charles maguta kajege vs mutamwega bhatt muigawya 2009 tzca 23 25 september 2009

IN THE COURT OF APPEAL OF TANZANT* „ a t d a r ES SALAAM M v* &,uuu betw een ARLES MUGUTA KAJEGE ... APPELLANT AMD MUTAMWEGA B H A T T M U G A W Y A ... RESPONDENT (A p p e a i fro m th e d e c is io n o f th e r v j h C u u rt o f T an zan ia a t M usortia) (M c h o m e r d a te d th e 2 8 th d a y o f D ecem b e r, 20 07 in M s c X M L C a u s e No. 05 o f 2005

J U D G M EN T OF THE COURT 9 &. 25 S e p t e m b e r , 2009 RAMADHANI, C. 1 • On 14- December, 2005, there was = Genera, ttection on Tanzania Mainland m which the appellant, Charles Muguta Kajege, a Chama cha Mapinduzi (CCM) candidate, won the seat of the Mwibara Constituency and thereby defeated his opponent, the respondent, Mutamwega Bhatt Mugawya, who was fielded by the Tanzania Labour Party (TLP). Those results we^ declared on 16th December, 2005, and the respondent contested them by filing an election petition which was upheld by MCHOME, J. by annulling the election. Naturally, the appellant was dissatisfied and hence this appeal. 2 For the sake of clarity and simplicity we shall refer to Charles Muguta Kajege as the appellant and to Mutamwega Bhatt Mugawya as the respondent throughout and not by their litigation titles at the High Court. The respondent had catalogued fifteen particulars of non compliance with the election statute on nomination, irregularities and illegal campaign practices which were committed by the appellant, personally, or by other people with his knowledge or consent. After a long trial involving forty witnesses for the respondent and thirty one for the appellant the learned trial judge, when writing his judgment, increased the number of issues to ten from the original four. May be we let MCHOME, J. speak for himself: After the conclusion of the

hearing and receiving the final submissions of learned counsel for both parties I think it fit to reframe the issues and add other issues to enable me to determine the matters in controversy more conveniently. May be we digress here a bit. A mountain was made out of this molehill by the learned advocates for the appellant. Without going into details we rule that what the learned Judge did was perfectly in order and, as he correctly cited, Order XIV Rule 5(1) of theCivil Procedure Code, 1966, provides for such action. For the avoidance of doubt the learned judge did not claim that the new issues he framed were distilled from the petition but rather from the evidence and the final submissions by the learned advocates. 3 TO go back to our narrative, only two issues out of ten were answered positively by the learned Judge. Actually, one of the two, issue 5, to be precise, was couched in the following terms: Did [the appellant] use derogatory words and impute w itchcraft practices against [the ^respondent] alleged in paragraph 4 (h) of the neuuon. The learned trial Judge held that "the [appellant] used those derogatory words in Nafuba Island against the [respondent] . However, in issue 6 the learned Judge posed the question whether the derogatory words affected the election results. His holding was ,n the negative, that is, the derogatory words did not aifect the cect.on results

since they were uttered once and in only one area w ere there were only 600 voters. The election, then, was nullified because of the second issue which was heid in the affirmative, that is, issue number 8. MCHOME, J. said: Fnr these reasons I believe the [respondent's] e v id en ce and reject that of the [Appellant] and hoW that allegations of corrupt practices in paragrap 4(b), (c) (d) and (e) of the petition have been proved. It is imperative that we revisit paragraph 4 of the petition particularly those four sub-paragraphs: 4 That the said elections were fraught with 1,wl ‘ compliance with statutes regarding the nomination, I l l e g a l campaigning, the election was marred by grave 4 irregularities and illegal practices by the 1 and 2 respondents personally and other peopie «nth their knowledge, consent and/or approval, particulars of which are set out below:- (b) At Iramba Ward, Isanzu, Kamkere, Igundu Ward and Viillage on diverse days during the campaign one Christopher Nyandiga who was at the material time the District Water Engineer and who was the [appellant's] campaign Manager openly told voters that he would nor supply them with water if they vote (cVThat the said Christopher Nyandiga similarly did use his position to drill water wels to influence voters to vote for the [appellant] and • CCM Party. This was done at h a n d le Chamakapo Villages. (d) The [appellant]

and/or his agents Government motor vehicles to wit STJ 8094 pick-up and SM 1305 Tipper Lorry to ferry stones and sand at Kigaga Primary School. (e) The [appellant] did actually use oribes or example on Saturday the 10th day or December, 2005 did distribute shs. 500/= each to voters m Buzimbwe, Kabainja, Mwisem, and^ Ragai Villages, Nansimo, Kibara etc., t09ethe footballs, jerseys, khangas and hoes (su,,. There are two matters we have to point out at the outset here and now. One, the issue of nomination was found not to have been proved. Let us quickly add that that complaint was not contained in the fbur sub-paragraphs but rather in the main paragraph 4. Two, sub-paragraph (d) was much earlier deeded in the negative by the learned Judge and we find it strange that he later found it in the 5 affirmative! The learned Judge said at page 328 of the typed script-gf the judgm ent as follows: ... I am not satisfied beyond reasonable doubt that the [appellant] corruptly supplied sand and stones to Kigaga Primary School as alleged in paragraph 4(d) of the petition. So, to be precise, MCHOME, J. found three sub-paragraphs proved, that is, 4 (b), (c) and (e). It is our well decided opinion that sub- paragraphs (b) and (c) are one and the same thing; water wells. Before us in this appeal there were Mr, Richard Rweyongeza, Mr. Michael Ngalo and Mr. James Kabakama for the appellant, and

Mr. Majura Magafu and Mr. Twaha Tasilima for the respondent. The memorandum of appeal contained ten grounds but ground numoer 9 was abandoned. Likewise there was a cross-appeal which, too, was withdrawn. However, it is our considered opinion that the nine grounds of appeal boil down to only one: corrupt practices were not proved beyond reasonable doubt. All others are details showing that proof was not of the required standard. Mr. Rweyongeza went to some detail pointing out that witnesses for the respondent were found in unusual ways. PW 10, Safi Mukama, for example, stated: I came to testify on what I saw. My husband is TLP Chairman for Kibara Village. He is not the one who told me to come and testify. I was telephoned and told I was wanted to come and testify. The learned advocate went further that PW 11, Stella Julius, first said that she could not report the irregularities committed by the appellant because he is her brother-in-law whom she expected would have been appointed a Minister. But then she stated: When I heard in the radio they were complaining of corruption I decided to come and give evidence. There was also PW 18, Kulwa Mangosora, who said: I heard about this case in the news media. I volunteered to come and testify because justice was not done to me. I do not have a calendar so I do not know when the news of this case was announced. W e agree with Mr.

Rweyongeza that witnesses are not found that way. However, since they have testified they have to be tested for credibility in the usual way. And since this is an appeal from the High Court in its original jurisdiction then accoraing to Rule 34 of the Court of Appeal Rules, 1979, we have to "re-appraise the evidence and draw inferences of fact". Now, to the ground of appeal,, that is, the standard of proof, we have to examine each allegation on its own. There are three aspects of corrupt practices: One, the presentation of jerseys and footballs. Two, there was the dishing out of moneys and some other goods like salt, soap, and clothes (khangas and vitenges). Lastly, there were the 7 promises of drilling water wells for those who would vote for the appellant and for CCM, his party. As for jerseys and footballs, the respondent had three witnesses. PW 23, Kanwagale Mu'kama, claimed to be the elder of the Dragon Football Club, in Kisoria Village. He went further to say that Nyandiga and the appellant went to the Club and told them to go to the CCM Office at 11.00 am of a day he did not recall. The witness was very uncertain as to who told them to go to the CCM Office. He said: At the Club we were told to go to CCM Office at 11.00 pm. W e were told by Kajege [the appellant]. It is the CCM Vitongoji Chairman, Magina Kiherenge, who told us. I attended at 11.00 pm. When we reached

there I was given 15 red jerseys to ask the youths to vote for Mr. Kajege. When he was cross-examined by Mr. Bulashi, learned counsel, he replied: The leader of the ruling oarty told us to go and get the jerseys at 11.00 pm. I have forgotten the dates. Apart from his uncertainty PW 23 did not say whether or not the appellant was around when they were told to go to the CCM Office or when they were presented with the jerseys. The second witness, PW 24, Mujungu s/o Manyunyu, claimed to have been a player with the Awamu ya Pili Club, and he said "Kajege b ro u g h t us a football". However, the witness did not remember the date or the month when that was done. He confessed that he did not know the names of the CCM candidates. We wonder with Mr. Ngalo how he then knew the name of the appellant. There was also PW 29, Jeje Bwaiye, who boasted to have been either the Captain or the Assistant Captain of the Kibara Boys Team. He recalled that on 19/09/05 Mr. Nyandiga went to the football pitch and told them that the appellant would give them some jerseys. The appellant gave them 14 jerseys and a football. It cannot be that one person is both the captain and the vice-captain at the same time. Anyway, that could have been a slip of the tongue. But it is incredible that a captain or a vice captain, whatever it is, would not remember the name of any of the team mate even the goal keeper!

This witness is an unabashed liar. All three witnesses are not worth of any belief. We dismissf'them with the contem pt they deserve and we find that there is no evidence whatsoever to sustain this allegation, contrary to the learned judge's finding. T he second aspect of corrupt practice is the dishing out of moneys and some other goods like salt, soap, and clothes (khangas and vitenges). Even at the sake of repeating ourselves we better reproduce Paragraph 4 (e) of the petition: The 1st Respondent [the appellant] did actually use bribes for example on Saturday the 10th' day of 9 December, 2005 did distributed (sic) Shs. 500/- each to voters in Buzimbwe, Kabainja, Bulamba, Mwiseni and Ragata Villages. Nansimo Kibara etc, together with footballs, jerseys, khangas and hoes (sic) The words "for exam ple" and "etc" show that what is stated in the sub-paragraph, both as to the date and places, are mere examples and that there are other dates and places where bribery took place. But could the appellant have been in all these seven places on that ‘ one day? W e shall start with Saturday 10/12/2005. PW 12, Mary Bandoma, testified that on 10/12/05 the appellant, in the company of Mashaka, Nyandiga and ’his brother Anthony, was at Kibara CCM Office from 2.00 to 4.00 pm and that he distributed shs. 500/- note to every person who was there. However, DW 14, Sophie Makamuio, who was on the

appellant's campaign team, stated that on 10/12/05 she was with the appellant, his brother Anthony and Mashaka campaigning at Nansimo Centre from 3.00 to 6.00 pm. That was confirmed by the Campaign Timetable which was tendered by DW 24, Justus Molai, the District Executive Director, Bunda District, who was the Returning Officer for Mwibara, and was received as Exh. D 5. W e are satisfied that the appellant could not have been at both • places at the same time. The chances are, on the balance of probabilities, that he was where the campaign timetable scheduled him to be, that is at Nansimo and not at Kibara or any of the other places, dishing out moneys as claimed in sub-paragraph 4 (e). Let us now see where else and on what dates the appellant claimed to have dished out moneys and other items. PW 12, Mary, Bandona, mentioned two other dates and places. She gave 26/09/05 at Busambara Ginnery from 5.00 to 6.00 pm and on 13/12/05 at Kibara CCM from 1.00 to 3.00 pm where the appellant was personally dishing out moneys. According to Campaign Timetable, Ext D 3, on 26/09/05 the appellant was scheduled to be at Iramba, Isaju Senta, from 3.00 6.00 pm. Again he could not, on the balance of probabilities, be at Busambara Ginnery from 5.00 to 6.00 pm. Admittedly, on 13/12/05 the appellant was scheduled to be at Kibara Senta per Exh. D.

5. PW 12 claims that the appellant distributed monies there from 1.00 to 3.00 pm. But we ask: If the appellant was scheduled to campaign from 2.00 to 6.00 pm that day would he sacrifice that opportunity and be at the CCM Office distributing monies from 1.00 to 3.00 pm? If the money vending was alleged to have been done in the morning hours, we would have easily bought that story. Similarly, the story could have found a purchase with us if it were other persons distributing the notes on behalf of the appellant. But PW 12 alleged that it was the appellant who personally did so. There was PW 34, Abigaiel Mabuba Asen, w o s a i ^ a phone call drawing her attention to some corrup, perpetrated at the Nansimo Primary Court. Dhe testified furt er. I investigated and saw Kajege [tm* ™33 She sodas and drank beer^ H o llr , when she was c r o s s e d by Mr. Kabakama £ replied "Kajege was not present", that is, the appellant was no there. That is strange. Was the appellant in those witness be believed? Can her testimony be taken to prove and property was dished out by the appellant? We shall about the other persons like Nyandiga or Kajumulo. n\\l TQ TUprnaC Nv^OVO, But apart from that contradiction there ,s PW 39, ^ ^ who was a watchman at the Nansimo Primary - acknowledged that on three times meetings were held at *he ^ by both CCM and TIP. He did not mention any dates wa day when some

people were beaten andinjured. That is also t h e day for which PW 34 testified. PW 39 stated: 1 did not s e e e j ri hppr" PW 39 was testifying on behalf ot tn drinking soda and beer . p v v jy wc> respondent, just like PW 34, but they were poles apart. 12 There were other witnesses on bribery. PW 2, Ayubu Ghisute Musarika, he said that he witnessed "ram pant bribing" by the appellant. At Kabaija Primary School he saw a lot of women and the appellant was there seated with three other persons including Nyandiga. PW 21 was emphatic that: I did not see them given the money. I saw them coming out with money in their hands complaining. We agree with Mr. Ngalo that he couid not categorically say that there was bribing when he did not see any transaction. Then we are a shade unsure whether it is a natural tendency for one to go around clasping notes that openly. Besides, PW 2 claimed that he saw this on 10/12/2005 when he was on a door to door canvassing from 7.00 am to 5.30 pm. He did not specify the time he saw those people coming out with money. Surely, it could not have been during the whole of his campaign period. There was also PW 3, Kasaka Nyarubamba who was at Kabaija Primary School, too, on 10/12/2005. He saw CCM people who went there at 6.00 pm and gave everyone of them shs. 500/=. He was categorical in the exam ination-in-chief that "the candidate [the appellant] was not

there". He reiterated that when cross-examined by Advocate Mujuluzi and also by the State Attorney, Bulashi. PW 4, Agnes Kusaya, was at Busimbwe Village and at 5.00 pm she went to a cotton godown where she, and others, was given shs. 13 500/ . She, too, said that the appellant was not there at that time. That is what was repeated by PW 5, Jumanne Lukodisha, PW 7, Charles Wegoro, and others. We have, therefore/three versions: there are those who have maintained that the appellant was no' at the bribery sessions. All these claimed that the dishing out of monies was done by CCM people or Nyandiga, Kajumulo and the younger brother of the appellant called Anthony Kaiege. There are witnesses who claimed that they received bribes. There are those who concluded that bribes wgre given simply because people came out of the meetings with money in their hands. We ask with Mr. Ngalo who is to be believed? For the sake of argument let us go with those who confessed to have been personally bribed, not by the appellant, but by others, j t * question then is can the appellant be implicated? Section 114 (2)(a) of the Elections Act, 1985 (Act No. 1 of 1985) provides as follows: (2)l At the conclusion of the trial of an election petition, the court shall also certify to the Director of Elections- (a) whether a n y c o rru p t o r ille g a l p ra c tic e has been p ro ve d to have been c o m m itte

d y o r w ith th e k n o w le d g e and c o n s e n t or a p p ro v a l o f a n y c a n d id a te at the election and the nature of such practice, if any' (Emphasis is ours.) 14 candidate. • f-hp t-p We have already said, after review^ .. ^ ^ ^ “ '“ ’ t " lu , * « « iS * » > « was given. What we are Kaiumulo or the T « Se "I " "o j e appellant's brother, Anthony Kajege or jus a h t-hpr it has been proved that these persons did The question is whether r o n s e n t o r a p p r o v a l" , u -I.L. fu p knowledge 3nd con w h a t they did w it h t f r 1967j E. A.- „ , ^ p h r t f s C 3 in M b o w ^ J M o o , LiyD / J of the appellant. G EO RG tb, ■ — 240 said at 241: There has been In the term 'provecI to the ^ ^ ^ m y v i e w , It IS C l e th e re s p o n d e n t, on the petitioner rather th- . ^ ^ efectjon 15 The onus of proof is on the respondent but we are at one with the learned trial Judge's citation with approval the wo res of the authors of Sarkar, The Law of Evidence (3rd Ed.) at p. 183: The rule that the burden of proving a case of corruption is on the Petitioner does not absolve the respondent of the responsibility to assist the court by producing the best possible evidence. However, the appellant has done that cjs properly pointed out by Mr. Ngalo. Let us take the case of the appellant's, brother Anthony Kajege, and Edwin Gurusha Kajumulo, for instance. DW 14,

Sophia Makamuio, one of the persons appointed to be on the appellant's campaign team, categorically stated that on 10/12/2005 the two persons were not at Kibara, Kabainja or Buzimbwe. • A number of the respondent's witnesses supported paragraph 4 (b) that Christopher Msafiri Nyandiga, DW 23, was the campaign manager of the appellant. If that was so, it would have been easier to conclude that the appellant had knowledge and consented or approved what Nyandiga is said to have done — dishinq out money and other items. However, we agree with Mr. Ngalo that it was net proved to the standard required that Nyandiga was the campaign manager. The appellant categorically denied it. DW 24, Justus M jiai, the District Executive Director of Bunda, and therefore, the Returning Officer of 16 both Bunda and M w ibara C o nstitu encies, testified that he sw ore N yandig a as a co un ting agent. Mr. T a silim a q u e stio n ed how could N yandiga be a counting agent while he had not been involved in the campaign. But we do not think that it was necessary to be involved in the campaign in order to be a counting agent. Section 70 of the Elections Act, 1985 is crystal d e c on that: m Every polling agent or the alternate polling '' agent appointed by the political party agent pursuant to section 57 of this Act, shall at close o f the poll and during the counting of votes, be th e co unting agent of

the appointing candidate. ( 2) Every ca n d id a te in P arliam en tary or Presidential election m ay ap p o in t a cou nting ag ent to rep resen t th e can d id a te at the place and during the ad dition o f electio n results by the Returning O fficer or th e C o m m issio n , as th e case m ay be. A cco rd in g to DW 24, th e Returning Officer, DW 23, Nyandiga, was a co u n tin g a g e n t referred to u n d e r section 70 (2). We do not read .in th a t su b -se ctio n w h at Mr. T asilim a has su bm itted. N yandiga did not h ave to be involved in the ca m p a ig n to be a counting agent. The learned Judge came to the conclusion that Nyandiga was the appellant's campaign manager because of three grounds. One, he found that there were contradictions in the appellant's witnesses as to who constituted the campaign team. Two, Nyandiga claimed to 17 have taken leave so as to attend to his sick mother at the time of election campaigns and there is also discrepancy as to the length of that leave. Three?, the learned Judge was critical of the failure of the appellant's advocates to cross-examine the key respondent's witnesses. The learned Judge pointed out that the appellant gave a list of names of the people who constituted his campaign team. That list differed from the one given by DW 12f Mazigo Lugola, the then CCM Chairman of Nambubi, and the list presented by DW 14,

Sophia Makumulo, the Chairperson of Umoja wa Wanawake for Bunda. Then there was DW 17 Edwin Gurusya Kajumulo, who claimed to have always been m the appellants campaigns though he was not mentioned by the appellant himself. There was a campaign list tendered as Exh D 1 which the learned Judge held to have been concocted so as to deceive and hide Nyandiga's name. But Mr. Ngalo submitted that that Exh D l was tendered to give the lie to PW 12, Mary Bandoma, who boasted to hfive been on the appellants campaign team. The list was not tendered to show that Nyandiga was not on the team. W hat strikes us is that in all the lists given by the appellant's side the name of Nyandiga does not feature. It was for the respondent to pm ve that Nyandiga was on the appellant's list of campaigners and it was not for the appellant to prove that he was not. The learned Judge also found contiadictions in the question of leave. Nyandiga said that he took leave from 17/09/2005 to 01/11/2005, that is 43 days and another from 06/12/2005 to 19/12/2005, that is, 14 days. That totals up to 57 days. DW 24, the District Executive Director, who was Nyandiga's boss admitted to have granted Nyandiga 56 days. We fail to see how the learned Judge found that Nyandiga said that he took only 28 days! We agree with Mr. Ngalo that there Is no discrepancy and that the learned Judge's conclusion that Nyandiga was the

appellant's campaign manager is false. As for the cross-examination we again agree with Mr. Ngalo that the app ellants advocates did it and we cannot take that to prop the finding that Nyandiga was the appellant's campaign manager. W e are o f the decided view that it was not provea beyond reasonable doubt that Nyandiga was the appellant's campaign manager. We say proof beyond reasonable doubt because Nyandiga has been associated with corrupt practices on behalf of the appellant. And .corruption has to be proved beyond reasonable doubt. For the sake of clarity, and at the expense of repetition, we say that had Nyandiga been proved to have been the appellant's campaign manager then 19 we could impute that the appellant had knowledge and consented or approved all that he is alleged to have done for the appellant. The other corrupt practice is the digging of water wells so as to get the appellant elected. This again involved Nyandiga who was the District W ater Engineer. Admittedly, as Mr. Ngalo pointed out, DW 24, the District Executive Director, testified that the District Council had already decided to dig those wells during the campaign period even before the campaigns had started. ■. Mr. Ngalo sought to distinguish this case from that of Attorney. General and Two Others v. Aman Walid Kabourou [1996] T. L. R. 156 where the building of the road had not been planned but

was decided upon during the bye-election campaign. That could be so. But in our opinion what matters is not what is known in the Council chambers but the impact on the ordinary people who are totally ignorant of the Council's plans. However, what we have said at length regarding Nyandiga with respect to bribery in cash and other items, continue to be valid here. We reiterate what this Court said in Chrisant Mailvatanqa Mzindakaya. v. Gilbert Louis Nqua [1982] T. L. R. 18: Although there was suspicion, perhaps strong suspicion that the appellant was behind the supply of milling machines in his constituency with intent to influence the voters, the respondent did not discharge the onus of establishing these matters by evidence to 20 the satisfaction of the Court to enable finding of corrupt practice. it to make a We therefore, aliow the appeal with costs both in this Court for two C ourt^ oT n u iriv ^ be'° W' ^ ^ ^ dedS,° n ° f the Hi9 h dec are th 7 ^ ^ ° f MWibara C° ns« — - d we the appe„ ant to be the rightly elected Member of Parliament. Before we conclude this judgm ent we have to say how aisgusted we re to see that a number of witnesses, with dashing courage, have Pas e on oath that they have received bribes and that they voted : h7 ;h w « • * " ' « : : such confessions were PWs 3 4 5 r q m i i ?Q ^ „ ' ' 9/ 10' U ' 12' 13, 14, 16 23 29, to mention but a few. ' The

Elections Act aims at making a level play field for al, , hp A rt -u |ii>iuc.reu ufjiinuu u idt the P escribes severe consequences even to voters who are proved have received bribes. That is hew we construe section H 4 ( ) (3) which provide as follows: (1) Where a court determinoc t-K-^ person concerned is registered a's a voter " 21 (a) the Director of Elections shall d f - t e hi-- name from the reaisfpr nf v r ^ • , registered; 9 ° terS ln whlch he 's (2 ) (3) Before any person, who is neither a narh, tv, w hom o m n the thPee tisseat e a t n0r is aclaimed , Candidate by on an behalf of election s e c t n ' t h e Cc rt^ ed Kby the C O U r t ^ n n ^ rf' I Urt ShaH 9,Ve such Person - cainnnUm^ ° b6ing heard and g iv'ng and a ilin g e v id e n c e to s h o w c a u s e w h y h e s h o u ld n o t b e s o c e r t ifie d . ^ n o u ia I t is c le a r to u s t h a t w itn e s s p ^ n f an mr-t-- "a person" in c k P $^ C° V6red by the a p i , W b6CaUSe th3t iS 3 PSrS° n - h o is neither * Z as claimed T mentioned p e t i t i o n candidate in sub-section " n o r a (3 on ). beha,f of whom the * * * If we are to play our part in ensuring elections that are free from - U P ^ count_ e are of ^ deQded optmon, that : : of witness s t h o T ^ °f E to fo n S ™ m es pectoral Commission and all those receivt bribes b h b e '^ 'd "are and 15 'e9a' t0 fn willing to come a" V° te''S S° that those

wh° faro fh testlfy In C0LJrts of law wiJI s t j t t of “ o, t e ™ is' " - • - I P ces brag in court of what they have done during election campaigns and then go scot-free. 22 Here we hesitate to make such an order because, as we have already said, we are of the opinion that a number of witnesses are not worth any belief. The other observation we have is for the Attorney General to revisit section 115 (2) of the Elections Act, 1985, so that both election petitions and appeals should not take more than two years otherwise the provisions fpr election petitions constitute a m ocker/ of democracy. Because of the election petition, and the resulting appeal, the Mwibara Constituency has been deprived of a representative for the last three years and nine months now. Had it not been for the decision we have come to, chances are that, there would not have been a by-election in Mwibara according to the provisions of Article 76 (3). That sub-article prohibits the conducting of a by-election if there are less than twelve months to the dissolution of Parliament. We take judicial notice that Parliament is dissolved soon after the budget sessions of the Genera! Election year. So, the Mwibara Constituency would hd'/e been denied of an MP for the whole of the life of the current Parliament,, that is, for five years. DATED at DAR ES SALAAM this 25th day of September, 2009. 23 A. S. L. RAMADHANI

CHIEF JUSTTOF 1 H. MSOFFE J u s iic l q f a p p e a l M. S. MBAROUK ju s t ic e o f a p p e a l I certify that this is a tru< copy of the oricina! ( Z. A. MARIJMA ) EPUJY r e g i s t r a r