20071228 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA .. ATMWANZA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 304 OF 2004 · (Cf's) HC. CR.APP. NO. 305,306,307 /2004 ( Original Cr. Cast! No. 31 of 2002 of the District Court of Mwanza at Mwanza Before: R. L. DAVID, Resident Magistrate} BASHIRU MOHAMED @ BUSHUMBIRO SAID & 3 OTHERS .... APPELLANT Versus THE REPUBLIC ■■ •••••••••• ■■■■■■■■ •••••• ■ ••••• ■■■■■■ ■■ ii ■■■■■■■■■■■■■ ■■ n ■ ■■ •••RESPONDENT· 16th May & 15th June 2005 \ I I JUDGEMENT I! R. M; RWEYEMAMU, Judge: I In Mwanza RM's court Cr. Case 31/200~, six people were charged with Armed Robbery c/s 285 and 286 of\ the Penal Code. The 4th accused was acquitted while . the. rest iere convicted and each sentenced to serve 30 years ,mpnsonment. The 2nd accused Noah Edward Gwalupama did not appeal. This is a ~onsolidated appeal of the st rd th th 1 , 3 , 5 and 6 accused, whose names at itemized below, as per t~at sequ~nce of their appearances in the tri I court. ~hat sequence is st th used herein below to refer to 1 - 4 appellan\ .respectively. They are; 1. Bashiru Mohamed @ Bush_ubiro said 1\ Cr. Appeal 304/2004 (1 st accused) , . I

I I I l 1 . ~· . ... : ... . . ,. . ·=,2Sj:cnc;ents ;Jer~onaily ::nd ott:er pe0p1e with· i:heir knovviedge, consent and/ or approval, particulars of which are set out in paras 4 (a) to (o)-below:- (a) · ·The nomination of the 1st Respondent was made on the 1ih· day of August·2005 in contravention of section. 49 . . · (1) of the Elections Act 1985 Cap. 343 of the Laws/ Revised Edition 2002. -(b) At . Iramba Warcl ·Isanzu/ . . Kaiukekere . Igundu Ward and . - . . . . Igundu village on diverse days during the campaign one . . Christopher Nyandiga, . . who was at the n1aterial time .the •· District · Water · Engineer . -and · .who . ·was · the - 1st Respondent's Campaign Manageriopenly told voters that · . . ! . ·. he would.not supply them with! Jrater if they voted for . • I . J · -the Petitioner or his party. - ; I. i. I . . . . . r I . . . ·. (c) That . . the said . Christopher . . ·NyanJi}a I similarly did. use ·his · · position to drill deep water welt to influence vo~ers to . ~ate ·for the 1st Respondent an CCM party. This was . . .· . . . . . done at Haruzaie and ChamakaI villages. The 1st ;espondent and/ or his ... nts . used Government . . . motor vehicle~ to Wit STJ 8090 ick - up and SM 1305 ·_ npper Lorry to ferry stones an _. and at l<igaga Primary . ·.:. . ·school. . . . .·. . . ,. . . ·. ·: ... ·.......... .; -:._ ': .. · . .. .. . ·_.··(e) : The 1st Respondent did

actually. se bribes for example ··.·· ...' . ·.: . . . .:. . . · ·: on _Saturd;y 10/12/2005. he·· di. distrib~t~ shs.· 500/=·· .. . .. , .. ... .. . . '. ~. : . . :_. ·each to voters Kabalnja/ · Bulamba/ 2 . . ·. . . ......~:. : • ·._ .... •.. ~ - .• .,,1 .- ➔-. 'I,'. 1 , ✓:wis2r;y1~ ,.;.agara Jtilages, 1Vansimo r<ibara etc. {ogerner with football's jerseys, khangas and hoes. · (f) The 1st Respondent was carrying arms, a. pistol to threaten voters and local government leaders, to wit:;.. (i) Between 1:th December and 1:fh December at .Kibara the OCS was threatened. (ii) On the same date and time the Divisional Executive Officer Kibara was also threatened (iii) Chairman of the Village Council, Kibara was similarly thr.eatened. . i As a result of such threats many voters\'. for the opposition were· prevented from casting their votes at the :1011ing Day. (g) .Violenc,e was on diverse d?}s during the campa_ign committed against the petii;Jner and his associate;. This happened at Kibara wh~Je the petitioner was not allowed to open a criminal Jj e consequently he was forced to institute one at Bun . (h) The 1st Respondent used de11 tory words and imputed witchcraft practices at the pe i oner by falsely accusing the Petitioner that he had cau d the death of his young brother and had taken the h rt out of the body and made flour out of/t and was z g the same to feed the 3 eiectorate.

Such false allegations caused fear and dislik~ _ of the petitioner~ ._(i) . The Polling Assistants · refused and/ or.· denied the · ·_Petitioner's polling agents. to accompany the· ballot · boxes from the -Polling Station/ Counting Stations to the -· -·. Ward and/ or the District in contravention · of the .· ·electoral laws. (j) . The Presiding Officer and/ or· Polling . Assistants · . . neglected and/ or refused to complete Form No. 21~ in_ contravention of the Election . Regulations 2005. . In ··-particular this _happened at _ ·the following· polling · stations, _inter alia, · ':(i). Polling Station No. • • • • ' oq2~19L • ! I . . _ . {ii) Polling Station No. 0021176 - SM Kisoria '~ '' (iii) Polling Station No. otJjJj190 - SM Nafuba "B" (iv) Polling Station No.. oJo13192 - VEO ''.A". ·_ . I'.· I ':'·:. ·: .. •,'·· Nambaza (v)_· Polling . Station No. . o ;o ~143·- VEG .·. ··· Kasugliti '~" . . . . . . . ; . . ~~~/:U:J:::;:.;i ::; ;:::: sw .. SM''B" ... . ~ . ·- . . · \ (viii)Polling Station No. OD· 1·33 ~ Zahanati "B"; ' ' :::, ·. ,. -. -· ,, .. _•(ix}Pol/ft1;iStation No .. 00 '2 182 ~ Karukekere "B" . • .. ·.. ' . :._·· •' ' .. :.- . '•,, -:·:·- ..... ·. •·, . 4 .. ,• . I (k) tne Petitioners polling agents were denied an opportunity to vote for the petitioner in contravention of the law. (I) The Returning officer did appoint over three hundred people as guides to direct

voters contrary to election directions. In practice these turned out to conduct illegal campaigns and be bribery agents for the 1st Respondent and/ or Chama Cha Mapinduzi. (m) The Returning officer and/ or Presiding officers and/ or Polling Assistants refused/ neglected and/ or failed to give complaint forms for the agents to show their satisfaction or otherwise on eaFh process in the election. • i (n) The Returning Officer and/ dr ~residing Officers and/ or Presiding Officers and/ at pJtting Assistants supplied more ballot boxes at some +¥ing stations, which were fraudulently/ or illeg~lly usf This was the case at Nafuba and other pol/mg stat/0 s. · . (o) · The Petitioner repeats para 1- hereinabove and states that, the Returning Officer' efusal to reconcile the . votes cast for the Presiden i Parliament, and Ward · Councilor was contrary to La Wherefore the Petitioner pray: r the following reliefs:- , 1. A declaration that Parliamentary Election for Mwlbara constitu cy is void. 5 2. A declaration that the nomination of the ., person elected was invalid.

3. A declaration that the 1st Respondent and/ his . ·. agents committed.bribery. ·· 4.- Costs.·· . ·5. ·Any . other or further relief's ?JS the court deems proper and fit · ·.. In his reply to the Petition the 1,st Respondent strongly denies alltheallegations in:paragraph 4 of tt1e petiUon and states that: 4. · It is~ not• true. that the nomination · of the 1st · . .Respondent, which was conducted on 19/8/2005, was· · In contravention of the . · Elections Act as ·alleged. Further that if at all· .the pet/tidner had any complaint, · · · · · · · · I· 1 · · · ·· ··. ·· .. · and then such ought or was; ~art· of his objection to· ..· .. . . : I . . • . . NEC A copy of the deterfi1ation by NEC on his· . . ' . . . ·1. . . ·- objection dated 31/8/2005sha 1/ e produced at the · ·.·hearing~· . . . . _: . . .. .·Paragra~h 4(b) is stron~ly dis:_ 1 ~ d. Firstitis denied •. . . that Chnstopher Nyand,ga was t e 1st. : Respondent's • campaign manager~ Secondly . . }ti disputed that the said ·. Christopher Nyandiga . . ny .statement · in the . .. . . alleged manner or · . at .all. f, . which is denied,· such . .. . . uttera;ces, . if at . . .. all, . . were 'in ,a ~ :· it is 'disputed il they ' . . . .. ··..·,·, '. , . . ... :. ... ·.··· \ . 'had. . any.· influence.· ·on·. ti,e' .·.e /stered. . voters . iii. ,,the. ' .' ··respective wards to warrant i1 rlerence·'With the-·final' results as ·

alleged; implied,· o : a . all. 6. ' '., '. ' . ·, ·' : :-·· .. '•',; .· .... · ,, .·_. ··,· '. . .. . - . .5 -7l!:J: 1... Ce=-- .-✓-:c ,. - .:- ,-:3 Nya, diga and the CCM party used their positions to drill 1 dee1J water w, ?/Is to influence voters to vote for the pt Re~ ,pondent a ; alleged or at all. To the contrary the wells, if at all were to the best of the 1st Respondent's knowledge dn 'led by the District Council in accordance with prior dev, 'lopment plans approved by the r;ouncil to whic '1 the Petitioner was a member in his capacity as the i ?cumbent Member of Parliament 7. Paragraph 4(d) is disputed in that the 1st Respondent did n,ot use government motor vehicles including STJ 8090 or STJ J305 for the purpose and in the manner claimed or at all. It is denied that there is any agent of the 1st Respondent who ;U~ed any such vehicles as I alleged or at all. Further it ~s qlleged that if such vehicles : \ were used to ferry stones a.p alleged such was in the J- I al planned development ordinary fulfilment of qs activities by the relevant Jutborities. It is also disputed . that carrying out the said bro 'ects was calculated and or influenced by the 1st Re;bon ent or his party to carry I . . votes.contrary to any elecrora Rules as alleged orat all.

8. Pqragraph 4(e) is deniJp a d disputed .that the 1st Respondent was in sJzim. we, Kabainja/ Bulamba, Mwisemi, Ragate, Nansi o nd Kibara Villages in a manner· inconsistent wit the prefixed timetables~ It is also denied that in the ours of the campaign the 1st 7 . . . . - ~ ~ .- . Respondent committed the a/legea acts .·or' orlber½ In the manner alleged or at all. · 9. · Paragraph 4 (f) is denied and strongly disputed that the .· 1st · Respondent ·•ever· used his licenced ·firearm · to . · . . ·. · threaten · voters or ·any person In· the course of the . ' election campaigns. 10~ · Paragraph 4 (g) '/s disputed i:hat acts at violence ·. . . . . . occurred in the.course of campaigns as alleged orat all. · To. the contrary, fracasses . occurred . on. several.incidents· . . .. owing to uncontrolled partisan feelings between the two major rival parties without any influence of the . · candidates as alleged orat·all. ft is further denied that ·_such· acts were ·deliberatelY, engineered, designed. or · instigated by· the 1st Respq1dent or any of his age~ts ·with the express. purpose td I arm or cause injury to the . . . ·.· . . . . . . I . . . . . . . .· .. Petitioner or his followers~ . I · ' . I i ! i .

11. Paragraph 4 (h) is denied !Hi oto a(ld the l st Respondent ·. ; requests further and bettel,- particulars as to ·which of · · the deceased young brotf rs .of the Petitioner was being referred to and the ti . · and cause of his death. _ 12. Paragraph :4.(i)is also disp ed that all the ballots Were counted and . . results . . paste . t the polling stations with ·.. : . : .-_copi~s of.the. relevant for. given. to the agents. It is .., .··: agents were .· , . . ... . ~ · ·.: .· · denied . tha{any . . of ih~- p~ I. oners . polling . · denied . 'to accompilny . . . the b I. ot b()xes . .. ' . •: .. 8 t '•• • . ·... ·.:' .... · .. . ... . .. .

13. Paragraph 4 (j) is also denied and the 1st Respondent states that all forms were filled in and signed by the relevant representatives of all the contestants. 14. ·Paragraph 4 (k) is disputed that any agents of the petitioner were denied an opportunity to vote or at all.

15. Paragrapt, 4 (/) the 1st Respondent denies knowledge of the 300 guides_ and he denies to have ever commissioned any person to engage in bribery practices either dµring or in the course of the campaigns · or elections or at all Paragraph 4 (m), (n) and (o) are deni<=d generally and the 1st Respondent concludes · by denying · t~at there were any . ! consequential irregularities in the conduct of the election to warrant . .. I . , interference to nullify the results duly declared. .· . The 2nd Respondent replies that th~ tntents of paragraph 4 I of the Petition are strongly disputed and th t the petitioner is put to strict proof thereof. In details the Respondent states in Paragraph 4 of his reply that:- (i) · The contents of Pa~ g ph 4 (a) of the petition are disputed and th t he nomination of the 1st Respondent togeth r with other contentants was made on 2dh u ust, in accordance with the law governing e and the Z1d further states that 9 .. ·.·-- ·•. . . . , : . . 1gundu Ward. Further the said Christopher Nyandiga has no authority by himself. All • council projects are planned and managec/ by · Council tnanagf!ment team and not the District · · Watet Engineer on his own · · (iii) · ,In Paragraph 4 © .of · the Petition,. the zid · ·• Respondent reiterates . what is stated in (ii) above. ; . . . (iv} The ~d Respondent admits the Contents of Paragraph 4(d) of th(2: Petition save

for the fact that ihe 1st Respondent participated in theI . ·._ . school building pro)e~ The ?1d Respondent · I , fur~her avers that GbViernment vehicles were in· . · . ·. their diJily routin+ !duties · and the . sch(!ol .• .. ·belongs to the Dislrounci/. ·...· .. . . ·.. . (v) . . The contents of Pardi raph ( e) and (f) of the · · . Petition are disputfd ancl the L'd Respondent· further states · that if the said. acts were. committed the e tioiJer ought · to have ·reported the sam~ o he relevant authorities. .· ·. (vi) The contents ofR ra raph 4 (g) of the Petition· :· . .... '.' . . ·.· ;', ... _·are disputed and_· Jt . further. stated that the ..... ·. allegations raised _h,,(e' .not. shown ·_hOW ·. they. affect the election res! Its. . · · . · · .. · . . I· .' ... I ,• I . .I I . . . . . . ' ! . ·1· •• \ : •• • •• • I .. ' .. ,· ..' l . ' j ,' '• -: .... ·,··•..... without any comment. . (viii) The contents of ParagrcJph 4 (i) are denied and it is further stated that the electoral law does not allow the polling agents to accompany the ballot boxes. In addition the :!'d Respondent states that before boxes were transferred they were counted and the polling agents had participated in counting and they finally signed to accept the results, which were at the same time posted at the polling stations. (ix) The contents of ~aragraph 4 (j) are denied and the Z1d ResponderiJt further

states that no Presiding Officer1 folling . Assistant in Bunda . Constituency ne9ilefted/ refused to complete Form 218 of the alli1'ged 11 polling stations. (X) The Responden} further states that the contents of form1 leaded in Paragraph 4 (j) r· were neitherfilldd in by the Presiding officer/ Polling Assistant). or did they approve their contents. The R ·is. ondent further states that no polling station as registered and known as Polling Station No 00023198 Nansimo SM B" 11 as pleaded undelt aragraph 4 (J} (viii}. in the Petition. · . · ·· (xi) . The contents of a c1graph··4 (k) of the Petition are disputed an 't is further stated that no 11 Petitioners Polling Agents nght to vote ;vas infringed and that there is a proper procedure for individuals who intend to vote out of their. . registration centers. (xii) The :!7d Respondent disputes the contents of paragraph 4 (I) of the Petition_ and states .that· the Returning Officer appointed 101 direction officers at Mwibara constituency and that their official duty was to assist voters to easily see their names in the voters list. .(xiii) The contents of Paragraph 4 ( m) are disputed · and the Z1d Resp¢ndent avers that the i ·complaint forms weM issued to polling agents who duly filled the]··r ~amp/Janee to electoral ~~ i .• ·(xiv)' The contents of A rJgtaph 4(n) · are disputed . II and the Z'~ Respo7dent states th~t no boxes · were

supplied more. han the. reqwred number · to any polling statiin Eachpolling station was supplied with vot1r boxes for Presidential . Parliamentary and Cfo ncilor's candidates as per 1 · the law, regulationk nd procedure s~t by the · ·Natiorial Electoral mission. . The contents of Pa,J raph4(o) of the Petition .· ··· (xv) . are strongly disputJd ... 12 : I . ·• . ·•· . . .. ' ~ - •• < .; - ... . The following issues were framed before che commenc2!"i1Eri"c ··: of the hearing of this petition:- 1. Wf?ether there were non -: <?ompliances as alleged in paragraph 4(a) - ( o) of lhe Petition.

2. If the answer to issue No. 1 above is in the affirmative whether· the proved non - compliances · affected the election results.

3. Whether the 1st Respondent and/ or his agents committed bribery as alleged in the Petition.

4. What Relief's are Just? In this petition the petitioner called 40 witnesses while the 1st · Respondent called 24 witnesses and the 2nd Respondent called seven. ,. , / I On the complaint in Paragraph ~( i) the Petitioner himself, testifying as Pw 1, told this court that nomination day was 20/8/2005 but that the first ~espondent was nomi~a~ed on 19/8/2005.That the . I I petitioner objected to this nominatI· on but his objection was overruled and he was told to go to col!I if not-satisfied. In reply to this Dw24, JUSfAS MOLAY, the Return/n officer told this court that nomination day was 20/8/2005. But the 1st Respondent, he agrees submitted his nomination forms on 1J(8 2005. But Dw 24 says it_was q.uite in order to submit those nomjitna ion forms even three days before the nomination date, 20/8 2 05. Dw24's evidence was corroborated, by Dw 25 , Richard M · i al:>i Mazira, the Assistant Returning officer for · Mwibara. Thk Petitioner's appeal to the Electoral commission against the 1st spondent's nomination was dismissed. 13 On paragraphs 4(b) and ( c) the petitioner told this court that · one Christopher Nyandiga, the District Water Engineer for Bunda,· who was the • 1st Respondent's campaign manager, . told the electorate at campaign meetings that if they did not vote for CC_M candidates he wb~ld not provide them with water. This, Pw1- says, -·- : . . ··- . . happened at

Isanzu, Karukekere, . .• Namuhura, Igundu and. Haruzare, and_ other wards. This engineer went to Haruzale and Chamakapo iii Namuhura Ward . and sent water-drilling machines and told the · people. those were ·efforts of· the ccM·. Candidate. to· help areas, . . which will support him. Pwl told this court that those two villages were not among those in the District Council's plan to have wells · . drilled for them; . . . . . . . II .'. . . ·. · ·• Pw 14 · Steria Buchafwe told this. tourt that she lives at . · Mwiruruma in Iramba ward, Their ma+ ~roblem there ;s shorta_ge .. of water in their viUage. 1st Responderit Fa lied a meeting and told _.• the people -of Mwiruruma if they electJd1hiTll he would build them • deep water well. That was in Augusf nd the well was dug in_ .•. N_ovember 2005. Pw 15 . Rapha~I Mashaur+ is also from .Mw_iruruma village and a member of the village counc I. He says he received the . . .. . . . ··.· well on behalf of the vjllage chairman. ·· _ · Pw6 Marydana Elias told this c-ur the 1st Respondent told 1 _. . :::)::t ::p:~;:; :i:~:~;~~:,;:~: ~et~o::::;:::n: ::~ :: _ Ha~uzare before the_ election and it ~!s ·. uild .• The_ peopl~ were So· • . happy that they· composed a song· 1~ 1sukuma in praise of _Mr. _ . Kajege; The witness sang that so~g in cou,t. "She .does not/ .I i 14, •• I I , I remember the date of that meeting. Another resident of Haruzare

is Pw 17 , Anthony Masinde. He told the court that he attended two • campaign meetings of the 1st Respondent. 1st Respondent promised to dig them a well before elections. 1st Respondent came with Christopher Nyaridiga and Mascia. Nyandiga told the people that he would bring them water if they voted for Kajege. The well was built and Pw 17 says when he saw the well he voted for Kajege. ' Kulwa Mangosola, Pw 18 is a villager from Chamakapo. He told this court that 1st Respondent told them in a campaign meeting that he would dig them deep ·water well so that they give him their · votes. In November 2005 the well was dug. The well is near this witness's house and his son is the watchman of the well. Pw 18 says I ' i I . when they were building the well the diggers gave. him diesel ahd hei gave them sweet potatoes. The ~rnabers contributed 1000/= each to open an account to maintain th~ Jell. This witness told the , . I ·court he was threatened by his village th irman he would be killed if he came and gave evidence in this co rt PW 19 , Juma Sumba lives in Kisory illage. He was a T. L. P. polling agent. He told this court he ahe ded 2 C.C.M. campaign meetings. The first one was· in Sep}e ber 2005. Four people addressed the meeting. It was the Wa d C.C.M. Chairman, the Ward CCM. Secretary, Mr. Christopher y ndiga. Nyandiga said he ·was the water engtneer and if they vo ed for. Kajege

he would dig ::them. wells· for e?ch viliage. Pw 19 . attten ed another meeting at Nambubi. .It was addressed by Kajege n Nyandiga.' Nyandiga said I . ,. 15 I ! ' : .. ··~ .. ·. . . . . -- again· that as a water engineer he would· help dig well for the · ·· village. Pw11 , Deus Muyenjwa was a polling agent for T. L. P. for Kisorya· Ward. . He attended . . . . . a C. C. M. campaign meeting at Kisorya .. . . . . Shopping Centre. Speeches were delivered by the Ward Chairman, Mr. Nyandiga, and_ the 1st Respondent Pw 21 told the court that · Nyandiga told them that he was the water engineer. If they elect ' ' ' ·Kajege he would buiid them water wells: If not they would get no· . .water wells .. He 'dug. them a well at Kivukoni which is not finished yet. · Pw 23 , kanywagale Mukama, told th1si court Kajege came to . . I. I . their area, Kisorya Village, withy Nyandig~. iNyandiga told them he . had been appointed by the government io/ campaign for the CCM · · Candidate. -1 st Respondent told the peoplJ ihat if they do not vote · · for· him they would get no water and t]la · that was why· he was ~oving around with the Water EnQine~r, r. Nyan~iga. At Mugala ·.· Village; Iramba Ward at a CCM: Campa1g .· Leeting in the presence .. of thei st Respondent, Mr. Nyandiga is ueed by PW 24, Mujungu .· Manyunyu; to have told the people that if t. ey voted for Mr. Kajege . . . . · they would get

water. If they do not vo e qr him they would not · get water. Pw35, Kurwijila Kulwa of Cha ·.·· kapo told the court he saw the well being ·built at Chamakapo an pt Respondent visited ' ... the scene to se'e the GOn'struction and bri. Q them flour.· Pw 35 is the. ··. ,·. . ,. .wat~hman of that well. Pw 35 'says he. h a. d K~jege with his owri ' ... ,'' ·. · ·ears·:. ·say he· would ·dig. th.em the wJ11 .when · he· started his · :_ . campaigns.: It was ·completed a day beforJ t e elections.: . . .. .. . . . I . ' ''' ' ' ' ' ' ' i ' 16 I •• I ! ' ' i ; ..... 'i ' I, ' ! :,·i . ; -.., ,,. , ., ~-- . ~ The last witness on this complaint was Pw 38 , Venance Saka Mambi. He is theT. L. P. Councilor or "Diwan/' as they are called in Kiswahili, for Kibara Ward. He told the court the 1st Respondent· built wells in several villages. But that the District council plans had authorized no deep wells to be built in Haruzare, Iramba or Chamakapo. In response to the complaints alleged in Paragraphs 4(b) and ( c) the 1st Respondent, testifying as the 1st Defence Witness, told this court that Christopher Nyandiga was not in his campaign team. That the 1st Respondent did not ask Nyandiga to drill wells as part of the 1st Respondents campaign. The 1st Respondent further stated that he had no information that Nyantjiga built wells and told , I . people to vote for i Respondent beca seiof the

wells. st ! His campaign team was made up of Chowaji, the CCM District Secretary, and Mashaka Magesa, h s campaign manager. He tendered as Exhibit D1 the list of his ca p ign team. The defence witnesses, (most I f them) who were at the campaigns allege that Mr. Nyandiga w s not with them in the campaign team and that the 1st Resp n ent never told voters at any place that he would help them get ter wells so that they vote for him. Dw 20 , Robert Magesa, told this crurt he lives at Chamakapo 18 and that he is a neighbour and cousif f Kulwa Mangosola, Pw who said, as I have stated earlier, tha1 t e well at Chamakapo was built as part of l'st Respondents promi!5e , ·and Pw 18 gave the well I • l- 1 i 17 ! ' ·... . ... builder sweet potatoes and they gave him diesel, Dw 20 denied that ·· there was such a promise . and went further to say that Pw 18 was not ·, at Chamakapo when the said well was built:· Pw 18 had gone to· fish . . · .· . irt Ukerewe in October 2005 and returned in 2006; says his cousin . ·0 20 . w. Dw 24, justas Molay, . the then Bunda District Executive Directo·r . . . ' . · and ·Returning . . Officer, told this . court that wells were dug during the · . · elections campaign period according to the· District Council pla·n and ·. ·. .· ? . . . were not part of any ·body's campaign. :Dw was Mr. Christopher . · . 23 . ·. Msafiri Nyandiga who has· featured very

prominently in this petition. He told this court he is the Bunda Di$trict Water Engineer. He • • . l. · denies·. to have been in Mr. Kaje~e'$ campaign team or ·accompanying . . . 1st · Respondent . in his ca~p~igns. ! I . He told . this court . .··that mothe~ was si~k dUring the electio1 pt riod <md ·he took leave . to attend h1s·mother who was admitted ~t Bugando Hospital. So he had no time to go round and campaiJn for anyone. He admits · ·. however to. have been the 1st Respondelnt' ~ounting agent at the . adding up of the final results. He was sJrp ised to be arrested and · · ·charged at Bunda for unlawful wounding an offence he is not aware . of and the case was later withdrawn fa h m and Dw 17, Kajumulo, . ·. his ·co -:- accused for having. no case to an Dw 2, Adam Kweba, Dw4 Tahu Mah I and Dw8, Wilson Webi . . . . : . . .. . to_ld. t~is· co~rt. that all· th,e peti_tioner;s II gations are lies and a ...... ·. . .... cons.piracy made in Jah_uary · 20_06 at' t e house of o_ne. Verynice· Mborw·e~: Pw at. Kibara. Ginnery. The . ¢ ting was to conspire to 9, . open a suit and concoct-evidence against t e 1st Respondent. 18 .... ,... . .. .· . . ... :: .. . . On Paragraph 4(a) it ls the petitione(s case tllat tile f 0t Respondent and his agents used motor vehicle Nos. STJ 8090 Pick - up and S.M. Tipper Lorry to ferry stones and sand to Kigaga Primary School. The pick - up,

according to the petitioner, Pw1, "'{as used by the 1st Responden_t before, during· and after the campaigns to visit various places and to distribute bribes to the electorate. Pw6, Ndaga Athuman,i says on 18/10/2005 at Kibara center the vehicle, a Nissan . double cabin written Hesawa was being used by 1st · Respondent's party, including Nyandiga and Kajumulo to distribute money and khangas. Pw40 , Kipunge Msabaha Mikombe is a driver in the Bunda District Council of Isuzu Tipper S.M.

1305. He told this court he was sent by the transport officer to send sand and stones to Igaga Primary School from Mwitend~( 5 trips. The diesel and his allowances were paid by the transport officer.· Pw40 does not know who sponsored _tt)e trips. . The 1st Respondent denies to have used government· .· transport at his campaigns, be it an sn~ per or an S.M. Pick - up. Pv./4, Justus Molay admitted. the lorry l s used .to send sand to Kigaga. The lorry was fueled by the Pa ning Department of the District Council. Though the budget sa s the village pays for the fuel it was a decision of the council to is ue the fuel free for the village. Dw22 , Kahundi Bundara Mbondo, w s the Human Resources officer for Bunda. He was also the tra s art officer and Assistant Returning -Officer for Mwibara. He told t is court that on 4/12/2005 .Ki gaga -village asked -for transport to ca sand. He gave them .a tipper.lorry. ihe village~s coritribut~d fuJ ,, e. said. But he does not 1 know 1f the fuel w_as.pa1d for by KaJege. · 19 . ... - :. .··· . : The complaint about actual bribing is in paragraph 4(e) of the Petition; 'Pw 1' the petitioner told this court he saw khangas, ' .. · footballs · and jer~eys . given . as .· bribes. Pw 1 says that the 1st ·Responde.nt sent :several people to bribe voters. For example, he •·· says on 10/12/20:05, _l st Respondent gave 500/:= to each woman .. Bribes were

also issued in Bulamba, Mwisenyi, Lagata, Nansimo and. Kibara. Footballs and jerseys were issued at Kibara, Kabainja and. Nansimo. Khangas·were issued at Igundu, Kabainja and Buramba. . . . . PW 2 , Ayubu Chisute Musarika told ,the cbu1t that he witnessed ··in his house to house campaigns for, a· Ward Councilor seat : in ·. '' ·. · Butimba Ward. In Buzimbure he met in~n only in the .houses. He · · · Was told by the men that all womJn; were invited by the 1st .· Reispo~dent to Kabainja Primary Sc~o~I. He met a. car parked outside, a white car. Inside a dassroorti ~om.en were seated, full in · the classroom.· Pw 2 saw 1st RespondJn .· seated in that classroom .. with th_ree .other pe.ople incll.!di.ng Chri~t pher Nyandiga and Mi3pesa · Magurnla. Pw 2 continues that finally hJ. aw the women come out of ·the room hoiding sh.500/- each .anb complaining. that they had been kept in the room the whole day In given only 500/== and that . they w~L!ld be rebl.!ked by their hll+ ds.. PW2 says Nyandiga was the main spokesman there. Anotheryv man/ PW 3 , corroborated .her .colleagues that all Women were giv~n ·500/=. The CCM candidate ' •·, ·,' was.· .. not ther~·· and' when they com pl 'i ed they w~re tpld 'when. the . . ·. . . . . ' CCM candidate: cam_e he·· would give' h m more. Pw4, Agnes 'Kus~ya ' · told the court at the Buzimbwe C tt n G.innery they. Were ·given ' :. .... ', .· . ·

I •500/= each by the 1st Respondent's br ther and he told. them ·when .· . . 20 I . I I ·': .I I • - -._ _.· ._ . . . . t 1s Respondent came he would give them more. She sa{a'· sne was· taking the money knowing she had been bought and voted for Kajege because of the money. Pw5, Jumanne Lukodisha, also corroborated that' they were given 500/= · each· by a man and a woman on behalf of 1 Respondent at Buzimbwe Cotton Godown. st · Pw6 Ndaga. Athumani told the court he went to the Nansimo Court room where people were given money after the speeches. Pw6 was given the money also. But when Kajumulo saw him he informed Nyandiga and the latter called their group called Pentagon to do their work. Pw 6 and others we.re beaten unconscious as we shall see again later. There were boxes on the table containing khangas which were distributed to women by Nyandiga and Kajumulo was issuing money. Pw 7, Charles Wegoro ~ent with Pw 6 when they heard there was bribery at the· courtroi~ of the Primary Court at • , • I · Nansimo. They went and saw khangas a~d money being issued by , I i Christopher Nyandiga . and Kajumulo. )Nyandiga was the main . . 7 spokesman and Kajege's campaign ahager. Pw was about to receive the money when Kajumulo no 1i ed him and told Nyandiga that Pw7 was not one of them. en the Pentagon group campaign the campaigners were sayi g that they would use even bribes to resave or

save that constituel c . . Pw8, Mugeta Wilson, was ano h r witness on the bribery issue. He told the court that at the inli ation of CCM. Councilor he attended a CCM. Internal meeting b the Kibara Ginnery: That meeting was a~ended by the 1st ReJp ndent, Kajege, Christopher . Nyandiga, · Mashaka Magesa, Kajuml1 I Gurusya, Anthony Kajege l 21 I !•' . . . -. ' . . - . . - ~ .. and others. Pw 8 says that Mr. Kajege was welcomed by Mashaka · Magesa. In his speech Mr. Kajege told them that that place was_·_ where he was born. That he was working with Mr. Kikwete and - later he would be appointed Minister. 1st Respondent told them that · . the 1st M.P. was df an opposition party and had wastedtheir time. pt Respondent told the audience he had a small load for them. · Then he took out -money and gave them two 500/ = notes to each · arid every - participant. He asked the Councilor to distribute. the mon.ey. Pw 8 say5.. he received the money and voted for Kajege for he had eaten his ,money; He said Kajege told them not to worry · because the police were· theirs, the courts were theirs and even the judges were theirs; i ; . -. l i _ Another· one· is Pw9 , Verynice· Mbo.4nrb. She told this court she · .was a ~CM fan and. a member of the "~~ntagon Squad'. She was - . going. round with· Mr. Kaj~ge durin: t~el 1ampaigns. On '2.6/9/2005 at K1bara Ginnery Mr~ KaJege was introduced by. Mashaka

Mage~a-. · Those who _·went· with 1st R~sponde t included Christopher Nyandiga, Mashaka Magesa, KajumuloL nd Anthony Kajege. 1 st . Respondent said. he was iisking for voteJ, · nd had to buy the votes. The councilor, Mary Bandoma, opened 6bag with currency votes, .•. which was given t~ her by Charles Kajegb She gave Pw9 and others who were at the godown 2x50Q/:_ natl~ each. Pw 9 says . she also . . . . · - went to_ Nansimo and ~ugana With · he 1st Respondent and .. everywhere she went as a membero· h~ Pentagon Squad. Pw 9 . . . . . . . . was a tenant at Kajegeis house, when · e was married. But when her marriage broke down· she had to. leal that house; But she· says she is still a follower of Mr. Kajege. 22· Pw 10 , Safi Mukama is another resident of Kibara Village. She told this c~urt that on 13/12/2005 Stella Julius called her and told het that women were needed by the CCM candidate at the CCM building. She went there. The CCM candidate. came and told them that he was sent by the CCM. Presidential candidate to contest for they were very close and so if elected he would be appointed Minister. 1st Respondent called Mr. Nyandiga and gave him a box and Nyandiga ·gave each attendant ½ a bar of soap and shs. 500/ = cash. Pw 10 says she did not know it was a·bribe. She thought it was. only a present. Pw 11 , Stella Julius is a businesswoman at l<ibara market. On . f ' 13/12/2005 the

1st Respondent went and s~ed Pw 11 to call women at the CCM hall. The 1st Respondent is Plwi 1's brother - in - law. Pw 11 has got a son called Kajege. PW 11 ca111e~ the women. Pw 11 told this court that Kajege was with Nyandigr, Mashaka and Mary Bandoma. · The 1st Respondent told the w en not to fear what he gave them. That he had been promised y Mr. Kikwete that once · elected . he would be made a minister 1s Respondent told the audience that the petitioner was too poor o give them anything .. Then he took out boxes of Kwanga Soap a d gave them. Then he - gave them salt, khangas and vitenge. Then e took out brand new currency . votes of 500/= and gave them. a·ege's brother was still . Pw 11 's husband when she testified. Pw 11 t I this court that the 1st Respondent told them that, the petition r had taken to Dar es . salaam his brother where he was operated and died. That the 1st Respondent told them that the petitioner 10 k the deceased's heart - 23 i i I I ·, . . . . _,_ . . - ·._ . ~ . ·• ··- -._.·. -: •· ·; and it is the heart he is using by witchcraft means in his campaigns. · Pw 11 adds that the 1st Respondent told them he used money while· . . . . . . . the petitioner used human hearts. Pw 11 tendered the kitenge she was ailegedly gi.ve,n as Exhibit P1 . ' Another Petitibne(s witness on this issue is one Mary ·. Bandoma, Pw .. 12 . . .. She. told this court she. is a

CCM. member and a· . . ._former . . councii'or, special . seats (Diwani. Viti Maalum) She is a CCM . member up to now, she says. At a meeting on 29/9/2005 at· , Busambara Ginnery,· the ·pt Responderit g~ve her 3 bundles of notes to distribute 2x500/=· to each attendant Then on 10/12/2005 at Kibara CCM office there was an interr,al meeting for women. 1st ·. Respondent . . . was . with - Mashaka, . Nyandigai . I and , his. brother, Anthony .. 1st Respondent distributed 500/= to tfry person there. On ~3/12/2?05 at Kiba~a CCM· office accordi1·g lto Pw 12 , 1st Respond~nt · issued khangas, v,tenge, soap and sat. Pw 12 says the Ant, - · Corruption Squad was. around but thet · rere sent to. SuppreSs ·. ·. opposition parties not to follow CCM meetin ·s. Those who received . . . . . . . . . . . : . . ·· bribes for those three days could add up to 1000 people according to Pw12 • Pw 14" Steria Buchafwe, from Mwiru u a, told this court that ·. ··. Mr; Kajege in a meeting he called, gave·. a h woman 1,000/= and· · ,on .the second. meeting he gave them. 5 0/= cash. And Pw 16 ; ·_ C Mer.iciana· Eiias fro_m Haruzale told this. co rt ~hat :after the meeting, .·.·. ·, .:the 1 st Res~ondent sent the· women into b sh and 9ave then sh,s ..·.· ·..: 1,000;-:- each: · · . . 24 .I I. ! I.. I I . ·1 ' . .. . . '\ ·- • ..... The other type of bribes alleged to have been issued by the 1st Respondent ls in

the form of footballs and jerseys.· Pw 23 , Kanwagale Muka~a of Kisoria ·village is the chairman of Dragon · · Football Club. During the campaigns for elections Kajege in the company of Nyandinga told them at the club that they should go to the CCM office at 11.00 pm. When they reached there at the CCM office Pw 23 was given 15 red jerseys to ask the youths to vote for Kajege. Pw 24 , Mujungu Manyunyu told this court he is a footballer of Awamu ya Pili Football Club. During the campaigns at Mugala Village, he says accompanied by Nyandiga, Kajege brought them a football. Jeje Bwaiye Pw 29 , amember of the people's militia told the court on 19/9/2005, Mr. Kajege came to their football club pitch i . where the Kibara Boys football club whose assistant captain Pw 29 is, . I I · was doing exercises and ga~e. them 141·eriseys and om~ football. Before that Pw 29 says Nyand1ga had told tttem Mr. Muguta would . I come to th~ pitch and give those present· nd asked them to vote for him. The 1st Respondents answer to thes !legations of bribery is a general denial to every such allegation f iving money, khangas, vitenge, soap, salt, jerseys or footballs.1n particular, Dw 1 states that on 10/12/ he was doing his campaidn iii Nansimo Ward. He says he neither went to Kabainja that _a . Nor was he in the company of Christ~·pher Nyandiga. He de i s to have given 500/= to each woman at Kabainja

on that date. H continues saying that on 10/12/2005 his brother was not at Buzimbwe godown. On 18/10/2005 he was 'in Mwanza so he was +t distributing khangas and sodas at Nansimo. on· 26/9/2005 he s!a',(s he was not at Kibara · II . 2s li I Ginnery but at Isanju Centre. They did not give people money at Kibara on that date. On 13/12/2005 ·he denies too to have been at .. -· •Kibara ~innery giving people money and soap. On 26/10/2005, he says he was not at Kibara Ginnery, but at Kasaunga Cetitre. · He denies too to have givenPw 11,-Stella Julius a kitenge and 5,000/= ·· . so that she helps him in his campaigns; He denies to be related to her at all. On Mary Bandoma, Pw 12 , the 1st Respondent denies that she was in her campaign team. He denies to have given people . money at Busambara on 29/9/2005. He continues denying to have . given Safi Mukania soap and money at the CCM building in Kibara on 13/12/2005. On . 19/9/2005 he says he did not di~trlibute , I jerseys . . to Kibara . Boys Foot~all Club. He denies too to have ~il~en people _at Har~zaie. · 1,000/= each, or the women money at th, !bush. Nor did he give a football dub balls at,Mwiruruhla, he says. · ·. .He · concludes . by__ saying he has nemity · With Verynice Mborwe, beca_use she was a tenant in the r house '.and they evicted · ' .- . . . . . her from that house. Mary Bandoma to , he says is his enemy . ·. because at

the CCM preliminaries· he defda ed Ba_ndomas favourite -- ·. candidat~, one K~makoma. Th~t he s~ysi i : the reason why these . two pet1t1oner's witnesses are lying agams · 1m. · .. _ .ow2, Adam l(weba, Dw4 Tahu Mahal and Dw8, Wilson webl, ·. told this court they wE!re called in JailuaJ .· ·006 by Mary Bandomcl, · .. . . . . . .. . I . . . . ·. -:· . •.. -. '•,: f. _Pw 12 at V~rynice M~orwe's_-house, Kibara nne~, a_nd planned how ·_ __ ·:to concoct_· evidence tha~- Kajege issued bri es ·of khangas, vitenge~ · . soap and· mqney .. That the main spokes an there was Venance · I ·. I . 26- · I i .\. I. ,' .. i ' -,,· .. .. . . •· . ..,_ . .. . . . . . ~ . ·- .... ·.. . . Kamunyoie. But these witnesses say they refused to come to tell. the court lies . .,Dw5, Silas'i, L,ukiko told this court that at Kabainja they were never given jerseys for and or on behalf of Mr. Kajege. Dw 6, Mahaye John told this court he received jerseys as captain of Kabainja football club, but received them .from the petitioner not from the 1st Respondent. Dw7, Nyamara Mtobi, was the CCM branch chairman at Buzimbwe. He denies to have called· a women's meeting at Buzimbwe. He told this court the women at Buzimbwe were not . given money by Kajege, but by the petitioner, Mutamwega. Dw9 , Zebedayo_ Fares, told:this court that Kajege came. I to Karukekere Village to campaign in qctober 2005, but he did not I ' give

the people anything. Dw 11 , Marydia~a Damas, told this court that she lives ~n ·Haruzale. On 8/10/dods she attended Kajege's slik shys that the women there . campaign meeting in the afternoon. were not taken into a bush and divdn money. Dw Majina 13 , Kiberenge told this court that he ·is thel "kitongojl' chairman for Kisorya Kivukoni. He says he knows oJadon Football club. That its captain is Katana Bwana Maya and n t Kamwagale Mukama. He says the club was not given jerseys or f otball by· Kajege. It plays without_ jerseys. Dw 15, Ngalya Kahar , old the court he is ~he captain of Awamu ya Pili football tea a Mugala Village. He says that team has never been· given a i ot all ·by anyone, and that .. Mujungu Manyunyu, Pw 24, is not one of th ir players. Dw 19 , Stephen Magwali, told this' court he is the foot all coach for Kibara football I club -and that J. J. Bwaiye is not a ~ ·otball player there. The. captain's _name is Christopher Kabula. w 9 says the team received 27 I \. I! ; . ! . jerseys in May 2005, not from the 1st Respondent, but from the petitioner. · Dw . 17, EdWi11 Gurus.ya @ Kajumulo; told this court that he was· . . moving. around -With the 1st Respondent during the carnpaign_s. He . . says he -was not with Nyandiga. He met and knew Nyandiga when _they were _jointly' charged in Bunda :District Court. He says ·they · never gave voters bribes or.gifts anywhere.

They had no campaign meeting on 18/1/2005, he says. Dw 14, Sophia Makumulo told this - _court that she is the·uwr chair, CCM Bunda District._ · In 2005, Dw 14 w~s in the campaign team for the CCM candidate, Mwibara constituency every0here. Her evidence is that on 10/12/2005 they were at Nansimo W ! rp between 10.00 am. and . . . . . . . i . , . . I l.00 and .6.00 pm. That date . they were . n'.ot at Buzimbwe, . I . Kabainja or -Kibara c~c.M. · office. On_- 26/9/2005 _- they were at Isanzu not . - . I . Kibara Ginnery. On 26/10/2005 she says! they were at Kasaunga, · · not Kibara ·g;nneiy. On. 13/12/2005 .thtJ were ·at Kibara .football ·. grounds concluding their ca~p~igns. ~hf. were not holding. sec~et - meetings; -They were not issuing bnb4s. They ·were not issuing - bripes or presents at their campaign me4t ngs; She denies thatth~y - were with Christopher Nyandiga in their 1 -• On Paragraph 4(h) -the petitio r alleges that the 1st -·- __Re~pond~nt used derogatory words-tha . he_ petitioner caused the .d_eath- of his young brother_ and took·t_he h _art outof the deceasedts· · . body· . and'. ~ade flour out of . it with whic .·-he· was feeding· people ' . ·to· -- _w·,n votes. On this complaint Pw11, Stell~ Julius told- the court that . - . . I . _the_ 1st Responden't told the people tha_t jh petitiqner had taken h~! _ . . 1 I I i . ,' .. ·1 .. :,·:. ! ·1 ' . . . . . I I ; .

: .'· .. .. brother to Dar es salaam where he was operated a_nd died. That the 1st Respondent told them that the petitioner took the deceased's heart and is ~he one he is using in the campaigns by_ means of witchcraft. Pw 11 says 1st Respondent said he used money while the petitioner used human hearts: Pw 27 , Daniel Kasula Mahe~deka told the court .he lives at Nafuba. He told the court that Kajege visited Nafuba Isaland twice in his campaigns. On the second trip he asked the people not to vote for Mutamwega and that Mutamwega had killed his brother and took out his heart so_ that people vote for him. That Kajege. told them he was told so by native doctors. Pw 28 , Prisca Zere also told this court Kajege told them Mutamwega killed his young brother and took his he~rt Jar witchcraft purposes in order to get votes, and that the 1st :Re~pondent told them he was I ' told so by witchdoctors. ! I ' The 1st Respondent denies to hav accused the petitioner of killing his young brother for witchcral~ plurposes in order to win the elections. From Nafuba, for the Respondent, came Dw10 , Valentini Makene. He told this court he attend~d CCM campaign meeting. It was in October on a date he has for o en "I did not hear the CCM candidate call the other witness a itc. who used witchcraft to kill his brother to win elections', said _1 w 1 . He said he attended the· meeting throughout, though he d

es not know if it was in the morning, afternoon, or evening. On· parag~aphs 4(f) and (g} t e etitioner complains against violent incidents by the 1st Respondent. Pw 1, the petitioner told the . I . court that on 1th and 13th DecembJr 2 05, at Kibara Police Station, 29 , . . . . -.. , holding a pistol, the 1sr R.espono::·rjc ··:r::,;:ric :~t:: :i:-:(::::· -- _ j ·- charge of station to arrest TLP. Youths and the latter refused. 1st . . . to have then threatened the _O.C.S. that 1st Respondent is alleged Respondent was a-C:CM candidate, who is· above the goverrimentr · -which is over the poUce, and he could take steps against him. That _ the 1st Respondent continued threatening the Village Chairman and_- ·the Ward Secretary when they tried to interfere with the threats. PW 1 told-the court that he was personally attacked by youths in his . . .. . .. · car, prevented from passrng and searched. The youths had pangas - - and .. clubs. -When Pw 1 came out of the -car he - _ saw · the 1st . . , . . Respondent in that group. The· group of about 30 people hit him with clubs trice with his friend, Prosper and driver, Nasoro. When. . he went" to report to the police, Ki bar,~,, they -r~fused to open . . . . . . . 1 ' . a · report and he ~ad to report at Bunda. I/- -. - . -- .- - - . . - - - Il1 - .. . .. PW29 , Jeje Bwaiye, told this cquf /he was a member of the. people's militia. He

witnessed on 11/12/ioos, 1st Respondent come : to the Police Station and told Mr. Mjdirisha, OCS, and the Ward - . Secretary that they . were favouring .~ position parties · and were arresting his party followers for ass ulting the petitioner, and threatened them with a pistol. Pw 31 , _- ospeter. Madirisha, the said Ocs, denies to have been -threatene _ y the 1st •Respondent. ·Pw 32{ · Mashauri Majula; . the Kibara . . ' -Division · ecretary . denied to too have . . . . . - been threatened by the 1st Respond -n . He was tn~ated as a hostile · · ·- _ · witness by the Learned Counsel fort - petitioner, _Mr. Maira. _· . . · Of the three people alleged to/ h ve been threatened it is only - Pw 33 , M.utesigwa Ny~nguli, who adf i - it. He told the court "there -I 30 I I ! I I I · .... • ,_ ... ' .· .. . . . - . . . . . ·:·,;: - . _.. ~· .· ·. . ..: - .. .,. ;v~;-2 :,ia;-~~,- 2xli1a1~y~ :~r ~~;;s~' L:~a;1;s·)vfu~~ra ,<~Jege ,:as say;~g mbwa ninyt washenzi mnanipiga vita. Badala ya kushirikiana na serikali ya chama cha mapinduzi mnashirikiana na watu wa . upinzani. Nitawamwagia risasi. After that noise I went out to the police station. I met Inspector Madirisha at the door looking at the candidate, Charles Muguta Kajege. The Ward Secretary Mashauri was on the right hand of the Ocs, Madirisha. They were exchanging words. Inspector Madirisha said he was educated in Korea and if the

Respondent played with him he would injure him. the. Ward secretary told Kajege he was young by age and should behave .···················If they say they were not threatened, Inspector Madirisha and Mashauri are lying in court~. Pw33 told this court that he was threatened by the District Personrt¢1 Officer not to come and . ! testify in court, and that he has now beer \removed from the post of . ! • Village Chairman' by the District Executive irector. I . i . The 1st Respondent, on this deni~s to have threatened the Ocs, Ward Secretary or village chairma . He says he had gone to· the police station to ask why they had a rested those two youths while they had agreed not to arrest supporters due to political tentions. · , It is the petitioner's case further t a the 1st Respondent ha_d started a. squad of youths known as the " entagort' whose work it was to suppress the· opposition parties n _make sure that my all means the· Mwil:)ara constituency is ret r ed to the ru_ling party. According to Pw 9 Verynice Mborwe who t Id this court she was a - member of that "security squad' their st a egy was to win back the 31 constituency at any costs. The said squad was disbanded after the . elections. Pw 34 , Abigae~ Mabuba Aseri, ·who is a councilor, (Special Seats CCM) told this court that on 18/10/?00S at 6.00 pm. she saw some CCM members in: their uniforms going to the Nansimo ·

Primary Court. She investigated and learnedthat Kajege was bringing some· goods, and distributing them to the CCM; Members. She decided to . . . . put on a CCM presidential campaign· khanga· and went to that meetiri9 unnoticed. She continues telling the court that Kajumulo · . . . . . . and Nyandiga were at that meeting. The Pentagon group was also · present Nyandiga told the Pentagon p~ople to. go and buy soda '. · after giving them money. They brought spdas and drank them with ·. some beer. Pw 34 tried in vain· to cali the betitioner. • . I Instead . . she got.· I . his driver, one Nasoro. The message wf ~o ~II the petitioner so that h~ comes. and witnesses the corrupti on The petitioner was not . 1 i .present. His.driver came with three you!s to went to.the scene . 34 . ~:~:r : :::~:e:ey:~~~:s :er;h:e~:t:i a~~o;::u:~y:h:h:iv~~ · Respondent was not present ·at that -sckn Pw 6, · Ndaga _Athumani. . . . . tells the court he is one of the youths w o eeded Pw34 ;s call. They · . went to the police station but got· no hel ·. fr m Inspector Madirisha; · the Officer· Commanding Station.·• The ent to the scene the ·Nalisimo Primary Court and left the ca ehind. TheV: went with .· : · ·: _: . . . Mshangi _· Katia Ii, Maulidi . . Hamisi ' ' . . . and·. . C a·r. _es·. . . .. ·.. Magoti. . ·There was. . ..: ' .. . ' ·. . . . • ,t : '•• ·. Nyandiga~ . . Kaju.mulo: and .the viUage .

' chair. ·a .. , one . _Mr: Juma. In the.: ' . . · boxesthere wa_s beer~ sodas and after.the peech byMi-. Nyandiga,· they started giving money.· Pw 6 was 2x500/= not~s by 32 ... '.: : : ·"t: .:.- .;..: (:. -.... . ,-. . ,,. - \.·. . -~ ·. . .- . . .. ... ·~ . ; tell Nyandiga. Nyandiga called the Pentagon Squad and asked them to do their work. They hit Pw6 with a bottle on the head and a wire and Pw 6 fell down unconscious. Pw6 found himself in hospital the next day with a drip of water and blood all over. A criminal case was opened fn Bunda District Court against Christopher Nyandiga and Kajumulo. Pw7, Charles Wegoro, told this court he was in the company of Ndaga, Pw6, and went to witness CCM corruption at Nansimo Primary Courtroom. Nyandiga and Kajumulo were issuing khangas and money to the people. Pw 7 was about to be given the money when Kajumolo noticed him and said he was not one of them. The Pentagon, "a group used by CCM. To protect them and ' . harass and intimidate people. througQput ! : the constituency', according to Pw7,. was ordered by Nyandi~a to attack them. Like I, Pw6, Pw7 was beaten unconscious with b~les and iron bars. They were' later sent to the hospital. Nyandida and Kajumulo were charged in the Bunda District Court. Pw 30J kichard Ma~anga is the Bunda District Magistrate - in - charge. ~e told this court that Criminal Case No. 275/2005 was filed in court

where accused persons were Christopher Msafiri Nyandiga a d Edwin Garusya with four counts of Grevious Harm. That the cas ha been withdrawn by the prosecution under section 230 of the riminal Procedure Act. And that the complainants were never calle o give evidence. Pw 39, Thomas Nyaoro, confirmed that CCM their meeting at the ·Courtroom· and some youths· were ely wounded. Pw 37 , . . ' . Inspector Rukiya Enos Rwamahe ltobert~ tol this court he was the Ocs, Bunda, during the general elections 20 and in - charge - of 33 -: . -· ... Security at Mwibara constituency. He admits tl1ere was unlawful wounding at Nansimo Primary Court with 4 victims. He arrested all . those concerned,· including "my friend' Christopher Nyandiga .and Edwin Gurusya, both of whom he jointly charged. The case was - very serious and Pw7 7 says· he does not know how it was withdrawn : . . without calling the victims as witnesses. ·.. . ..: . . . ; . . . . . . . . . · The defence case is that the 1st Respondent does not know ' ' ·. · anything about the "Pentagon'. Christopher Nyandiga and Edwin Kajumulo, · Pws 23 and 17 respectively, deny to have been involved in that incident. They add that they were surprised to be arrested . · and charged. Pw31 , Inspector Madirisha, told this court the case file · . • . • I ' was closed for "n.f.a'' which . .. he says nie~ns "no further action''. I : . . Pw 31 says this

was because the complainaht$ were· relatives of the I . . accused· persons and did .not make_ a foll . . . . w- up of the case, or ~ant the case-tog<:> on .. · • _ · · Ih paragraph 4(i} the. petitioner complains that the Polling ·_ · Assistants refused and/ or denied the peti iJner's polling agents to · · accompany the ballot boxes from the P II ng Stations/ counting · Stations · to the . Ward and/. or the · is rict headquarters· in ·_· contraventior) _of the electoral laws. In_· re i to this complaint the·. · · tid ·Respondent stat~s that the electoral I ws do not allow the polling agents to accompany· ballot boxes · II th~ _T. L. P. Polling ~. l ' , • ·.. -Agents· Who testified in. -court allege ·to hav ..- een. tefused .to escort . ··... ' '-: th~---~ baUbt' box~s- ··to·· the Wards' and' 'th istrict: Headquarters; . allegedly: be_cau~e ·t,he means of transport,·. lo'rries; had no plac~ ... . ·. to carry them. T_hey allege it is only CCM o ling agents w_ho were _ 34 · ·.· •, , I, . :-~: ·- . . '• . . ~ . . allowed to escort the ballot boxes. These polling agents include Pw 19 , Juma Semba, Pw 20 , · Johnson Makubulo Makefu, Pw 21 , Deus Muyenjwa, Pw 22 , ·Paulo Makene, Pw 23 , Kanwagale Mukama, Pw 24 , Mujungu Manyunyu. and Monika Mwanzarubya, Pw 36 • The Respondents called the Returning Officer, Mr. Justus Molay, Dw2 \ Assis~ant Returning Officer, Richard Mwikwabi Mazira, Dw

25 , and ward Assistant Returning Officers, Choteka Golitalem, Dw 26, Hezron Magesa, Dw 27 , Tito Mjwanda Magoti, Dw 28 , and Presiding Officers, Baraka Vitus Manyasi, Dw 29 , Sylvan us· Elias Mnyampala, Dw 30, and Victor Makene Ernest, Dw 31 • These witnesses told the court that no polling agent was refused to escort the ballot boxes, but that they could not force thos~ who did not want to. The Returning Officers add that no complainf \form was filfed that any polling agent was refused to escort the b~llot boxes. · In ground No. 4(j) the Respondent - ·l ' I eny to have not filled or ·completed Form No ..

218. These are ~I ction Results Forms for Members of • Parliament, according td the Returning Officer's evidence. This is alleged to be in 9 pollinJ tations:- . · (i) Polling Station No. ado 3191 (ii) Polling Station No. 0 0 3176 - S.M. Kisorya "A" (iii) Polling Station No. 0 O 3190 - S.M. Nafuba "B" (iv) Polling Station No. 0 0 . 3192-VEO"A" Nambaza (v) Polling Station No.001 3143-VEO Kasuguti "A" (vi) Polling Station No. ado 3196.:... Haruzare S.M. (vii) Polling Station No. oclo 3198 -Nansimo S.M "B" (viii) Polling Station No. odo 3133 - Zahanati "B" 35 ' . .. , - (ix) Polling Station No. 00023182 - Karukekere "A" . · As I stated earlier the 2nd Respondent's reply to this complaint : is that ho presiding officer or polling assistant refused. or neglected . to complete . Form. 21B. They annexed .copies of the said forms .duly filed, as annextures "Rl - 10', and that the polling agents signed .the said forms . .Paragraph· 4(k) is the complaint thqt the petitioner's polling . . . . : ·. ··agents were denied the opportunity to vote; This is not elaborated in the pleadings. This according to the ;evidence of the polling agents who registered in stations . other ·than . those they were · . polling agents in, there was qbsence ofi ·those service . forms to ·• enable . them . . to vote where . they .were notl r~gistered; . I ; . Those forms· . ·are commonly known as "(o~u. or shahs4a

·. za utumishl' Where . ·. . . . ·. . . . -.-. . I i.. . . . those forms were not available· agents say ~hey had to leave their.· . . , I . polling stations for even · more than half ·. ~ hour .to go and vote . · where they were registered and ·do not .~ow what happened in their absence. These polHng agents incl e Pw 19 , Juma Samb~, . · Pw20, }ohn~on Makubulo Makefu, Pw 21 , ·o u Muyenywa and Pw 23 j Kanwagale· Mukama. . . .. . . . .· ._ The Election Officials,from the Retu ni g Officer dow·n to the Polling Assistants, told this court that th y had these forms and • .. • • • •• • • • ••• • ••• • <' .... • issued:them whenever they vvere asked for : . :. _, . ·.:- ·. · ..· ·.,. · . ;__ -~- On the· appoiritmenf of :over-three dred ·guides to'.direc~ · . _: voters and-that these guides. turned out t.. e· illegal campaigners . ' ' . . for the 1st Respondent and his bribery ag n s and/ or Chama Cha 36 ,: ·1 • . \ ,v1a·pinduzi, the Responoents aeny it. Ti1e /Assistant Returning Officer Pw 25 , Mr. Mazira, says there were about 101 direction clerks not 300. That there was no evidence or complaint that these were not irecting people to, vote for Kajege or that they turned out to be his bribing agents. On the la~k. of complaint forms this was- alleged by the petition.er and his witnesses and denied by the Respondents and . their witnesses. The Returning Officer and his team allege

there was no shortage of complaint forms and that whenever they were needed or required they were supplied and filled. Complaint 4(n) is that extra ball9t, : . boxes were supplied to· polling stations especially in Nafuba. ljh~ Respondents and their I i . witnesses again denied this. They .tendefr~d their election materials f distribution list· as· Exhibit D7, to show hty issued. no extra ball~t boxes. · 1 . . lhe last cilmplaint, Paragraph 4( l) literally stated that " The Returning Officers refusal to recommef I the voters cast for the President, Parliament and Ward counc'lo was contrary to Law." With due respect, this complaint does o convey any meaning. It . seems that part of the petition was not r of - read and the:typing errors not corrected. Perhaps whatthe p titioner meant was that. ·.. the. t~ree · categories of votes were "reconciled'· instead of "recommended the voters' In· hjs final submissions the Learne tate Attorney Me. Edwin Kakolaki, for the 2nd Respondent, inter argues that the Burden 37 j. ! I ...- of Proof Lies on the Petitioner and the standard required is proof "beyond reasonable doubt'. An election petition must be construed more· strictly than an ordinary Civil Case.· He continues submitting that courts have. a·· duty to respect the people~s conscience and· is not to.· interfere in their choice except in the most compelling .circumstances. . . On. the·

nomination date, Mr. Kakolaki submits that the Returning· officer Mr. Malay. Dw 24 , told this court that he·nominated . • Mr.· Kajege on 20/8/2005 and not 19/8/2905. Dw 24 ·continues saying . :the nomination forms can be filed:some three days before the .· nomination clay or on· the nomination day itself. Under section . . · 3.8(6), Mr, Kakolaki submits~ the non:iin;ation form can be submitted ! l . at anytime before four o'clock in th~ afternoon of the nomination ..· . . .. . . i. I . . . . · day.. · 1 · · · On the not esco~ing;of the bal19 ~oxes; Mr. Kakolaki submits that it has not been proved becaute the petitioner's evidence is ·. hearsay and inadmissible arid that o t e polling agents inconsistent and contradictory ..· . .On·· the unsigned .. . Result . . form ,. ·. . . . Learned State .Attorney submits that it has not been proved fo. any unsigned Results form. was . . tendered in ·court an exhibit by th . . . petitioner. He stressed the n~~d. for: ten_d~ring · documentary e _id nee on this c~mplaint ·He.· ', . . . condudes by cit_irig sectfon- .85 of.the El ctior:is Act which . . states .that . ..... '. . · the non - .attendance . . or· presence. .f. a polling agent . . or counting ' . · .· · agent. or a candidate shall not· per. s invalidate the act or thing. ··done. · 38 .. . . , '•.. . . ·• .. ,•.' On the non, - feeling of Form No. 21B, Mr. Kakolaki submits that

it-was the ~i.Jty of the petition.er to tende·r the said forms but he failed to do so. - · · On the denial of the petitioner's polling agents the "utumishl' forms to be able to vote where they were not registered Mr. Kakolaki submits that this has been denied by the Returning officer and -Polling Assistants who said there were enough "fomu za utumishl' and that the Respondent's witnesses should be believed and not those of the petitioner. On the dire~tion clerks that there yvere 300 of them directing people and bribing them on behalf ·of ,GCM, Mr. Kakolaki submits . ,I that the list tendered by the Returning tjfftcer shows they were only 101 and there is no evidence that they J_4re directing voters to vote . . I . for CCM or bribing anybody. On the non - availability of comp ant forms, this was denied . by the Returning officer and his team a . Mr. Kakolaki submits that ·the petitioner's I . witnesses are inconsiste t on this. On the supply of three extra at Nafuba the Assistant Returning officer states that extra ballot boxes were· · issued at Nafuba. Dw 2 tendered as E ibit D7 distribution list of ballot boxes for Nafuba Island. Only 12 b xes were issued for the 4 Nafuba polling ·stations. That no extra b I ot boxes were issued~ On the issue of failure to reconcil he three Results Forms. for . '• . President, Parliament and Local Gove n ent to see if the results . 39 • I . -

i• - __ ,_. ·1 . :~ .... ~ . :. ;' tally, Mr. Kakolaki submits that this is a mere allegation without·· · .proof, especially documentary proof. . . In his closing submissions, Learned Counsel for the 1~ Respondent, Mr. ·James· Kabakama, argues, inter alia, that the b~rden. of proof to prove allegations on corruption . Ues on the . petitioner and lt:'is a heavy one."proof beyond reasonable doubt, 11 ·as corruption is a ;criminal offence. . . . . . . On the specifics of .evidence. Mr .. Kabakama submits that this case was cooked as an afterthought after the Petitioner had lost the election. He mentioned four Witnesses,. Dws, 2,3,4, and 8 who have · told the court that they were invit~d anct· they _participated in meetings ·to fabricate evidence and j c~rroborate the petitioner's . . ; I ·. . l story, which meeting was engineerep b1/ Ma,ry Bandoma, Vena_nce . '· Kamunyole and Verynice Mborwe. On-. the · ~llegations · about wells··· in· Mwiruruma, ·. Chamakap~ and Haruzale villages, 'I' . Kabakama submits that · these allegations were well answ~r d by Dw 23, · Christopher . ' Nyandiga, and Dw 24, Justus Malay wells were dug in ···accordance with the district council. plan. The Le~rned Counsel · submits that~ it is the petitioner who cooped more votes in the ·villages where the 1st Respondent is ·a leg_ed to have bribed with .•· .· .. water wells. · · ·. · . ·.. : ' ,. . . . : ·.

. ' '• '. :· .· ' : . : .. '' . .. ' ·:· .... · · 'On the. footballs· an_d jer~eys· ·a le edly -by· issued to- football dubs ·rv1r~ Ka6akama submits that the e ·have been negated by the ..... ' · Defence witness.es ·Nos~ 13,15 and 19. ·:- 40 . I II •.·.• , I . . ... . .. ·•. /4 ~ ~ I.. • •• -- .-.- ••.'_"I• . .. On tl1e trips of stone ·and sand the Learned Counsel submits it was supplied on the village councils request. On the witchcraft allegations in Nafuba it is alleged by Pws the words were uttered in December 2005 on the 1st Respondent's 2nd Campaign. But 2nd Respondent alleges he went their only once on 6/10/2005. And Dw 10 said 1st Respondent did not utter such words. Generally on other allegations on bribery and violence, the learned Counsel argues they were all countered. There are inconsistencies and disparities between th~ dating and timing of the alleged acts of bribery and campaign time ~ tables. . . :\ On the role of Dw23, Christopher Msafiir·r Nyandiga the Learned Counsel submits that he was not in the 1stl1 tespondent's campaigri · team. He was cleared ·of the Criminal chJrgies. He was attending sick parents. The list of the Campaign team\i~ in Exhibit D1 • His role was counting agent after the actual voting was over. If Mr. Nyandiga did anything wrong it was acJi g contrary to Public Service Circular No.' 1 of 2000 which attrk ts disciplinary ·action against

the public servant concern but hls nothing to do with election results. An alternative · submission n behalf of the 1st each. Respondent but he furni_shed only 5,0 ,000/ = was filed by· . . M~. Stella. He submits, that the proceedings hat followed were a nullity. 41 .. _: .... _ .· Ih reply to the Respondents' final submissions, learned _ - Counsel for the Petitioner, Mr.. Moses Maira, submits that the 2nd -Respondents . pleadings, - Annexture . "P' . _shows clearly that Christopher Nyandiga · who was at the material time the District · Water Engineer was the main agent for the CCM~ Candidate. Also · - that Annexture · ·"M" •of the 2nd . Respondent's . pleadings is an· . . ·. . . . . . ·. . .. . . . . . admission that the l st Respondent was nominated on .19/8/2005 .. · On the burden and standard of proof Mr. Maira joins ··· hands with the Learned Counsel for both. Respondents._ But · he adds by citing Sarkar. The Law of Evidence 3 rd Edition p.183:- i'The-·fule that.the burcf.en of provinf! \a_ case of corrupt practice is on the Petitioner · doet j not absolve the . respondrnt of the responsibility to ialslst th; court by + __ -· · producing the best possible evidenc:ef · _ ·_ · _ · _· ._ ..•·on. the conspiracy to file a suit frame evidence against . the 1st · Respondent at Verynice Mboi'f' 's house, the Learned ·• Counsel· for the P~titioner calls it a "tJb e'. He submits

that no agenda of such ~eeting was shown to th court; no minutes were . kept; no report was made to anybody Jri ; and no vitenge were tendered as Exhibits. But none o( the· ro ecution witnesses were . cross - examined about the . conspira o . meeting. He. submits. . . . finally _that this evidence for_. the· 1s1: · _R spondent was.. just· an _ :. J .. ~.. . . ... ,• .afterthought.. :· .· . . .- . ,: . .o·n Christopher Msafiri Nyandiga;. ·w ., Mr. Maka submits"th_at- . he_ ~as ~'in the_ months ol many witne se '. He was implicated of 42 . . . as 'Neil as threatening people to vote for the 1st Respondent". That on the evidence available Nyandiga was not only a counting agent for the 1st Respondent but his right hand man during the campaigns. Learned Counsel continues to state that water is a big · problem in the whole Mwibara Constituency so whoever brin·gs the people water gets their votes. On the campaign timetable,. Exhibits D3 and D4, Mr. Maira submits that they are not sacrosanct. They exclude illegal campaigns for purposes of bribing voters. A candidate can be at more than one place within one day. On nomination of candidates, Mr.[ ~aira submits that the 1st Respondent was nominated on 19/8/2005 and not 20/8/2005. Dw~4, the Returning Officer, who told the couk hat he nominated the 1st Respondent on 20/8/2005, has misconc~i ed the law for it is not his duty to nominate

candidates. Mr. Mairajlc ntinued submitting: "My Lord, we submit all that was re uired was to insert 20/08/2005 in Exhibit Dw7. We !er submit that the insertion o: 'lea 19/08/2005' rende e the nomination and candidature of Dwl Hon. Charles u uta Kajege unlawful. · Th~ purported nomination by Dw. 4;h 20/8/2005 did not improve things. We submit that )on. Charles Muguta Kajege's purported nomination was n II and void and of no · legal consequences ab initio'~ On the alleged use of derogatory ords and false imputation of witchcraft, the Learned Counsel fo he Petitioner submits that 43 ·• .e • • • -· most of the Mwibara people who gave evidence are -rurai foil< an-d it _ is neither practical nor feasible for them to remember all the dates. The learned Counsel cited Civil Appeal No. 83 of 1998 (Court of . App~al Sebastian ·_ Rukiza . Kinyondo and· Dr. Medard - Mutalemwa . Mutungi and Misc. Civil Cause No. 10 .of 2005 (Bukoba Registry);. Chaya Anatory Kasaz_i Versus 1.Kasheneza Phares Kabliye.

2. The Attorney General. ' ' ' On the acts of violence, segregation -to the. petitioner's. Polling · ' ' ' Agents and lack of complaint forms, Mr. M·ai_ra Submits that they did · not have any adverse effect on the election. . . . . . . . . . .. . . ' ' · As I stated earlier before the commeny~ment of the hearing of this cause four issues were framed. This w1~ done under Order XIV , • . . I I • • . f . Rule 1(5) of the Civil Procedure Code ·1966J. After conclusion of the . . . I . .· _hearing· and receiving the final submissionf of Learned Counsel for . ?oth parties, I think it fit to reframe the i·ss/u ~ and add other issues · to enable·._ me · to determine the matte in controversy more. •. conveniently. I am doing this under Order -· v Rule 5{1) of the same . Civil Procedure Code 1966, herein below:- ,'. -ISSUES _l. Whether the~e were non ~ complia _. es as alleged in paragraphs 4(i), 4(j); 4(k), 4(1), 4( , 4(n) and 4(o) • of the Petition 7 . ... '•, · : 2. tf the: first issue is .resolved in the irmative did the . .· •· . -: ' said non .:..com,pliances affect the e, e·. idn r~su\ts? :_ ' · 3.·· Whether· ... ~ there ·were . acts of viol ri e: ·_as . alleged. in . paragraphs 4(f) and 4(g) of the pe iti . 44 ~. ' .. . . '-1· '' .. .. . . ,\ t ·.. ·,· :.: ....

4. If the answer to issue No. 3 is in the affirmative did such acts affect the election results?

5. Did the 1st Respondent. use derogatory words and impute witchcraft practices against the petitioner as alleged in paragraph 4(h) of the petitioner?

6. If the answer to issue No. 5 above is in the affirmative did such non ~ compliance affect the election results,? .

7. Was the nomination of the 1st Respondent as alleged in paragraph 4(a) of the petition null and void? :: ! i 8. Did the 1st Respondent_ commit cor~~pt and illegal practices and/ or bribery as alleged 1n paragraphs ' . 4(b), 4(c), 4(d), 4(e) of the petition? .

9. Is the 1st Respondent's Alterna submission sustainable?

10. To what reliefs are the parties en i led? On the 1st part of the first issue 4(j) s I stated earlier the petitioner is complaining about the polling as i tants' refusal and/ or .negHgence to complete Form· NO. 21B in ni polling stations. The . Respondents· denied this allegation. On 4(k). the petitioner c:ompla1ns that abou~ 30 of their polling ag ts were refused the · service forms also known as "fomu za utu'I' ish/' to go and vote · . where they were not reg.istered. The Returni~ officer and his team 45 .. denied this and added that they issued enough "fon1u za utun1ishl' to every polling station. The· number of polling agents alleged to have been affected· is hardly· 30 and this tannot· be said· to have ,.. ·· affected the ·results of the electio~ where the winning. margin is . about 3000 V()tes; In complaint 4(1) it_ is alleged 300 guides were... . · ·~ppointed to ·direct.the voters. This was denied by the Respondents · who allege _there to have been only" 101 such directors: ,he . Respondents;also deny that any of those directors acted as bribery · agents for CCM, or did guide any6°ody to Vote for CCM. apart from the allegation ·the petitioner brought no · witness to prove this · complaint. On. complaint . 4(m). that . the . polling . agernts j : .. . were not . . given any . c~mplaint .forms. This ~as denied by th~ tpondents and their . ·_.witnesses.And as th~

ev1d~nce ~or each p~, 1s more or less equal to that of the. other on this I give the Rdspondents the benefit of doubt On the allegations of the polling ag -· not _being aliowed to . ·_· · _escortthe:ballot boxes paragraph_ 4(i) this -w s again .denied by the ·• Respondents. But I do not believe that th Acilling agents for other. · parties except. CCM would· just decide on th mselves not to escort - ·. the ballotboxes to See the end of their ~rm and come· to lie that . _they were denied by presiding officers to e c rt the boxes. · - ' . - . '• ·, ... , .. _.,:> :_':-· ·_··_;-: .· _·· _ : · -_.· ·_ - The 2 nd .Respondent in paragra·pi,:· (vii) of :his: .reply-" to ~h_e· . .. · ·:.: _· ---:i _.... -; '. ·: -:- ·petitio~ states:- -. 46 . . ~ . .. . ••... and it is stated further that the electoral law does not allow the polling age17ts to accompany the ballot boxes ............. " By necessary implication this is an admission that the polling agents were not allowed to escort the ballot boxes to the centre where the partial results were being added up. Section 79A (1) .(g) of the Elections Act 1985 provides:- "Upon the conclusion of the counting of the votes in accordance with section 73, the Presiding officer shall .............·......................................................... (g) Accompanied by such number of polling agents as the Commission shall direct, transmit and

hand over to the R~turning officer, the ballot box together with the report of 1hie partial results of , • : 1 the elections at the polling station. " i ! Though the wording of this subsection s~Jws the Commission has .the discretion to direct the number of ·pJn/ng agents to escort the ·ballot boxes, the discr~tion has to be/ ~xercised judicially. The Commission has not to discriminate other parties, for discrimination is against the basic ri hts enshrined in the Constitution. The discretion is not to dis r minate other parties and allow CCM polling agents alone to esco he ballot boxes. And this is far from saying that "the electoral !. ws do not allow pollin_g agents to escort the ballot boxes." The evidence leaves the court wit uspicious as to what may have happened to the ballot boxes on t· e way if they were escorted. by the CCM polling agents alone. C a ces of the ballot boxes/ 47

I I I ! I j .,, . . · . papers/ reports and/ or result forms being transfered on the way · . can not be ruled out. Sb I hold that complaint4(i} has been proved.· But since this is . one· of the complaints abandoned by the learned counsel for the · . petitioner in his final submissions I leave it at that. . . . . . . . The allegation that at Nafuba Island three extra boxes were . . .. provided . and used for illegal purposes ·(paragraph 4(n) was· . defeated . . by the Returning officer's tendering. . . . materials distrib.ution list Exhibit 0 7 to show no extra ballot boxes were issued. for Nafuba: · The petitioner called no witness to prove ·that those three extra ballot boxes were issued or used. t ·. :. . ! : . i ·! 1 . . O_n .. paragraph 4(o) there .is no 4~idence adduced for the petitionerthathe demanded to reconcflel ihe votes t~ reconcile the . votes cast and was refused. The chancJ Ito solve this would have . . been the prayer for a scrutiny as in para 1laph 3 of the originalthe . .··. · petition .but on . ·. the first hearing date of.· his. petition, the .Learned .· • . . counsel . . for. the petitioner . told . this . . court. I .. .·"I abandon prayer 3 on scrutiny'. · · .And· in his final• subm.issions the lea· ed senior counsel for the . petitioner stated: ; "My Lord, when all is said al}d done, ere is evidence that · there. were acts of Violence, segregatJ , . to

the petitioner's · . polling agents and °Jack.of ·service. ting ·fqtfn,s .but we .. submit these did ·not have any' a rse ·. effect on the . : election'~ . 48 . . - ....:-·.....·. - .:. . . ,. . . . . . :. - '• ;:.· ·· . -~.. ~-n. C(i7Er ·Ncras, .. -\i!r, :V!a1ra . ;s ~=·~C2Girn].-. :o Cnt:: .~t:ne:·- ·::.:·unse1s· . submissions on these complaints that they did not adversely affect . the results of the election. Wherefore. I resolve the first issue· in the negative and the second issue's solution· is that the said noncompliance's (J- o) did not affect the election results. The third issue is whether there were acts of violence as. alleged. The violence alleged·is in two main incidents. First is when the 1st Respondent is alleged to have threatened the OCS, Mr. Madirisha, of Kibara Police Station, the Divisional Secretary, and the Chairman of the Kibara Village Council with a pistol that they were favouring opposition parties instead of th ej· ruling party and that he 1 would spray them With bullets. This ~ legation was denied by Inspector M~dirisha, the OCS and the Div ional Secretary, the latter . . . . . . one of whom was, with the permission ' f the court, ~reated_ as a hostile witness by Mr. Maira for the petiti I er. !he Village Chairman admitted those threats and harassment · ram the 1st Respondent. His evidence was· corroborated by PW 7 Inspector Rukyaa Enos· Rwamahe

Robert, who said that whoe r denies that there was violence in Mwibara. Police Station does n know his duties. But the impact that those acts of v lence had on the election · results is unknown. So I give the Respo ents the benefit of doubt on this. · The second incident of violence is t at alleged to have taken place in the Nansimo Primary Court wh r it is alleged that on the 49 I /.• ~- . oraers or iV!r. ,::1nsto.pnei.S(yanqig~ ·ai: ·::~-~~-:·./c·i:.J jGLCi-,S ·,vErc. •· beaten unconscious and Nyandiga and Gurusya @ Kajumkulo were jointly charged with Grevious Harm in the Bunda District Court. - •. Again as -the effect of those acts of vio'lence denied by. the - -Respondents, had on. the election results is unknown and the fact- that Mr. Maira has conceded this complaintthat it does not affect the results, I resolve the third and 4th issues in the negative. _On _the _5th issue about ·_ the. derogatory ·words imputing _ _· witchcraft the petitioners side alleged if and the respondent's side . r . . denied it. The petitione_rs case is that the 1st Respondent told the · people that the _petitioner killed his y6_ung -brother by witchcraft • • i . . . . . ·i . means, took - out the deceased's . heart, ground Ii it into flour which. he used - by witchcraft means -to campai I ln and get votes. This is I . alleged _to have_ happened at Nafuba Island according to Pws 27 , told this

court that this happened al~ o at Kibara CCM hall on .. 13/12}2005. pw11's allegation can be ~isre9arded because it was not pleaded and was not .mentioned IJ I _any other witness of the petitioner -· or- the learned counsel for the petitioner in his final submissions. . . The Nafuba Island incident was entioned by two witnesses as I have said before. They allege it w on the second meeting of · the 1st Resp.ondent that he uttered sue words. I . . . . . ·. The.· 1st -Respondent denied havi g _uttered. such dero_gatory · . words-.· He alleges to have been· at Naf a Island only once· and: not .... •· 50 . ,. petitioner's witnesses who say the words were uttered, Pw27 and 28, say they have forgotten the dates when 1st Respondent came, and the petitioner says it was on 13th or 14th October, while the ,• . . timetables show: the 1st Respondent was not at Nafuba on those · dates. Pw1, the petitioner's testimony on this incident is hearsay and should not be regarded. The 1st Respondent brought in Dw 10 , Valentini Makene, who . told the court that the 1st Respondent held only one meeting in October and no such derogatory words were uttered in that · meeting. As I said the petitioner's witness.es r! do not remember exactly ., st the dates when the 1 Respondent hel~ 11 his meetings. in Nafuba. . On this Mr. Maira_ submitted that_ most iflibara people are rural (olk and cannot be expected

to be accuratM on dates. On the timetables Mr. Maira submits that they are Jbt sacrosanct and are not necessarily followed, as illegal campal ns are not necessarily done according to timetables. In the case o Shihobe Seni and Another Vs Republic (1992) T.L.R, 330, the Court o Appeal of Tanzania held: "In case of illiterate witnesses it not fair or desirable to tie them down too closely to esti ates of time. " Time includes dates. Dw 10, in his testimony for the R spondent, also told this court that he does not remember the d e when the CCM campaign . meeting was· held. But only that it as in October. When asked · further, Dw 10 said he does not reme ber even the time of the day when the said meeting was held, n even whether it was "in the 51 .I I ...... , . morning, afternoon or evening." Such iies are dangerous to justice. t Some witnesses or parties think the best way to defend themselves . or someone is to deny everything, even the ·obvious'. In fact bbvious and naked and blatant lies by one party advance the case for the opposit~ party. In the case of Mathias Timothy V. Republic · (.1984) TLR, 86, Lugakingira, l, (as he then was) held:- ."In testimony of a witness, where the issue is one of false evidence, · the falsehood has to ·be considered in weighing the evidence·as a whole; and where the falsehood is glaring . andfundamental its effect is utterly to destroy confidence

in the witness altogether, unless there is other independent · · . . . . . . evidence to corroborate the evidence. ✓, : · When Pw 10 told . the court he does not .· . . ; ! remember whether the meeting was in the morning; afternoon ior evening I knew he was a .. . . I . . .. naked liar not worth a grain of belief. ~is falsehood is glaring! And this :is the only' Respondent's witness· bn this issue .. But· I find· no . . i . reas~n to disbelieve the petitioner's wirn sseS on this matter. So I . find .1t proved beyond reasonable doubt that the 1st Respondent . . . . . I. . . .. . .. used. those derogato_ry words in a uba Island against the Petitioner. So I resolve the 5th issue .in affirmative. . The 6th issue is whetherthe ·non·.·.· Ort)plrance in the 5th issue· . .' . ·. . . . affected the election results. On· this, M . Maira, Learned Counsel forthe petitioner submits that i~putati n of witchcraft is imputatlon of· crimiri_ality and invited thrs court to e persuaded by the decision of ·thrs· ·court· in .Misc~· Civil cause ·No.·.· o of-·2005 in· C:hoya. Ami°tory ·, ... Kasazi Versus Kashemeza Phares Kabf • and the Attorney Gener.ii {Bukoba Registry not_ yet. reported)· wher my brother ludg~ Mussa 52 .I . .. -. . . .• . ':.. .... . . . . Kipenka held, citing the Court of Appeai aecisjon Sebastian Rukiza Kinyondo and Dr. Medard Mutungi Civil Appeal No. 83 of 1998 that: l'Where

defamatory statements which amount to criminal conduct are made against a political opponent in an election campaign it cannot be reduced to a simple arithmetical problem of adding and subtracting· the campaign centres where this took place from the total number of centres if! the constituency. Candidates at elections must be effectively protected by law from such unjustified and ego motivated attacks/ as was the case in the Bukoba Rural constituency in the 1995 general election. If a candidate at an election ·chooses as his election tactics to vilify his opponent by accusing him of criminal conduct✓ and it is proved that he · did so/ then we will assume that the a/legations ,. I adversely affected the ~ther candidates election qa{npaign unless th~ person making the allegations proved thad they did not. This . is the only way the courts can clean .u4 lection campaigns so as to gwe the electorate clean and fal . lections .... .,, In the light of the foregoing the Lear satisfied beyond doubt that the scurrilous utteranc of the first respondent at the respective campaign rallies affected e result of the election. But while in the Phares · Kabuye, ase cited above, ·the derogatory words were uttered at severa ampaign rallies,· in this. · case they were proved uttered only at an rally in Nafuba which .had about 600 voters, out ·of which the etitioner got 73 votes. Even if the

petitioner had got all the vote in Nafuba he would not have won the elections the· victory mar i is almost 3000 votes. I These-derogatory words were therefore u ered in an isolated case and there· is no evidence that they we enough to 53 . .- · . . -.. • • 1 ••• . affect the results· of the election. In Solomon Alexander Saibul v. Hurbert.Mbaga (1982) T.L.R, l Court of Appeal held:-. "The two ·isolated instances of illegal practices and campaigns i,yere isolated · and sporadic involving an · insignificant number of people, in view of the size of the . . . . . . . - electorate· and·the large· number of people who actually voted, we are not satisfied that the majority of voters were · or may have been prevented by these illegal practices from electing the candidate whom.theypreferred;" .. ·. So l am. not . convinced that they affected:. the election. results. . Therefore. I resolve the 6th issue in the nega_tive. i . . . . . . i : . . ... ·•The ih issue is on the 1st Responde~t'$ Nomination. The 1st . Respondent's nomination. form Exhibit 0 2 c1ka~ly shows. that "uteuzi wa .wagombea uchaguzi unatakiwa· uwe lko tarehe· 19/08/2005'~ · · Thoi.Jgh the Returning officer, Dw24, illlegJs pe nominated. thel st •. Respondent on 20/08/2005/ which· is .the Jffibai riom-ination ·. date, ·. ·. the evide~ce does not shoV'I so'. I agree .it~ Mr:. Maira that th~. . . . . Returning Officer cannot

have nominated th .1 Respondent as that · ·. is· not his duty'. •.· .. · Collins· English ,Dictionary . 4 th · Editi defines the · word .. "nominate'. as:- . .· . •. . ''To propose .as a candidate, especially to· a elective office. .·. 'Wo,nination':· the act or nominating or . .. -.-· ' .. . . . . . ·. . . e state of being .. nomina.ted especially as an· elective candidati . "· ·. •·. The Law is. quite clear On the definition of thi.· Iord. M~'.-Maira ·ifl his •. . . . ... ~ubmi~ions helps us by citing s. 38(1) of thh ~ctions Act 1985. It ·., · · ,s undisputed that ·the. Electoral ComJ,s 10n declared ·_the 54 . l ,•·,, . · ... nomination date to be 20/08/2005. Even according to the Nomination Form, Exhibit D2, the Returning officer is supposed "to confirm the nominatiorf' not to "nominate'; Dw24 wrote in Exhibit D2 paragraph F(ii). 'Wathibitisha kwamba mgombea uchaguzi ·ame/ipa Tshs. · 50,000/= kwa aji/i ya dhamana na kukatiwa risiti Na. 80889 ya tarehe 19/08/2005'~ He does not say "namteua mgombea." He says "nathibitisha'' Nomination of a candidate is· a long proce~s. It begins with his political party's preliminaries. Then he is nominated by 25 voters in his constituency. He goes to swear before a magistrate. Then on the so - called nomination date he has to, submit his nomination ' forms before 4.00 p.m .. in the afternoon. S~r¢ty this whole process j cannot take one day.

The 1st Respondent'k fault was to endorse that the nomination date was 19/8/2005. T~1s is the date when he . submitted the nomination forms, not. th~ date when he was .nominated. He could have been nominated ken earlier in the long nomination process; Bu_t is the filling of he date "19/8/2005' instead of "20/8/2005' on the nomination form. fatal to his nomination? The date the law calls "the nominati date' is actually the date for confirming or approving the candid t s nomiilation and not · the date the candidate is "nominated', as I ave said earlier. What matters is .that the candidate submits· his . omination form.• duly . ' .· filled, . sworn and paid for· before 4.00 · P· 1' on the so - called . · nomination date. The filling that the nomin ~i n date as 19/8/2005 is in my considered opinion not Respondents . 55 someon·e "who is attending his sick 1norher;' ,Jegs rnore questions _than answers. •· I have already held that Mr. Nyandiga was involved in two ·. ·bribin·g instances, one ·for football jerseys and footballs and the · · ·other at the_ Nansimo Primary Court that ended up ·in his being charged with. unlawful·wounding. Let · · me .now · · reconsider whether he was at the 1st . . . · · · Respondent's campaign team. · There . are several other glaring : inconsistencies· and contradictions ih several important matters qn the 1st Respondent's case. One of. them ,.is as .to

who composed the 1st Respondent campaign team. While the· petitioner's case j~ that Dw 2\ Christopher .. . . . . 1 ·.·.Nyandiga was at th. e.· hel~ ofthe 1st Respf ~denfs campaign.team and some even saying he was the "Can+i aign Manager' all the . !. Respon_dent's witnesses denied it very stro~gly. ·. . . · . . . . Charles Muguta Kajege, testifying a:sl lw1 told this court that .· :f .. ··. :::. 6::::::::edN::1~~:i;~: an,~!t }J:::rs0 h~~s :::~:::~ :. :f . ·team.These are (l)Sospeter Munub1 (2) S h1a Mal<umlo (3} Daudt · •· Mwanjebe. (4} S. Karendero (5) Paul: Ch .· (6) Chacha Gin1anya ·· ···.. . a_nd. (9) Joseph Manyonyi. . .· ·... :. Dw 1.2,' Mazigo Lugola; · then CCM c.~ .rman. Narnb~br gave, a . diff~rent list' of the· i: st Respondent's . . 'cam . . ign .tea·rn ... He. g~ve the ' list .as (1) Anttlony Msese .(2) ·Matete Rab ·a. (3) Sophia·: Mak~muro (4) Mas_haka @ Makaptula and (5) Mash a King'ere who he s_aid 75 .. . .... ' •• was the campaign manager. The 1st, 3rd, 4th and 5th names do not even appear in the 1st Respondent's list, Exhibit D1 • Dw14 , Sophia Makumulo, U.W.T. Chairperson for Bunda District says she, was in the 1st Respondent campaign team throughout. She gave the list of those she was with in the campaign team as (1) Sospeter Munubi (2) Chowaji Daudi (3) Manjebe (4) Chacha Ginomo (5) Joseph Manyonyi (6) Daudi Iramba (7) Mashaka Magesa (8) Mashaka Makaptula

(9) Anthony Kajege (10) Musiba and (11) Edwin Gurusya Kajumulo. When cross examined by Mr. Maira on why her list was different from that of the 1st Respondent (Exhibit D1) Dw14 first refused to read the letter, and answer the question, but when forced to read it by the court she said does not recognize the letter Exhibit D1 . When cross -f examined by learned .. senior counsel Mr., Maira, further Dw14 Sclid ~hat on the list of the · campaign team the c9urt should believe her, bot Mr. Kajege. ! 1 I .. Dw17, Edwin Gurusya . Kajumulo,. wro was not in the 1st Respondent's list of campaign team, adm1tt d in this that he was moving with the 1st Respondent's campa[ig, 1, team always. Dw22 , Kabudi 8undara, who ·was the District dcM Assistant Secretary General, told this court he is the one who tr te exhibit D1 . He told . this court he does not know those Kaj e appointed into his campaign team. He even says all those in t. list in Exhibit D1 were . absent at Mr. Kajeges campaign meeting at Kibara. These contradictions and discrepanci s o not only show that the 1st Respondent's witnesses are lying on t · eir campaign list, but . also that the list at the back page of Exhibit 1 was just concocted 76 to deceive the court. The list is contained on different type of paper •' from its covering letter in Exhibit D1 and in quite different fonts or prints from that in the. 1st page, besides

the list being not signed. These circumstances cannot prevent one from holding that the said _ · list was just concocted to- hide the name of Dw 23 Christopher· Msafiri -_ Nyandiga therefrom.· Christopher Nyandiga was named as being in -_ 1st Respondent's campaign team by~·over nineteen witnesses as we -- have seen earlier arid on the authorities I have cited hereinabove - these contradictions and discrepancies are the reasons which make me reject the Respondent's case on this matter and aczcept that of -·the petitioner. There are still more contradictions anq ·discrepancies on the ' · · Respondent's case. Dw 23 , Mr. Nyandiga, _tol9/ this- court his mother . was sick during the electioneering period C ird _he took a leave_ to attend_her and that ~o he ~ad. no time to gjl_around an~ c~mpa1gn for someone. Dw 14 Sophm· Makumulo, tHe Bunda 01stnct CCM U.W.T. chair~ who says she knows Nyandig~ as ah Executive in the _-_Bunda. District. Office. says -· he did .not takd a .holiday that period.. _- Dw24, Justus Malay, the then District ExeJ tive Director~ and his boss said Mr. Nyandiga took a leave beca e both his father and . -mother were sick. While Ny.andiga says his other was· admitted at - Bugando Hospital, Dw 24 says she was admi d at the DOH hospital, . . . - Bunda: Again whole Nyandiga says he took 8 days leave Dw 24 says ._ he took 56 days leave. These contradictio·n · plus

Dw23's admission -that· he actively parti~-ipated in the eiect n as 1st Respondenfs - . counting agent s_hows not only that Dw2 3plicipated actively in the - elections as a representative__ of the 1st Re Jondent but also makes _ 77 ·. J... .. . ,:' - . participate in 1st Respondents campaigns. It also makes me believe the petitioner's case and reject that of the Respondents . . Besides, Dw23's participation as polling/ counting agent in the. election is contrary' to Government Circular No. 1 of 2000 which forbids pl:Jblic servants to take part in active politics. It is an · electoral malpractice. The other reason why I do not believe the Respondent's case is their failure to cross - examine, Verynice Mborwe, Pw9 , Mary Bandoma, Pw12 , and Venance Kamunyole, Pw38 , on the alleged conspiracy to concoct evidence against 1st :Respondent. The whole 1st Respondent's case is built upon that !alleged ! conspiracy. But . none of these witnesses was asked ever;1 \a single question about ,· • . I that alleged conspiracy. I have to dr~~ an adverse inference. against the Respondents for that failure t9 brass examine. It shows· . ' their evidence was just an afterthought. _\ . . I , I Worse till the defence witnesses cont adicted ·each other on a very important aspect of their evidence. . hile Dw 2 , Adam Kweka told this court that each of those called a hat conspiracy was paid cash·

50,000/=. Dw7,· Tabu Maheia, anot r alleged participant at that conspiracy says each of them was aid only 7,000/= Dw8, · Wilson Webi, who testified a . day later, a s the men were given 50,000/= and th~ women 7,000/= for. o ng the· same job! This .· contradiction again shows the alleged con p racy is a lie. 78 .• .. • .f': ·- .-. ,., .- ,.• . . -. . . .: .·. . . . . . ·_ : -: ~l.. -For cnese reasons i oelieve -tne petitio·ners ·2vioenc2 and reject that of the Respondents and _hold that allegations of corrupt practices in paragraphs 4(b) (c) (d) and (e) of the petition have been proved. Therefore I resolve the 8th iss~e in the affirmative. • The- 9th issue· is. on- the . petitioner's deposit· of only shs~ . . . 5,000,000/= instead of 5,000,000/= for each Respondent to make up 10,000,000/= · security for costs. · This, according to the 1st Respondents "alternate submissions' is· contrary to section 111(2) . of .the Elections . Act 1985.. Learned Counsel for . the 1st Respondent, . -· . . · Mr. Stella, submits that the proceedings that followed are a_ nullity - as the Registrar should not have fixed a dat~ for hearing· without · the· petition depositing the required security. Mr. Maira, learned co_unsel for_ the peti.tioner did not reply to ttiis submission. :i • :/. I The ruling for the application for exemption of paying security . . ! . . . deposit dated 03/0.5/2006, states:

- ·. "The applicant is to pay the five million shillings deposit by . - . i' . the end of this month, May 2006. ... :....... 1 •• ,✓ -. I . . It does not ~tate· whether the amount is ! or each- Respondent, for - both Respondents or for one Respondent. or does it show whether it was a mere foresight or. typographica error .•. It is ambiguous. 1 _· -Prudence requires that learned counsel should have sought the·_ _ court's clarification on this, or raised a pr Uminary objection before _ · the hearing of the case started, and not waited until at their final. submissions at the end of the case. In fac section 111(5) (a) of the .· _Elections Act .1985· states:- 79 _· ..... V· .... .... _ ...~. _... _,:.. ~ .. .. - . . e•. ~- • • .. . - • ,. •.: ... ·. -...., -~ . . '''/Vhere on appicadon .naae oy [he petitione0 the cowt is satisfied that compliance with the provisions of subsection (2) of (4) will cause considerable hardship, it may direct that (a) the petitioner give such other form of security the · value of which does not exceed five million shillings, as the court may consider fit, ............................... " The learned counsel· for the 1st Respondent did not state whether the order to deposit cash 5,000,000/== did contravene the provisions of section 111(5) {a) cited above. The first da~e· for hearing of this case was fixed on 15/06/2006 by one L. B. Mchome, J, who

happens not to be a District Registrar, but a judge. i Learned counsel for 1st Respondent 1wants this court to declare its own proceedings a nullity. It is ultra vires for me to . deciare my own proceedings null and void. Besides that in Martha Michael Wejj~ · . Hon. The Attorney . j General and three others (1982) T~L.R.. 3js, where, in deciding . i . • I whether the election petition was time ~ tJa red by failure of the petitioner to pay the prescribed fees within t~ period of one month .. stipulated in the then section 130 (1) (1) of th Elections, 1970, read together with ·Rule. 8(1) of the Elections (E~e tion Petitions) Rules . · · 1!111, the Court of Appeal of Tanzania, per Nybl Ii, C.J. (as he used to ... be), after rejecting Mr, Lakha's argument t~a the requirement of · _: paying co_urt fees is not a matter of procb ure but that .of the substantive law, held:- 80 •, I "No election shall be dismissed for reason only of a procedural irregularity unless such irregularity has resulted · . or is likely to result into the.miscarriage ofJustice,✓ It is my humble .opinion that the requirement to deposit cash shillings five million for each Respondent is a procedural one and that the omnibus order to deposit only five million shillings has not or is not likely to occasion a miscarriage of justice in this petition. So the 9th issue is answered in the negative. On the 10th issue

the prayers are for: (1) A declaration that the Parliamentary Election for Mwibara constituency is void. A declaration that the nomination of the I person elected wa~ invalid. · · A declaration th:atj the 1st Respondent and/ • I or his agents comrhitted bribery ,(4) Costs (5) Any other or fLirtt:t ~r relief as the court may deem proper an, 1t. -. - .. . . . . . -- I have already found out as I was esolving the 8th issue that the Respondent Committed Corrupt pa ices and bribery._ I have also ruled that the 1st Respondent's no i ation was not invalid. . Therefore .I enter judgment for h Petitioner against the 1st . . Respondent only and-declare that: 1. The Parliamentary Elections o Mwibara. Constituency is . void .. 81 ·• • • • • •• t" • ... : · . •'· . - - - - ··-. -· -.. ~ .. L Tile ?eI,tloner will geI ms COS-i:S fror'n i::ne· .i. .:.: ?espondent. .

3. The 2nd Respondent can apply for costs against the 1st · Respon.dent if he so wishes. Further Reliefs:- 4. ~t is hereby certified for the· attention and action of the Director of Elections that: (a) Under section 113 of the Elections Act 1985 this court has determined that the election of Charles Muguta Kajege as Member of Parliament for Mwibara Constituency in the 2005 General Elections was void .. (b) Under , section 114 (2) (a) of the Elections Act 1985 corrupt practices have beer;, proved against the ! said 1st Res·pondent Charles ➔ uguta Kajege. ! i . I 5.. That under section 114 {3) of th~ Elections Act 1985, I Christopher Msafiri Nyandiga, Dw 23 t~e then District Water Engineer for Bunda, be summo~ed ·by the District Registrar, to show cause before thi~ court why he should not be certified by· the court to th!· irector of Elections to have · committed corrupt and i le al practices in the ·election.

6. Also under section 114 (3) of the Ee ions Act 1985, let the District Registrar, ·also ·issue a u · mans to one Edwin Gurusya @ Kajun:iulo, tci show Cauf.e hy he should not be certified to the Director of Election to have committed corrupt practices in the elections 82 . i .. .. -., ~;:- ·1uDGE 28/12/2007 Delivered this 28 th day of December, 2007 in the presence of Mr. M. Maira for the petitioner and Mr. Edwin Kakolaki for the 1st and 2nd Respondents. · ~ 0. · · .· ~ . ·. . MCHOME .

JUDGE 28/12/2007 . AT.MUSOMA 28/12/2007 83 I I ' I I I