Asanteyeye
New Member
- Aug 22, 2012
- 1
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IN THE HIGH COURT OF TANZANIA
AT NZEGA
(TABORA REGISTRY)
IGUNGA CONSTITUENCY BY-ELECTIONPETITION
MISCELLANEUS CIVIL CAUSE NO. 10OF 2011
IN THEMATTER OF AN ELECTION PETITION UNDER
THE NATIONALELECTION ACT CAP 343 R.E. 2010 AND
(ELECTIONPETITION) RULES
HIGH COURTSESSION AT NZEGA
ELECTIONPETITION
JOSEPHMWANDU KASHINDYE
..
.
PETITIONER
versus
1. DALALY PETER KAFUMU ......... 1[SUP]ST[/SUP] RESPONDENT
2. THE RETURNING OFFICER
IGUNGA CONSTITUENCY 2[SUP]ND[/SUP] RESPONDENT
3. THE ATTORNEY GENERAL . 3[SUP]RD[/SUP] RESPONDENT
06/08/2012 &21/08/2012
JU D G E M E N T
HON. MADAM,SHANGALI, J.
This electionpetition emanates from the Igunga Constituency by-election campaign and resultsconducted between 2/09/2011 and2/10/2011 at Igunga Constituency Tabora. Several political parties contested the seat through theircandidates. The petitioner Joseph MwanduKashindye contested for that parliamentary seat in the sponsorship of hispolitical party Chama cha Demokrasia naMaendeleo, commonly known by its acronym as CHADEMA. The first respondent Dr. Dalaly Peter Kafumucontested for the same parliamentary seat in the sponsorship of his politicalparty Chama cha Mapinduzi commonlyknown by its acronym as CCM. At the end of election campaign and electionitself on 3[SUP]rd[/SUP] October, 2011 the first respondent was declared thewinner by the Returning Officer, (third respondent) hence a new member of Parliament for Igunga Constituency. He scoped 26,484votes while the petitioner got 23,260 votes. The petitioner was neither satisfiedwith the results nor the way the by-election was conducted. On 31[SUP]st[/SUP] October, 2011 he filedthis petition through the legal services of Prof. Saffari and Mr. Mwanayela LearnedCounsels intending to challenge the validity and outcome of the said by-electionon account of several malpractices and corruption. In his petition the petitioner alleges a goodnumber of election irregularities and misconducts committed during the electioncampaign which render the whole exercise to be not free, fair and transparent. AsI have pointed above the third respondent is the Returning Officer for theIgunga Constituency, Mr. Magayane Protas, while the second respondent is theHon. Attorney General who has been included by virtue of Rule 4 (1) of theNational Elections (Elections Petitions) Rules 2010. The first respondent was represented by Mr.Kayaga assisted by Mr. Kanyama Learned Counsels while the second and thirdrespondents were represented by Mr. Malata, Learned Principal State Attorneyassisted by Mr. Salum Malick, Learned State Attorney. Thepetitioner complain that on 28[SUP]th[/SUP] September, 2011, Hon. JohnMagufuli, the Minister of Works using his political position and influence at apublic campaign meeting, promised the residents of Mbutu in Igunga to constructa vital Mbutu Bridge if they voted in favour of the first respondent. That, on the same meeting he threatened Igunga voters that the Mbutu Bridgewould never be constructed if they voted against the first respondent. The petitioner further alleges that in thesame meeting Hon. Magufuli threatened Igunga voters that they would not beprovided with maize aid by the Government unless they voted for the firstrespondent. All these illegal promisesand threats, according to the petitioner influenced Igunga voters to vote forthe first respondent, the candidate of the CCM. Thepetitioner also claimed that Minister Magufuli intimidated the voters bytelling them that those who would vote against the first respondent wouldsurely be detected and severely dealt with. As a result many people who intended to vote for other political partiesnever turned up on the voting day. Thepetitioner complained that during the same election campaign, Hon. Sophia Simba,Minister of Women Gender and Children at Nkinga Nursing College, during lunchcalled upon voters not to vote for the petitioner because he is poor personwith no proper accommodation and unmarried. The statements intended to lower his dignity and embarrass him before thevoters. Thepetitioner also complained that on 28[SUP]th[/SUP] September, 2011 Hon. StephenWassira, the Minister of Presidents Office responsible for Relations and Coordination,using his political position and influence, at a public campaign meeting atBukama , Isakamaliwa, Igurubi, Mbutu and Matinye in Igunga promised to supply maize to voters if they would vote for the firstrespondent. Again,on 1[SUP]st[/SUP] October, 2011, Hon. Ismail Aden Rage, CCM Member ofParliament for Tabora Constituency, made statements that the petitioner hadwithdrawn from the contest for the Igunga Parliamentary by-election. The statement which caused many people not tovote for the Petitioner. Thepetitioner complained that again on 22[SUP]nd[/SUP] September, 2011 the saidIsmail Aden Rage masqueraded with a pistol on his waist in the public meetingtelling voters that they would be locked up on election day if they never votedfor the first respondent. As a resultmany voters were disenfranchised and never turned up to vote for the firstPetitioner. Thepetitioner further claim that on 23[SUP]rd[/SUP]September, 2011, Baraza la Waislam Tanzania (BAKWATA) at Igunga District called upon all Muslims not to vote forCHADEMA candidate in the by-election of October, 2011 because CHADEMA followers had intimidated and assaulted a Moslem woman by undressingher hijab. That such desistance reduced the number ofvoters for the petitioner. The petitionfurther reveals that on 22[SUP]nd[/SUP] September, 2011, the General Secretaryof CCM, one Mr. Wilson Mukama falsely announced that CHADEMA had brought 33commandos from different countries to cause disturbance and chaos in the Igungaby-election. The petitioner alleges thatsuch announcements reduced the number of voters because they were scared. Theother allegations are to the effect that the first respondent and his agentsincluding the former President of the United Republic of Tanzania, Mr. BenjaminMkapa promised to provide maize to voters in consideration of voting for thefirst respondent. That the hungry votersof Igunga Constituency were subsequently supplied with such maize a day beforethe voting day. The petitioner complainedthat even on the voting day CCM Members supplied rice and meat to voters toinduce them to vote for the first respondent. Thepetitioner pleaded that during election campaign one, Mwigulu Nchemba, CCM Treasurerand campaign Manager for the first respondent distributed Two Million Four HundredThousands Shillings (2,400,000) to KKKT Church and another Four Hundred Thousand Shillings (400,000)was given to staff and students of Nkinga Secondary School to vote for thefirst respondent and further Primary School Teacher were given twenty thousandshillings each. Thepetitioner claims that in Majengo Village, Chabutwa Ward,CCM cadres were caught distributing money to voters few days before election inorder to induce them to vote for the first respondent. Thepetitioner strongly believes that the existence of such widespreadmalpractices, misconducts, bribery of voters, intimidation of voters, threatsand announcement of misleading statements contributed to his unfair downfalland therefore the election was not free and fair. Thepetitioner prays for the court to declare the Igunga by-election null and void,order for the re-election, costs of the petition and any other relief as may bedeemed appropriate by the court. Inhis reply to the petition, the first respondent denied all claims andallegations and stated that the by-election for the Igunga constituency wasfree and fair and in compliance with the relevant laws and procedure. He categorically stated that there wereneither malpractices nor corruption. However, the first respondent conceded that there was an election campaignmeeting at Mbutu on 28[SUP]th[/SUP] September, 2011 for CCM and that the saidHon. John Magufuli attended. He statedthat all other allegations and claims against Hon. Magufuli are strongly deniedand the petitioner is put to strict proof thereof. The first respondent also denied all allegationsrevealed against Hon. Sophia Simba and invited the petitioner to strictly proofthem. Regarding to the complaintsagainst Hon. Stephen Wassira the first respondent conceded that Hon. StephenWassira attended at the election campaign at those centres but the otherallegations including use of his political position and influence and promisesto supply maize aid to the voters are totally denied. Thefirst respondent further pleaded that all allegations and claims against Hon.Ismail Aden Rage are denied save for the fact that Hon. Rage was indeed foundin possession of his pistol at one of his campaign meeting but it did notaffect the by-election results. Theother allegations require strict proof. Thefirst respondent admitted that the former President of Tanzania, Hon. BenjaminMkapa did visit the Igunga Constituencyduring election campaign, but strongly denied the allegation that the formerpresident promised to provide maize to voters in consideration of voting for the firstrespondent. The first respondentpleaded that the hungry voters of Igunga were all supplied with maize aid bythe government irrespective of their political and religious standings and thatdid not affect the result of the by-election. Therest of the allegations and claims were totally denied and the petitioner wasrequired to prove the same. Intheir joint reply to the petition, both the second and third respondentscategorically denied all allegations and claims filed by the petitioner seekingfor the avoidance of the by-election results and pleaded that the by-electionwas conducted in accordance with the law, regulations and directives of the ElectoralCommission. They invited the petitionerto strictly proof his averments to the required standard. Failure of that, both respondents requestedthe court to dismiss the petition for lack of merits with costs. Inhis endeavour to proof his case the petitioner called a total of twenty twowitnesses including himself (PW1 PW22) and produced a total of four Exhibits(P1 P4). In defence, the respondentscalled a total of twenty six witnesses (DW1 DW26) and produced a total ofeleven Exhibits (D1 D11). Inthe preliminary hearing conducted on 30/04/2012 the parties agreed and signedon matters not in dispute and the court recorded the same as follows:-
MATTERSNOT IN DISPUTE
M.S.SHANGALI
JUDGE
21/08/2012
ORDER
M.S. SHANGALI
JUDGE