19951113 TZHC Dar es Salaam

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JN THE HIGH CCUHT ., · (DAR ~8 SALAiJvi Ml..IN R£GISTR~) CJF TAN:6ANll. AT. DAR .68 SALLrnM , MISCELLANEOUS CIVIL /,AU:SE N0o59 OF J..995 · . •

AUGUSTINE LYATONGA . ' h'.r.<bl . i . & 12 6 0THERS0 o o o o o o o .APPLICANTS . \ . r v.yrsus . v. - THE ATTORNEY GENERAL & 3 OTH~HSoooo~ooooooooRESPONDENTS HULING OF TH.ii; COURT q MACKANJh.il. ., This :i,.s an application of great public interest. We ' are asked by the applicarits to order the Directo~ of ElBctions, ~he sec and rcsponden,t ,· not to declare any results in the on going · general elections pending the final determination of the petition which is the genesis of this application. 'vJe ar.e also asked to .order the said·~irector of Elections not tb proceed with the condu~~ of elections in Dar es Salaam Region pendirig the de- termination of the said petitiono · ft'he. matters v-ie are· cal.led upon to decide will b.e put in. _clearer focus after a brief referenGe to the pleadi;i; in the petition. A.<::cording to paragraph 1 of the Petition Mro J.\.ugustino Lyatonga Mrema, Prc:)fessor Ibrahim Lipumba, and .Mr. John Cheyo, -the.· first, second and third peti ti one rs, respectively, are .. presidentie,l candidates for NCCR; - MAG.EUZI,. CUF and UDP, in that . •••• 0 ·12 ..,. • 2 ordero Chief Abdallah Fundikira, Elora,1\.amb_ona, '.l.'_homas Ngowi, Wilfred Mwakitwange _and Emanuel Makaidi, the fourth. fi£th, sixth, seventh and the eighth petitioriers aie, in terms of paragraph 2 of the petition, registered voters of politic al parties listed as UMD, T/1.DEA, NCCR -

MAGEUZI, PCNA and NLDo And the 9th, 10th, 11th, 12th, 13th ·14th and 15th Petitioners are, in tarms of the third and the fourth paragraphs, officials of various ranks of NCC:R.., MAGEU:::iI, CUF, Ti1.DEA 1 _UPDP, NAREA and CH~DEMA ~oliti~al parties. ~he p~titioners are alleging a number of irregularities which, in their contention, have rendered the Octob'.:'-r, 29th Presidential and Parliamentary el-ections not free . . ' ·and fairo They·seek declaratory o~ders in the manner claimed in paragraph 12 of tthe Petition, namely, that the whole elect ora·1 · process nationwide be ullified; that the ~lectoral Commission . be reconstituted. after sorrie condition is fulfilled; that fresh general elections beheld nationwide; that the third and fourth responGents be barred from participating in any elections for five years; the usual claim fbr costs.; and the trauitional prayer for any reliefs this Cotirt may deem fi{ to award. . ' In these proceedings Dro Lamwai and Dr. Mvungi advocates for the petitioners. Mr. Salula (Senior St.,;_te Attorney), Mr. MwidunC:~a and Mrs. Katinda (State Attorneys) appear for the first and se.cond !"! .... . . raspondents; Mr. Kaping& appeass for the. thi_rd respondent l and Mr .. Jvluccad~m appears_ for the fourth respondent. Ii.l though all the respondents were served with the chamber summons·with which the application was instituted, Dr. Lamwai b.ns

ma.de it clear o oo·o••oo/,3o. 3 .- during his submissioµs that the relief his cliSnts seek is directed at the second respond<int~ As is the practice. o'f this Court this application is· · supported by a:?:1 affiiiliavi t. In this cuse th~ supporting affid.avi t was sworn by Willy Ringo Tenga, the Actirig General-Secr~tary of thG NCCR-MAGEUZio He appears in these proceedings as the nineth petitioner. He swears partli on matters which form the subject of the Petition, and partly, accordirig to paragraph 4 of that affidavit, that theyhave been compelled to bring the petition at this stage. on the followin·g grounds:- . . (a) that the miscondu6ts complained of in the petition have teQn made. throughout the country and practically in every constituency; (b) that the Presidential el~ction is involved i~ the Petition; rind (c) thnt once a Presidential candid&te is declared eleetedJ the jurisdiction of this Court is oustid. Dr. La.mlbUai has argued very forcefulJ.y in· support of the ap~lication, esp~cialiy as regards the evidential quality of th~ affidi..w{t which supports the application. He Contends that. according to paragraph three of that affidavit the elections were illegal and that they we.re not free and fair. He realizes the normal practice of filing petitions under section 108 of the ••••••• al ./4 0 4 Blections Act bUt he contends. that it became· necessa,ry for them to

file a Petition pespecting the entire Presidential and· . . . Parliamentary elections because Article 41(7) the Con~iittition of the United Republic of Tanzania ousts th~ jurisdiction of th~s Court orice a Presidential candidate has been declared a winner. If, therefor~, thE equittable ·6rder they seek from this Court i~ not isuued, this Court will cease to have jurisdiction to hear any p,::tition against the Presiaent' s election. When he was asked i from what law this Court deriv~s power to declare the general elections null and void inane Petition., Vr. Lamwai responded by saying tha.t the Court derive.s th&t inherent. power from section 2(2) of tb~ Judicature a~d Applicaficin of Law Ordi~ance ~hich c orifers .on this ·Court unlimited civil jurisdiction. Thus if, in his· v:tew, it is found that the whole general election is irregular, then the entir·e electorcil process and its results should.be nullifiedo II~ has drawn our attention to paragraph 9· of the Petition und.Eff which all the alleged irregularities are listed. At some stage in his submissions, however, Dro Lamwai abandoned his appiliication for a restraining order against · the declaration of results involving Parliamentary candida tea because almost all the results are out by now. So we ~re left with the Presidential and the Dar es Salaam elections. As regards the Pre~idential elec tionl?, it is the contention of

Dr. Lamwni that it is not the intention of the Constitution:, · nor of the iaw, t6 close the ·Court 1 s jurisdiction in declaring a Preside·nt who is not elected I . in a frr:e ·and fair election. He • • C, • • ••• • • • • /5. 5 thereoore urgGd thut the case be concluded before the general / . elections for Dar es Salaam Region al~ held, presumably if the Petition will s:u.ccced •. For if those 6leotions iare conducted before.the deter~ination of the Fetition, the ~hole proceeding .will be superfluoui. It is their complaint th~t the Preiident will not be elecled lawfully d~fing the ongoing electi6ns and that the nation should not be compelled to_live with a President who is forced upon it. So that the election of another President would rot her be delayed as. no vaccum in the Presidency will thereby be created. The incumbent President has, according to Dr. L1:,rnwai, and we think he is right, all the c onsti tut,ional r:1 authority until :P,e l;ancls c:>ver the reigns of pow.er to the Presidential candidat~ who will be de~lared th~ winne~~ So His Exc0llency President f1.li Hassan Mwinyi will be constitutionally in power unt_il another President·,_is elected. In a country. which has respect for the rule of law, however, the delay in electing. _another President ahould not be inordinate. Now, there are· sev(iral c onci t ions..:.precedent b_efore the applicants cn.n succeed. Dro

Lc.tmwai has cit-ed Ibrahim M~nqharle . I Marwa v ~ The Attorney Gerieral and. the. µi.3:'ector of Elec.tions. Civil Case (Main Registry) No; 3 of·l995 where this Court, (Mapigano, J.) recently held that on.e of those conditio21s alleged, and a probability that the plaintiff will be entitiled to th0 relief prayed in _the substantive claim. It is learned counsel's submissions tha;t they have a strong case if they are o••oo/6. \t:~L- 1~ .?.;. ~/.~--- 6 given an opportunity to lead evid<3ncc .in i)r6of of tho aJ.lcgations •which at~e contained in pa.ragra1l1 9 of th0 P'eti tion. It is ·the conteritio.n o;f tho Pot.i tionirs that the nnr cs SaJ.aatn elections will l)o illegal because thoy oontravono section 67 (1) of the .Elections i'...ct in that the power to postpone an election :i..s , oon:fcncd on a Iicturning Officer.• Loa;cnod counsol 1s attcntioi1 was drawn to the feet tho.t .itl:J.o Dc:r cs Salaam elections a.re not \ . . oov.c:cod in the Petitiond He responded by saying that ho h~s c~vcrod those elections in his arQ.,ments. because his clients have as one of their- prayers ·to have tho· NatibnaJ. Electoral ·Co~11iss'ion dissolved roconstitutod1 which'means. that tho Commission cnnnot therefore conduct the elections. i'To doubt if this contention is. s01.md.e , further contention of Dr. Lann-mi that tho It is .tho petitioners will be prejudiced if'. tho nar cs Salaam

elections arc co11duqted because· the ir:;.~egul2..ri ties they complain of in tho Poti tion have· .not beol'i roct'ifiod. As well as that, it is tho petitioners' contGntion that Paxlimnentary election results so fa~ declared create prejudices in tho electorate in favoux of the winning politiccµ. party. J)r.,Lrum;;:tl has ruled out the ]_)ossibili ty of the electorate. boinc sympathetic wi_th the political pGXtios which apponr not to have done well in tho elections so fax 0 Mr. Salula has opposed ~bi.s ap-..Qlioation very strongly. He :cm.sod sovaraJ. grounds in ad.dition to tho throe prolimincU"y 7 objections which aro contained in tho affidavit of l',los Eanzi who swore it on behalf of ·the so,bond i-.ospondont~ Two of the _preliminary objections were abm1donod a:ftor Dr.Laimmi ch"'oppdd- his clients I prcycr which rclatoc1 to ~1: order which wo.s ~tended - to ro~t1·ain the second rospoUdcmt ITom, declaring Pa.rlincntm~- oloction rosul ts. 1fo had, h01-;cvo1·; ·_ dixocted earlier on in those procoodi·ngc that wha.t was b:i."'Ouf;ht a.s prclimiha.ry objootiol'is could be perm.tad by Mr. Ba1u1n iri his riubr:tisnions when arguing the main application for injunctidn~ ~uf'ficc it to say at tho moment that Ivix., Salula contends, on tho basis of tlio remaining ground of what - constituted tho thxoo preliminary objections, thD.t - tho -application. is incol7J]_)otont b<::c2.uso tho

supporting affidavit docs not conforn to tho p1"'0visions of 0:;:-clor XJJC, rule 3 of the· Civil Procedu:re. Codeo Secondly, ho m•&,i:w that the application should be disni_sscd beca,uso, on 2. balance of convonicmce, tho second respondent would su:ffor greater injur;7 than his advorsn.ries., Thirdly, that the petitioners havo not shown that they o.ro likely to succeed _in their Poti tion,. 1-fo hcwc decided to dispose of those issues one after another. It is Mr., Sal ula' s contention that Dr., Tonga's affidavit contains as.s01•tions of fact which o..ro · not ' in his :personal knolodgc,. Ho submits: that tho 1i:1,ttors Dr<l> Tonga do11onod on could_ not have been in his personal lmoulodgc because .ho was rul tho time around in Dar os Salaar;1., So tlmt ho could not, unless ho was informed by sonconc else, have known that there was nisconduct throughout the country and practicu.lly in every constituency as ho assets in paragraph 4 (a) of his affid[l.Vit. \ 8 Wo agrco with Di~o Le.r.wmi thi:1t wha.t is contained in Di~. Tcng8,' s n.ffida.vi t is ovidonco which c2.11l10t bo assail od 1:iy 1 cn:rnod oounsol Is statonont fron tho Do..r as l\[x. Salul2. docs. But tbnt is far fron· sayi1-ig that tho crodi bili ty of a deponent,· ouch tho so.no position as applies to a witness, co.nnot ·. be put ur...d.or scruting. _· · iTo l·mow that like all hunru1 l:ioinu'"'S, Dr, Tonga is ~1ot

or.miprosQnto Ile has not sworn that. he visited ovei---.1 polling stat.ion~ lot clone ov-cr,.J consti tu.ency, to soc foi~ himself and ;to acquire po11sonnJ. · knowledge of tho a1lcgod oiscondticts. . If ho therefore ca.L10 to . . . • lrnow of a.njl" nisconduct it iiust kw~ l).oen in his official capacity as .Acting General Socrotw..jl' of liCCR-l1AGJ:ITUZI 0 , , J I • Ile.· thorMo:ro_ acq_uirod knowledc:,"'G of t:rhat l.S dontained . . : . ii1 paragraph 4 ( a) of his hffidav:l:t fron other J?OOplo; f;oi;1 p~opio who allege to l~avo: ,. i-ritnossod the nisco_liduct, if any. Tic arc satisfied ti~at in those oircunstances tho affidavit docs not oo:nforn to• tho ci~c:i.r provisions of Oi~der XIK; rule 3 ( 1) of tho Civil Prooodu:ro· Code which lays down a ndidatory condition thats- u 3., 0. ( 1) Affidavits shcll be confined to such facts as tho doponcnt is able of his 01m lmowlodge to prove, exoopt on interlocutory applications on which statononts of his belief :ocy be adrJittods Provided tlu,,t grounds thereof arc stated'\. 9 . . \. It. is .a ,statutory rcqUU'cncnt th3t whore an n.ffidaVit is basod on tho deponent' s bclfefs, cro1.mds for such bolicf s t11-1St · lJc disclosed. So al.so; it is now settled lm, in this country tlli.!.t whcro an affidavit is based on inf o:i.•rJ.ation rocoi ved fron others, tho source of tJ:12.t in:fornation DL1St 1Jo disclosed., Decisio1'1s of ·

the Court of .t:°l.ppoaJ. ai1d this Com--t on tl1is issue alJound, lmt the :r.10st recent 2.uthori ty is tho C.ourt o:f ..'l.ppea1 . decision in St,lina ' ' Y.uai Four.i V. Rc_g;i,,strar of Co-oJ?.91-:~t_~r..9_jl_ocictios ·& Throe 'OthoT~• ( CA) Civil Appeal 1'Too 36 of 1994. Their Lordships had this to say at Pagu 4 of their typed judc;nent:-:- "The principle is that who;.•e an af'fidavi t is nado. on ( n.:n) 1-nforn;,tion, · it should not be acted upol; b;jT ~1Y cov.:;.•t 1Jl1lcss tho sbui•ces of tho infor:oatii.on arc specified~ o o ~ 11 .. Failure to disclose the source of info:cnD.tibn renders the n.ffidavi t · defective. Since tho affidavit which stipports this application is hicurably defective tho api:,J.ication has boon i~ondored incoDpotent., It woulc1. fail on that account alone., Iri his second GJ:'OUnd Mr. So.,hll;. subr:1its th.at sono of the applicants have not· shown how tho;/ will be injured if their application for ·an injunction is refused. They arc not vyil1&.. for tho Presidency,• ho contends •. It is bis View that oven those who n.re contostj,ncr in the Presidonticl .election :ccll'1!lot establish mzy injury.. Em·, do they know the.t they will lose in tho election before the EJ.ectoraJ. Comnission clo.clares tho results? So on a balance of convenience who, Bet·wem1 tho li tig2.nt s, will l)e I 10 adversely affected? Tho second 1•0spondent contends that

tho G0 vorn,-:ient has aJ.ready suffe:;:-ed [P.·edly irl' financiru. terws., Ilenco Mr. Salula subnitstlmt there is evidence fron J?arUt,'Taphs 10 D.i.'ld 11 of .8lex Banzi 1 s counter affidavit whichshows that so far the Govern'":lent hes spent sone forty billion shillings for rumunc tl-ie ongoing electo1.·nl process 2.nd th~~t it has already spent another suL1 of over two billion shillill.GS for the preparation of the . Do.r os SaJ.aap i·o--run of genernl eloctionso We understand this · . . plea as beil1g a f'orbidding reason for another gencraJ. election if the ones in progress a.re to bo nullified end that, therefore, the second respond will suffer ir;i1:10ncso financial hardship wore tho electoral :i?'?occss to lJe reve:;,•sod.. ~.Lai:n-vai docs not b~licvc thv..t the governnent has spent all that oonoy as claimed b3, tho sooo11d. respondent~. J:Dven if the . . . . raonoy was spent, he n.rgi:ri:3-s;; it · is _like a person who broad.cn,sts ~Tain seed on rocks; it will not GUl.1J.inate., He subnitted, quite· oor.roctly, in our Vi.ow, that denoc1·acy has a high price., We, however, do not agree with hin on all tho indicia of that price as regD.I'ds politicnJ. circunstanceso Fm.· ho wont on to nalce rema.i.4.rn 1-rhich 1-roro loaded with veiled thrc2-ts of violent 1·epurcussions if a decision was not roached that will be acoc:ptc,ble to tho followers of hisolients. 1-To have

'boon aln.::cned by that 1•or:12,:rk but we -will· 10ave it 1•0st there for tho norJent. Vo i11:tend to declni•e our position on it at a later st a.gee lie however agree with Dr,.Lorn·rai that it will be a bleak day indeed for this proud .country if D- G'OVornnont will be thrust upon the nation through corrupt, fraudulent and rigged elections for fear - 11 - oi' m.1.llii'ying electoral results lJy reason only o:Z money spent: to conduct proved sham. elections. Of course tJ.1e o,1us to prove that the olec ·cions have lJeen. rigged in f'avoUJ: o:i:' miy o:? the Pa.1'·'.;icipa·cing pa;r·cies is upon' whoever allec;6r:, so, In fact, this Rl)phcn:cion is riot the :r'i,f.1t. opportuni·i;y a·c 1llic]1 any alleged i1:1prop1'ietJ' in _the -conduct of .the· general eicc·cione can be persued. It is oux consicle:red op:inion, nonet].1cler:: □, that ' d.c:mooracy 1~hich is e3zp1'e □ sed through free ancl f'c,ir electioris at rq,··ulo..:r interva.is 1 cro1n0Ju be compromised ·for fear oI expenses, Genern.l eleotioris a:I'e a.·noble and worthy cause on u21ich P-.U°hlic f\mda and resources must be put to use for tlrn benefi:li of -the puhlic good• That is 1rlzy it is absolutely neocsGnry ·chat money r11.:.d be spent to prepare anr.l_ conduct :free and lqir · ~leotions.. Ii · is ,for· these reasoi1s tho/.; we find Mr. SaJ.ula;r n oonJcention-in this He have 9 .earlie:r on in this ruling,

obsGl'Vocl tha·c the thcrc1ore 1 their. prs:yeI' for an injuction re:TcrGinil1g the second respo1ident from declarini Presidential Elec·;;ion: rccnl ts and-from cm1c.luoting electionE! for the Dar es /Salaam R<3cion sJ1ould be C;"ra.11·0ecl.. In particula;r, they argu~. through ·c:.rnir ac.lvocate that ,, . the cqurt will cease; to have jurisdiction in --~.llJ..S matter· as · .llJ'.'ticle 41(7) of JGhc Constitution ousts that j;;;xiscliction. l1r. Sa.J.ulc:. concedes. this constitutional limita:;;ion; ·. he argu.ed, however 9 that t,1:.J.e pe·liitioncrs can question ·i;he -.ralidi-:;y of' .ttt·ciclc 41 of the Consti-~11.tion in Court., IIe concluc1ecl. his subBi::,r1ions by invi-tinc this court to oonsiclcr decisions in other jv.:ri3dictions which arc relevant to this case. Ile cited India_ as - 12 - one of those juxisdic·~ions, Hr • .Kapinga submits that the applicants 1.1avc a du'iiy to aclduce. evidence in proof of their claims~ The only evidence. the::re is 9 .ho observes 9 is -~he afficlavi t of Dr. Tenga. 1-Te have no doubt Er. Kapinga is correQt in his submissions. Foi• as he contends, PQXac:raph 3. of that a:c:ficlavi t does no more. ·chc.::,.1 saying thatg- ft... . wcf are :i:aising several gron1ds which .. .: go into sb,owing the -illegality of the uhole eleotorai process a.1d the fact ·chat they were nb·:; i'ree and fairff., Theoe o.re mere allcc2;cio::.1s which

afford no proo:::' ·co -che cla,ims. Wl1a·~ is more. they are ulaims contained in a;,1 _aJ?iclavit which has 1)eon :fo1.U1.d to be ::u.101.1..rrn.bly defective" We· do no·~ see anyt:.1.d.ng in. Dr. Larawai t s furt).1E:r c·cciJmi ssions which tend:s ·co r,:..i.1ow cll'l improvc0ent in the cvicle;1tial qualijcy of ·cho,·~ a.:Z:ficl6.vi t. Never·choless it is ir.,pera·cive that whoever alleces ·C:J.c existence or · the non-existence o:? a set of facts has a c.ln·c31 ·co lead eviclenoe in proof o1 ·;;.:.10::;e fc1:.cts,1. 'Il1is rule o:2 evicl.r,mco :i.s oqu.al~t applicable to applications such as ·c:1is one. More importantJ.y, cour_;cs in ·;;his count:ry ha:ve alwc:1;r::1 .7)een cautions in. ·cheir approach in considering applications for roi:d;:ra:L"'l.::u.1g orders s1..1.oh as is the case here~ We .think J.;:-iis is a so,.md approach .becat.1:::e as it ·was oboerved in'- the Indian .ca~e o:Z Laks:u:!::u.-iar asmhiah and Other·s Vo Yoral<].ti Gowder, JI.IR 1965 Mysore 310, at page 312 while qi.1o·c~1g an excerpt· :::i~on 48 Jimerican ~izprudence 9 page 217 "• •• 'Ihe cL.Lro.ordinary charac·cer of ·che injtmc'cive remedy and. the danger -chcd; ito use in improper cases ma,y r€sult in serious losa or inconvo11ience .to an :i.lmoccnt ~)arty require that -cl1c pouer to to iss~1e it should not be iight~r il:..c:'culc;ecl in 9 but shoulcl be e:;rnrcised sparingly nnc.l

c2,u:i;~ously only ·after thoughtful delibetation, a.ncl wHh a full conyiction on the pa.rt of the cotU't of' its ;.IJ:gent nece0sity. In other wo:rds ·C:.tc · :rdief should be c:i.nu.rded only in clea:r 0ases, reasonably_ free from doubt, and 9 when necessary? to prevent great ancl -ir:reparable injury. The Cot~Ja sj:1ould therefo:re be; i2;uicled by the fact tha.·0 the ln.1rde:a of proof rests ~pon the complaint (sic) to establish the material allega.tio1rn entitling him td· relief"~ This is a soLmd propoci·0ion of law which we .:i.lYcencl tq apply to -che fD.Cts in this applicaJ.;ion., I·0 has been a;rgu.ecl for the applic2.nt8 t:1a:t t:.w:re is . j1;tatification for the injtinc-ti-.;,re remedy becanr:e ·cheir cha.n.ces of success a;re overwhealDing and that there is cc sc:rious qt.rnstion to lJe determined •. nr. Lamwai has poirited o,x~ acvG:ral inst~ce. conducted on one day; -~hat up to now elections c:i;re c;oing on. May \ be it is :so 9 but these arc statements 1-rhich we::i'.'c made :from the Bax. They do not co11stitute evidence and the in cues they raise do not appear in the aLfidavH which supporto ,:;he application. tfo aro,. after a care1\,,J. 001Bidera.tion of' the hwr and the application as whole, sa·~isfied that the applican·cs have failed to Elhou the existence o:f an.y serious. question ,·6ioll is to be .... 14 d.e-~e::,:,::1i:r.ed in the Pe·:;i·cion.. And 9

·in -any cmrn~ ue find it · clil'f"icEl"t to say at:::'irDa·cively that the peti·Jiono:rs have a st:rong _C.:,,r:?c in r·espec.,.G o:f which, on the facts~ there is a probability _oI S'..1cceed.ing in their enterprise., We base ·chio conclusion on the folloui:;.1;_,;; grov.ndst I:'irstly, · the petitioners ~!.ave ~10·~ s::.1.0.-m how, individually or as a group, they are going to su.f:?er any mischief o:r any i.1a:rdship r:1houlcl ·l;'.1e Presidential elec·cioas -results be decla.1:cd or should the Dar es Salaam Region elcc·_:;ions be held. Seconc.ll:r, no proof ha:: 1Jee11 led to r:,how that 1bo, o:f :llie. Pr0o~dcx1:~ial ,candidatGs, will wil'lo Thirdl,.y, as Tu', Lanmai oorrectly pointec1- out a·c some stage in his _subnic:.::ions while re:fe-r:ring to Marwa' s oaBe, the applicants mv.r:l·:; 0:.:,ou ·:;i1at on the facts alleged there ia a serious qtlGstion to lJe c1GJcGrmined,.. Fi11.ally we have to consider if we are vcr.rl;od iT:i. Jell the 11.ecessa:r;:;r jurisdic·cion Jee issue the equitable :nrn,c1-;; in the form or a re:straining order w:1ich is sought. Uc a;r,:i lally aware that \ juriscliction is· a crea;GL.U.'G of legislationo Dr. La,;:.mai referred· us to sec·bion 2 (2) of ~clrn Judicature and Applic~,:~ion of Laws 0:rdinance which gives "to this Court unfettcrecl civil jurisdiction in oaoes where there a;re no specific provisioi1S. lTe · agree with hir:1 in

principle_ ~enerally, but we find spcci:t'ic provisions in -~he Elections Act, 1985 which con.fer jurisdiction on this Court in res11<;,ct of specii•ie_c1 electoral issues.. On ~.;he 0·1L1er ha.J.1ij_j· however, h;rticle 41 (7) o:f the Constitution, in lU1~1biguous la;1_e,~L1a.c;e, ousts the jurisdiction of this Court to :iJ.1c_[Lri.re .. 15 into the _election of the President onc_e the National Electoral .• · Commission has declared the election resu.1 tso It provides "41 (7) Iwapo -mgombea ametangazwa na •i'ume ya Ucl1aguzi kwamba amecl1a.gu.liwa lw.wa Rais kwa l\iujibu wa ibara hii, basi halclli"'la Eal1akama yeyote itaka;yokuwa na mamlalca ya kucllunguza 'kllchaguliwa kwake"• Whereas, there:fore, ll.rticle 41. ( 1) to· (7) of tl1e ConstHution makes provision for the election o:f the President, it does not _grant jurisdiction· to any court to inq:uire :i11to the _fact o:f that electiorio We are ID :Ul d.::l;ul of :the :ract that :tl-1e duty of this -Court 1 is to interpret and to imple11ent the la:w as we find it and not to guest ion the validity of that law unless a petition has been lodged in the appropriate manner,1 the puxpose of which is to challenge the validity of a particular piec·e of legislationo · It is -theref-ore open to thE: applicants to see how they can challenge Article 41 (7) of the Constitutiono In tl1e !Jleantime, it. is our view t~iat if it _was

necessary to vest iri this Court powers we are ask:ed tci exercise, then Parliament in H:.:i undoubted wisdom should ·. have made it clear :i11 the Constit~tion in relation to tllis very important matter •. .Apart from th\3 foregoing, reference was also made to the a.PPlicability of section .11 of the Governn1ent Proceedings Act 0 . ' . . . lfo L1ave considered those_ p:rovisions but we do not Slee, in view of the above observations, the relevan9e of that piece o:f / legislation to this application., We will not make any further ,comment on it. There are tlrree more issu,es we have to cover,. One of them relates to ll'ira :Muccadam' s affidavit. We rejected that aff'idav:i.t but we reserved our reasons. ·The following are OLIT' re~sonso I~ is undisput~d that llh'o :Muccad.am is _m advocate of this Court and . . courts subordinate to it.. ile is empowered by Ord.er III, rule 1 o:t the Civil Procedure Code to appear and to act fo_r· litigaats .. In that connectiori. he is empowered to swear af'fidavits. in relation to matters· which arise from tlle conduct of cases and on raa.tters which are not :in the personal lrnowledge of his clients .. I . L.s we have seen Order iXIX, rule 3 requires that af:fidavi ts should be confined to such facts as the deponent· is able of his own .. knowledge to prove; the only exception be:i.ng on interlocutory applications where statements of belief

ma;y-- be admitted subject to the condition that the grounds for s1,.lCl1 pelief are given. In the ins_tant case all matters on which Ero 1,Iuccadam deponed are in the pers01~al knowledge of the £:ourth i·espondent I s trustees.• We therefore rejected that affida~it because it did not . conform to tb.e sta. tutory require:nents as laid down ur1der Order XU, rule 3 of the Civil• Procedure Code .. Jmother matter we have found necessary _to address is Dr. Lamwai' s conduct in court.. l ..t_ one .stage during his submissions a question was put to li:i.m and he gave .a very unexpected answer" 17 I He wanted the Cou.rJG to \tell him whether -~o answer that question \ :il1 ,his capacity a.s a politi"tian. or as an advocate., We did not expect· that Dro Lamwai$ a distinguished 1.dvocate of tliis Cou:rt, would. have wanted to tun1 a session of the High Court :il1to a political circuso We· consider that attitude as being very. discourteous to this Court and we d.o not expect him to behave :il1 the manner he did. What is more grave, however, is wllen lie infor:med the Court during his ;submissions that followers oi his clients will not . . . accept a decision which will not be· in -i;heir favourJ We consider t:1oso remarks to constitute an act of i!d;fulidation on this Court and an interference in the due process o:f ·~he lawo · Those rcinarlcs will not. in any way :mfluence our decision·

one wa._v or the other;- we reaffirm our re~olve to dispense -jus·~ice fairly, without fem' or favour. In the same vein we decry and. deprecate any act which, tlmugh unwit~Gingly, will have the ef'iect o:f :il1citing members o:f the public to disobey the constitutional autl1ority .of this Court. We are satisfied, however, that ·I1anza;1ians are a peaceful people who are sufficiently ma.ture politically and who will not be influenced by those un:fo:ctunate remarks. For the reasons we ~ave given, the application for the two injunctive reliefs, which are::- ( 1) an order to restrain the second respondent, the Director of Elections, from declaring the Presid,mtial elections i.ll the on-going general elections, and (2) an order to ·restrain the same secpnd respbndent f'rom conduct:ing the electio;:1s for JJar es Salaam . Region; · is dismissed with costse Delivered :i...'1. the presence of t:1e paxtiei:; and. their advocates at Der es Salaam this thirteenth day of November, the yea:r cm·e Thousand N:in0 .S:undi'eq. and Ninety-Five .. (SIGNED) · (w. J. Mama) JlJDGE 13/11/1995 ('?IGNED) (Lo Aa Ao Kyando) JtJDGE 13/11/95 (SIGNED) (J., Mo Mackanja)

JUDGE 13/11/95 Jl.ppea:r8l1C CS To:'., .Lamwai, J1dvocateg For the Petitioners Mr. Salula, Senior State J1ttorney ) · I11or First and. Mr. I1widt.md~, Stat.e Attorney ) Second Respondents Krso Kat:ind.a, State Attorney ). i: For T~ird Respondent Mr. :Muccadam, idvocate: For Fourth Respondent ·( ;, ~- ( ~ ,;·, . •;,· I ,i, r ..,-.• 19 Certified true copy of the orig:)..na.3:.,