19980527 TZHC Bukoba

IN THE HIGH cou::r.r OF TANZANIA

AT BUKOBA MISCELLANEOUS CIVIL CAUSE NOo12 OF 1995 IN THE Ml\.T'rER OF AN ELECTION PSTITION UNDER THE EI3CTIONS ACT NO.., 1 OF 1985 AND THE ELECTIONS (ELECTION PFTI'l'IONS) RULES 1971. DR 0 MEDARD MUTALiI;M1,Tf\. MUTUNGI o o o o o o o • .. o • • • o o o " • o o PETITIONER

VERSUS THE HONOURABJ.);:: THS Ar,:TORNEY Gf,NE:RAL 0000000000 1ST RESPONDENT SEBASTIAN RUKIZA ICTNYONDO oeooooooonoooooooooo 2ND RESPON'.JENT

J TJ D G M E N T This petition •arises from the parliamentary election·iri the Bukoba rural constituency held on 29~19.95. The election was contested by several candidates, including the petitioner, Dr. Medard Mutungi, and the second respondent, Mr. SebastianKinyondo, who was the winner. Dro Mutungi brought this petition p:raying fo:t; inter alia, nullification of the election. This judgmPnt is a summary of my findings and decision· on various m.3.tters as well as on the case as a whole. Matters not mentioned in this summary, but which will appear in the reasons for judgment to be furnished later, are matters which were either struck out of the pleadings, or mattars on which no evidence was adduced by the (10) petitioner, or matters.not proved to the satisfaction of the court. In the course of their fi 1al addresses learned counsel for the 1 • defence raised two preliminary matters. First, it was argued that the verifico.tion to the petitioner 1 f-~ pleadings was bad because whereas the ( petitioner declared that the co:1tents of the petition were true to the _\. . -----...i:._,_f. his knowledge in fact most of it came from informants. The , . \s asked to fi~d that the petitioner was therefore a liar. ~J. I 2 Second, the court was asked to find that the petitioner was incompetent to contest the election and, therefore, to file the petition,because he claimed to have the support

of several opposition parties over and above his party, CHADEMA. I reject both arguments and hold that the defect in the verification was inconsequential and further that the petitioner was competent to contest the election and to file the petition. On the substance of the petition, three issues were identified,. i.e., non-compliance with ·che electoral law nnd procedure, corrupt practices and defamation,. In my decision there is a fourth issue, i.e. ( 10) tribalism. I take up that issue pursuont to the provisions of·R\lle 6 of the Elections (Election Petitions) Rules, 1971. With non-compli,mces: the following were established to the satisfaction of the court. (i) The Maiga (Non16/1?/17/A2) polling station ballot box arrived at the Dist~ict Hoadquartera, Rwamishenye, empty, (ii) Karonge (No. 16/35/35/B) polling station opened late and closed early. :,bout 10 people were unable to vote as a result. (iii) Bugengere polling staio~ similarly opened late and (20) closed early. About 8 people were unaple to vote as a result. (iv) Musira (Noe16/72/72/B1) polling station ru.so opened late and closed early and about 15 people were unable to vote. (v) - At Rukoma (No.16/89/89/B) polling station CHADEMA 's polling agent's signature was forged on the CF 5 and CF·~- forms to state thr:i.t he had no complaint after he was refused the forms to register his complaints. 3 J (vi) At Mishenyo

(NoQ'lf/3/3/B) polling stntion the candidate:s' photographs.and particul~~~s were not displayed. Additionally there was late opening and early closing and about 6·peoplc were unable to vote. (vii) There_ were errors in a few RF2 forms in the number of disputed votese . -bespi te these errors and non-compliances I run satisfied that the election was conducted substantially in accordnnce with the law and that the non-compliances did not affect the result-of the election 0 The second issue is the.t of cor~ption., I am satisfied beyond ( 10) doubt that the second respondent held a campaign meeting at Bwizanduru I am also satisfied that after the meeting he personally gave out money and k.hangaS to leaders of women groups at the premises of -Eustace Katunzi's shop., I am further satisfied that on the same occasion and at the same time, a~d only 250 metres away, the CCM ward chairman, Joseph Ndyetabula, entertained people with drinks and_gave khangas to women, all of which he stated had been supplied by the second respondent. In my decision th.-:tt statement was true. As regards defamation I am satisfied and find that the second respondent made abusive and defamatory utterances ngainst the petitioner (20) at Bwizanduru, Makonge, Ntoma, Ibe.raizibu, Kibona, Kiijongo, Nyakibimbili and Kitahya$ The utterances were th2t the petitioner had forged or stolen academic certificates; that he

,,-ms a thief who had stolen from a shoe compru1y cllld from Lonrho and had been expelled and who had stoleh generators intended for Lyamahoro and Rubale Secondary Schools; the.t the petitioner was a rapist, sodorniser and defiler who had been exp$lled from Ihungo . .. Secqnd?XY School because of ths.t conduct and was continuing with same at. . ~ Dar es Salaam; tha.t his party, CH.ADEMA, was a party of thieves; that \ ·CHADEMA and NCCR-Mageuzi w8re parties of drug traffickers; that the petitioner himself was a drug trafficker in collaborc1.tion with CHADEMA and NCCR Chaggas; that he had given 300 1 000 to his sister-in-law to distribute to women in furtherance of his campaign but she had converted the money and set up a kiosk; that he wns given bicycle tyres by the management of the Kagera Co-operative Union to distribute to youths for the same purpose; that he does not concole the bereaved or co-operate with fellow villagers to the extent that his house was full of bat droppings; that he had failed to manage his family on account of which his wife was a prostitute and his children were n.elinquents; ( 1o) and that he had expelled his wife but recalled her when he got.an accident to clean his feaces and urineo There were other utterances, not otherwise de:fa:nator-.r, e.g. that the petitioner was 11 mbebaji mizigon whose position will otherwise be dealt with in my reasons for

judgment. I o.m se.tisfied that the foregoing· were defamatory of the petitioner and/or criminal in character. I am also sa_tisfied that there was wide publication of them spanning two polling districts of Kyamtwe.ra and Katereroo When the corrupt practices are added thereto, I satisfied and find that the election was neither fres nor f~ir. This alone is sufficient to avoid the election. (20) Finally, there was tribalism. To the second respondent the petitioner was a member of a party of Che.ggas, and the Chaggas had sent him to contest the election. Moreover, according to the second respondent, Chaggas were thieves and drug traffickers. Exploitation of tribal issues or differences automatically avoids an election under $e108(2)(a) of .,. J '·) l. Accot'dingly, .I allow the petition and dec:lw.-e -the election- void. The second respondent will bear the petitioner's costs. Certificates will issue to the Director of EJ.ections·notifying this decision and to the effect that the second respondent was found guilty of corrupt practic<"lse Reasons for this judgment are reserved to a later date. l . n<:NM.d ~~GA~RA -

JUDGE BUKOBAo 27/5/98. . ". . ......