amy p kibatala vs attorney general another 2015 tzhc 4 27 october 2015

IN THE HIGH COURT OF TANZANIA (D A R E S S A L A A M M A IN R E G IS T R Y )

AT DAR ES SALAAM (KIHIO, MUJULIZI AND MWANDAMBO JJ) MISCELLANEOUS CIVIL CAUSE NO. 37 OF 2015

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977 (AS AMENDED FROM TIME TO TIME) AND IN THE MATTER OF THE BASIC RIGHTS AND DUTIES ENFORCEMENT ACT, 1994 [CAP 3 R.E.2002]

AND

IN THE MATTER OF THE MATTER OF THE INTERPRETATION OF THE PROVISIONS OF SECTION 104(1) OF THE NATIONAL ELECTIONS ACT;

AND

IN THE MATTER OF A PETITION FOR THE DECLARATORY ORDERS THAT

VOTERS HAVE THE RIGHT TO STAY ORDERLY BEYOND TWO HUNDRED

METRES FROM WHERE A VOTING IN THE GENERAL ELECTIONS IS IN

PROGRESS

BETWEEN AMY P KIBATALA............................................. PETITIONER AND 1. THE ATTORNEY GENERAL.....................1st RESPONDENT 2. THE DIRECTOR OF ELECTIONS NATIONAL

ELECTORALCOMMISSION OF THE UNITED REPUBLIC OF TANZANIA.................................. 2nd RESPONDENT 21 &23/ 10/2015

JUDGMENT MWANDAMBOJ. Before us is a petition filed under a certificate of urgency by way of Originating summons pursuant to the provisions of Sections 4, 5 and 6 (1) (a) and (b) of the Basic Rights and Duties Enforcement Act [Cap 3 R.E. 2002] "Cap 3)" and Articles 5, 18 (1), 21 (2) and 29 (2) of the Constitution of the United Republic of Tanzania, 1977 (as amended). The petition seeks two main reliefs, i namely; interpretation of section 104 (1) of the National Elections Act, [Cap 343 R.E. 2002] (the Act) and a declaration that voters and/or interested Voters have a right to stay orderly beyond a distance of 200 metres from where voting/tallying is taking place without breaking the law. In compliance with of the provisions of Rule 4 of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014, the petition is supported by an affidavit sworn by the Petitioner. The Respondents are the Attorney General ("1st Respondent" and the Director of Elections O'the 2nd Respondent"). Due to the urgency, sensitivity and public interest involved, the Respondents were ordered to file their replies and counter affidavits within a period of one day of service. The Respondents through the Honourable Attorney General filed their counter affidavits and replies resisting the petition, urging the court to dismiss it with costs. At the hearing, the Petitioner was represented by Mr.

Peter Kibatala and Mr. Omari Msemo learned Advocates, while the Respondents had a team of learned State Attorneys led by Dr. Tulia Ackson, learned Deputy Attorney General. With respect we acknowledge the great effort and industry depicted by counsel for the Petitioner on the one hand, and the Respondents' counsel on the other, to present arguments in support of their respective positions. However, we must say at this stage that the exigencies of the matter,has denied us the opportunity to address each of the arguments presented before us,in the light of the approach we have taken in disposing of the petition. Before we address the merits or otherwise of the petition we find it necessary to state the factual background to the petition. Briefly, the Petitioner as a registered voter filed the petition following the directives of the National 2 Electoral Commission issued on 9th October, 2015 ahead of the National elections, scheduled to take place on 25th October 2015. The directive published in the print media, reminds the voters and the public at large several acts and conduct prohibited by law relating to smooth conduct of the elections. Among these is the prohibition to any unauthorized person from staying anywhere near the polling stations as well as places where tallying of votes will be conducted during and immediately after the voting on 25th October 2015. It is the

Petitioner's contention that the 2nd Respondent purported to have issued the said directive pursuant to S. 104 (1) of the Act. Further that, on 14th October 2015, the President of the United Republic of Tanzania reiterated that stance, threatening use of force against any person who will not heed to that directive. As evidence of what the President said on 14th October 2015, the Petitioner annexed to her affidavit cuttings from various newspapers containing alleged quotations from the President's speech and the reactions from leaders of political parties particularly, Mr. Freeman Mbowe, National Chairman of Chama Cha Demokrasia na Maendeleo, ("CHADEMA") who is quoted to have instructed his supporters to stay beyond 200 metres from the polling stations to protect their votes after the voting exercise. The Petitioner is apprehensive that the 2nd Respondent's "prohibition" which, in her opinion has no force of law and the President's speech which were sharply snubbed by opposition parties leaders will cause clashes between supporters of opposition parties and the law enforcement organs who, are likely to comply with the President's Orders to arrest people who may be found standing/sitting at a distance beyond 200 metres from the polling stations. It is the Petitioner's contention that contrary to the 2nd Respondent's directives and prohibitions and the President's orders, S. 104

(1) of the Act, allows people to stay beyond 200 metres from the polling stations. Consequently, it is alleged that by reason of the said directive, prohibitions and Public statements from the President, the Petitioner's constitutional right "to closely monitor the electoral process through staying 200 metres from polling stations will be violated." The Petitioner's complaints on alleged constitutional violations are premised on Articles 5 (1), 18 (1), 21 (2) and 29 (2) for which she seeks "the court to give a proper interpretation on the im port m eaning and effect o f the provisions o f S. 104 (1) o f the A ct; in the lig h t o f the voters' and /o r interested persons to stay and m onitor the electoral process a t a distance o f 200 m etres aw ay from polling station s". Depending on the Court's interpretation of S. 104 (1) of the Act, the Petitioner invites us to make a declaration " that voters and/interested persons have a rig h t to stay orderly beyond 200 m etres from the p olling stations and where tallying w ill be taking place w ithout breaking the iavJ’. As indicated earlier, the Respondents have taken great exceptions against each of the Petitioner's complaints urging us to dismiss the petition with costs and, in the alternative make a declaration that S.104 (1) of the Act, is in line with Articles 5 (1), 18, and 29 (2) of the constitution. Having stated the facts

as appear to us to be material, we need to dispose two few issues which cropped up during the hearing of the petition in order straighten the record. 4 The first issue relates to a point raised by the learned Deputy Attorney General. In the course of her submissions she invited us to hold that in so far as the Petitioner had not established in what way her constitutional rights had been infringed by the 2nd Respondent's directives and prohibitions, the petition did not qualify per se to be under [Cap 3. R.E.2002]. Instead, she submitted, to the extent the court was being invited to make an interpretation of S.104 (1) of the Act, the appropriate course would have been to prefer the application under S. 2 (3) of the Judicature and Application of Laws Act [Cap. 358 R.E. 2002] and for that matter the court was not properly moved to exercise its jurisdiction. To buttress her submission, she referred the court to a decision of this Court in Saed Kubenea V. The Attorney General, Misc. Civil Application No. 29 of 2014 (unreported) in which an application was struck out for being filed under a wrong provision of the law that is to say, S. 2 (2) of [Cap 358] instead of S. 2 (3) of the same statute. In addition the learned Deputy Attorney General referred to Edward Bachwa & 3 Others V. The Attorney General, CAT Civil Application No. 128 of 2006 and Rutagatina C.L. V. The Attorney General

and another, CAT Civil Application No. 124 of 2006 (both unreported) for the proposition that wrong citation of a section or subsection renders an application incompetent. On the basis of those authorities, the Court was invited to strike out the petition. In response, whilst conceding to the correctness of the decisions placed before the court on the effect of wrong citation of enabling provision, Mr. Kibatala argued that Saed Kubenea V. Attorney General (supra) did not make any determination on the applicable provision in matters involving interpretation of the law. 5 With respect we are in agreement with Mr. Kibatala on the point. Whilst we take cognizance of the fact that S. 2 (3) of [Cap 358] gives general powers to the High Court to exercise its jurisdiction, it does not specifically state that a petition like the instant one ought to be preferred under that provision. Accordingly, in the absence of any specific provision governing applications for interpretation of statutes, we are unable to say that filing the petition under the provisions specified in the originating summons was wrong so as to render the same incompetent and liable to be struck out on the authorities cited to us. Accordingly, we reject the invitation and hold that the petition is, as filed properly before the Court. The other point of concern relates to our jurisdiction to entertain the petition in the

light of the provisions of Article 74 (12) of the Constitution. Article 74 (12) provides in Swahili; "7 4 (1 2 ) H a k u n a M a h a k a m a y o y o te ita k a y o k u w a n a m a m ta k a y a k u c h u n g u za ja m b o lo lo te lililo te n d w a n a Tum e y a U c h a g u z i k a tik a k u te k e le z a m a d a ra k a y a k e k w a m u jib u w a s h a ria m a s h a rti y a K a tib a h ii " The English version is couched in the following terms; "7 4 (12) N o C ourt sh a ll have p ow er to enquire in to anything done b y the E le cto ral Com m ission in the discharge o f its ju n ctio n s in accordance with the p rovision s o f th is constitution." Having heard the arguments from the learned counsel for the parties and having examined a copy of the second Respondent's directives we are in agreement that the crux of the matter before the court does not fall under the 6 matters whose examination falls within the matters whose examination has been ousted by article 74(12). Having disposed of the preliminary matters we now turn our attention to the main issue that is to say; the proper interpretation of s 104 (1) of the Act vis - a - vis the rights of voters and/or interested persons to stay beyond a distance of 200 metres away from the polling stations. To facilitate an easy appreciation of the said provision we find it necessary to reproduce in extenso: "104 (1) No person sh a ll

h old a m eeting on election day o r within any building where voting in an election is in progress, or a t any place within the radius o f two hundred m etres o f such building wear or display any card photograph , favour, o r other emblem indicating support fo r a particular candidate in the election (2) A ny person acting in contravention o f this section com m its an offence and sh a ll be liable on conviction to a fine o f not less than fifty thousand shillings and not exceeding one hundred thousand shillings." It is noteworthy that s 104 of the Act falls under Part II of the Act dedicated to o th e r e le c tio n o ffe n ce s. This Section is, therefore a penal section and Mr. Kibatala, learned Advocate for the Petitioner conceded as such urging us to interpret it strictly. We agree with the general principle in construing penal statutes. We are fortified in this view by principles expressed many years ago. For instance, in T u ck V. P rie s te r (1887) 19 Q. B.D. 629 at p 683 Lord Esher, MR expressed the principle thus: 7 "W e m ust be very careful in construing [th is] section , because it im poses a penalty. I f there is a reasonable interpretation which w ill avoid the penalty in any particular case, we m ust adopt that construction." Later, in Re H.P.C. Productions Ltd, [1962] 2 W.L.R. 51, Plowman, J stated: "7/7 construing a penal statute . . . the question is sim

ply w hat is the m eaning o f the words which the statute has used to describe the prohibited a ct o r transaction? I f these words have a n a tu ra l m e a n in g , th a t is th e ir m e a n in g a n d su ch m e a n in g is n o t to b e e x te n d e d b y a n y re a so n in g based on the substance o f the transaction. I f the language o f the statute is equivocal and there are two possible m eaning o f that language, the interpretation w ill avoid the penalty is to be adopted."{e mphasis added). (See extracts in Odgers' Construction of Deeds and Statutes, Gerald Dworkin, 5th Edition, Universal Law Publishing Co. PVt. Ltd at P. 366). We have no doubt in our minds that the foregoing represents a correct principle useful in interpreting penal statutes by Courts in Criminal Cases. However, we do not think that, that principle is necessarily applicable wholesale here because we are not sitting as a court of first instance in a criminal case, or in an appellate jurisdiction. All what we are called upon to do is to find out whether a person who, (to use the Petitioner's language) is found exercising 'his/her right' sitting 200 metres from the polling station closely monitoring 8 election process will have committed any offence punishable pursuant to S. 104 (1) (2) of the Act. In addressing the issue we shall be guided by rules of construction of statutes developed by courts one of

which is that under the golden rule of construction, words are to be construed by reference to their natural and ordinary meaning : the learned authors of M u lla (1 ) l ( f h e d p . 4 remarks on this principle as follows: 'The golden rule for the interpretation of this [CPC] as well as other Acts is to consider the plain meaning of the words used. The Court's function is not to say what the legislature meant but to ascertain what the legislature has said it meant. The Court cannot proceed on the assumption that the legislature has made a mistake. Even if there is a defect, it is not for the Court to add to or amend the words of a statute or to supply a casus omissus. That is for the legislature. It is always dangerous to paraphrase an Act. When the language is clear, it is the duty of the Court to give effect to it without calling in aid outside considerations to ascertain the intentions of the legislature. Statutory provisions cannot be whittled down by general principles of equity, justice and good conscience. Nor can they be avoided on the ground of hardship or inconvenience when the meaning is clear on the face of the statute; nor is the Court concerned with the motive of Parliament in enacting the statute or its wisdom. It is also well settled that the true import of provisions which are explicit cannot be limited or controlled by recourse to what is said to be the

spirit of the legislation' Similarly, in Macarthys Ltd v Smith [1979] 3 All ER 325 at p. 332 para h Lawton L.J. held: 9 'As the meaning of the words...is clear, and no ambiguity, whether patent or la te n t, lurks within them, under our rules for the construction of Acts of Parliament the statutory intention must be found within those words. It is not permissible to read into the Statute words which are not there or to look outside the Act'. It is also an established principle of statutory interpretation that where the meaning is clear, hardship or inconvenience caused by the proper construction of a statutory provision are irrelevant. In Commissioner of Agricultural Income Tax v Keshab Chandra Mandal (1950) A.I.R. (37) Supreme Court 265 Das J. held (p.270 col.l): Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute or rules'. Addressing us, the learned counsel for the Petitioner agrees in the first place that s 104 (1) of the Act prohibits meetings during the Election Day regardless of the place. Indeed this is the view taken by the learned Deputy Attorney General. We, on our part endorse that line of argument to be the correct interpretation of s 104 (1) of the Act in relation to holding of meetings on the Election Day. However, the learned counsel for the Petitioner sought to

limit the scope of the meetings prohibited in an election day to political meetings in a radius of 200 metres from the polling station on the Election Day aimed at facilitating an election of a candidate. In his view, the meetings the Act intended to prohibit were those specified in s 51 of the Act because neither the Act nor the Interpretation of Laws Act had provided for the definition of a meeting. According to the learned counsel, by looking at the marginal note to s 104 (1) of 10 the Act, what the Legislative prohibited were public meetings and not otherwise. With respect, we are constrained to reject that line of approach for a number of reasons. One, in so far as the learned counsel agrees that the word meeting in its ordinary meaning means gathering of people with common purpose for the furtherance of common purpose, it is crystal clear by the use of golden rule of statutory interpretation, the legislature meant any meeting regardless of its nature; Two, the learned counsel conceded that marginal notes are not part of a statute as provided for under s 26 (2) Cap 1 and thus they are irrelevant for the purposes of ascertaining the meaning of the language used in the section; Thirdly, it is a universally accepted rule of construing statutes that where the language of the statute is plain, no other external aids can be employed to interpret such word beyond the language

used. Accordingly, we see no logic nor common sense in bringing into play the provisions of s 51 of the Act to define a meeting envisaged by the legislature in s l0 4 (1) of the Act. As rightly submitted by the learned Deputy Attorney General the legislature's intention was not to limit the definition of meetings to campaign meetings as submitted by the petitioner's learned counsel for had it been so, the legislature would have said so in the most unequivocal terms in s 104 (1) of the Act. While we appreciate the concerns expressed by Mr. Kibatala about the absurd effect expected of a wide interpretation to s 104 (1) of the Act, on the cited authorities, where the meaning is clear, hardship or inconvenience caused by proper construction of a statutory Provision are irrelevant (see: Com m issioner o f A g ricultural Incom e Tax V Kesha b Mandra Manda! (supra). li Whilst on the same point, we wish to reiterate that we understood Mr. Kibatala urging us to read into s 104 (1) the word public so as to limit the scope of the word meeting but we must state at once that having satisfied ourselves that the language used in s 104 (1) is clear, we cannot go beyond the express language on the assumption that the legislature made a mistake. We say so because, as articulated by Mulla (supra), it is not for the court to add to or amend the words of a statute or supply a cassus om isus because

that is the province of the legislature while ours, is to give effect the language the legislature has used in a statutory provision. In the upshot, we hold that the proper interpretation of s 104 (1) of the Act is that the section prohibits any meeting in an election day regardless of the distance. On the same vein we endorse the interpretation given by the learned Deputy Attorney General that reference to the radius of 200 metres is limited to wearing or displaying any card photograph, favour or other emblem indicating support for a particular candidate in the election. In our view, this being a penal section, we conclude that, it prohibits the following acts by any person; (a) holding a meeting in an election day, (b) wearing or displaying any card photograph, favour, or other emblem within any building where voting in an election is in progress and (c) wearing or displaying any card photograph, favour, or other emblem indicating support for a particular in the election at any place within the radius of 200 metres. The next question we need to address relates to the rights of voters/interested persons to stay at a distance beyond the radius of 200 metres from a polling station or where tallying of votes is taking place. Before we answer that question we wish to make it plain that the Petitioner has annexed to her affidavit as part of her evidence a newspaper cutting

containing quotations from the president as well as Freeman Mbowe, Chairman of Chama 12 cha Demokrasia na Maendeleo. The latter is quoted to have encouraged his party' followers not to leave after the voting but stay beyond a radius of 200 metres from polling stations to protect their votes. We have already held that s 104 (1) of the Act prohibits the holding of meetings during the election day. In our view and in the light of the definition provided by the Petitioner's Advocate such a gathering is a meeting which s 104 (1) of the Act prohibits and punishable under s 104 (2) of the Act. In addressing the question, we wish to do so by reference to s 72 of the Act. Section 72 (1) of the Act lists down persons who are permitted to be present at a voting/polling station whereas s 72 (2) prohibits people other than those expressly mentioned in s 72 (1) within the vicinity of the place where Votes are being counted. Mr. Kibatala would have us hold that the word vicinity is in relation to a radius of 200 metres and thus his client and any other interested persons have a right to stay. The word vicinity in its natural and plain meaning is defined as: "1. Surrounding area, neighbourhood, the fact o r condition o f being dose in space o r relationship." (Collins English Dictionary, Desktop Edition at 1811). We take note of the definition in Black's Law Dictionary 4th Edition supplied by

The Deputy Attorney General which is not at variance with the dictionary meaning of the word vicinity used in s 72 (2) of the Act. In our view, it is plain that in its wisdom, the parliament did not intend to permit presence of persons in the neighbourhood or surrounding area of a place where counting of votes is taking place other than those mentioned in s 72 (1) of the Act. Had the legislature intended to prohibit presence of unauthorized persons beyond a certain radius only, it would have said so in the most express language and it is for this reason we feel bound to endorse the submission made by the learned Deputy Attorney General to the 13 effect that the word "vicinity" embraces a more extended space than that line contiguous to the place in question. Accordingly, we are unable to go along with the Petitioner's learned counsel that s 72 (2) has to be interpreted in relation to a radius of 200 metres so as to permit his client to be present beyond that distance closely monitoring the electoral process. With respect, there is express prohibition of any unauthorized persons of whatever description including those who intend to protect their votes. As rightly submitted by the learned Deputy Attorney General the sanctity of counting votes is guaranteed by s 72 (1) of the Act with the presence polling agents without the need of presence of other people in the vicinity

monitoring the electoral process or protecting their votes. Given the circumstances of such an important democratic exercise in our country we wish to take judicial notice of the level of election awareness in this year's elections as well as the total number of registered voters standing at more than 23,000,000 for both Tanzania Mainland and Zanzibar representing more than 50% of the total population according to the last National census. Without deciding , we can confidently observe in passing that there is no guarantee that if these people or just some of them will be permitted in the neighbourhood of the place where counting of votes will be taking place will stay orderly and peacefully without affecting the very electoral process they are monitoring. In our considered view the purpose of the said section SS. 104 (1) and 72(2) of the said Act is to ensure that there is a free, fair and peaceful election at all stages, that is to say voting, counting, tallying and declaration of results. In sum, we hold that no person has a right to be present and/or stay in the vicinity of the place where counting of votes is taking place other those 14 expressly permitted under s 72 (1) of the Act regardless whether they stay orderly or otherwise. In the foregoing premises the petition partially succeeds in that the court has cleared the lingering doubts about the general misconstruction

of section 104(1) among different sections of the public. However, it fails on the second prayer. The impugned prohibitions are legitimate prohibition by clear Acts of Parliament, enacted pursuant to the constitution. Given the nature and importance of the petition, we make no order as to costs. Order accordingly. a—-c S. S. S KIHIO JUDGE^ A.K. MUJULIZI Delivered . . . . . . , ;sence o f the learned counsel for the parties this 23rd day of October 2015.