19980611 TZHC Dar es Salaam

,") ~. "' /'f, -;/' ~- ~-~' ·""- IN THE HIGH CO@T OF TANZANIA

DISTRICT REGISTRY ~-·-· ~- AT .......___,... TABORA.... MISCELLANEOUS CIVIL CAUSE NO, 3 OF 1995 I In the matter of Election Petition under Act 1985 and the Election Petition Rules 1971. AZIM SULEMAN P.REMJI PETITIONER

VERSUS 1. THE ATTORNEY GENERAL ) •••••.,••••a•••ofa•••••••·• RESPONDENTS 2. DR. AMA.T\J WALID KABOUROU)

JUDGMENT JVu\.SANQHE,1 J • : This was a hotly contested election petition, The petition was I I aloo characterised by a lot of sentiments. 1 It also has had a chequered history which I will not mention in these intrpdu,ctory remarks., But, suffice t9 say that the case hc1s been lone- and .protracted, sometimes, unnecessarily so.· It is a petition filed by Azim Suleman Premji against the results in a Parliamentary election in which Dr •. Aman Walid Kabourou was elected· member of Parliament for Ki 0 oma Urban Constituency. Mr. Premji (hereinafter to be referred to as the petitioner) polled 15,205 votes as ae;ainst 15,475 polled by Dr. Am8.n Walid Kapourou (hereinafter to be referred to as the second respondent). The first respondent, the Attorney General is being collll)l.lained against because }:,3 was represented in the whol.e ~ - system by the Returning Officer. So, the second respondent won by,a margin of 273 votes. The petitioner has brought this case to Court asking that the ; Court declares the election results null and void on sped.fie grounds. which are contaii::ied in his petition. Thes,e grounds, in ,~hort, after . j •_t ;; ).I "(• 2 ', - ""L, synthesing them, have brought the following issues, which this Court will have to deliberate upon, and make firidinGS on. The petitioner iwers that he has brought evidence to s!10w that the issues will be resolved in his

favour. The issues drawn and which this Court will have to deliberate upon are the follow~ng: 1. Whether on the election day the Returning Officer failed to provide sufficient ballot-papers to polling stations as alleged in paragraph O?(i) of I the petition. If so, whether many voters failed to vote as a result; Whether on the election day polling stations in I , / Katonga Mwanga Vamia A & 'Bland Rusimbi Wards ' opened up late but closed at 4.oo p.m, not- withstandine the extension; of voting time by the Eleetol:\nl•.eomnission.' If so, whether many voters failed to vote as a result.

3. Whether on the election day after the voting time was extended, polling stations did not have !~E!,::...ns or any other source of light to be used in the darkness as alleted in I para@:'aph 7 (iii) of the petition, If so, whether many voters failed to vote as a result.

4. Whether on the electio2t d,s.y, the list of the 1 . I voters ~ssigned to the polling stations I named in paraeraph 7 (iv) was changed without notice. If Eo, whether this caused many voters not to vote. 3 5. Whether the voters shifted to Kah.buka D polline; station and whose registration certificates ended with numbers between 1001 and J200 1 did not ~ote because the reGister that contained copies of their registration certificates was not avfilable at the station; 6. Whether durinG the adding up of votes exercise, the Returning Officer opened up and counted votes from three ballot boxes but refused to give a I decision on the petitioner's disputed votes.

7. Whether on the election day, at the polling station named in paragTaph 8 of the petition, re 6 istered voters were assaulted, threatened and or intimidated by ar,ents of second respondent to scare them from voting or to force· I them to vote for the secon~ respondent •. If so, whether this caused many voters not to vote at those polling stations, or did not vote for a person of their ehoice; '· the second \·/hether on the ele~tion day, aaents ef respondent conducted illei:,ral campaigns ~is alleged in paragraph 9 of the petitidn: Whether at the VManga Community Centre polling stations there was disorder and whether polii~ used tear gas bombs. If so, whether many voters failed to vote as a tesult; 10. Whether during the election campaign at Ltimumba Road in Mwanga Area the sedond respondent unlawfully I I • clad himself with a c.c.M. ,}lag and thereby humiliated the Petitioner _and the political party that sponsored him. .I .. / / 4 ll. · .Whether during the electi.on campaigns the second respondent made statements with ilitent to exploft'-"r'ai:ial issues and .r:r.:: differences pertinent to the elections and relating to the candidate with intent to exploit differences at the places alleeed in paragraph 12 of the petition.· I 12. If the answers to issu~s No. 1 to 11 are in the affirmative, whether the non- . ; ..;- r !'', compliance affected the results of the ·l' ·:.r'f

:u_,,_,_ election; i .,.. ;t.3. .;' .; 1_.,, To what relie:fi, are the parties entitled to • -;';7_1_ •,•• So- in cfi1, we have 13 issues. ' Now, before I go into the exercise of picking up issue after issue, and testing it against the evidence adduced in Court., to see if the answer is in the affirmative or negative, I think it is . ~~::,:· .; : .. . ( prudent to outline the legal principl:es that I intenii. to be guided by: ·--.·' .JJ .·:_.:;j!'.. ,._,, .. .,v··· il will be guided by the· foJ:.lowfng principles·: .·,.,,., J,. That election petitions! are not ordinary ,+ "" ' suits. They are special suits, and therefore., they must be construed !Dore. strictly. This .is so because whereas, ,suing per se is a common I law right, sending a pet'ition to Court ,is a statutory right~ Again, ther'e i'~ also a j ~ked Jact that one· of the pers1ons in such I 11 suits11 1 quite often the respond.ent has been declared by the Returning lrficer to have lithe conficence of the electorate". The ~ Courts must therefore be very slow to interfere with that verdict, except when -J -/ il i ~isc.Civ.Cau.3/95. 5 a clear case is made out CMoi;ha ',s Law of PleadingsJ 14th Edition: Sa~atta ,J.K. (as he then was) endorses :this view in Philip Anania Masasi v:: I'.:;; Returning Officer Njombe North Constituency, 2. The AttorneY,:~ 3. Jackson M~eta ··(Miscellaneou$Tf:Jv:il Cause No. 7/95 - High Court ISong_ea).

2. I q_uo.te my brother Lugakini:;ira J. (as he. then was) in the case of Joseph Sinde Warioba v: Stephen Misc. Civil .Cause No. 25 of 1995 Mwanza 'Hi'gh Court Registr_y) w~ere he says: . .lilt. .is ~ sHii ·available to challenge the .vgJJdity of an eiection on the ground of illegalities that are otherwise not expressly sta.ted under l ____ s. 108 [:of. '°the Election Act.J Secondly,· :there is the jµrisp~)-19.antial .. _.~.,.- ... ro:-'~mlti- &~{~h deriv~s f'('q,~:ih~-, spirit . ..... ,. .. ' ·:· • --:.:~ i ... , ' ..... ---·· ' " " of the· Constitut.ibh-and fne Election Act, und that is democratic elections have to be free and fair. This too has --- --- not been affected qnd Parliament has no power to lee;islate afiainst tihat principle. An election riddled with chinery and criminality is not an election in the eyes of the law, because it does not express the wishes of the electorateii. "The Franchise is the very cornerstone of II democracy 1 , it is the one right, perhaps more than any other, up9n which all other L -- constitutional rights depend for their effective protection; WJ:ien the right to vote Misc.fav.Caue3L~• 6 -- is denied or abrogated democracy and freedom fail (lllgakingira, J • in ~-eph Sinde Warioba case supra).

4. It is now the law_, that number of votes scored in 2. election is not material: What is important ·' 40 ·;·· •• is- the. :fr·ee~ess_,, and fairness of the entire •••• I ,; election. · An ·:B-:··~1l'ement th~t t,after all even if he L· I . .- was given my v,bte~, numerically he wii:t·•:stifi l@ig! ., .. . ~ \)ehipd~ is no ;•lop:g~r uc;epted - see cgses . I .-, ~ <I 1 I ' ~k,mwale v: _Madono. c1982 .•. '.. ' j, f ' . . I J T~ 69; Kami~\ira v: Ka~i_ C°l982 J TLR 338.

5. The position is then this ntcidng into account the principle which underlies the Constitution o.nd 1 the_Elections Act 1985, that elections shall be . :n free and fair, ••••••••••••••••• an election whifh is eener8lly unfree and unfDir is not an election as envisaeed by the Constitution_and the Election · Act, and consequently, anything which renders ::.· the election unfree/and unfair is in law valid g:round for nullification o( such purp1ted election. 11 I 6. 1'.s has been sa~d in a number of cas~s on election, in the end: Hthe trial judge 1 w~ll have to take into i account i,. ••. ••u,• _1.the cumu~tive effect on the election of the proved irregularities (Masasis case: Samatta, J.K.). The Court of Appeal in the •ase of ~ e Mshambwe v: 1. Attorney General; ~.!.,~ter Segela Nswima - Civil Appeal No. 27 of 1996 obser~ed L ; I" 7 that the iJ"'a petition: n[:re~tedJ ent-irely .on, the cumu~ativ~ adverse cefect of the s~r.i.~s ,o.f alleged !lOn-compli_a:ri'ces .,,;. :°r . irreQ1{1ties in the conau'bt 'of the E)lect'oral process"~ 7. 'pn <'iurden of proof in election cases, I do not do I better, than quote Court, of Appeal for Tanzania itself in the case of Peter Msekalile v: Leonard Newe Delefn - Civil Appeal No. 32/97., -.Dar es Salaam Reg·istry, tlir~U.gh S~att~, ·J.A .,, ,•UH it says: 11 ' If there is one question better settled ' . •· • . • ····!· th..'m any oth~;.. in o~r

electoral law, .,tt is I . .-,· ~, that the onus of proof in an election ·!): ·, . ' •. ;:,._.,. petition i~· on -the petitioner and that that onus is di~~harge9-, o.nly.~wl:ien there is t,' proof beyond repisonable donbt'i 11 :.C•"•:-.' 8. Witlt regard to defame-tion in elections, C·.e the Court of Appeal has observed this: They remarked: 11 11.S we apprehend the law, it .. is ~ every defamation 1-ihfcfi.cd~•-in .law comititute a sufficient ~sis ror nu·1ii:fyiriif an election. To attain such a status the .; r: -~.- ·. ,,·· .· :( .. ,-,. ' defamation ipust be inexcusable or ~defensible11 • .. ·;·.-,. ! And the .Court goes on to say: "Were the law othe'rw:l.se\ election campaigns would have been intolerably risky undertakings1 I I We think there arJ no public interests which demand that the law should be othe!'V{ise 8 t~n stated in Azim Premji I s caseH • You will ask me \>/hat is the law, &n Premj:i.'s case? Samatta, J .Ao answers it:: He says: "In Azim Premji I s case .... o ~. this Court did not lay down a general ~ of law that mere utterances of intimidatory I statement justifi:es nullification of ll&ll ele!ttion. 11 Samatta JoA., further an~wers: 11 The Court consider~d in that case the effect on the election results of, among other things, intimidatory st,:ctee€:iti~,11 On this eit;htt:, principle of kw that I say I will be e;uided by 1 one thing noticeable, in the present

law, is that the Courts have not laid down what acts of defamntion will le:,d to m/'\king an election not free _or fair and therefore result into annulmento The type of defamation must be in ex~1:_~ and ~ndefensi~le. But what these are 1 the law is silent. We now proceed to examine t~e issueso ISSUE NO. 1: 0 Whether on the election day the Returning 6fficer failed to provide sufficient ballot pGpers to polling stations as alleged in parac;raph 7(1) of the petition, If so, whether many voters failed to vote ns a resulton Now, her~ going through the entire case, the relevant witnesses who would assist us in lookinG at the issue are the Returning Officer himself Mr. Badru Abdallah Bushaku: R.w.1, Miss Macho f'.kul:i.di P.w. 7; Ruth Gota James· P.W.8; Omari S e ~ · P.W.,15; Tatu Shabani Kalimbo ', ~ :).:: _: i ._,:,.'.:.:.:,11 :.~j!~ --··•-•--.•-- Misc.Civ.Cau.3/95. 9 '• I P.:w,a9; Felix Alex Mwanakasele. P-.W .. 22 and 0bedi Ndahoze P~W. 27 • I The evidence unfurled in Court is that Mr. 13\lsHaku P,w:.1, t'he Returning , Officer, was given 4o,8oo ballot papers for the President~ He was given a similar number f:or the member of Parliament. ;; His registered voters were 37,738, So, he had in excess 3,162 votes :for the President, and equally, 3,162 votes for the member of Parliament, The allegation in Para 7(1) of•.the petition .is that th.,, following stations had a shortage I of ballot papers, 1. Mwanga Kaskazini, Ogisi ya Kata ,;G''.

2. Ofisi ya Kata Gungu 11 N1 to 11 F''.

3. Buronge Primary School - HA'' to npa, 4. Kibirizi Primary School - 11 A' 1 to 11 ])' 1 and 5. Dispensary Gungu - 11 N1 to 11 C11 • ! :1r'. Bushaku categorically refused that these stations had a shortage of ballot papers. He told the Court that what he di'd was to distribute i:ioxes for slotting in the votes a d?.y earlier, to the Assist~ Return-ins Of,ficers. The papers· ·a!nd these boxes were howevel'. . ' ! . ferried to the polling stations early the following morning, starting the exercise at 5·.~o a.m. of 29/10/95. This he did, in exercise of his discretion in that if he had sent the materia~s a day earlierf there was a possibility of. tampering with the boxes. Mt. 'MSezi, the learned advocate for the petitioner, has seen the weakness of the allegation that there were shortages of ballot papers in many of the areas. For he says in his submission: 11 In the course of the trial, I must concede that no evidence was led to prove any shortage of I I the ballot papers· in ofisi:ya Kata Gungu ii An, i:Bi 1 ~ c and F' ~ nor was any evidence le_d to 11 11 ·, 11 1 prove the s~ortage of b~l~ot papers in· Bu,ron~e Shu le ya Msingi ii N 1 to "F'' .' !Ki~ir.izi Shule ya Msi_ngi 1 11 N1 ti, 11 and Zahanati Gungu B" and cit. As such 1 1 11 11 M:i.sc.Civ.Cauo3/95. 10 than the complaints regarding the shortage of balcliot papers in these polling stations shoold be deemed to h.clve been

abandoned~ 11 The only evidence, and there is not mueh of it, is the evidence from Azim Premji himself who says that he saw people being idle suggesting that ballot papers had been exhausteci. 0 I am not prepared to accept I that connotation. The Assistant Returning Officer Mrs. Zamda Kanyogoto J~.• w0 2 did give evidence in Court,. She did solve the problem at Mwanga, !she impressed me as a truthfuib witness. For example I agree when she says: 11 I was aware of shortace and so I prepared to solve that problem, Gungu II A" 1D "C;i had no problemei In all these other areas there was no shortn~a•• Yes, we attended to the areas where there was shorta5e. It was solved"• Actually, what liappened 1 and this ms what I understood, is that I the ballot books hnd 3~0 leaflets in each of them. There were stations w}:iich had regist:ared Voters who were less than 300 1 jand in some places there were Eggistered voters who jwere ~ than 3,0L I And since the election officials had no permission to pluck off any leafs• ~ome stations had less papers and some had·e~cess papers. But, these ; ~ot adjusted as the voting went along, Mr1~ J3Ushaku, the Returning Off:l.cer himself, in fact, said: 11 I gave out 300 sheets because every station was ..-- to have 300 votersi They could pe less. Those were instructions from the Election Commission. l There were places where there were more than 34oi The instructions were that the papers could exceed a little but not much. They could also be less but not much. 11 11 As I saY, one of the witnesses who came to say something about :the ~portage·of ballot papers, was Miss Macho Maulidi P.W.

7. She · said that at Gun@l (F) Kata ballot papers came late and that the actual voting started at roughly 10.00 a.~. The other on~ _Ome.ri Mbiliza Mkandama P.W. 17,_also talked of starting late at GunB,U Dispensro-y. j There voting started at :12.00 noon. Hadija Sungura,P.W.18,also talked of not only bein5 late to open, but also that she did not vote because of some josling of youth. Tatu Shabani Kalimbo P.W. 19 also informed the Court that at her votine; booth, Gungu HNl voting materials c a ~ J2.00 noon, although they had been there since 7.30 a.m. Now, about this issue of voting materials arring at a station late (para 7 of the petition) I can only say!that it is true that the materials were sent there late, but there is no sufficient evidence ;which saJs that ballot papers were in short - supply, let alone not Ibw~ sent.there •. Indeed a sizeable of the ·witnesses fielt~d to say 1 1 i 5om0thins on this, did not have much to say. Tatu Shabani Kahimbo,•"J in spite of the lateness in opening, voted. Omari Mbiliza Mkandama The witness .who never vot0d at all was Hadija Sungura ( "l'.W. 18 •.. But this one, we are told, was pregnant at that time. One can justifiably attribute her not voting because of being ~dearly, and she became tired early because ~Phe was expec t ing. · Indeed,after considering seriously the evidence adduced with regard to this issue, I answer it by saying

that, there was~ any shortage of ballot papers there. There was lateness in starting to vote. But all, giving margin .to the anxiety that people would have in a fJ.st nultiparfy,· ele\:tion, the discrepancy here, could not have affected the results. I answer ~ssue No. 1 in ·the negat:i,_ve. I 12 Whether on the election day, polling stfltions in Katone;a Mwanga Varnia ,;N, and 11 B11 ·and Rusimbi Wards opened late but closed at .4.oo p.m., notwithstanding the extension of voting time .by the Electoral Commission. '!J.f . . , whether many voters failed to vote as 13; resultfl • I have scrutk~i.$~dthis issue and have found out that relevant wii;,J?.(-'ffieA to rasist us in answering this issue in the affirmative or not are i It is true that time for vcting had: been extended to 8.oo p.m •• The Returning Officer informed the Court, information which was not .-.challehgedrthat the R&dio,· at 1.00 p.m., annqunced that voting had been extended to 8.oo p.m. Now, whut happ~ned· at Mwanga Vamia r;A;; and 11 ff', and Rusimbi Wards, in general'? Like in many other stations, the announcement was received with jubilation. We are told that Kigoma, on consensus, was to start voting at 7 .oo a.in. We, are told by the R'eturning Officer that it. was agreed so because, unlike in many part of Tanzania, the rising of the sun in· Kigoma is always late. So the extension was received with I jubilation

and it became very helpful to Kigoma. With regard to Katonga, the area complained of in issue No. 2 1 Jumanne Mbogo P.W43 1 indeed testified that the station opened late - ! . 9.00 a.m. They went on voting to 4.tO p.m. ~hen they closed. At that time, the· stc1tion hod not received inform!:lt~on that time had been extended. But -~hen, according to this same witness, when it was ·-·learnt thai'-voting time hod· been extlmded, pedple came "voted and went away'• Ulije Ibrahim, P.W.14, another witness, who was brought by the petitioner to buttress this secon~ issue, informed the Court that truly the station got closed for a while, when they were not certain whether time had been exte:1ded or not. But then, evei;ituall:;. the station was opened and people continued to vote. According to this witness none of the people 13 A he had seen earlier came back to vote afte~ the extension. But then the same witness days: 11 It got opened after the three persons gave us i.J:;iformation that they haq heard from the radio that time had been extended. The 21 peopl0 were trickling in°. It _§Uggests the~efore that people came back to vote and that those I who ne,;-er voted were not prevented from comins to vote. There, therefore, could be no complaint here. I answer that second issue in the negative,that is no, not many voters failed to vote as a result of closing and reopening the station. ISSUE

NO. 3: Whether on the election day ~fter the voting time I ' did not have was extended, polling stations lanterns or any other source of light to be i used in the darkness as alle~ed in paragr-aph i I I ?(iii) of the petition. If soJ whether many voters failed to vote as a r,esult. 11 The __ lamp story in this case has been very interesting. if not I amusing. I w~ll only give out that part of it that I ~ adequately answers the question, and not the whole st or.y, int ere sting and amusing as it may be. Mr. Bushaku, the Returning Officer, told this Court that he had, in all, received 274 lamps for the election exercise. His stations were only 137c So, there was 1 according to him, sufficient lamps to go He~ said he received.information of kerosene running out Jilll 'I some of the lamps and; therefore, ~ qu:i.cµy sent two officers, J • • I I I Mr. Ramadhani Gange P.;W,21, and another person. .. ':these,instead of ! . sending the kerosehe, ~ent af'tual lamps. ! And, we got the amusing party that they got beaten before they delivered t h e ~ because some 14 voters (attributing it to Chadcma) thought that these officers were sendinG into polling stations, boxes with fake ballot papers. The idea of some polliug station operating in darkness was totally refuted by the Returning Officer, Mr:. Bushaku, in Court, said this, on this lamp lamp issue: 11 I know of the complaint about!

lamps. I hp.cl prepared lamps. I started preparing the lamps on votinc day, in the morning~ I had re~eived I the, lamps long time ago. +1).ad arranged for the i lamps on assumption that the adding would go right into the nicht., We h:'1d received the lamps well befores I h0;d arranged for 274 lamps. The stations I were 137 • Each station was to have two lamps •. I had put on reserve 4oo litres of kerosene. The task of distributin5 was given to Gange. (P.W. 21). I gave him a lorry for the job. H~ started distributing since ltO·' p._m. or 2.00 p.m. Yes, he did the exercise. He cnme back at 8.-el p.m. I to report that the lamps had peen distributed. About the shortage of kerosene at Buzebazeba, I did instruct for the increase, There·was no station ' wh:Lch missed lamps. Nobodi)" 9ame to complain to me. 11 ,I . So, in regard to Katonga and Katu~, the areas complained of, lamps were available, according to the Returning Officer. The same went to Katonga 'J-.A.11 and "B11 • . I have sr.rutinized this evidence on record~ 9f course, Azim Premji, 'P.w.1, in his testimony, says that when he visite~ those stations before closing time, it was all dark, and that he complained of it. But, I think it is another matter to say that as a rfsult of the darkness ?, it became impossible to vote especially when there is evid~npe that, in fact, the couht-ing at th;i.s Katonga station was done. It.

sounds true .,,. ,· ...... Hisc.Ci_y.Cau.3/95., · 15 _..:;..,: that light was available at some stage because even Juma.n.ne Mbogo himself told the Court that when Mrs. Kanyogoto came with the lamps at last 1 she was told to go away because the 11 kerosene lamps could not help. tt The same, I think, goes for Katubuka Primary School. For Omari Seleman P.w.15 himself, the agent of c.c.M. at the polling station, said that before the lamps came (at 8.oo P•;11• by Mrs. Kanyogoto perhaps), 11 the light was .::,()t enough. That su 0 gests th2,t there was some l:!-_ght. I think the lapp: issue has been much exaggerated. P~1: 1!la!ly vo,.;ers failed to vote thereof. There was opportunity to vote, and if people decided not to vote, it was not because of the lamps. The lamp~-•:'· aspect here was just too trivial. I answer the third issue in the negative. FOURTH ISSUE: Whether on the election day the list of voters assigned to the polling stations named in paragraph 7 (iv) was changea without notice• If so, whether this a:atlJtt3d many voters not to vote. (In-the petition itself examples of such stations are Maktaba 11 Al 1 1 Mwanga !Caskazini and Katubuka Primary School •1 D' 1 and 11 :8 1 ) . Admittedly the material witness here is Ruth Gota Ja,11es, P.w.8. What Ruth told the Court is that, indeed she had registered to vote at Mclktaba •1 A11 e She went there and joined ·a line

proceed_ing to M.iktaba 11 .11.11 0 The line remained there to 12.OO noon. They h2d started to line up at 6.30 a.m. At this 12.00 noon, Mrs,. Kanyogoto, the I Assistant Returning Officer, came and tol<;l them that· Mak-.aba 11 N 1 was I ·, shifted to Mwanga Community Centre 11 G"• And so, they moved to Mwanga Community Centre nc;n and lined there. They eventually voted~ I ' The petitioner's complaint is trJ.at this change of venll\e confused people, because it was done without prior announcement: Of course Ruth did not say that she herself got confused. She say others got confused., 16 Now, this act of shifting 'Msktaba. 1'N' to Mwanga Community Centre 11 • 0 1 was explained by the Returning Officer himself. Mr. Bushaku told the '-:::c Court that he did it himself truly. He did it becaus·e he wanted the two booths to be in one proximity. And Mr. Bushaku said that he effected the -shift two days before the actual voting and had sent notices to that effect,, Hee also said he put up a person at Ma.ktaba 11 N 1 to tell those I I coming that their pol:Ling booth would be at Community Centre 11 G' 1 • Mr. Bushaku had wanted to produce the notice of che.nee he had written but Mr. I /Mbezi for the petitioner objected to its coming in as exhibit. After examining the evidence closely, lwith regard to this issue, (, it be(.,omes quite clear that the change was there and notices went

up quite right. I would also see nothing wrong here. If any person got confushd here, it must have been deliberate. After all we are told that the move only necessitated a distance of 6o or 70 metres~ This issue, I a.11 afraid, must be answered in the negative. ISSUE J"WMBER FIVE: 11 Whether the voters shifted to Katubuka 11 I1 1 polling station and who~e registration I cert"ificate ended with numbers between 1001 and J2i?O did not vote because the register that contained copies of their I registro.tion certificates was not 1 available at the station." The .-~tu'Ju!re rer:;ister incident I must say, notiriously featured I in the course of the hearing 0 When witnesses on part of the petitioner spoke4' and this was amonG others, Batholomeo Mwalongo P.w. 29 1 the story looked attractive and I almost believed it. But, when I got explanation from the Returning Officer, Mr. Bushaku himself, and the Assistant Returning Officer Mrs. Kanyogoto, R.w.2, the story whimpered. 1-7 · ·This Katubuka station was in the exercise of wishii:ig to start. voting. It·was. then discovered that the register in which peoples names had been :,,;ritten was not there. ~dinarj:ly, therefore~ in the absence of this, a Form 1 was to be usedo Using the register gave faster results. Using the Form gave slow results. When, therefore, the petitioner visited Kabubuka, he discovered that the voting was slow and

that the officials there were not using the register. So, a report, wlbfi.'?o'-tffe Returning Officer who sent Mrio Kanyogoto to find out what the problem was. Mrs. Kanyogoto went there and,indeed, found the officials using the form and not the register. She was informed that they could n_ot see the register. So, a search was made there. It was discovered that the r~gister was there - it had only been roisplaceoc. And so, the exercise continued 1...;'this time faster. I should perhaps reproduce Mes~ Kanyogotofg:,, evidence: 11 About Katubuka 11 !)1 1 and llE11 I know the story: l had iiN 1 , 11 B; 1 , c 11 11 , 11 Di 1 , 11 :0 1 , - only. We had no ;;? 1 at all, to start with, and so we could not have killed it. At Katubuka 11 11 1 there was a story of a register., L went to the Returning Officer and he told me that c.c.,M. candidate had complainec. that the register:was not there. I was told to go and find out. T·.WN3>::told to go there armed with Form 1. I had all the nc::.mes of the voters. I went there. fhe register was misplace~. So we got it., In any case, he had signed to show th3t the register had been received there. We looked for it and it was found. I cge.ve the report back to the Returning Officer. The exercise was ~~~tinuingo Truly, the register had been misplaced. I do not see any bad motive., The exercise would not have stopped. Form I was there, and, in

fact 18 it. is the one. they were using when I had arrived11 • ~• Mbezi, the learned couMel for the petitioner, haef _attempted to put into what happened there a lot of innuendosc I do not think it ia necessary. We are told that even if the register was not there, Form 1 issue would have adec 1uately done the jobo Ttat . · is answered in the negative. \... ·------ J -~~- ~ SIXTH ISSUE: 11 Whether during the adding up of votes exercise, the Returning Officer opened up and counted I votes from three ballot boxes but refused to 1. give a decision on ..-fhe Petitioners disputed votes., 11 This issue considerably exercised my mind. It was becouse nll a.long I was hem'ing the story from ;one side - that of the petitioner. I have had a lot of material on it. ~ have he,d to do some research on it, even before I get the explnnAtion of the Returning Officer. After I henrd the respondeni1s side, I run now sotisf:i.ed as to what actuo.lly happened~ I am also sntisfied ns to whrit the law is or is intended to be with regnrd to counbne of votesa I have arrived at th:it satisfo.ction after closely examining the evidence of .£.zim Premji P.W.1 1 hio.oil.f 1 and of ~ i...~~sUc,PW?E.2 PoW~ 9 and that of the Returning Officer that ' himsel:t; Mr., Bush:tku RoWol~ and ol thG second respondent Dr. Kabourou. I see that Mr 0 Mbezi hc..s devoted some 10 pages of close print in bis booklet of

submissions to me on this one issue only. I am very grateful to his thorough worko But, as I say, this is what I ~nt to say •. The problem that surff/:lced in the 0 • .,-,''-i ng Hall at the Municipality need not arise if voters had been told wh;.-.. t exactly are spoilt votes, disputed votes and good votes. It appeared to me that all the witnesses who were summoned to say something on·thiG issue never knew what are the :,; '. three types of votes I have mentioned. But before I t~ll out what my underst~ding of these votes are, let me give the story as I have understood it.• . Prior to multipartism, i.e. in the 1990 General Election, it is common knowledge that votes of candidates contesting for the Presidential and P~liamentary posts were counted not at the polling st?tions, but at designated places. What used to happen was that all boxes at a polling station would be-collected, and then they w'6uld be ferried to a Central place (in most case it used to be at the District HeadquateEa) and here the counting would be done, first from the ballot boxes, from each polling station, and thereafter these would be added up. Suffice it to say that the counti~ of votes and the adding up of votes was done at central place. The 1995 General Election chan_ged this procedure. The counting·was doine at the polling stations and the adding~, was done at the Headq_uarters~ It is my understanding

that at the polling stations, all disputes or querries as to which is a good or valid vote, or which is a disputed vote, or which is a bad vote would be resolved there. All parties would be involved:i.:in~J,I'~ the problem. Once they had agreed as to which;; was a good vote and which was a bad vote, 5hat issue would not be reopened at any other·further stage. If, howev,er the issue pad been dissolved rt1:1. :.· ... ,: by a majority opinion say, nnd one person was not satisfied with th~ v e ~ of his colleagues there, a form would be filled, and the matter could then legitimately be referred to the Returning Officer. The Returning Offio3r would, depending on what disagreement there was, do anything, including reopening the boxes and making a re-count. But, as I understood, the Returning Officer would only re-open, if the need be only those boxes . ·:f'r.om_.the ,.,relev:ant s:t:f:l.tions •... H~ could not, . --~-··· ...,... ,. . ''·.· , . :. . :. .. ,;.. ; . . • -• ·~· _for: example, open all boxes :_• :.... :.c-: .,.· ,::!:·,:··.·.::~· ··.•~:·.:.·· in the Constituency when a dispute only involved, say,two or three polling station~~ Now, what happened to this Kigoma Urban Constituency was this; At a polling.station Katonga II A11 , there arose a dispute as to whether a vote was a good-:· one or a bad one. The issue was resolved, ,! 20 There were arguments as to what is ·2. good

or bad vote or disputed vote:. pome were saying that a tick which starts from a box and sends its tail to another ·box of another candidate is a valid vote. The person where the tick starts from gets the vote. Some were saying thiJ.t a person who tioks not in the box but on the photograph of a candidate should be regarded as a person who had cast a good vote because he had identified whom he had voted for~ Now these are the types of votes that the petitioner is always saying are disputed voteso But as I say, all this got resolved at the pollin 6 statiom by the agents and presiding officers. No forms were filled in protest to any votes. Now, when the boxes were sent to the Tovin Hall, the exercise there was, I am toldi t o ~ up. Wh§.t transpired there at the Town Hall is t-hat as soon as the boxes arrived, it WD.S discovered that the 20 boxes brought for the Parliamentary se~t, had no RF.2 forms on top of them, in the openo The law provides thr•.t the RF.2 form should be placed on top of the boxes. So ali the 20 boxes were opened, and it was discovered that 17 of them lw.d RF.2 1 s inside but 3 had no RFe2 1 s at all. So, the Returnin_~ "f'fi.cer A.sked the participants to allow him to make a recount of the 3 boxes to_ ascertain· the actual results 0 Since it was discovered th8t the 3 boxes had no RFo2 at all, the participants }~~ agreed to count the votes one by one. I am told

that Dr, Kabourour had resu~ts from the 3 boxeso He asked the participants to take his results, but they refused. So, the three boxes were counted, vote after voteo In the end,it was discovered that the results tallied with those held by Dro Kabourouo Dr. Kabourou infact informed the Court that in the end they all felt that it was a waste of time. And,~ thing ., to note here is that in the 3 boxess Dr. l<i~bourou was leading,. That is the time, we are told, the petitioner, v~. Premji, sprung up and said that the u-:.her 17 boxes he openecl._, because according to what his agents had told him, there were 325 disputed ~otes. We are told the Returning Officer. refused to open the 17 boxes, as according to him it was against 21 the law. Let me, reproduce the relevant passage in the proceedings •. Mr. Bushaku told the Court: 11 About the disputed votes, I must star~ by saying that we started adding on 31/10/95 two days after. I had arranged for a hall - a big hall for the exercise. I invited all the candid~tes. I told them to come with one agent witness. I had sent them letters. Premji was there. I invited them. I told them what we would doe I told them that the exer~ise there was ;to, 0.dd the votes brought from the 0 stations, I told them that I had given instructions on what are good vo~eE and what are bad votes. I - told them that I had 20. boxes without results, (RF.2)- on top

of them. I asked them that we should open them to see whether RF .2 were inside.• None refused at that time. We all agreed to open themo 17 boxes had RFo2• I told them that we should count the good votes in the 3 boxes. That was our job. Disputed votes were not our concern. We started. We went on, station after stagion. Then we decided to announoee Premji came up and said that he had disputed votes and had wantei.a:lu the boxes opened so that we get disputed votes. He did not tell me what these stations were. He had not specified the boxes as the law requires. It was just before announcement. In the 3 boxes Dr. Kabourou was leading~ The counting of all the votes was the legal duty of the presiding officers •. If there would be disputed votes, it was at the station (voting station) that this was to be done. We were to ~ o The presiding officer was the one to ·-1I 22 I • I fill a form CR:.'5 on the disputed vote. I never had any thing of that natur_e. If I had received such a complaint, of course the stations would have been lq:i.own. _I would have opened only those boxes. Preinji •did not have any such formo He just sprang up. I was not allowed to open all the boxes. The election was free and fair 11 0 -Dr~ l\abou;r'oa 1 s evidence I received on this issue is as follows: 11 At the.addition place Premji did not complain about Exhibit P.2. He did noto Yes, Premji insisted on the

boxes (17) beingJopened against the regulations., - The Returning Officer refused, cor:ndctly.- My RF .,2 "s tallied with the figures on Exhibit 11 P.211 • We did not bull-doze him,_ at all. I had my RF.2.I had admised th8m~0 to use mine. They refused._ We opened and 17 had RFo2 1 s inside. They tallied with me. So, it was an empty exercise. The only 3 which had no RF.2 we ~ ·count• vie agreed. Yes, the 3 boxes tallied with Exhibit P.2. In factl;i·.; we felt we had wasted time. 11 Mr. ~<ioji:£e'.j1 version on the issue is this: He says: (; 11 At the place of counting the Returning Officer told us he had failed to get results from. t -\:Wee ................ ~ stations. He told us that he would therefore open the boxes and count the results. I objected. I told the Returning Offic~r that there were disputable votes, according to the information I got t:'::-;;., from my aggnts. The information I got is that disputable votes were325. My agents told me that 300(: were mine, in the 325. ; 23 I I also asked the Returning Officer to_ open~ the boxes - all~ I· had want.ed all to be counted ' afresh. They were about 80~ The disputable votes were not in the 3 boxes but all the boxese I had wanted to know which votes were in dispute. My agent told me that in fact hl, many of the boxes1' there were disput&ble votes. The:ee was no RF.2. They were not there. These were for the actual results.

The agents told me that there were disputable votes.11 That was the contention of the petitioner. · said As I Lear lier, I have had a lo:,.of material on this issue. I think I will be forgiven if I do decide the issue straight away without reference to the various provisions and cases cited by Mr. Mbezi~ This I do because the issue to me does not seem to be as difficult as Mr. Mbezi suggestso The votes were to be counted at the polling station~ where, agam if an issue of disputed votes.::. arose, the matter was be resolved there., The law provided a form, c.F. 5, in which to fill, in case such an issue arose. Mr. Premji was informed by his asents that he had disputed votes. I! Surely if the agents of Mr 8 Premji felt there were disputed vote~ why did they not fiibl these CF.5? The obvious conclusion is that Mr. Premji was cheated by his agents. They took him for a rideo I think the Returin.:i.ng officer, was right in handling the matter the way he dide· Perhaps, while I am still on this pointrr I was not amused at all with the practice in Kigoma of voters who, for one reason or qnother, fail to cast their votes and who collect their registration certificates and send them to one of the candidates telling him that if they had vote~ they would have voted for him. Voting is a very secret exercise., Nobody is allowed to show or te11·as to who he had voted for, or who he would have

voted for. Indeed I was amazed that an educated.person like Mary Chuma PoWol6, the Community Development Officer - Women and ~ e n , M:i.sciciv .cau.,3/9,20 24 Kigoma \ .. .:Duld do such a practise. - of collecting registration c<ertificates and·sending them to 1 the petitioner. I was also surprised to find out that the petitioner entertained such nonser:··' . ·~-il practiceo It is said that about 50 registration certificates were so collected and sent to Premji,Qine only hopes thqt in future citizens will be eduoated on w~t an election is and how secret it is. One also hopes that candidates will not be hoodwinked by voters whq surely for personal reasons and personal interests, go to such candidates. And 1 surprisingly, these candidates go away satisfied that such people had wanted to vote for them. Coming back to the instant issue, I say that I commend the Returning Officer for the stand he took to refuse to do things which were outside the lawo . I. answer the sixth issue in saying that the Retur:t1;iI1:g Officer was perfectly right.in the decision he gaveo SEVENTH ISSUE: 11Whether on the election dny 1 at the polling stations named in paragraph 8 of the petition, regist:·.:c.':>l..'. voters were assaulted, ·threat·ened and or intimidated·by acents of the second respondent to see.ire them from voting or to force them to vote for the second reI3pondent. If so, whether this

caused many voters not to vote· at those pollfng str.itions, or did not vote ,. for a person of their choice.a .t:.,.. , This is another issue at which we spent considerable time. We have had a lot of people testifying on thiB: these were Edward Mathias, PoWo2 1 the police officer in· charge of F.F, U,. Kigoma. We had Miss·Macho Maulidi P.W,.7 z. W'e! had Ruth Gota ~Ja1:1es P,.W.8'! tie had Salum Abdul; PoW.13, ·;.; the·n·c-b'nfessli:r'_•.!j bue had Marz_ Chuwa Po\'/ 0 16 - the Community Development ufficer - Women and Ch;iJ.d.reni, Radii::., ~un~-!!: P.Wolt:11 Tatu Shaban Kalimbo PoW.19; Bawili Shaban, PoW,.24, Fedha Maulidi 1 P~W~2O; ' .. 25 Cilausiku Hassan Ruhoze P.W&26, a very old lady; All these c~e to say ·. something about ,the chaoso In short it is that there was an organised youth gr-oup who went into designated areas to create chaos. One outstanding place was Mwanga where the chaos became so intense that Field Force Unit ;::..-:·: had to be deplo.yed under the leadership of Edward Mathias P.w.2. Here tear gas was thrown. The petitioner also brough ~~um Ab~, P.W913, a person who was a Ohadema person at that time, but who, at the time of this case had crossed to to c.c.M., to tell the Court how they org.?.nised themselves Ldisrupt the smooth running of the elections. It will also be noted that many of the witnesses I have listed above are women. The thn.l,et of the

evidence of these witnesses is that Dr. Kabourou organised youths to sca.t,;e off people from boting. The last witness on the petitioners side, was, _indeed Ibrahim Adam Ibrahim who could correctly be termed a 11 confessor11 ~ He confessed by saying . ,IS<'l·$...l that he, indeed, disrupted the smooth running of the election. He said that he, and other youths, gathered themselves on roads and were rubbing pangas against tarmac road, to produ~e sp3rks which scarred off voters, especially women. And, he said, Dr. Kabourou sent ~hem. Dr. Ka.bourou I do not want to labour much on this issueo It is true that such youths were there qnd did what the petitione::-:.' ·_ ·-::l.-'l. :· they did. The ultimate issue arising there will be whether the election was so affected as to enable this Court to say that the elections be declared null and void. I agr-ee with that issue just to the extent that organised groups were there to intima!e people. I do ~ ' l:.owever, go further to say that it caused 11 many' 1 voters not to vote for a person of their choiceo There is evidence· brought to the petitioner that the women did not vote for a person of their choice because after failing to vote, ragistration certificates of these people,who did not vote,were collected and sent to Mr-. Premji1 informing him that these were his 26 p_eople ruad that they had wanted to vote for him. I have nlreo.dy

said something on that. ISSUE NO. 8: 11 Whether on the election dny agents of the second respondent conducted illegal campo.igns as alleged in parqgr-aph 9 of the petition.11 L'°"Here, paragraph 9 of the petition gives the polling stations of Buhanda Businde, • Gungu Offisi ya Kata Gungu, Buronge Primary School, and Gungu Dispensary.J .i Th~ material witnesses, he-:;::e,are the petitioner himself, Mr. Premji, ·) and Juinanne Mbogo P,Wo3• By illegal campaigns here, of course, I understand to mean campaigns which were conducted outside the permitted time, In this case the allegation is that Dr. Kabourou conducted campaigns before these~~~• I·do not think that the second respondent disputes, mnking speeches before time of official cnmpaigno He agrees having addressed a rally nt l3Pti TuJ?U on 19/4/95 - Ehibit P.11 and at Mti Mkubwa on 9/10/95. His explanation or defence is that these speeches are not campnign speeches. They were speeches aimed at celebrating the winning of a case against Premji. As I say this issue of illegal campaigns was not persued vigorously. I answer issue No. in the affirmativeo Yes, the second respondent conducted illegal campaigns. ISSUE NO. 9 "Whether at Mwanga Community Centre polling stations there was disorder and whether police used tear gas bombs, If so whether many voters failed to 'tlote as a result 0 11 Misc.Civ.cau.3/95• 27 Here,. obviously, the

same Edward Mathias P.w.2, ~I mentioned in discussing issue N~. 8 is the relevant witness. Tru~y there was tear gas, as I explained in Issue No 4 7. I answer that issue by saying that, Yes, there was tear gas used as a result of youth chaos. Some voters failed to vote • .!§_SUE NO. 10: 11 Whether· during the election campaign at Lurnumba Road in Mwanga Area, the second respondent unlawfully clad himself w:i,th c.C.M. flag and thereby humiliating the Petitioner and the political Party that sponsored him. 11 Here the petitioner and, indeed, Dro Kabo~rou, the second respondent, have each, attempted to tell us what actually happened. The evidence, I think, _is ioud that Dr. Kabourou on 12/10/95, at fubengela, did put on the c.c.M. flag. Dr. Kabourou himself does not deny this.. He gives an explanation that he saw nothing wrong with it. He said he thought that as he had received c.CoMo defect62~"l: on thatci day-:, and that since it is these defectors who had brought him the flag, he thought it was not bad to wear it. The second respondent also went ahead to say thol.t in any case they are used to calling, eunphemistically, the C.C.M. flag, a ~~t_; And, he went on to say th.,,t c.c.M. calls their flag a ~ll• Now, looking at the evidence as a whole 1 and assessing the whole matter globaly, I am satisfied that wearing someone's party flag the way the second respondent did, w a s ~ y .

The action indeed lmmiliated the petitioner and the politicul party that sponsored himo I ansvrar that issue 1-" in the affirmative. 28 ISSUE NO. ll: :l\fuether during the election campaigns the second respondent mnde statements with intent to exploit racial issues as differences pertinent to the election and relating to the candidates with intent to exploit differences at the places alleged in paragraph 12 of the petition. 11 In this issue the allegation, simply put, is that the second respondent made disparaging remarks; in his speeches, of the petitioner, to the extent that these were defamatory 0 And since they were defamatory, they must have affected the entire election to make it not fr~ and fair •. The net result must be that the elections should be avoided. Paragraph J2 of the petition lists the following places as being ·places where the second respondent gave ·speeches which were defamatory, ---~ Bati Tu (19/4/95) ,. Kwa Nati (5/5/95), _Sokoni Buzebazeba (13/5/95), Gungu (14/5/95), Mti Mkupwa (14/5/95) - fhese periods, as agreed, were efficial campaign periods. There were also speeches during the actual official campaign period made at, Kigoma :R&i~~.l station (19/10/95), Mawe~, 28/10/95, and at ~bepgela Mwanga (12/10/95). The second respondent, if I understood him well, does not deny ever making these speeches - all those during official campaigning and those outside

it. ' I can speak generally, is that these His defence, if matters he talklid about are all true, and he attempted to explain them off. I must be frank that after listening to the whole case, it seems to me that the gravamen of the whole case is this element of alleged ~ defamation in all the speeches th.at have been tendered in Court as Exhibits P.5, P~6, P.7, P.8, P.9, P.10, P.11 and P.12~ Each speech; as I can see, is long. But, it appears to me that some similar expressions and phrases and sentences can be spotted, which, for ·: 1., ,. .n • 29 ' purpoaes of determ_ining whether there was defamation or not, would suffice,. Here, I must apo~ogize that, for purposes of my decision, · I need .n◊t discuss all the phrases and passages pointed out to me by Mr. Mbezi_. I see that 11r'e Mbezi has devoted some 39 pages of closed print to this issue aloneo I am also gre.teful to him for this ellucid exposition. I commend Mr,.· Mbezi for having dome his homework well., But, as I say, I will pick a few phrases and passages from the i:;peeches tendered in Court as exhibit. Defamation has been defined as the: 11 disparagI?ment of an individual: A defamatory statement is one eAJlOSing him to hatrea, ridicule or contempt, or which causes him to be shunned or aboided; or which has a tendency to injure him in his office, profession, or trade. It may constitute libel or slandero 11 The

definition goes 011 to say, l'.Jld this is pertinent in this case: 11 In order to retermine whether a statement is defamatory it must be ~onstrued in its natural and ordinary meaning; if not defamatory in such meaning it must be construed in the special meaning, if any, in which it was understood by the person by and to whom it was published. 11 The definitien goes on to sa~ that: 11 It is for the Judge to say whether the words are reasonably ~apable of defamatory meaning; but for the jury to say whether under' the ~ircumstances of the case they in falt bear that meaning~ No action can be maintained f~r libel or slander unless the~e be a publications i.e. a communication by the defendant 30 of the words complained of to some person other \ . than the plaintifr 1 (Osborn's Cod&ise -!.o.w Dictionm-_i). An ano:r:ryx;rous~ writer put a few rules of speaking into the following lines ir, London: 11 If wisdom I s ways you wisely seek, Five things you will observe with ca re; Of whom ·you speak - to whom you s}7eak, And how - and when - and where11 i"°Reported in a Book 11 3 minutes ~~ 1 by James Keller Vol!'·:ii 1960 PublicationJa .f -- and the observations of the It is against that definition, llano,_:iyctoua writer11 that I intend to now proceed. We had ei~ speeches in al~ but I intend to tnke some few extracts: .In a ~-ech at Gungu (Exhibit P.,6) it is said that Dr. Kabourou spoke

the. following, at a rally: 11 Mbunge wa c.c.M. Ndugu yenu Mbano anakufo, Mjumbe wa Halrnashmll'i Kuu 'ya c.c.M. anapiga simu kw·a Mwenyekiti wa c.{:l.x. Wilaya YD; Kasulu anamwambia Mbano ameshakuwa futi 6 chini ya Ardhi na tiµii 20 za udongo juu yake, c.c.M. mwenzie l:ru.yo na wa c.CoM Tabora anafurahi na yeye, wa Kasulu anaona amepata habari nzuri wala hawamkemei aliyesema neno hilo. Ni ajabu kama inawezekana kwa siku moiµla&eeNyerere halafu Mv{enyekiti wa c.c.M. Mkoa wa Kigoma ampigie simu Mwenyekiti wa c.c.M. Tabora amwambie Bwana kale ka Nyerere k.a.ko futi 6 chini ya .ll.rdhi na Tani 20 za udongo juu yake, halafu l:ru.yo Mwenyekiti wa c.C.M. hapa abakie 31 It is alsp said the second respondent went on to say, addressing the rally: 11 Iakini wote wawili walibakia na huyu aliyesema maneno hayo_si mtu mwingine ni-Ponjoro Azim· Premji ambaye mimi nimekuja nimemdunda na mpaka leo hayumo tena (vicheko, makofi). Ee si ndiyo alionekana ana hela. Azimu ana hela kuwadanganya Mama zetu na Dada zetu wamesaga miguu bapa kwenda Kigoma usiku na mchana, Mhindi Ponjoro hela atatoa wapi, hela zetu sisi wa Tanzaniao Yeye anaweza kuwa na hela zaidi·yetu sisi, alipe basi miJ.:l.ion .I ishirini ninazomdai, alipe sasa.;; I. Still at Gungu, the second respondent is reported to have said (Exhibit P.6 at page· 11): 11 Kila siku unakwenda kushinda kwa li Azimu Premji akupe hela, sikudenda huko? Na

wewe una nguvu zako na hii ni nchi yako na una mali zako. Sasa tunasemaje, tunajiulizaje. sisi ni kisa gani kimetufikisha Kigoma mpaka tujikute leo eti ,· tunataka kumchagua mtu kwa sababu tutaenda nyumbani · kwake anisaidie sio kwamba unamchagua aende "--- akakutengenezee mikakati na wewe uwe tajiri mara kumi yake ••o••il I I That speech goes on to show that not only Premji was the tar~et, Iddi Simba also because a target. For, at a rally at Bati Tupu on 19th Al)ril, 1995 (before offici~l campaign period), the second respondent is reported to have said (referring to Iddi Simba): 0Na ninavyosikia mimi ni kwamba yeye baada •·-ya kushindwa kugombea ubunge huko Mission kote, Kariakoo na Gerezani panaitwa Mission K~ta, 32 kwa sababu anagombea mtoto WcJ. Rup~,•itrn;~t~ wa mfalme wa c.c,.M,, -mtoto wa John Rupia aliyekuwa Katibu Mkuu wa Rais,. c.c.M. wamemwambia Iddi Simba, wewe ndiyo nani? Wewe siyo mwenyeweo Nenda katafute kruna una kwenu. /:.najileta Kigoma kuja kugombea ub~nge ndicho kinachomleta Iddi Simba kwa sababu anajua Azim Premji itakuwa ni vigumu kugombea ubunge kw1i' sababu chini ya Kanuni za Co0.M. yenyewe hairubusn:: mtu kugombea ubunge kama amepata urnia chini ya 'miaka mi tano. 11 The second respondent is again reported to have said: 11 natangaza leo Itwamba Iddi Simba ni msali ti wa Mji wa Kigoma. Nawaombeni Iddi Simba atakaporudi tena Kigoma ajikute na yeye hruln

tofauti na llzimu Premji na kwamba ni adui wa Mji buu. 11 Ha speech made at Bati Tupu on 19/4/95, - clearly outside the campaign period• Dr 0 Kabourou is reported to have said, among other things (at pag~ 10 of Exhibit Pell) 11 Lakini badala yake. c.c.M. wanakuja na shillingi mia tatu na hamsini kuja kufanya Kampeni ya kumweka Azim Premji awe Mhindi, ra:i.a awe ndio mbunge wetu wa Kigoma. Mimi nikauliza jamani ehee 1 kuwa mbunge maana yuk.e ni kuwakilisha watu; unaowajua, leo waafrika na wahindi hawazikwi kaburi moja. Pale Lubengela •••• mlikwishaona kaburi la mhindi ujiji (hakuna) ., :, ,:.n. au Mwanga yote yako Lubengela na yote yamegawanywa hayashi:rjk.iani hata na wazungu wala waafr:i.ka. Hakuna inhindi akaaye Ujiji wala Mwanga 1 wala Bangwe 1 wala Gungu 1 wala Mwandiga 1 wala Kibirizio Sasa utatuwaki~&-.z:!z":iln'l Misc.Civ.cau~3/95. 33 Nilivyosema hivyo naonekana ohoo Kabourou ameleta ubaguzi wa Rangio Kama huo ni ubaguzi wa rangi basi ninakubali kwa sababu ni wao waliotubagua. Ehee, jamani tunakaa kila maheli~ Wahindi wanak.aa mahali pamoja na hakuna mhindi maskini hapa Kigoma. Ehe, mnajua. ·Jamani t:lishamuona kuna mhtpdi anatoka Ujiji hadi Kigoma kwa miguu (vicheko). Umeshamuona, au kwa baisikeli? Wote wamo ndani ya magari na ter;a sio mabasi ni magari yao binafsi (ni kweli hiyo). Tena magari ya millioni arobaini, hamsini, Mji wenyewe Kigoma: Wahindi bila kuwa. Shaaban

Mambo lmyu Diwani wetu ......i shupa'lru mpaka mwaka huu- walikuwa hawalipi ushuru wa bidhaa wanazozileta kutoka Dar es Salaam kuziingiza Kigoma. Shaaban Mambo ndio akawaambia kama hamlipi . ushuru basi hampati lesseni mwaka huu. Raza amelipa millioni tah1 na wengine wanalipa (makofi, kuzomea) Diwani · wa Chadema lmyo kwa mare. ya kwanza kaingia.; Uahindi wanalipa un:.:i.uru. Walikuwa wanaleta mabogi ~ mabogi ya bidhaa ya Kigomao Hawalipi ushuru. Wanasema tunazo lesseni. Sasa mswahili hulipi ushuru? Wewe mama unauza unga soko la Buzebazeba hudaiwi ushuru? Unga wakupima (unadaiwa). Ehee unadaiwa? Ndiyo ehee kamemero, ehee. Hamna nini? 11 At page 7 of Exhibit P.ll the second respondent again, is said to have said this: 11 Ulimwengu mbaya lmu ndugu zangu. Kuna wat-r. majeuri wanaingia kwenye mabunge na mahali pengine wanajifanya wao ni ma Mungu mtu. Anaanza kumfokea mbunge mwenzie na tunawaona kila siku sasa akiingia Kabourou hakuna I kufokeana. Kwanza naweza kukashika kale kajamaa .. ·-·· ---·- -· - ---------.-·------ -- 34 ' . . ' . shat:i., hal.a:tu nike.katupa nje, halafu sisi tuniltndelea na baj~ti, niachen:l. niµgie muone nitakavyowacbambua bu.mo (vicheko) kwa sababu ninyi mnata.ka kuleta utawala wa kijanja kiJanja.Kigoma Bwana ni Mkoa U:naozalisha mali mengi kulikq Mkoa . . wowote na buwezi kulinganisha na Dodoma bwana au .Morogoro ni uongo ~ ••• h 11 • On page 4 of Exhibit

P•7 in a speech.at a rally at Msbilam pamba on 5/10/95, the second resporldent is reported to have said, words " which the petitioner says depict tribalism and raecism: 11 Leo mgombea wa _C._C.Mf Azim Premji na yeye - amekuwa anaiga (kwa. sauti ya kihi.ndi) 1•Mimi ajenga sbule bana, mi.mi tatoa m:i.llioni kumi1i. • N:i.kamwambia wewe Azim lipa kwanza mil.1.ioni zangu ishirini. (makofi na kushangilia)_.11 . ' At another r4J.1Y,: at . the Railway 1 ,, station Kigoma, on 19/10/95, the second ~espondent (Exhibit P.5,· ·at page 7), is reported to have said: . j 11 Mnaelewa jamaru., serikali yetu ina.walinda wenzetu zaidi inavyot,;linda sisi. Serikali ya Tanzania na c,c.M~ ilitangaza hivi ha.pa Tanzania kuna watu wa aina mbili tu. Kuna wafanyakazi na wakulima, sio kweli? Sasa mimi nataka ninyi watu wa Kigoma . mn:i.ambie hapa, · Tuanzie wafanyakazi. Jamanj. kuna mtu yeyote a n ~ mhindi Katibu Kata ( ~ a ) . . 1• Askari magereza (Hakuna). Mwalimu wa Shu.le ya Maingi - (Hakuna), wa sekondari - ( ~ ) . Dakt_ari - (Ha.kuna.) • Sungusungu - (Hakuna) • Meneja wa a.M.I~ .- (Hakuna). Mbeba mizigo stesheni - (Hakuna). Dereva wa treni - (Hakunai,, kuzomea - kicheko). Meneja wa Benki ya i_ "- I • • I 'I Misc.Civ.cau.3/95. 36 ,,,t~.&-.. ......... 4..~- benki ya Tanzania ni kubwa sana kitu ambao~o kwenye . . populntion ya watu million ishirini na saba ilitakiwa l.abda wapatikane wahindi wawili

wanaopewa overdraft na benki ya Tanzania, lakini tofauti ni .,.., -).:'"1'··,,1 .;\'"' kwamba wako kama 1aki moja au hli'' -~~i~..,.unusu we,naopewa m:ilcopo yote. Madeni yote ya kodi billioni .sabini 1 tunazodai za kodi za ushuru wanadaiwa wao. Probability inatuambia kwamba hapa kuna jambo la batari lililotokea. Kuna mtu· anapendelewa hapa. Na kwa nini? Na pesa·zilizomo benki ni pesa ~etu sisi . . . ~ . wote wakulima na wafanyakazi? ;'::ift~ tunatozwa ushuru'vitu vyetu ~pouzwa·nje .ndio vinaleta pesa zinakaa benki. · Lak.ini Benki ikifunguliwa wewe na mimi haturuhusiwi. Wewe baba yangu au ~a yangu mwenye m~aka hanisini, sitini, ukiku.twa hapa na mashine mbili za kusaga unga na. boti moja, na nyumba mbili za kupangisha una~biwa ~ rnhujumu uchumi, . . ~ u.nakamatwa, unawekwa ndani. Lakini mtoto wa kihindi miaka 25 ana pajero, ana nyumba. ana hoteli na ru-.ambiwi lolote. Na huyo huyo anasimama .Bwana !,.f. I mdogo wa kihindi Azim Premji anasema hapana chagua . Kabourou yule ni maskini. Mimi tajiri nampa dada zake kazi ya kubeba zege kwenye mkutano wa had.hara na . . wa~ wanashang:i.lia.11 Then, he is reported to have added: 11 Tunasema hivi, mimi aimchukii Azim Premji kwa sababu ya uhindi. Uhind:ii. wake kwa kweli haunipi wasi wasi kwa sababu m;i.mi nimeona .wazungu _(makofi) na s:i.kuwachukia. He went on: I I '. ../. Misc.Civ.cau.3/95,.f, .' .. ~~,:;:--.:~4,~~ 37 I ( .,.' ' 11

K~choniudhi ni kwamba Az..im Premji runeingia chama. cha1CeCeMe na ameleta fitina-ya vyruna ha.pa Kigoma~ Ni kwamba wa;J..e viongozi wa t.c.M. wametazama Kj,,goma nzima ·hawajamwona ndugu yao yeyote mwenye sifa zaidi ya Azim Premji? Lakini sifa zake ni nini? Darasa la • kumi nq mbili la kufeli. M.longo. Hivi Kigoma nzima . waswahili wa c.c.M, _hakuna anayemshinda sifa Premji (kuzomea) 11 • He went o~: 11 N_a mimi nasema hivi .;; kwa hiyo tuondoe sera ya kuwadanganya \ watu wa Kigoma kwamba sisi tunancl:Ulkia f 'Azim kwa sababu ya ttbindi wake hapana. Tunaol:Ulkia 1.: kwamba Ser:ikali ya Tanzania inatubagua kiasi kwamba . . leo inamtembeza Azim .Premji anakuja anaturunbia yeye ana uwezo zaidi ya. waafrjka wo.te, na yeye ndiye anaweza ' ' ··~ kuwapa waafr:i}(;a. kazi ya kubeba zege dada zake na Kabourou. Na uj euri. l:Ulu asingeupata kama Azim angeachiwa .na yeye · -afanye kazi ,. kama wanavyofanya - mzee wangu, kruna ,,,,:,..f anavyo_fan~ kaka. yangu 1 kama wanavyofanya ndugu xangu '. I wariiga .Elawa za brashi. Hapo asingekuwa na pesa za . namna hiyo. Lakini kwa sababu benki zimekuwa wazi kwa ajiliyao, leo wanatunyanyasa sisi kwa pesa zet~•- Pesa ni jasho letu (makofi)kushangilia)~ I l ~ I have given enough extracts from the second respondent's l'(ipeeches~ l-.B I said ·earlier, the second respondent had admit.ted having made those speeches. He tried to explain them off by

simply saying that all that he talked was true. He told the Court that as D~puty Publicity Secretary of hi~ Party, Chadema, he could hold meetings at any time •. He agreed that Chadema nominated candidates to stand for elections r . ·. oµ 31/8/95~ All his speeches, prior to that date, were 11 just ordinary party meeting: When Dro Kabourou was particu.~ly·asked why he had made scurring remarks, about Azim Premji in person, this is what he replied: He said:- 110n 28/l2/94 High Court declared by election null and void. It was confirmedtbyc:the<'Court of Appeal - ours was not wanting for dissolution of Parliament_. Titpe before the official campaigning was used by me to propagate policy of Chaderna., Policy of Chadema is not Premji. Yes 9 in my speeches I was cruising Premji. I was touching him here and there. I was cruising Premji because he had cost us a lot of damage iri. terms of m~ey in the Courts. I was trying to tell th~m that he ,is an enemy. It is not true that I bad known that Premji would contest with me. After all at that time Premji was not a citizen and would, therefore not contest." t•,_.; He went on: .... -, •~we were proyoked br Premj:i. coming back or beine; I brought back by c.c.M0 He bad created havoc in the electoral process. Why were they bringing him· Mr •. Kabourou was also asked as to why he had called his political opponent a 11 ponjoro11 which the Court

was told "is a bastard version of swahili11 and it _means "thief, hooligan, thug," he replied that Azim Prernji is exactly that. Azim Premji himself told the_Court'that 11 ponjoro11 iA a bad wordc .And the second respondent in justifying the speeches said: 11 1 spoke the word ponjoro and an 11 asianh • But I -bad no r.ialice at alli But I did not tell people to go and figgt or· .beat Azim. My referring to him aa an Asian is ord~y and normal to me. We say 11 this is ·X-, .::i:::'j an Arab11 0 . 39 11 Tbis is an African11 ~ what is wrong with that'?11 •.I He went on: 11 When I referred to the word 11 Msw¢1i11 I meant Africans. Asians bur_y themselves in their r~spective places.· That is true. It is true that the 11.Sians j }lere were not paying taxes. Vhat I am saying there I I is true. It was after one Councillor became .. 1 I I tou&ht that the asians storted to paY, truces. I By calling anyone an a_sian, it was not defamatory. Yes, the assians have special places to bury themselves. Some cremate ..... each.other. But I was · telling facts ~ the truth,., Wbat ;i.s wrong with that'? · I know the aaians have ~ on these places they bury ea.ch other. I agree ·,;ithat there should be no ·discrimination of iii'ex ;r race. But don't fot'get - that I am a leader from the opposit.ion.11 :i;n a direct answer to the Cour·t, the· 5.econd respondent is reported to have s~id: 11 I was to talk

of .the truths. I did not piclc audience. .I did not talk anything to discriminate Premji on racial grounds. Discrimination comes when one is denied his constitutional rights. My campaign was not directed. These c.c.M. people have directives on what to Speak. These speeches were not discriminating Premji on racial grounds11 • Another speech which is pertinent in the whole of this string . of the second respondent ·speeches is still this one made at Gungu on 14/.5/95. - Exhibit' Pe6.. On page 11 he is reported to have said: :"Tuna.ye Bwana D.C. ha.pa anaitwa :swan.a Ahmed Ingusha, Alha.;f. Ndugu zangu tujicbunge ~ wa ...... • Misc.Civ.cau.3/95. 4o. • C '; . . . ·~.__:. ... : . ·. ' . ·. ~ . ." (. Mku\1. wa Mkoa Rajabu Semvua mpaka leo ndio kwa mara l'.].i~·!r·\·,:f: ·-;.1_~:c.~.: . . : -.~.~~:: -~ : ... ~~- ,.T""_":'° ..~·'--~-; ~:!: ....~-~::-:~. --:. . ~·.~:i '"-~ ya kwanza tunaletewa Mkuu wa Hkoa mwislam? Miaka ~-H.J.:t (·l.-:tc: ..!:.o.:.. ) • .:•. :_;_:~ -~~ z1.·.:· ..:1 t.tI:i.i.1J!=:·.-··.,· •·:::r•.~ .;:·.:: . .Commissioner Wakristo, ni ndugu zetti. Lakini sasa Ce-~::::·iJ.~.•-:1...:·:,.-::::f• ~.-~;·.~i-~:.-·:.~ ... ~·.:~1..<i. :-~u: . ,: . t~lr:.i.· \':'! .··.ttJ,r. ':, 'D >~ ,.ji tumefikia wakati watu wa Kigoma k:ujikomboa, imeonek.ai!a. _n(~.:. y~.1 rJ :!.:~·~::!:!.;·~: .-' ~ ~;:· ~··5.i·-'.!. · !; :-. -1 ..:-; :;..i,. :i.2.i . :·'.~-~!"-~ ::~.:~t::..:::::::a 1 .'

apelekwe Muislam Albaj kwa sababu Kigoma ni Mji ·wa .".;1:.:i· -t~l~l1.·: ..;·~:··:.:_.'.··:·· :'..(~') 1 • .-~•-J.c•;,.:.• ::. -~·:'\:.. : '··.: ~-·~·-::.. ... -• ... Commissioner anaitwa.Abdul Nuru Suleiman mtwanga kazi 9 :~Jt;~:·~i;~~t;\~~i ~t-~~; :,ti ;Ji~~j}~ne· 1 tb1i;·~: \/YJ,• :i:·:.J~1·t:;:-: \;:.: ::~:., :·,:~.:(.. ····-:.: 1 _:, o;:; i-~·.·: ...: ,._.\··.: ·.Tl?·.. ~ · :,.-i·~.:·:.t.,. ·,:il ·~ ..::tlo kwamba mimi nimec.~ ' .,,..,. bendera . ya Tanzania. .. Nilikamatwa (.Ji~iiJ r ;.:• ·.' :; ~/~ ·, . .- .- ?..:).. _-:- : ,.;·. ·-:;., r;.•. :· t :.::•.:.:.::~, ; ··... ~. -..;: .. ~'.-:\: ~; ~-j~ v;:=·.t ~;·i:: { !:-~.it · na n.c •• S:i.kukamatwa ~ Polisi. Tangu a,zneondoka·Abdul ::,.:J..i, ~;-:...-.,.: ;./.~1~;·~-.i. ~~:~~;t11. ·.~,! ,•::~::::i. ~ ..,~··5.;,:,J.,·.: .. ·;,':).i:-.· ~:·~1\;.:-.. Nuru Suleiman mpaka .leo hajaletwa Area Commissioner ·,.~i:~·-~~i ·~;u\~w~:··; 5.N~·il~i'ftlfu jac~.r~gine Bwana 0 .'.': . .:1~-:.. i.:~;:•T~~j~b~:·.'~-~:.~~OP.~I!.:> ,i;eg,:~~1,\ia :~.Y,ll· ,?.W~ :Y..fln :.1':P::~. :•' ,:,:~'t.,""~::;r.,i: -;:.:; ;,31~j,i~_;y:eye•:;wAA;i...P.atnli~,,~.,~Ra.-.~am.,awe~c~ajw.~{·:·,.,:.,n(; . . ·.:. 1-:.: ·::::.zr•Vil. ·;-~W~; .:. 9?,E!!3-· IIIW~g:i,:·,~di, ;n~Jgis.i.;)ll,~18.J1:1, J4~8W-¥~,: ,...... ,.,:,: ... 85 11 •.:.:::•(i ;· .:,i:.:15.~f~ r:·:.W"""'"":',i:maa...-lru-1<> ...,........ _.......... )1{~1,,yna:,ndi9. ........r-:.~:~.. .... "

......-. :::, .........., ..... . ... ......·wat~9:;tµr.tf91zni. t .. " ' ............... t /.-:.: .::· :·f -.~.~~.- \:~: .. · ~- :. ·.•:~-.:~.::. · :.'.· :; ~.-i. ;:::. :. · ; ·._. ..,..t··:·,.\' "':i~r· '. ~;·.-:--.-.-.,1·r ~·- · . . . ··- ~· ·-·-1:ffiere·we'r'e• s'cime 'se~eh' w'ftrie'sfifefi wh:6" w·er·e·---koirglif by-'tfre; second -~i~:,~.••;'....... :•, ~•":•. .~••\••;~~•~\• :•,:;:.:(: •~• :•-:: .._.:•:,; I\.,°::•~:•,:,,•:.;~•~ :, .:. .:f.l•~~.. • :._.: .:•.:<:• ..: •. ·~4;_::,~::•• respondent to answer different allegations levelled at the second respondent , .__ .. :;. ;; .•. · ... .. . :. ··.:..: :·· , .. : , . ._ ...-· :·• ·i ~-, .. · . .- / j~·.;-!~.· .. ·.. : .·~ •.J\t·:• :-.:. L:\) ~t Dr .• Kabourou by the petitioner himself, Azim Premj1. These seven witnesses ~- .,;~:-~•·:· :. ·l::=:·: {:··· :..:~: ..: ~. ·.·:, : :.:·~·_.:.: . · :;·:·: :. %~.L·: .. t· ... J~:. :·::~- ,'!.::.,,, were Majaliwa Alli, Mwaka Juma, Hassan Mohamed, Hassan Swedi, :.~:.::~ ·:• .-··, ':·.; • •:. '. ··.- •· ·: :·:_' ••• · : ·:. , .... 4 .... • . . . . .•, • .,:.u ,~ . . .'.'. ·•:J•~ • ·:. • :·, .... ·i Jaffari Ramadhani Kasis:iko 1 . Hanusi 'Sha,ban·Mar~da.'; Iddf tsrnail and .. Juma Ramadbani. The gist of their evidence in totality, as I saw it, was firstly that the mention of the word Mbindi 1 in reference to Azim Premji, was just ordinary and did not bring any innuendo. For example

Jaffari Ramadhani ... · : Kasisiko told the Court in the unaided evidence in chielf that; ...... . ~· (~ .·' ·... \~~ -Misc.c~ .cau~3/95. 41 • 11 I talk of speech of Dr.- Kabourou at t~e _station Exhi"bit P.2. Dr- Kabourou was using the words asians \ , ..... and it is said that in the sr~ech these were · depicting racial hatred. Here in Tanzania we tall< asians (mhindi) to these friend of ours. It is a normal thing:· when you are tall<ing and referring to these _asians, we use the word 11 asians11 I see nothing wrong. In fact in the areas they live, we use the term ·I ' iluhindini11 • , So, in that ;speech we understand Dr. Kabourou as comparing the styles of the life of the asians with that of other Tanzanians. We understand him as pointing a fin.ger at c._c.M. or the Government ' . ..,.. of c.c.M. for building classes, and for mismanagement of.the economy. He·was actually propagating policy of Chadema which is Policy of indegenousation , . ·, (Uzawa). At one time J; heard him saying that c.. c.M. ~as not a party of peasants and workers. He potrayed the asians as businessmen and we a greed. He. nas just making a difference between the p_olicies of his party and that of CoCoMo I was impressed and I later jjoined Chadema. The speech did not potray any defemation • •·• • ~11 The second deduction one get~ from the seven witnesses is that, _they are saying that_ the speeches of

Dr. Kabourou were, in fact, a retaliation to speedhes made by Azim Premji in his campaignse ', . The witnesses were saying th.at Premji equally gave defamatory speeches like when, at a rally at MwA.nga on a date not specified 9 he said (asking_the audience): 11 Do you know the meaning of Kabourou'l 11 When the ·audience shouted back that they did not know, he replied back by saying· ~hat it meant a "wild cat11.• Then; it . is said Premji asked the ·,,I 42 ' ' . audience aga?-n - 11 do you know the meaning of Mrema711 replied back that they did not know, he said it meant 11 mremavu11 • When the audience Then again, it is said Premji asked t e audience whether they knew the meaning of Lipumbao When the audience replied that they did .not 1<n:ow, he told.them that it meant 11 !!!e_umbavu11 • Again it is said that at the same place, a pl'ay was mounted, in a form of drama depicting ·Kissinger who wore very large beards ru.d who had come to Africa with a wife who joined c.c.M. The play showed that Kissinger had gone to a witch who told him point blank that he would not win the election. The third thing one can ~ather from the evidence of the second respondent I s witnesses is that they are saying tha.t the second respondent only outsmarted Premji in campaign techniques. - j The campaigns were hot but they are what one should·have expected from Kigoma, a place where the• contest.

was. between these two persons •. That is the impression I think \he side of Dr. Kabourou were attempting to give out. Mr. Mbezi 1 learned Counsel for the petitioner has in his submission to me, aptly pointed out that the section of the Elections Act No. l of 1985 that is relevant here is section 108(2)(a). The section reads: 11 The election of a c,andidate as a Member of Parliament shall be declared~ only on an election petition if the following grounds is proved to the satisfaction of th~ High Court and on no other ground, namely ' · (a) , That during the election campaign statements wer~ made by the candid~te, or on his behalf and with his knowledge and consent or approval, with intent to exploit tribal, racial or religious issues 43 C or differenoes pertinent to•the election. or relating to any of the candidates~ or where the candidates are not of the same . sex, with intent to exploit such differences11 (emphasis supplied)r Mr. Mbezi, therefore, argued that the second respondent, by uttering words.as given in the extracts, was exploiting trib~l, racial and religious feelingsot>·" ►'I"! :i:hese,- Mr. Mbezi argues ,have gone to the root of the election to make the entire election not free, and not fair. The cumulative effect of all these malpractices and illegalitie~ should be that the elections must be declared null and void. - j I have considered the submissions by Mr.

Mbezi very meticulously. I have qlso considered the submissions from Mrs. Sumari, the Senior State Attorney who represented the Attorney Generalo Mr-s Sumari's submissions actually c~vered only the Returning Officer and not the second respondent. ·°} - Incidentally, the second respondent had earlier been represented by Mr. Kwikima, learned advocate, but Mr. Kwikima withdrew without notice to the Court and therefore,the end part of the case was prosecuted by the second respondent himself. After considerable though,. I have come to the ' conclusion that all the extracts I have pointed out, spoken by Dr. Kabourou, were_defamatory of Azim Premji. They were racial and they.were capable of raising. incitement and riot among the voters of Kigoma. I agree that politics in Kigoma might have been hot, but I do not agree that the t:ype of utterances in the speeches of Dr~ Kabourou hare ought to be encouraged in the political arena. The issue then, to decide here, after I have found the passages I have quoted defamatory is whether, these words, the defamatory wordt1 1 were, in the words of the Court of Appeal in the case I quoted earlier, the case of Delefa 1 "inexcusableu and 11 indefensible"• l 44 ·- I remind_ here that earlier in this judg1Dent I said that it has not been spelt out as to what ·defamatory words or writings are in excusable and indefensible. Can we say that Dr.•

Kabouroi.:..:.,tn"-:-j J words were · iniil_xcusable and or indefensible? I must confess I have bad no assistnnce from any authority here. I also have had no assistance from any authority 'from any outstqe jurisdiction. But, I think in order to • answer that question of whether a particular defamation is inexcusable or indefensibie,one must take ench individual case and decid~ the facts . in that individual case and arrive at a conclusion 0Jl. the individual case. I venture say that the history of the partictilar case rinist be lmown and assessed in order to come ..to the conclusion as to whether the defamatory words were_,--inexcusable and indefensible to such an j extent that they affected the elecfion. The history of these two contestants, Azim Premji and Dr. Kabourous is this:. Member of Parliament to end of 1993 in Kigoma Urban tt~itutney was Ho~0 RajabuOmar ·Minbanoo He died. A by election was helde Candidates wer-e Dr. Aman _Walid Kabourou (under Election Act No. l ·of. 19~,5 as amended by Elections (Amen4.£ent) Act No. 6 .of i992) 1 and Azim Suleman Premji: It was Chadema_ v_,, c.c,.M.: i I

I I I I Results: Premj_i ✓~-~ •• •• •• 9,475 votes I Kabourou. .. ···• .. 5,366 votes· Difference •• 4,109 Dr. Kabourou was not satisfied. He opened a case at Tabora High Court (Miscillaneous .Civil Causes No. l. of 1994). One of the grounds advanced by Dr., Kabourou for asking the Court (H.C.) to declare the results null and void was the issue of citizenship. It was argued by Kabourou that Premji was not a citizen of this Country and therefore, that .he could not stand as a: candidate to a .Parliamentary seat._ There were ~ - . issues like illegal crnnpaigns. Govi:!rnment Officials assisting CLC.M. ~d the radio assisting c.c.M, • . I The High Court ,(Tabora) allowed the petition, i • .e. accepted that. the Election was not free n nd fair and declared it a nullity. Bu_t, it declared so~ because Premji was not a citizen~ It declared so on the other matters,.. The Hi~h Court (Mchome, J.) held that Premj i was a · citizen. ~t, on the whole, Premji lost. Preinji appealed to the Court of Appe~ against the order of declaring the results null and void. Kabourou althrogh, he had advanced the .issue of citizenships in the High Court and lost, did_~ cross appeal on the issue of citizenship. At the Court of Appeal the scenario became different. The Court of Appeal, using its inherent powers, suo motu raised the issu!:l. of citizenship .of-Premji and rulled, di.f'.fering with Mchome, J.,

that Premji was not a citizen. The Court of Appeal could have dismissed the appeal on that sole issue alon.e. It, however, went_ahead to discuss these other isf!Ues raised by Kabourou. So the annulment of Kigoina elections by Mchome J. was, confirmed. Now, in t~e normal cause of ~vents, the Election in Kigoma would have been repeated~ Unfortunately it was not. It was argued'by the Electoral Conimission that ·it was going to waste public funds to hold a by election when.the term of Parliament was ending hardly a few months ahead. So, the people of Kigoma were asked to wait for the General Election of 1995. It would appear it waa eomrnon knowledge· in Kigoma that the two would confront each other. Indeed, in 1995, the same two people (Premji and fabourou) \'llere·,.featured · by their parties, and they contested the election. The net result was that Kabourou won by beating Premji with 273 ~otes. It has now been tlj.e turn of Preiliji to complain to the High Court that of the election was fullyLirregularities and full of defamation that it be dedl.axred null and void• .. 46 That is the back gr-ound under which the case should be looked at. ' it seems to me that there is need to pla·q-e the' I mention thi~ because defematory words in this case in. the contest of that backgr-ound;.- I say this because, I think if the Courts do not test defamatory words or actions against indivicual

people, many election petitions wi'll be avoided and that may not be in line with the law which,_ in very unambiguous terms,places the burden of proof beyond reasonable. doubt. These cases assume the burden of proof in criminal cases. ·Mrs. Sumari, the learned Senior State Attorney who represented the Attorney Genersl in this petition referred me to the case of Basil Mramba and Attorn~ General v .. Le.ons s. Ngalai .,. Civil Appeal No. 27 .of 1987 (unreported) where tl;l.6 Court of Appeal of Tanzania said (and corrdotly so) that: 11 The other point of law in the appeal refer.a to the. standard of pr.?of -r,equired in_ an election petitiono On this issue Mr. Ml.awa associated himself with l'JI'. Lakhe's submission." The Court of Appeal went on to state: 11 We think that i:t has now been .established that a petitioner has to proye his case beyond reasonable. •,: doubt, as in criminal trial although an ele•tjon petition is· a Civil matter.fl So, if ~ may come back to .the point I made that defamat·ory words must be placed in the conte1t of the history of the part~s, \ ·I extended it by saying that this b~ckgr-ound naturally would, then be between not between a cahdidate and ~ candidatefgenerally, blft\•,15~.een . .\ i ' this particylar candidate and tbi~ particular •Ul},9,idate. I, yet, would have this a?ded matter to say: It should not be forgotten that the .difference in the

votes was 273 •. Although, truly• · Misc.Civ.Cau.3/95. 47 'i ...,_-;:-~.:,.- I number of votes polled nee<i not necessarily determine ¥hether•. an .. •]'(,:.... ·.:;J.}1,,.::. \ election was fri~Tfuiliffili·t"in ~*-· pa.Bticul~· caie (Ete~jf an,d ka:bour~)' :·-:'<-I:.:.· ... • \; . ; ... if;'\:}r . ..... . there is the naked f,ac:::t t:\lat if. 't:ije defamatory ~brds were su.~h that. they J' . ..l:1(;• J'-\~ ~ti:·· t~ . . ":, •. . '\ were indefensible and inexcusabl~1 the ·If!ffi='g;ll1 woo,:ld have been .!very btg• \ . ' . ~ ' . . \ That is to sa/'·Dr. Kabourou would, have far more,,yotes tl:1an Mr. Pr.el)lj1:i}.:, "·:<. .. ; • · I t ~ it is· belittl~::~·the •people of Kig~ma t, say that in nearly 4o years of independence'. t . c/person could .- cdme . . and \use ·., :facism ¥ to 'get votes ~d ,.the pe\>ple would seriiously lis;ten. to him. This '. . ·,. '·. I . \' Coun't;ry ha:s had:·~ lot· o:f'. ·Europeans an(! asians ·,and Tanzania'.ns. of European • . .. ,, .:• •• • • • ' • • > ori'gin and Tanzanl:an.$.. of asian origin, "who nave held senio1t:.:. posts both . in the Party ol'TANU and in the Government~ Kabourou could shout on f racism but I dont think people did \fbte for him because of his plasting . '1' Azim b~cause he is a Tanzanian of asian 'origin. Kabourou must have been voted in because of many other ~ualities he ha~..and not because of cruising Premji in person.

I therefore answer the issue ·.1·· of speeches by saying this that, ind~ed they were defamatory, but the defamati~~·, i~ not inexcusable .... or indefensibie~ \, The history of .the two of them would suggest that the defamatien is excusable and defensi'ole.. It therefore· cannot . • { ... 1·:.,Jc' . avoid an election. I nmst" hasten tc{1add·, that I found Mr. Azim Premj'i . to be over sefis1tive'.l·op1·.trw: iSS.U'? of racism. · · . ,,n .v.orrr· that Dr. Kabourou was acting ung~ntlem~ly, but these matt'ers~are expected in a society where people are just ·learning how to conduct. .. multipar.t'y ·elections. I repeat: the 11ords of Samatta J .A., that there ·mus't.be some tolerance in election co~aigns. If every nasti word spoken at a rally against an opponent r~sulted in null~fication, 11 Campai&n5 would have been intolerably risky under takings11 • . ISSUE N0 •. 12: "If the answers to issue Number l to 11 are i.n the affirmative, whether the non - compliance · affected the results of the election. 11 .....,-, l I have held issue No. 1, 3, 4, 5, 6, 7, and il in the negative., I have held issues 8, 9, 10 in the affirmaf.i.ve. My next exercise is therefore to see whether t;tie cumulative effect of all this is tha~. th:; election in Kigoina Urban Constituency' was not free ·and fair and that~.t, •; therefore, I should ·declare them null and void. I refuse to do that.-.These 1i . :.

'l:~ · 'fl,re~d:t:ilst.i...,,..:: in the issues that have scored yes, are ~regularities which must have been eXP,ected in Kigbk;·.i b?twe~n the two' eon-.estants in an election with many parties. I must hasten to add that we are in a nru.ltiparty system of elections. These matters should be expected. ·. Before I m~e the conclusion, I.must state that while in the case of Prince Mahinda Mulokozi Bagenda v. Wilson Masilingi (Miscellane01i's Civil Cause No. 5/95 of the High Court of Tanzania at ,' Bukoba) I admonished David Martin f,r ..spme of his remarks in a paper h~ gave at a Seminar in Zanzibar · - paper "Democracy versus Diplomacy The Case for Dialogue in ZanzibaJ: (extracts of which •an be seen ~n Sunday News - Newspaper of 13/7/1997}, I am now beginning to agree with that author. David Martin is reported to have said, of our elections in Africa: 11 Sadly in Africa it is rare for a loser to accept defeat wit~out saying the elections have been .. rigged, staging6¥'1 planning a coup detat or ~oing to Court •. All too often individual ambitions ignore~. the collective good.ii So, in the instant petition,I refuse to avoid it. On.the contrary I say that. the elections held in 1995 in Kigoma Urban . 9onstituency were free· and fair. The petition is dismissed, and i'):; is dismissed with costs (issue No. 13). I _.,1.._ __ I 49 I confirm Dr. Aman Walid Kabourou tp.e·memberof Parliament for Kigoma Urban Constituency. I will soon be giving such.a certificate to ,J. the speaker. It is so ordered .'' i 'l- ,1; J. E~ c. MASANCHE

JUDGE 11th June, ,1998. . \ .. Mrs. _.Sumari, Senior State Attorney for 1st respondent. Dr. Kabourou in person - second respondent. Mr-. Mbezi for Petitioner. Petitioner Azim Premji - present in person • • i., 50 CERTIFICATE ·TO THE . DIRECTOR,,. OF ELECTIONS (Under s. ll.3 o1 the Elections Act 1985 as amended) J t Upon dismissal of the petition against the 1st respondent and second respondent, and being satisfied that the election of the second respondent was free ~nd fair, this is to certify that the second respondent one Hoqourable Dr. Aman Walid Kabourou was · l._. • legally elected and his election is hereby confirmed. .,,,,,.. ,. ,/ . J. Vb. . MASANCHE .I I JU-bGE AT DAR ES SALAAM. llth Jufre·.1998/.