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Nakala ya hukumu ya Godbless Lema, aliyekuwa Mbunge wa Arusha Mjini

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by jozzb, Apr 17, 2012.

  1. j

    jozzb Member

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    Apr 17, 2012
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    [h=2]IN THE HIGH COURT OF TANZANIA

    AT ARUSHA

    MISCELLANEOUS CIVIL CAUSE NO. 13 OF 2010


    (IN THE MATTER OF AN ELECTION PETITION UNDER THE NATIONAL ELECTION ACT CAP 348 R.E. 2010 AND THE PETITION RULES, 2010)


    MUSA HAMISI MKANGA . . . . . . . . . . . . . . . .1ST PETITIONER

    AGNES GIDION MOLLEL . . . . . . . . . . . . . . . 2ND PETITIONER

    HAPPY EMANUEL KIVUYO . . . . . . . . . . . . . . 3RD PETITIONER


    VERSUS


    GODBLESS JONATHAN LEMA . . . . . . . . . . . 1ST RESPONDENT

    THE ATTORNEY GENERAL . . . . . . . . . . . . . .2ND RESPONDENT

    Date of last order - 30/3/2012

    Date of Judgment - 5/4/2012

    J U D G M E N T
    [/h] G.K. Rwakibarila, J.:

    The three petitioners are No.1 Musa Hamisi Mkanga, No.2 Agnes Gideon Mollel and No.3 Happy Emmanuel Kivuyo. Their major prayer is the nullification of the election of respondent No.1 Godbless Jonathan Lema as a Member of Parliament (MP) for the Arusha Urban Constituency on behalf of the Chama cha Demokrasia na Maendeleo (CHADEMA) political party in the 2010 General Elections. Respondent No.2 is the Hon. Attorney General who was joined in this petition in his capacity as the principal legal adviser of the Government of the United Republic of Tanzania.

    All the three petitioners were represented by Messrs Alute Mughwai and Modest Akida, learned Counsel. And respondent No.1 was represented by Mr. Method Kimomogoro, learned Counsel. But respondent No.2 was represented by Messrs Timolin Vitalis, learned Principal State Attorney and Juma Masanja, learned State Attorney.

    There are two impressive witnesses in this petition who are using brave methods to struggle to earn their living and improve their standards of their lifestyles in this city of Arusha, irrespective of its high costs of living. One of them is PW.14 Omari Bokolo. He retired voluntarily from the Tanzania Peoples Defence Force (TPDF) in 1985, at the age of 35, already with the rank of the captain. After his retirement, he settled in Arusha and secured a track of land measuring 38 acres where he earns his living by cultivating maize and beans, sometimes through irrigation therein. That track of land is situated at Luis Nduruma ya Chini in Arumeru district and about 36 kilometers from this Arusha city centre. He spends most of his time at his farm house there but visits his home periodically along Makaburi ya Baniani area, in Unga Ltd Ward, within this city.

    Another typical impressive witness in this petition is PW.11 Amina Ali. She lives in a wedlock with her husband in Sokoni I ward in this Arusha city. During the subsistence of their marriage, she secured the capital from her husband which she uses to buy in whole sale old clothes popularly nicknamed “mitumba” or new ready-made clothes. From 10 a.m. up to 06 p.m. daily, she conducts shuttle trips in the Arusha city streets, selling those clothes to customers of various sources. She conducts that business like other unlicenced vendors who are countrywide colloquially termed “wamachinga”

    And there is a terminology which was often mentioned in proceedings of this petition. It is “malaigwanani”. According to petitioner No.3 cum PW.3 Happy Emmanuel Kivuyo, “malaigwanani” are prestigious men aged 40 years or above among the Waarusha and Wamasai tribes. Men of that type are capable of taking care of their families and keeping enough livestock. Therefore men of those tribes who can not support their respective families or keep livestock don’t fit to become “malaigwanani”. So that men of stray are automatically ruled out from the category of “malaigwanani”.

    Five political parties sponsored MP candidates for the Arusha Urban constituency in the said 2010 General Elections. Their names, respective political parties in brackets plus votes scored show that Joseph M. Mafuata (Demokrasia Makini) scored 179 votes and Yusufu Baalamay Garib (CUF) scored 456 votes.

    Others were Maximillian Elifatio Lyimo (TLP) scored 2,022 votes, Dr. Batilda Salha Burian (CCM) scored 37,460 votes and Godbless Jonathan Lema (CHADEMA) score 56,196 votes. That is why theCHADEMA candidate Godbless Jonathan Lema cum respondent No.1 was declared the MP for Arusha Urban Constituency.

    The election campaigns in that Arusha Urban Constituency were according to an Exhibit P.1 timetable, conducted from

    20-08-2010 up to 30-10-2010. PW.4 Salum Mpamba who tendered it put it that it showed merely the timetable for MP seats candidates in that constituency. He was, during that campaign period, a CCM District Secretary for Arusha Urban Constituency. That timetable stretched on fifteen pages, each with six columns which show the date (in column No.1), the party (in column No.II), the ward (in column No.III), the place (in column No.IV), the time (in column No.V) and finally the nature of meeting (in column No.VI).

    The three petitioners in paragraph 7(a),(b),(c) and (d) of the petition averred that the election of respondent No.1 for that MP seat was void due to four illegalities which respondent No.1 did during that campaign period as follows.




    In paragraph 7(a) of the petition, the three petitioners averred that respondent No.1 made in the first batch illegal statements at four stations calling upon the electorate to refrain from voting for the CCMcandidate Dr. Batilda Salha Burian on the ground that she was a woman who is married in Zanzibar and who, if elected, would go back to her husband and children in Zanzibar. Five witnesses for petitioners who testified in support of this ground are PW.1 Musa Hamisi Mkanga (petitioner No.1), PW.5 Arafa Mohamed, PW.9 Iddi Hussein, PW.11 Amina Ali and PW.12 Ramadhani Mohamed Senzige.

    PW.1 in his evidence on this ground testified that, he heard respondent No.1 stating words in the scope of that paragraph 7(a) at Cheka – Ung’atwe station in Sombetini Ward on the date which was not disclosed throughout his evidence. Therefore it is difficult to track from an Exhibit P1 timetable about where and when that meeting took place. For the purposes of this petition therefore, what were testified by PW.1 on this ground are accredited little weight.

    PW.2 in her evidence on that ground testified that she heard respondent No.1 stating words in the scope of that paragraph 7(a) at Elerai ward on 06-09-2010 at around 02.30 p.m. An Exhibit P1 timetable shows at its page 4 that, that meeting duly took place there. It follows that during the evaluation of the petitioners’ and respondents’ evidence, what transpired during that meeting shall be referred to as an event No.1.

    PW.9 in his evidence on that ground testified that he heard respondent No.1 stating words in the scope of that paragraph 7(a) at the same Eleroi Primary School on the same day of 06-09-2010 but at around 04 p.m. An Exhibit P1 timetable shows at its page 4 as well that, that meeting duly took place there. It follows that during the evaluation of the petitioners’ and respondents’ evidence, what transpired during that meeting shall be referred to as event No.2.

    PW.12 in his evidence on that ground testified that he heard respondent No.1 stating words in the scope of that paragraph 7(a) at Sombetini Street in Sokon I ward on the date which was not disclosed throughout his evidence. Therefore it is difficult to track from an Exhibit P1 timetable about where and when that meeting took place. And for the purposes of this petition therefore, what were testified by PW.12 on this ground are accredited little weight.

    On the basis of what have been clarified on allegations in paragraph 7(a) of the petition, events Nos.1 and 2 are fit for consideration and scrutiny later, during the evaluation of the petitioners’ and respondents’ evidence.

    In paragraph 7(b) of the petition, the three petitioners averred that respondent No.1 made in the second batch illegal statements at four stations exhorting a multiple of assembled “wananchi” not to vote for the CCM candidate because she was a woman and therefore unfit to be their representative leader. Four witnesses for petitioners who testified about five election campaign meetings in support of this ground are PW.1 Musa Hamis Mkanga (on two instances at one station), PW.6 Saidi Athumani, PW.5 Arafa Mohamed and PW.13 Gabriel Maleko.

    PW.1 in his evidence on this ground stated that he first heard respondent No.1 uttering words in the scope of that paragraph 7(b) at Mbauda street station in Sombetini ward on 18-09-2010 at around noon during the CHADEMA Presidential campaign meeting. An Exhibit P1 timetable does not cover that meeting because it was for the CHADEMA Presidential candidate meeting and not in the ambit of MPcandidates’ meetings. It follows that, that meeting duly took place there and during evaluation of the petitioners’ and respondents’ evidence, what transpired during that meeting shall be referred to as an event No.3.

    PW.1 further testified in his evidence on that ground that he heard respondent No.1 stating words in the scope of that paragraph 7(b) at Kwa Mromboo station in Terrat ward on 31-08-2010 at around 04.30 p.m. An Exhibit P1 timetable shows at its page 3 that, that meeting duly took place there. It follows that later during the evaluation of the petitioners’ and respondents’ evidence, what transpired during that meeting shall be referred to as an event No.4.

    PW.5 in her evidence on that ground testified that she heard respondent No.1 stating words in the scope of that paragraph 7(b) at Elerai Primary School in Elerai ward on 06-09-2010 at around 02.30 p.m. An Exhibit P1 timetable shows at its page 4 that, that meeting duly took place there. It follows that during the evaluation of the petitioners’ and respondents’ evidence, what transpired during that meeting shall be referred to as event No.5.

    In his evidence PW.6 testified that he heard respondent No.1 stating words in the scope of that paragraph 7(b), again at Kwa- Mromboo in Terrat ward on an unspecified date at around 02 p.m. but in August, 2010. Therefore it is difficult to track from an Exhibit P1 timetable about where and when that meeting took place. For the purposes of this petition therefore, what were testified by PW.1 on this ground are accredited little weight.

    PW.13 in his evidence on that ground testified that she heard respondent No.1 stating words in the scope of that paragraph 7(b) at Makao Mapya area in Sokon I ward on 28-10-2010, at around 02.30 p.m. But an Exhibit P1 timetable did not disclose a meeting of that type at that venue during that time. As a result, it is difficult to track from an Exhibit P1 timetable about where and when that meeting took place. And for the purpose of this petition therefore, what were testified by PW.13 on this ground are accredited little weight.

    So that on the basis of what have been clarified on allegations in paragraph 7(b) of the petition, events Nos.3, 4 and 5 are fit for consideration and scrutiny during the evaluation of the petitioners’ and respondents’ evidence

    In paragraph 7(c) of the petition, the three petitioners averred that respondent No.1 made in the third batch illegal statements at two stations to incite religious sentiments of the potential voters against the saidCCM candidate on the ground that she was a muslim. Only two witnesses for petitioners who testified in support of this ground are PW.1 Musa Hamisi Mkanga and PW.6 Saidi Athumani.

    PW.1 in his evidence deposed on this ground that he heard respondent No.1 stating words in the scope of that paragraph 7(c) at Kwa Mromboo area in Terrat ward on 31-08-2010 at around 04.30 pm. An Exhibit P1 timetable shows at its page 3 that, that meeting duly took place there. It follows that during the evaluation of petitioners’ and respondents’ evidence, that transaction shall be referred to as event No.6.

    PW.6 Saidi Athumani in his evidence on that ground testified that he heard respondent No.1 stating words in the scope of that paragraph 7(c) at Kwa Mromboo area in Terrat ward on the date which was not disclosed throughout his evidence. Therefore it is difficult to track from an Exhibit P1 timetable where and when that meeting took place. So that for the purposes of this petition, what were testified by PW.6 on this ground are accredited little weight.

    On the basis of what have been clarified on allegations in paragraph 7(c), event No.6 alone fits for consideration and scrutiny during the evaluation of the petitioners’ and respondents’ evidence.

    And in paragraph 7(d) of the petition, the three petitioners averred that respondent No.1 made in the fourth batch illegal false, immoral and scandalous statements against the CCM candidate Dr. Batilda Salha Burian that she was an adulterous woman and therefore unfit to be elected to the high and respected office of a Member of Parliament because she had borne a child by another male person and was presently heavy with a baby by that same person. Six witnesses for petitioners who testified in support of this ground are PW.1 Musa Hamisi Mkanga (petitioner No.1), PW.2 Agnes Gidion Mollel (petitioner No.2), PW.7 Joseph Silvesta, PW.8 Iddi Hussein, PW.10 Salvatory Christopher and PW.14 Omari Bokolo.

    In his evidence on this ground, PW.1 testified that he heard respondent No.1 stating words in an ambit of that paragraph 7(d) at JR Street station in Sombetini ward on 21-09-2010 at around 04 pm. PW1 put it that, the meeting which took place there was for the CHADEMA councellors’ seat candidate. It means that, that meeting is not reflected in an Exhibit P1 timetable. So that during evaluation of the petitioners’ and respondents’ evidence, that endeavour shall be referred to as event No.7.

    PW.2 Agnes Gidion Mollel in her evidence on that ground testified that she heard respondent No.1 stating words in an ambit of that paragraph 7(d) at Big – Sister station in Oloirien ward on 09-09-2010 at around 04 pm. But an exhibit P1 timetable shows that, that meeting took place there previously on 01-09-2010 (and not 09-09-2010). For the purposes of this petition therefore, what were testified by PW.2 on this ground are accredited little weight.

    Then PW.7 Joseph Silvesta in his evidence on that ground testified that he heard respondent No.1 stating words in an ambit of that paragraph 7(d) at Big Sister station at Oloirien Ward on 01-09-2010 at around 03.55 pm. An Exhibit P1 timetable shows at its page 3 that, that meeting duly took place there. It follows that during the evaluation of the petitioners’ and respondents’ evidence, that transaction shall be referred to as event No.8.

    And PW.8 Aggrey Shitaeni Mushi in his evidence on that ground testified that he heard respondent No.1 starting words in the scope of that paragraph 7(d) at Sekei Taxi Park station in Sekei Ward on 25-10-2010 at around 04 pm. That station was not recorded in an Exhibit P1 timetable because the campaign there, according to PW.8, was for Sekei ward CHADEMA counsellors’ seat candidate Mr. Chrispin Tarimo. Respondent No.1 was therefore, invited there to greet and address that meeting briefly. It follows that, during the evaluation of the petitioners’ and respondents’ evidence, that transaction shall be referred to as an event No.9.

    PW.10 Salvatory Christopher in his evidence on that ground testified that he heard respondent No.1 stating words in an ambit of that paragraph 7(d) at Ngwero station in Sombetini Ward on 26-08-2010 at around 04.30 pm. An Exhibit P1 timetable shows at its page 2 that, that meeting duly took place there. It follows that, during evaluation of the petitioners’ and respondents’ evidence, that transaction shall be referred to as an event No.10.

    Then PW.14 Omari Bokolo in his evidence on that ground testified that he heard respondent No.1 stating words in the scope of that paragraph 7(d) at Ngusero Mbugani station in Sombetini ward on 26-08-2010 at around 04 pm. An Exhibit P1 timetable shows at its page 2 that, that meeting duly took place there. It follows that during evaluation of the petitioners’ and respondents’ evidence, that transaction shall be referred to as an event No.11.

    On the basis of what have been clarified on allegations in paragraph 7(d) of the petition, events Nos. 7, 8, 9, 10 and 11 are therefore fit for consideration and scrutiny during the evaluation of petitioners’ and respondents’ evidence.

    In his defence, respondent No.2 the Hon. Attorney General (AG) through Messrs Timolin Vitalis, learned Principal State Attorney and Juma Masanja, learned State Attorney opted not to call any witness. These learned representatives of the Hon. AG opted merely to rely on the final submission at the end of hearing this petition.

    On his part, respondent No.1 Godbless Jonathan Lema staged the defence which was, in most of the material facts, similar with what was testified by his three witnesses namely RW.2 Viola Lazaro Likindikoki, RW.3 Gabriel Lucas and RW.4 Maringu Samson Mwigumba.

    In view of respondent No.1’s version, RW.3 was, inter alia, during the elections campaign period,CHADEMA Publicity Secretary for Arusha Urban District where Arusha Urban Constituency is situated. In course of that function, he was coordinating all sixty (60) election campaigns which respondent No.1 happened to address throughout the election campaign period, i.e from 20-08-2010 up to 30-10-2010. He was also the Master of Ceremonnies (MC) during those meetings.

    According to what both RW.1 and RW.3 deposed, the former (respondent No.1) never uttered any word calculated to exploit residence, gender or religions differences envisaged in paragraph 7 (a), (b) and (c) respectively of the petition. They put it too that respondent No.1 did not mention any scandalous words envisaged in paragraph 7(d) of that petition against the CCM political party candidate in Arusha Urban Constituency Dr. Batilda Salha Burian.

    During that endeavour, RW.1 and RW.3 gave evidence to connote that allegations from events No.1 up to 11 where respondent No.1 allegedly stated words in the scope of paragraph 7(a), (b), (c) and (d) of the petition were not true. It is important to note here that this court did not analyse each event which RW.1 and RW.3 referred to separately because, in their evidence, RW.1 and RW.3 did not always reveal the date and venue of those..............

    CREDIT: <<NAKALA YA HUKUMU YA LEMA >>

     
  2. Gwankaja Gwakilingo

    Gwankaja Gwakilingo JF-Expert Member

    #2
    Apr 17, 2012
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    Asante wenye taaluma wataisoma na watatupa maelekezo humuhumu
     
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