the Returning Officer.On respondents' side, Ndado (RW1) testified thatParliamentary election results forms from polling stations ofKiwalani arrived at Arnautoglu some around 20:00 p.m. on 2​

​

​

​

nd​

November 2010 where he was met by one Erasto Njooka. Mr.Ndado handed the Parliamentary election results Forms No.21B to Mr. Bernard Kisayi. Mr. Ndado insisted thatParliamentary election results​

​

​

​

Forms No. 21B were all dulyhanded over to the Returning Officer at Amautoglu and theseresults were included in the final election results. ElectionResults Forms from Kiwalaniwere admitted as EXHIBIT Dl.​

Mr. Ndado (RW1)also explained what made the additionand declaration of Councillors election results from Kiwalani tobe carried out at Arnautoglu but not at Kiwalani Wardheadquarters. According to Mr. Ndado, there was a large groupof people who had gathered around WEO's office at Kiwalanibefore the declaration of Councillor Election results. Therewere two big groups of people; each was demanding that itscandidates had won Councillors election. After Mr. Ndado hadconsulted the Returning Officer, a decision was made to moveto Arnautoglu Hall to complete the tallying of CouncillorsElection results.​

38​

Dr. Mahanga (RW16) confirmed that the addition ofParliamentary results from the 749 polling stations in SegereaConstituency took place at Arnautoglu Hall. Dr. Mahangatestified that he exercised his right as a candidate andattended the addition of parliamentary results at ArnautogluHall. Dr. Mahanga testified that he had earlier arrived atArnautoglu at 15:00 on 2​

​

​

​

nd November 2010 and found manypeople already present. Mr. Ubaya Chuma his agent hadalready been there for two days. Dr. Mahanga testified that allcandidates had been invited to witness the addition of pollingstation results. And that it was around 21:00 p.m. on 2nd​

November 2010 when the Returning Officercame out to inviteDr. Mahanga and others. Once inside the addition hall, Dr.Mahanga and his agent (Mr.Ubaya Chuma) found the agent ofCUF, the AROs-Constituency already seated at round table. Allpresent, including the Returning Officer were introduced.According to Dr. Mahanga the Mr. Mpendazoe (the Petitioner)and his agent were not at the addition table. Dr. Mahanga toldthis court that the addition of polling station results for IlalaConstituency and Ukonga Constituency also took place atdifferent round table in the same hall with SegereaConstituency.In his evidence, Dr. Mahanga further explained how theaddition was conducted by the AROs-Constituency takingtums to read loudly polling stations seriatim with those at theroundtable witnessing. The long addition exercise went up toaround 2 a.m. of 3​

​

​

​

rd November 2010 when all the 749 polling​

39​

stations were covered. Dr. Mahanga claimed that he was in theaddition hall from the beginning to the end. Dr. Mahangabelieves that what the facts shown​

​

​

​

Form No. 24B are the finaltotal results for Parliamentary election which his agent signed.The CUF agent, who was present, did not sign this Form No.​

24B.​

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​

​

​

After signing, the Returning Officer asked all present togo out to declare results.Gabriel Fuime (RW15) was the Returning Officer for threeconstituencies of Ilala, Ukonga and Segerea all in IlalaMunicipality. Directly working under him were a total of five​

AROs-Constituency​

​

​

​

​

for each of the three constituencies ofIlala, Segerea and Ukonga. Mr. Fuime was basically an overallcoordinator of all election matters in Segerea Constituency. Mr.Fuime testified that all Parliamentary candidates were notifiedbeforehand through letters about the designation ofArnautoglu as place where addition of Parliamentary pollingstation election results would take place.Further, Mr. Fuime explained that before the addition ofParliamentary election results for Segerea Constituency beganat 21:00 on 2nd November 2010, he went out of the additionHall to invite the candidate and agents to come in. Mr. Fuimefound CUF, CCM and Chadema candidates and agents. In thewords of Mr. Fuime, Chadema people refused to participate inthe addition of results. Fred Mpendazoe had a team of six orseven people who asked Mr. Fuime to stop the addition.Following their refusal, regulations allowed him to proceedwith the addition, which he did. The CCM Candidate​

40​

(Makongoro Mahanga) and his agent, and an agent of​

​

​

​

CUF​

entered the addition Hall. Mr. Fuime testified that all thosepresent in the addition room introduced themselves. TheAROs-Constituency present were Ms Christina Changwala,Mashauri Msimu, Samwel Bubegwa (RW14), Herrick Foya(RW13) and Barnabas Kisayi. Under cross examination Mr.Fuime maintained that he personally went out to invite Mr.Mpendazoe.In my evaluation of evidence from both sides, I shall alwaysbear in mind that respondents have at least tendered​

​

​

​

ExhibitDl (Kiwalani Ward's polling station results) and Exhibit D2​

(Vingunguti Ward's polling station results) as theirdocumentary evidence. The burden is heavy on the Petitionerto satisfy this court that​

​

​

​

Exhibits Dl and D2 were not addedto the election results which the Returning Officer declared. Itseems to me that the witnesses who testified on behalf of therespondents have maintained that Parliamentary electionresults for Segerea Constituency included results from all thepolling stations of KiwalaniWard and Vingunguti Ward.James Haule (PWll) claimed that results from Kiwalaniand Vingunguti were not added in the final results because hewas at the addition round table and he witnessed whathappened step by step. Mr. Haule has unfortunately failed toelaborate what is included in his words "step by step". TheReturning Officer and his AROs-Constituency gave a moredetailed account on what was done including the invitation ofMr. Mpendazoe to attend and how he declined that invitation.​

41​

Mr. Haule's account is also different from the evidence of Mr.Mwakatobe (PW13) who testified that ballot boxes fromVingunguti arrived at Arnautoglu around 13:00 on 2​

​

​

​

nd​

November 2010 whereas Mr. Haule claims that the materialsarrived much later at 22:00 p.m. Under cross examination byMr. Kakwaya Mr. Haule conceded that he was told by othersabout the information on the missing election results​

​

​

​

Forms​

No. 21B​

​

​

​

​

from Kiwalani and Vingunguti.I will not regard as credible the evidence of Mr. Haule thatthe salient stages leading to the declaration of the results werenot complied with. He was simply not present at the roundtablewhere addition of Parliamentary results from all pollingstation of Segerea Constituency was taking place.It is not clear to this court why Mr. Mwakatobe chose toattend the addition of Kiwalani Councillor Election results inanother room at Arnautoglu instead of taking his place as acounting agent at the round table where the addition ofParliamentary results was taking place. According to Mr.Mwakatobe, he and Mr. Mpendazoe after consulting agreedthat Mr. Mwakatobe should attend the addition of CouncillorElection results scheduled to take place at Arnautoglu. In hisown evidence, Mr. Edwin Mwakatobe was clearly not at theparliamentary addition round table. He was busy with theaddition of the Kiwalani Councillor Election results which wasalso taking place at Arnautoglu.According to Mr. Mwakatobe the addition of KiwalaniCouncillor Results began at 23:00 p.m. This was the time​

42​

when the addition of Parliamentary election results wasalready well under way in the absence of Mr. Mpendazoe'scounting agent. The decision to concentrate on addition ofCouncillors Election results was a big miscalculation which aconstituency-level counting agent can make. Mr. Mwakatobeshould have been at the addition Hall where the result of eachpolling station in constituency was being announced aloudseriatim. The claim by Mr. Mwakatobe that Parliamentaryresults from Polling Stations were not added at all is not borneout by his own evidence.Again, the decision of Mr.Mpendazoe to leave the precinctsof Arnautoglu Hall where addition of Parliamentary results wastaking place to pursue another incident involving Ms ImeldaKafanabo was in my opinion another great miscalculation. Inhis own evidence, Mr. Mpendazoe concedes that he returnedback at Arnautoglu from the Central Police station around23.30 p.m. Assuming that the addition of polling stationresults began at around 21:00 and Mr. Mpendazoe returned at23:30 p.m., in two and half hour he was absent those at theround-table must have covered a large number of pollingstations' results. It is plausible to suppose that upon hisreturn he realized that the addition of Parliamentary resultswas well in advance and he could not reverse back the processto accommodate the period he was away at the Central PoliceStation.From the foregoing, the Petitioner and his counting agenthave not to the satisfaction of this Court shown that they were​

43​

present at the addition round-table to be able to rebut thepresumption that the statutory election results forms from 749polling stations in Segerea Constituency were not added at theround-table before the Returning Officerdeclared the results.Similarly the absence of Mr. Mpendazoe and Mr.Mwakatobe at the addition round-table means that their claimthat the salient stages leading to the declaration of the resultswere not complied with by the Returning Officer has not beenproved to the satisfaction of this Court.In the upshot, I will answer the fourth issue for mydetermination, by expressing my satisfaction that electionresults for a Member of Parliament for Segerea were declaredin compliance with the law after the Returning Officer hadcarried out the addition of all the 749 polling station resultsincluding results for the 120 polling stations in Kiwalani Wardand 129 polling stations in Vingunguti Ward.​

Fifth Issue:​

The fifth issue which we need to deal with is whetherImelda Kafanabo, the Tabata Ward Executive Officerresponsible for Tabata Ward, was apprehended whilst inpossession of fake and doctored election results​

​

​

​

Form No. 21B​

and what impact this incident had on the election and theresults. According to the pleading, Ms Kafanabo wasapprehended, subsequent to which she was charged at Dar esSalaam Central Police Station. In so far as evidencesurrounding the complaint against Ms Kafanabo is concerned,Mr. Mpendazoe testified in chief that at around 22.45 p.m. of2​

​

​

​

nd November, 2010 he went out of Arnautoglu Hall and saw apoliceman who told him that Ms Kafanabo had been foundwith Election Results Forms in a plastic bag (Rambo) and shewas under police guard. According to Mr. Mpendazoe, thepoliceman showed him the plastic bag containing electionresults Forms No. 21A and 21B from Tabata JICA pollingStation. The policeman allegedly asked Mr. Mpendazoe toaccompany the accused and three police officers to the policestation. Mr. Mpendazoe travelled in a Police defender car.According to Mr. Mpendazoe the Ms Kafanabo was detained bythe police. Mpendazoe asked to write a statement but theofficer on duty told him to wait for his senior officer. Later, thepolice told Mr. Mpendazoe that the police were only concernedwith the security during electoral process. Election matterswere not police matters but for the Commission to handle.Under cross examination by Mr. Msemwa, Mr. Mpendazoemaintained that it is up to the police to explain how the policeultimately dealt with the arrest of Ms Kafanabo. During his reexaminationby Mr. Kibatala, Mr. Mpendazoe stated that hisallegation about Imelda is with regard to being found with"election forms." The essence of Mr. Mpendazoe's claim is MsKafanabo being found with "forms" which she was notsupposed to have.Ms Christina Kefa Kanani who testified as PW 5 was anElection Observer accredited by the Commission. She observedthe 2010 General Election in Ilala Constituency under the​

45​

auspices of an NGOgoing by the name​

​

​

​

Leadership Forum. MsKanani could not witness the incident of Imelda Kafanabowhich had occurred between 22:00 p.m. and 23:00 p.m.because she was prevailed upon by the police to remain inside.When she later ventured out, she talked to a group of sixpeople who told her that a woman had earlier beenapprehended carrying election materials. Ms Kanani relayedthis second hand information to both the Legal and HumanRights Centre (hereinafter referred to in its acronym LHRq andto her own director of her own NGO, the Leadership Forum.​

According to Ms Kanani, she included this incident in herreport to the​

​

​

​

LHRC who in turn included this incident in theirfinal Election Observation Report to the Commission.Mr. Azuri Mwambagi (PW8)also testified on the incident ofMs Kafanabo. Mr. Mwambagi stood as a Chadema candidate inCouncillors Election for Segerea Ward which he won.According to Mr. Mwambagi, the election Results Form withwhich Ms Kafanabo was carrying was white in colour. Mr.Mwambagi was sure that it was an election results Form No.21B for Parliamentary elections from JICA polling station. But,during cross examination by Mr. Msemwa, Mr. Mwambagiclaims that he actually read the forms and they were forparliamentary election. Later during the course of his reexaminationMr. Mwambagi changed his story and claimedthat Election Result Form from JICA polling station was readout aloud by the police.Mr. Edwin Mwakatobe (PW 13) testified on how he learntabout the arrest of Imelda Kafanabo around 22:00 on 2nd​

November 2010. It was Mr. Mpendazoe who told him that aWard Executive Officer of Tabata (Ms Kafanabo) had beenarrested outside. Under cross examination by Mr. Msemwa,Mr. Mwakatobe conceded that he did not see the incident ofImelda Kafanabo when Mpendazoe called him outside, and theincident occurred outside the gate.For the respondents, Ms Imelda Peter Kafanabo (RW7)stated that she participated in the 2010 General Election asone of the two​

​

​

​

AROs-Ward posted at Tabata Ward which had91 polling stations. Mr. Munuo was the other ARO-Ward atTabata Ward. After completing the addition and declaration ofthe Councillor Election results from the 91 polling stations ofTabata Ward, Ms Kafanabo and her team left Tabata Ward andarrived at Arnautoglu Hall at 11:00 a.m. They took toArnautoglu Hall the Election Results Forms No. 21A​

(Presidential results) and​

​

​

​

21B (Parliamentary results) fromTabata Ward. After handing over Forms No. 21A and 21B MsKafanabo left for home. She returned back at Arnautogluaround 16:30 p.m. It was later around 18:00 when MsKafanabo was told that Councillors Results Form No. 24C​

from her Tabata Ward was missing. She sent a driver with afellow​

​

​

​

ARO-Ward back to Tabata Ward Executive Officer'sofficeto retrieve Form No. 24C from one of the officecabinets.According to Ms Kafanabo, the missing Councillors Results​

Form No. 24C​

​

​

​

​

was located and brought to Arnautoglu for​

47​

scanning. It was after the driver had handed her Form No. 21Cwhen the crowd outside the Arnautoglu gate set upon heraccusing her that she was about to fabricate the results.Ms Kafanabo's version of evidence was supported by theReturning Officer-Mr. Gabriel Fuime (RW15). Mr. Fuimeexplained that Ms Kafanabo had forgotten to bring CouncillorsElection Result​

​

​

​

Form No. 24C when she handed over otherforms and election materials from her Tabata ward. Form No.24C was supposed to been scanned and sent to theCommission. When Ms Kafanabo later returned to Arnautogluwith this missing Form No. 24C; the crowd of people outsidethought that she wanted to take some forged results into thehall where election results were being added.On this claim levelled against Ms Kafanabo, the learnedState Attorneys submitted that in Paragraph 7.6 of theAmended Petition the Petitioner accuses Ms Kafanabo that shewas apprehended in possession of fake and doctored electionresults forms (Form No. 21B) but in his evidence, Mr.Mpendazoe testified added Presidential election result FormsNo. 21A. Learned State Attorneys submitted that this additionof Form No. 21A in the claim, amount to canvassing mattersthat were not pleaded. It was also submitted that the Petitionerbrought no evidence to show that Ms Kafanabo wassubsequently charged before any court of law. The learnedState Attorneys urged this court accept the explanation whichMs Kafanabo offered that she was carrying Councillor ElectionResults Form No. 21C, which was needed for scanning.​

48​

Before evaluating evidence from both sides, I shouldperhaps first point out that an allegation that an​

​

​

​

ARO-Ward​

was in possession of a forged or fake election results​

​

​

​

Forms​

No. 21B​

​

​

​

​

is a very serious allegation of misconduct. The law,through sections 89A, 89B and 89C of the Act takes a veryserious view against misconduct committed by electionofficers. Section 89C defines these election officers as includingthe Regional Election Coordinator, Returning Officer, AROs-Ward, AROs-Constituency, Presiding Officer and PollingAssistant. If proved to the satisfaction of this court,misconduct like tampering with election results forms can leadto certification to the Attorney General that an election officerconcerned has mishandled an electoral process within themeaning ascribed by section 89A (2) and (3) of the Act whichstate:​

(((2)-​

​

​

​

Where in an election petition the Courtdetermines that an election officer has done oromitted ​

to do anything in relation to the electionprocess which amounts to mishandling the electionprocess) it shall certify such determination to theAttorney General.​

(3)​

​

​

​

Where a prosecution ​

is commenced for anoffence under this section) a certificate issued undersubsection (2) of this section shall be conclusiveproof of what is contained therein. ))​

Similarly, section 89B leaves the Govemment with an option torecover any loss, costs or damages it incurred as a result ofmisconduct by an election officer:​

49​

89B. Notwithstanding the provisions of section 89A,the provisions of the Public (Recovery of Debts) Act,shall apply mutatis mutandis to an election officerwho occasions the Government to incur loss, costs​

or​

​

​

​

damages as a result of his acts or omission inrelation to the election process.​

Where a pleading in an election petition accuses anelection officer of misconduct during an electoral process; thepleading Petitioner must prove the alleged misconduct beyondreasonable doubt. There is another settled principle of law thatit is not enough to allege that an incident has been reported topolice. The burden is on the Petitioner to substantiate theallegation by offering probative evidence beyond reporting theincident to Police. With regard to the incident of Ms Kafanabo,the Act requires the Petitioner to show to the satisfaction ofthis court two things. First, that the incident of Ms Kafanabowas a non-compliance with any provisions of the Act, orRegulations or any principles provided under the Act.Secondly, how such non-compliance affected the results thatled to the election of the Dr. Mahanga as a Member ofParliament.Both this Court and the Court of Appeal have emphasizedthis burden of proof which the law of Tanzania has imposed ona Petitioner who relies on the ground of non-compliance withthe Act. Mussa, J. in​

​

​

​

Choya Anatory Kasazi vs. l.Kashemeza Phares Kabuye, 2. The Attorney General, Misc.Civil Cause No. 10 of 2005 at Biharamulo (BukobaRegistry) restated this duty:​

50​

"...It​

​

​

​

​

seems to me that on each case where theissue of non-compliance with the provisions of theAct is raised, such non-compliance must be shown​

to​

​

​

​

have reference to the results of the election."-page 27.​

According to Mussa, J., this position was restated by theCourt of Appeal of Tanzania in​

​

​

​

1. Attorney General, 2. RadioTanzania Dar es Salaam, 3. Azim Suleman Premji vs. Dr.Aman Walid Kabourou, Civil Appeal Nos 32 and 42 of 1994at Dar es Salaam where the Court of Appeal stated:​

"... Not every non-compliance which affects theresults of an election necessarily makes an electionunfree and unfair. A case in point​

​

​

​

​

is where asignificant number of unregistered persons areallowed to vote in an election but not for anyparticular candidate.... A non-compliance of thisnature may affect the results but does notnecessarily make the election unfree and unfair."-​

page​

23.​

Although Mr. Mpendazoe indicated in his petition that hehad included as his Annexure​

​

​

​

FM-3 and FM-4 the videorecorded discs showing Ms Kafanabo being arrested,interrogated and handed over to the Police, he neither in factannexed the documents nor did he tender these documents ashis exhibits. So much so, the Learned State Attorneys onbehalf of the 1st and 3rd Respondents employed Order XI Rule13 of CPC to seek an inspection of documents which thePetitioner referred to in Paragraphs 7.6 and 7.7 of theAmended Petition. By 31st October 2011 the Petitioner hadreceived this request for inspection of video recording discs.The Petitioner neither granted the inspection of the videorecordings nor did he comply with Regulation 18 of the​

Election Petition Rules​

​

​

​

​

requiring parties to file theirdocuments before the first date set for hearing of this petition,which was 2nd March 2012.As submitted by the learned State Attorneys, Mr.Mpendazoe has in Paragraph 7.6 of his Amended Petitionemployed the words fake and doctored election resultsforms (Forms No 21B), and subsequently being charged at​

Central Police Station.​

​

​

​

​

​

Apart from allegations, there is noprobative evidence proving how the forms found on MsKafanabo were doctored or faked for purposes of theParliamentary election results. There is evidence on record thatby the 2nd November 2010 the crowd outside Arnautoglu wasagitated, suspicious, and was anxiously waiting for declarationof results. Rumours fly high in such a tense and agitatedenvironment outside the gates of Arnautoglu hall. I thereforefind it hard to believe that under the prevailing tense andsuspicious environment, the police officers could be soaccommodating as to allow Mr. Mpendazoe the chance to seethe contents of the plastic bag containing election results​

Forms No. 21A and 21B​

​

​

​

​

(For Presidential and ParliamentaryElections) from Tabata JICA polling Station.It is also incredible to believe that the police would extendsuch liberty to Mr. Azuri Mwambagi (PW8)as to read aloud thecontents of election results forms. I do not similarly agree thatthe police would read aloud the contents of the election results​

52​

forms to an agitated and restless crowd. Mr. Azuri Mwambagichanged his version of the events on several occasions. At onepoint in his evidence in chief he suggested that he actuallyread the forms which Ms Kafanabo had. A moment later, Mr.Mwambagi changed his version to claim that it was the policewho read out the contents of the Forms.Ms Kanani (PW5),an election observer was only informedlater about the incident. Ms Kanani went further to concedeunder cross examination that all what she testified in thiscourt is contained in her report to the​

​

​

​

LHRC which she did nottender as documentary evidence. And if this court reads thatreport it would know the truth of what she was testifying on.This report was not tendered as evidence. The evidence of MsKanani and that of Mr. Edwin Mwakatobe (Mr. Mpendazoe'scounting agent) have no probative value inasmuch as bothoffered hearsay evidence based on what other persons toldthem. There is also no evidence to even indicate how thepapers which Ms Kafanabo had affected the results of SegereaParliamentary election.In so far as the fifth issue for my determination isconcerned, the Petitioner has failed to prove the allegationunder Paragraph 7.6 his Amended Petition. The Petitioner hasfailed to prove not only the alleged arrest of Ms Kafanabowhilst in possession of fake and doctored election results Form​

No. 21B,​

​

​

​

​

but also failed to prove that the alleged possession ofthe forms which Ms Kafanabo had, was non-compliance withany effect on the Parliamentary results.​

53​

Sixth Issue:​

The sixth issue for my determination is grounded underparagraph 7.7 of the Amended Petition wherein the Petitioneralleges that an individual was arrested at Arnautoglu VoteCounting and Results Declaration Station. This individual theclaim goes; was in unlawful possession of election results​

Forms No. 21B​

​

​

​

​

and official stamps of the Commission.According to the pleading, this individual subsequent to hisarrest was charged by the police. The Petitioner claims that thedramatic incident was caught on video record and thepetitioner indicated that he had annexed to Paragraph 7.7 ofhis Amended Petition a copy of the video recorded arrest as​

Annexure FM-4.​

​

​

​

​

It is appropriate to point out here that thisvideo recording which the petitioner indicated to have beenannexed as Annexure FM-4 was neither so annexed nor was itexhibited as evidence.During his cross examination by Mr. Msemwa, Mr.Mpendazoe (PWl) told this court that he did not know thename of the individual he mentions in Paragraph 7.7 of theAmended Petition, but promised to bring witnesses to confirmthat incident. Among these witnesses Mr. Mpendazoe broughtto prove this allegation was Ms Kanani (PW5) the ElectionObserver. Ms Kanani readily conceded that she was not an eyewitness to the arrest of this individual. She only heard about itfrom other people.​

54​

Livingston Nyaligere Rugema (PW6) also testified on thearrest of an individual caught with election rubber stamps. Mr.Rugema, a Chadema agent for Councillor Election at SegereaWard gave his own eye-witness account of the arrest of theindividual. Mr. Rugema testified that on 2​

​

​

​

nd November 2010 hewas outside the Arnautoglu hall amongst the huge crowd ofpeople which had gathered outside the hall to wait for theReturning Officer of Segerea Constituency to declare theresults. Between 20.00 and 21.00 there was a sense ofpressure, mistrust and agitation amongst members of thecrowd. According to Mr. Rugema, the youth who was arrestedhad been in the crowd for sometime before he was arrestedcarrying a small bag.Mr. Rugema asked the police to allow him to have a closerlook at the rubber stamp and was allowed to pick one of therubber stamps. It was a stamp of the Commission. A policeofficer took the young man into his vehicle and moved awaywith him. Mr. Rugema claimed that the existence of rubberstamps affected the election. The existence of rubber stampcreated a spectre of an election not being free and fair. Mr.Rugema believed that there was a link between the rubberstamp and the declaration of Dr. Makongoro Mahanga as theultimate winner.During the 2010 General Elections Mr. Merick EnockLuvinga-(PW7)from was one of the internal observers of theGeneral Election. He headed the Election Desk at LHRC. Theevidence of Mr. Luvinga is of no probative value because he​

55​

was not an eye witness to the incident which saw the arrest ofthe youth with election stamps. Like the evidence of Mr.Luvinga, the evidence of Mr. Mwakatobe (PW13) has noprobative value because he also did not witness the arrest butwas told by Mr. Mpendazoe to the effect that while Mr.Mpendazoe was following up on Ms Kafanabo's arrest atCentral Police station he had found the youth already in thecustody of police. Ms Kafanabo (RW7) who was with thePetitioner at the Central Police Station, denied that she saw ayouth in the custody of police during the time the petitionersuggested to Mr. Mwakatobe.Unfortunately for the Petitioner, the evidence of MsKanani, Mr. Luvinga (PW7),and Mr. Mwakatobe (PW13) arebased on what these witnesses were told by others who did notcome to testify. To that extent, their evidence is hearsay withno probative value. As an election observer, Ms Kanani (PW5)testified that she compiled her report which she sent to the​

LHRC.​

​

​

​

​

Ms Kanani did not bring this report yet she had theaudacity to give an oral account on what is alleged to be in herreport. During her cross examination by Mr. Msemwa, MsKanani readily conceded that she came to testify on what shewas told by others. Although the Ilala Constituency was theconstituency which was under the election observation of MsKanani; she was unfortunately brought by the Petitioner totestify on what she heard about Segerea.I find it hard to believe that Mr. Rugema (PW6)despite therestless crowd and tight police presence at Arnautoglu he​

56​

could still get the leverage with the police to check the rubberstamp, and verify that it was a Commission rubber stamp.There​

​

​

​

1S evidence on record that Arnautoglu was aheadquarters for addition of polling stations' results for threeconstituencies of Hala, Ukonga and Segerea. It is not clear whythe paragraph 7.7 of the Petition should speculate that theyouth and the rubber stamp were only linked to SegereaConstituency but not Hala Constituency or UkongaConstituency. In my opinion, the petitioner has not satisfiedthis court that the alleged arrest of a youth had any link to theParliamentary Results of Segerea. By making such a seriousallegation about an individual who was found with rubberstamp of the Commission, the Petitioner is bound by the law tosubstantiate the allegation by offering probative evidence butnot rumours or hearsay lifted from the crowd gathered atArnautoglu. It is not sufficient for the Petitioner to merely lineup witnesses and election observers to amplify the hearsayevidence.From the foregoing, I can safely conclude that thepetitioner has not advanced any probative evidence to satisfythis court that an individual who was accosted by the restlesscrowd outside the Arnautoglu Hall had anything to do withelection results Forms 21B and NEe official stamps affectingthe Segerea Parliamentary election.​

Seventh Issue:​

The seventh issue for my determination is derived from theclaim the Petitioner made under from paragraph 7.8 of theAmended Petition that ballot boxes number 15134, 151305,151083, 15144, 15109, 15129 and 151303 were found by hiscounting agent at Arnautoglu without their seals; and theunsealed ballot boxes affected the integrity of votes containedin those ballot boxes. During his examination in chief, Mr.Mpendazoe testified that these boxes were supposed to besealed to ensure integrity of votes. During his crossexamination by Mr. Jerome Msemwa, Mr. Mpendazoe statedthat boxes at Amautoglu had no seals, and one Presidentialbox had no votes. Mr. Mwakatobe (PWI3) testified that on themorning of 2​

​

​

​

nd November 2010 ballot boxes arrived atArnautoglu from Buguruni. Mr. Mwakatobe insisted that it washimself, Mr. Stanley Manyi and Mr. Twalaha Yusufu inspectedthe ballot boxes and found seven ballot boxes that wereopened. One presidential ballot box did not have any vote. Mr.Mwakatobe further testified that he recorded the number ofthese boxes and, a Parliamentary candidate of APPT -MAENDELEOeven took photographs.Mr. Fiume (RWI5), the Returning Officer denies the claimthat there were unsealed ballot boxes from polling stations ofBuguruni Ward. According to Mr. Fiume, even if the ballotboxes were not sealed, this would have had no adverse effectbecause the ballot boxes contain Parliamentary votes that hadalready been counted and their results were already recorded​

58​

in​

​

​

​

Forms No. 21B. According to Mr. Fuime what is importantis the election results Form No. 21B not ballot boxes.While paragraph 7.8 of the Petition specifically identifiedthe specific number of ballot boxes, no witness who testified insupport of this claim could even recall the numbers of theballot boxes and polling stations from Buguruni Ward wherethese ballot boxes originated. Mr. Mwakatobe confidentlytestified that he recorded the number of these ballot boxes butfailed to recall the specific numbers of the seven ballot boxeswhen he was asked to identify them to this court. Mr.Mwakatobe also told this court that another Parliamentarycandidate of APPT-Maendeleo had even taken photographs ofthe event, yet this candidate neither came forward to testifynor were the photographs tendered as documentary evidence.In my opinion, the finding of unsealed ballot boxes cannotbe considered in abstract. For purposes of an election petitionit is not enough to merely allege that seven unsealed ballotboxes were seen at Arnautoglu hall without moving on to provehow the ballot boxes affected the results which the ReturningOfficerdeclared. It is not possible for this court to determine ifin fact these ballot boxes were from Buguruni as alleged orthey originated from any other polling station outside SegereaConstituency. We should always bear in mind that Mr. Fuime(RW7)was also a Returning Officer for three constituencies ofUkonga, Ilala and Segerea. He received ballot boxes frompresiding officers in all these three constituencies. Thepossibility of these ballot boxes could also have originated from​

59​

another constituency other than Segerea Constituency cannottherefore be ruled out for purpose of proof.My final determination of the seventh Issue shall beguided by the principle of law settled by the Court of Appealdirecting that where the issue of non-compliance with theprovisions of the Act is raised; such non-compliance must beshown to have reference to the results of the election. ThePetitioner must in other words satisfy this court beyondreasonable doubt that the seven unsealed ballot boxesamounted to non-compliance with provisions of the Act, andthe ballot boxes concerned affected the election results FormsNo. 21B which the Returning Officer used to declare the finalresults under section 81 of the Act. The Petitioner has failed tosatisfy this court that the seven unsealed ballot boxes Mr.Mwakatobe allegedly saw at Arnautoglu Hall originated frompolling stations in Buguruni Ward of Segerea Constituency.​

Eighth Issue:​

The focus of the Petitioner's complaints under the eighthissue and paragraph 7.9 of the Amended Petition centres onthe contention that Mr. Mpendazoe's agents and otherParliamentary candidates of​

​

​

​

CUF and SAU political parties hadrequested but were denied election officialforms to lodge theircomplaints over the missing votes from Vingunguti, Buguruniand Kiwalani Wards. The Petitioner did not bring theParliamentary candidates sponsored by CUF and SAU politicalparties to testify on this allegation. Imade a finding earlier that​

60​

there is no credible evidence which places Mr. Mpendazoe andhis counting agent at the round-table carrying out the additionof results from all the polling stations of Segerea Constituency.The Learned State Attorneys have correctly submitted that thePetitioner has marshalled no direct evidence on this eighthissue to assist my determination of this eighth issue.In so far as the eighth issue for my determination​

​

​

​

IS​

concerned, my conclusion is that the ground of complaintunder Paragraph 7.9 of the Amended Petition was not provedby evidence and this paragraph of the pleading is deemedabandoned for purposes ofmy determination.​

First Issue:​

I propose to revert back to the first issue the parties leftfor my determination which asks whether counting, addition ofvotes and announcing of election results were conducted inaccordance with the law, regulations and directives set forth bythe law. There is no doubt in my mind that this issue arisesfrom Paragraph 6 of the Amended Petition.Having earlier addressed the counting, addition of votesand declaration of results, I shall restrict myself to the issuesrelating to disputed votes and the issues arising from thefailure of some presiding officers to sign some of theParliamentary election results​

​

​

​

Form No. 21B and how theseoutstanding issues affected the final results the ReturningOfficerdeclared.Mr. Kibatala, through cross examination of respondents'witnesses, tried to test the veracity of election results Forms​

No. 21B​

​

on account that some forms were not signed bypresiding officers, and some alterations were made on some ofthese Forms No. 21B. Mr. Kibatala has also questioned whythe Returning Officer did not determine the fate of disputedvotes that are manifested in some of the Parliamentary electionresults Forms No. 21B.​

Witnesses who were at addition round-table at Arnautoglulike Herick Aza Foya (RW13)who was ARO (Constituency),testified that there were no disputed votes from polling stationsthat were supposed to be determined first before the additionof polling stations results at Arnautoglu. Mr. Fuime (RW15),the Returning Officer also maintained that no disputed voteswere brought to his attention. According to Mr. Fuime, it ispossible that these disputes were solved at polling stationlevels. If these disputes were in fact solved by the PresidingOfficers, the presiding officers made mistakes by leaving thefigure of disputed votes on​

​

​

​

Form 21B.​

The learned State Attorneys submitted that the disputedvotes should have been solved at polling stations as providedfor by section 79 of the Act, and the presiding officers musthave inadvertently displayed the disputed number of votes onelection results​

​

​

​

Form No. 21B. There is no evidence showingthat Mr. Fuime- the Returning Officer (RW15) receivedseparate packets of disputed votes from polling stations and hedeliberately declined to resolve the disputed votes, the LearnedState Attorneys submitted.In my opinion the submission of the learned StateAttorneys on section 79 of the Act is correct. This provisionexpects the questions regarding disputed votes to be handledfirst by presiding officers at the level of polling stations beforethe question over any disputed votes is referred for review bythe Returning Officer. It is only after that review by theReturning Officerwhen the petitioner can subject the issue ofdisputed votes to this election petition court. The sectionstates:​

79. The presiding officer shall, afterconsultations with the polling assistants, thepolling agents or​

​

​

​

if present, the candidates,decide on any question arising in respect ofany ballot paper and if disputed, the decisionshall be subject to review by the ReturningOfficer, during the addition of votes from all thepolling stations in the constituency and thedecision of the Returning Officer shall be finaland subject only to review by an electionpetition pursuant to Chapter VIIof this Act.​

With due respect to Mr. Kibatala, by raising the issue ofdisputed votes at an election petition court through crossexamination of witnesses; the Petitioner has not complied withthe procedure prescribed by section 79 of the Act.My own analysis of disputed votes in Kiwalani Ward​

(Exhibit Dl)​

​

​

​

​

shows that there were only two disputed votes inelection results Form No. 21B of Hali ya Hewa A6 pollingstation. The two votes were not counted to any candidate. The​

63​

other polling stations in Kiwalani Ward whose disputed votesshown in bracket, were not counted to any candidate:​

​

​

​

Yombo​

A3​

​

polling station (4); Hali ya Hewa C4 polling station (2);WEOA5 polling station (2); Hali ya Hewa D4 Polling Station (4); Haliya Hewa C3 Polling Station (2); Walemavu B5 Polling Station(5); Hali ya Hewa F1 polling station (1 disputed); Nursery 3Polling Station (4); Hali ya Hewa F5 (5);Hali ya Hewa E2 (1).Analysis of disputed votes in the polling stations InVingunguti Ward (Exhibit D2) similarly show that disputedvotes (shown in bracket) were not counted to any candidate:​

WED​

​

​

​

​

G7 (6); Kombo A2 polling station (1); Kombo C3 (7); WEDA4 (2); Kombo C2 Polling Station (2); Kombo B6 (3); WED B2(6); Miembeni B-S (4); WED A2 (7); Kwa Simba Sokoni No.8​

Polling Station (1);​

​

​

​

Soko la Kwa Simba Polling Station (1); and​

Mtakuja​

​

​

​

​

C4 (5). In the WED C8 polling station the presidingOfficer has wrongly shown the figure as 127 disputed votes.The facts from this Form 21B of WED C8 polling station showsthat only 130 voters out of the 446 who had registered to voteturned up to vote on 31st October 2010. The correct position isthat the candidates shared out 123 valid votes. A total of 7votes were rejected. Therefore, although the presiding officerhad inadvertently indicated that there were 127 disputedvotes, there were in fact only 7 rejected votes and there wereno disputed votes.The picture emerging from election results forms number21B from polling stations in Vingunguti and Kiwalani Wards isthat no candidate amongst the eleven candidates who​

64​

contested the Segerea Parliamentary seat benefitted or sufferedfrom the disputed votes which appear on some of​

​

​

​

Forms No.21B. I can therefore conclude that the election results Forms​

No.​

​

​

​

21B ​

which display disputed votes had no effect on thefinal result which the Returning Officer declared.​

I​

​

​

​

have also evaluated the few election results Forms No.21B which had minor mistakes. Four presiding officers incharge of Vingunguti Ward's polling stations of Kombo A2,Miembeni B2, Kombo 4A and WEO C7 did not sign the ElectionResults Forms No. 21B. Similarly, the presiding officers incharge of Kiwalani Ward's polling stations of Hali ya Hewa F2,Hali ya Hewa C2, Hali ya Hewa C3 and Hali ya Hewa C5 didnot sign the Election Results Form No. 21B. Despite these noncomplianceswith the Act, all the eight polling station results​

Forms 21B​

​

were duly signed by polling agents signifying theiracceptance of the polling stations' results. The votes from allthe eight polling station results were included in the finalresults which the Returning Officer declared. I am prepared toaccept the explanation that the failure to SIgn was aninadvertent mistake which did not affect the Parliamentaryresults which the Returning Officer declared on 3rd November2010.Therefore, my answer to the first issue is that thecounting exercise, addition of votes and announcing of electionresults for Segerea Constituency were respectively conductedin accordance with the Act, regulations and directives set forthby the law.​

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Tenth and Eleventh Issues:​

Tenth and eleventh issue can be conveniently determinedtogether. This court is called upon to determine whether Mr.Mpendazoe in fact had a majority of votes and which candidatebetween Mr. Mpendazoe and Dr. Mahanga, on the basis ofvalid votes, was entitled to be declared a Member of Parliamentfor Segerea Constituency. Mr. Mpendazoe has in Paragraphnine (9) of his Amended Petition relied on votes his pollingagents gave him to project himself to be the winner by​

​

​

​

56,962​

votes to Dr. Mahanga's​

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44,904 votes. In his evidence, Mr.Mpendazoe claimed that it was his information gatheringnetwork which had collected the projected election results fromcopies of Form No. 21B which were posted at the noticeboards of polling stations.Mr. Mpendazoe conceded under cross examination thatwhile he could project his win by this total of 56,962 votes, hecould not similarly project total votes he had obtained fromeach of the eight administrative Wards of SegereaConstituency. Mr. Mpendazoe's projection was supported byMr. Mwakatobe (PW13)his constituency counting agent. Undercross examination by Mr. Msemwa, Mr. Mwakatobe stated thathe had written the projected votes for each Ward on a piece ofpaper which he left in his car.Reacting to the question as to whether a candidate in anelection petition can project himself to be the winner in aParliamentary election, the learned Senior State Attorneys​

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submitted that the Petitioner did not comply with Rule 13 (1)ofthe​

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​

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Election Petition Rules which required him to lodge withthe Registrar of this court a list of polling station electionresults upon which he intends to rely during the hearing of hispetition. The learned State Attorneys urged this court to rejectthe figure of votes which Mr. Mpendazoe uses to projecthimself the winner of Segerea Constituency seat. They furtherurged this court to make a finding that the ParliamentaryElection Results Form Number 24B which was evidenced as​

Exhibit D5​

​

​

​

​

in law illustrates the correct election results whichthe Returning Officer declared on 3rd November2010.Also on the same issue of projected results, Mr AlikoMwamanenge the Learned Counsel for the 2nd respondentsubmitted that Mr. Mpendazoe should have brought evidenceand not mere stories of projections proclaiming his having wonthe election by majority of votes. Mr. Mwamanenge describedMr. Mpendazoe's evidence that the results he projected camefrom results posted at polling stations' notice boards ashearsay in so far his figures are not supported by any concreteevidence like the polling station results which were posted onnotice boards or his own agents' polling station results.From the submissions of the learned counsel on the​

56,962​

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​

​

​

votes which the Petitioner has projected for himself,the remaining question calling for my determination is whetherthe Petitioner has laid statutory grounds for him to be declaredas the winner on the basis of his own projection of votes.As I have stated earlier, the declaration of Parliamentaryresults is a statutorily provided under section 81 of the Act.The Learned State Attorneys have submitted that the Petitionerfailed to comply with Rule 13 (1) of the Election PetitionRules as the basis of his projected results. Rule 13 (1) states:​

13. (1)​

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​

​

Where the petitioner intends to allegethat, any candidate other than the respondentwas elected, he shall, not less than six daysbefore the day fixed for the hearing of thepetition, lodge with the Registrar a list of thepolling station election results upon which heintends to rely.​

Under the guidance of this Rule, the Learned StateAttorneys are correct in their submissions that the Petitionershould have laid the basis of his projected results by lodgingwith the Registrar of this court a list of polling station electionresults upon which he intended to base his projections of theresults.In my opInIon, the prayer that petitioner should bedeclared winner on the basis of his own projection is untenablein law because election results declared by Returning officer isan aggregation of results from polling stations documented as​

Form No. 21B​

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​

​

​

for Parliamentary election. All polling agents atpolling stations were given copies of Form No. 21B. At the veryleast, the Petitioner should have based his projections on thesecopies from his polling agents. As I pointed earlier, thePetitioner did not exhibit his agents' copies of Election Results​

Forms No. 21B​

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​

​

​

from any of his 749 polling who representedhim in polling stations. The petitioner has made no attempt toshow how he arrived at 56,962 votes he projected.Winners in Parliamentary elections in Tanzania aredeclared after the addition of polling station results Forms No.​

21B.​

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​

Mr. Mpendazoe did not disclose which polling stationresults he added to attain 56,962 votes he projected. The lawsof Tanzania do not make provisions for a winner inParliamentary election to be declared on the basis of hisprojection of results.From the foregoing, the prayer in the Amended Petition thatthe Petitioner, Mr. Fred Mpendazoe should be declared thelawfully elected Member of Parliament for SegereaConstituency is hereby rejected as untenable in law.Before addressing myself to the second issue askingwhether the entire election exercise in Segerea Constituencywas free, fair and in line with the law regulating generalelections; I should address myself to matters which were notpleaded in the Amended Petition but were all the same givenprominence during the hearing. Mr. Kibatala the LearnedCounsel raised new grounds which the Petitioner did notspecifically plead in his Amended Petition. Mr. Kibatala, in hiswritten submissions would like this court to consider andmake determination on grounds which the Petitioner did notset forth in the Amended Petition. Mr. Kibatala has canvassedRule 23 of the Election Petition Rules and the case of PrinceBagenda vs. Wilson Masilingi and Another [1997] TLR 220​

to support his submission that this Court should considergrounds which were not pleaded in the petition.The Learned State Attorneys have submitted to oppose therequest to hear and determine matters that were not pleadedin the Amended Petition. The Learned State Attorneys havesubmitted further that election petitions are a special type ofcivil proceedings where a party thereof are strictly bound totheir pleadings and issues that parties have left fordetermination by the court. On their part, the learned Mr.Jerome Msemwa and Mr. Aliko Mwamanenge submitted thatelection petitions should attract a stricter construction than aPlaint in an ordinary suit because the outcome of an electionpetition may affect the entire constituency and the country atlarge. Unlike Mr. Kibatala and the two Learned State Attorneyswho took definite positions regarding unpleaded grounds ofpetition, Mr. Msemwa and Mr. Mwamanenge did not take anyposition except that they addressed themselves to the unpleadedclaim that Dr. Mahanga was arrested in possession ofballot boxes and was subsequently taken to the BuguruniPolice Station.It is imperative that I should first address myself to thequestion whether this election petition court should take upgrounds that were not pleaded in the Amended Petition and​

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make decisions on issues arising thereon. Pleadings (AmendedPetition and Replies to the Amended Petition) which parties tothis petition exchanged were the basis of eleven issues whichthe parties left for determination by this court. The purpose ofpleadings is therefore to enable parties to know what thepoints in issue between them are, and to enable each side toprepare for hearing. An element of surprise is invariablyintroduced where a party to a petition introduces new groundsof the petition during the hearing.The purpose of pleadings in election petitions in Tanzania issummarized under rules 5 and 23 of the​

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Election PetitionRules which state:​

5. (1)​

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Every petition shall carry a title inthe prescribed Form A and shall state-(a) the name and address of thepetitioner;(b) the name and address of therespondent or, where there are two or​

more respondents, of each of therespondents;(c) the grounds upon which thepetitioner relies for the relief sought byhim; and(d) the nature of the relief​

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or reliefs soughtby the petitioner.​

23.​

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The petitioner shall not, save with theleave of the court, argue ​

or be heard insupport of any ground not set forth in thepetitionrovided that the court shall not, indetermining a petition, be confined to thegrounds set forth in the petition.​

It is clear that Rules 5 and 23 of the​

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Election PetitionRules underscores the mandatory duty of the Petitioner toplead grounds upon which he prays for reliefs in an electionpetition court. Rules 23 directs the petitioner who would like toplead additional grounds of complaints in his petition to askfor the court's approval to be allowed to plead and to leadevidence on new grounds. The Petitioner did not ask for andobtained leave of this court for the Petitioner to be heard onnew grounds of pleadings. The new ground which thePetitioner added without leave of this court was the rumourthat Dr. Mahanga had been arrested and remanded forpossessing ballot boxes for Parliamentary election.An allegation that a candidate has stolen ten ballot boxesjust before results are declared is a very serious allegation withthe potential to incite the crowd into breakdown of law andorder. It is incumbent upon this court to use the proviso toRule 23 of the Election Petition Rules with a view toascertaining the veracity of this serious allegation which canlead to breakdown of law and order.In so far as evidence is concerned, allegations against Dr.Milton Makongoro Mahanga was made by Ms Aziza Masoud(PW9),a journalist working for the Mwananchi Communications​

which publishes​

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Mwananchi Newspaper and Mr. Mbezi MgazaMkomwa (PWIO) a Chadema polling agent at HEKlMA AS​

polling station in Buguruni Ward. According to Mr. Mkomwa,Dr. Mahanga was arrested by the citizens at Tabata Kimanga​

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and was taken to Police Station Buguruni. According to thiswitness, Dr. Mahanga was found in possession of over tenballot boxes. Mr. Mkomwa (PW10) testified that he decided toverify the rum ours by going to Buguruni Police Station. He wasamongst the first people to arrive at the police station whereDr. Mahanga was being held. He saw Dr. Mahanga togetherwith more than 10 ballot boxes besides him. The ballot boxesMr. Mkomwa saw at Buguruni polling station had blackcovers. As more people were streaming into station the Policehad to order the crowd to move away from the station. Thecrowd was informed that the police were handling the matter.On 2​

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nd November 2010 when Mwananchi newspaper​

published the story (admitted as​

​

​

​

Exhibit PI) regarding acandidate who had been arrested no name or the politicalparty of the candidate was mentioned. But when she came totestify, Ms Aziza Masoud (PW9) identified the name of Dr.Mahanga. Under cross examination by Kakwaya, Ms Masoudstated that she did not personally see the ballot boxes that Dr.Mahanga was arrested with. Ms Masoud did not even see Dr.Mahanga being arrested.Abdalla Riadhi (PW12) also testified on the rumouralleging the arrest of Dr. Mahanga. According to Mr. Riadhi, heand about 40 to 50 other members of Chadema and CUF​

political parties went to Buguruni Police Station to verify thearrest of Dr. Mahanga. At the police station they were barredfrom entering because some the​

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CUFmembers were rowdy.From evidence, there were two verSIOns of circulatingrumours. One version had it that Dr. Mahanga was arrested atBuguruni. The second version was that he was arrested atTabata Kimanga.Mark Njela (RW4), an Assistant Superintendent of Policewas Commanding Officer in charge of Buguruni Police Stationduring the 2010 General Elections. According to this policeofficer, there was no major incidents which were reported atBuguruni Police Station on 1st and 2nd November 2010 and theinformation claiming the arrest of a person with ballot boxeswas never reported at Buguruni Police Station. According toASP Njela, this incident of arresting a person in possession ofballot boxes did not take place at Buguruni Police Station.According to Mr. Njela (RW4),even the Oar es Salaam SpecialPolice Zone Commander Suleiman Kova had said that he hadMr. Kibatala has submitted that the arrest of Dr.Mahanga while in possession of the ballot boxes was sowidespread as to become common knowledge. Whileacknowledging that this election petition court cannotadjudicate the validity of a widely circulated report, Mr.Kibatala submitted that this court should take into accountthe evidence of Mr. Mkomwa (PW10)and Abdalla Riadhi (PW​

12).​

Submitting on the allegation of the arrest of Dr. Mahanga,Mr. Aliko Mwamanenge for the 2​

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nd respondent noted thisallegation was never raised in the petition nor was it included​

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In the agreed Issues for determination. According to Mr.Mwamanenge, the Petitioner has exhibited a newspaper​

(Exhibit PI)​

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​

​

​

to prove a very serious allegation. That, thenewspaper itself never mentioned Dr. Mahanga and theevidence of Ms Masoud is completely based on hearsayaccount and her evidence is not worth the belief.As I have noted the position of law, where the allegationover any non-compliance with the provisions of the Act israised, such non-compliance must be shown to have referenceto the results of the election. It is not enough for the Petitionerto merely level a very serious allegation suggesting that acandidate in an election was arrested in possession of ballotboxes. That allegation must not only be proved by credibleevidence but must be linked to how the ballot boxes affectedthe Parliamentary election results of Segerea Constituency.There no doubt in my evaluation of evidence that theallegations leveled against Dr. Mahanga impliedly also affectelection officials. Presiding officers are required by theprovlslOns of Regulation 60 (4) (c) of the ElectionsRegulations, to submit to the Returning Officer or where sodirected to an ARO all ballot boxes containing votes. Afterfinalization of the election, Regulation 70 imposes a duty onReturning Officers to keep in safe custody all the ballot boxesand other used or unused election materials for safe custody.In terms of Regulation 71 (1) and (2), disciplinary measures orany other legal action await Returning Officers who fail to liveup to their statutory duty to keep in safe custody all ballot​

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boxes. Therefore, apart from affecting the credibility of Dr.Mahanga, this allegation also implies that some PresidingOfficers, or AROs and the Returning Officer responsible forSegerea Constituency did not keep in safe custody the ballotboxes and possibly other election materials. Further, theallegation implies that the police have collusively failed to takeDr. Mahanga to court and charge him for committing theoffence of stealing the ballot boxes.The evidence of Mr. Mkomwa (PW10)and Abdalla Riadhi(PW12) which Mr. Kibatala urged me to take into account doesnot satisfy this Court that there was any such arrest of Dr.Mahanga. The evidence of Dr. Mahanga (RW16)contradicts Mr.Mkomwa's evidence that he (i.e. Mr. Mkomwa) had after 08:00a.m. of 1st November 2010 visited Buguruni Police Station andfound Dr. Mahanga in the custody of police with ballot boxesbesides him. According to Dr. Mahanga, on same 1stNovember 2010 he was at home most of the time. He alsovisited WEO's Office of Segerea Ward because there was adispute over the addition of councilor's votes which forced bothMr. Mpendazoe and Dr. Mahanga to be at WEO's office. Thesuggestion that Dr. Mahanga was in police custody on 1stNovember 2010 is not supported by evidence of anotherwitness for the Petitioner. Livingston Nyaligere Rugema (PW6)was a Chadema Segerea Ward Tallying agent. In his evidencein chief Mr. Rugema (PW6)testified about the two recounts ofvotes at Segerea which Dr. Mahanga demanded beforeconceding the count.​

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If, as submitted by Mr. Kibatala; the arrest of Dr.Mahanga was so widespread as to become common knowledge,one wonders why not a single witness who participated in thearrest of Dr. Mahanga was not summoned to testify. Rumours,however widespread do not in my opinion translate themselvesinto facts for purposes of law of evidence. Courts attach noweight on rumours. It is difficult to visualize how the Petitionerfailed to include the issue of arrest of Mahanga for unlawfulpossession of ballot boxes in his Amended Petition if it was sowidespread and in common knowledge.Mr. Mkomwa (PW10)testified that Tabata Kimanga is farfrom Buguruni and one has to commute from Tabata Kimangato Buguruni Police Station. The distance separating BuguruniPolice Station and Tabata Kimanga means that arrest shouldhave attracted a very big number of anxious citizens andChadema members some of whom must have volunteered tocome and testify. I consider it to be a surprise that thePetitioner failed to locate eye-witnesses to the arrest and howDr. Mahanga was conveyed to Buguruni Police Station.In my opinion, it is not sufficient merely to allege that Dr.Mahanga was arrested conveying ballot boxes with votestherein without giving helpful evidence. There must be furtherand better evidence beyond the what Ms Masoud (PW9),Mr.Mkomwa (PW10)and Abdalla Riadhi (PW 12) stated to enablethis court to determine how the citizens carried out the arrest,whether the ballot boxes were in Dr. Mahanga's car, how Dr.Mahanga and the boxes were driven or matched to Buguruni​

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police station. The Petitioner should also have broughtevidence to determine the polling stations where those ballotboxes originated and whether those ballot boxes are forParliamentary election for Segerea Constituency to theexclusion of other constituencies.The Petitioner has not presented any probative evidenceto satisfy this court that Dr. Mahanga was in fact arrestedwhile in possession of ballot boxes.​

Second Issue:​

With regard to the second issue which is still outstanding,I am fully satisfied that the entire election exercise in SegereaConstituency was free, fair and in line with the law regulatinggeneral elections. I have similarly evaluated all other tenalleged incidents of non-compliances of the law and which Mr.Kibatala the learned Counsel for the Petitioner has identifiedon pages 35 and 36 of his submissions. These incidents do notin my opinion affect the results which the Returning Officerdeclared on 3​

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rd November 2010.In the upshot; the Petitioner has not satisfied this courtthat there was non-compliance with the provisions of the Actin relation to Parliamentary election which affected the finalresults which the Returning Officer declared on 3rd November2010. Myfinal orders shall be as follows:-1) The orders prayed for in the Amended Petition aredeclined and the Amended Petition is dismissed in itsentirety;2) I hereby declare that the Dr. Milton Makongoro Mahanga(the 2nd Respondent) was validly elected as Member ofParliament for Segerea Constituency and the Petition andthe prayers against the election of the 2nd Respondent isdismissed;3) A certificate shall issue forthwith to certify to the Directorof Elections that Dr. Milton Makongoro Mahanga (the 2nd​

Respondent) was validly elected and declared a Member ofParliament for Segerea Constituency;4) Costs are awarded to the​

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fUd, and 3,d Respondents.​

I.H. JumaJUDGE02-05-2012Delivered in open Court at Dar es Salaam and in thepresence of parties.I.H. JumaJUDGE​

02-05-2012