lutter symphorian nelson vs attorney general another 1999 tzca 22 6 september 1999

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM (COiRAM: MFALILA,_J_.A., LU3UVA, J.A», And SAMA'TIA, J.A.) CIVIL APPEAL NO. Zk OF 1999 B e t w e e n LUTTER SYMPHORIAN NELSON........... APPELLANT And li THE HON. ATTORNEY GENERAL 0. . . . RESPONDENTS 2i,IBRAHIM SAID MSABAEA jf (Appeal from the decision of the High Court of Tanzania at Dar-es-Salaam) (Mkwawa, J.) dated the 6th day of May, 1998 in Misc. CiviI Cause_No. 12^ of 1995

JUDGEMENT OF THE COURT SAKATTA, J.A.: The appellant, Lutter Symphorian Nelson, and the 2nd respondent, Dr. Ibrahim Said Msabaha, were two of the nine candidates in the Kibaha constituency for election to the National Assembly in the general election held in this country on October 29, 1995* They viere put forward by Chama Cha Demokrasia na Maenaeleo, popularly known by its acronym, CHADEMA, and Chama Cha Mapinduzi (CCM), respectively. The Returning Officer declared the 2nd respondent, who polled 17,621 votes, as the winner of the election. The appellant was declared to have polled 11,915 votes. The rest ox the valid votes were shared by the remaining candidates. The appellant was aggrieved by the 2nd respondent's election. He challenged it before the High Court under sections 111 (c) and 112 of the Elections Act, 1985 (hereinafter referred t« as ”the Act”). The petition was dismissed. The appeal now before us is against that decision. The appellant’s grounds of challenge were many; they included the following: (1) delay in opening and premature closure of some *f the polling stations; (2) illiterate and blind voters being assisted by CCM zealots in casting their votes; (3) failure to post the appellant's particulars at some of the polling stations; (4) illegal campaign; (5) treating; (6) intimidation; (7) corrupt practices; and (8) campaign exploiting tribal differences. The

trial was a protracted one. Twenty seven issues were framed and a total of fifty-two witnesses testified, twenty-one of whom were called by the appellant, wh« gave evidence «n his own behalf. In this appeal only the learned trial Judge's findings in respect of the 5th to 8th grounds of challenge, inclusive, are being contested. Originally, there were two grounds of appeal, namely: 1. The Honourable Judge erred in law and in fact in holding that the Appellant has failed to prove his case beyond all reasonable doubt in respect of the allegations relating to triba­ lism, corrupt practices, treating and intimidation «*f the electorate.

2. The Honourable Judge erred in law and in fact in holding that the CCM (Chama Cha Mapinduzi) had not planted zeal»ts at Miswe Mbwawa Primary School ;,A‘' and i!Bi: and Vikuruti to assist the blind, deafs and illiterates. The 2nd ground of appeal was abandoned by Mr. Magafu, Counsel for the appellant, and marked withdrawn by the Court. Sc, we are left with only*ne ground of appeal. We consider it useful to state at this juncture some of the general principles of law which we shall keep in view while considering the merits or otherwise of the appeal. The following are those principles (1) The burden is heavy cn him who assails an election which has been concluded. He must prove his case beyond reasonable doubt. But as Lord Oaksey observed in Preston- Jones ^?95j7 1 A11 E -R" 12if> at P* 133, Sl..« what is a reasonable doubt is always difficult to decide and varies in practice according to the nature of the case.1 ’1 The standard of proof depends: upon the serious­ ness of the allegation made. (2) Although a trial court cannot be treated as infallible in determining which side is indulging in falsehoods or exaggerations, an appellate court will not lightly disturb its findings of fact. It will disturb those findings only if they are clearly unsound, perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. Although a

first appeal is a re-hearing, the trial court's findings of fact will be interfered with only if they are wrong. (3) A finding boldly based on demeanour alone is not satisfactory. In the absence of legal litmus tests to discover the truth­ fulness or otherwise of oral evidence, the trial court must have regard to the general probabilities and broader aspects of the case as to where the truth lies in the case. Where there is a conflict of evidence or where the evidence of the witnesses is likely to be unreliable, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to the trial court in ascertaining the truth: see Grace Shipping Inc. and Another v C.F. Sharp & Co. Malaya (pte) Ltd. /1987/ LRC (Comm) 550. ...A - if - (if) While it is not right to dismiss outright evidence of partisan witnesses, that evidence must be viewed with great care and caution, scrutiny and circumspection. (5) Whether or not discrepancies in the evidence , *f witnesses have the effect of discrediting that evidence would depend upon the nature of the discrepancies, that is to say, whether or not the discrepancies are trifling. As the learned authors of 3AHKAR ON THE LAW OF EVIDENCE, 10th ed., Vol.I, aptly put it, at p. if6: ■'Trifling discrepancies should be ignored as they are often a test of truth. .Several persons

giving their versions of a transaction witnessed by them are naturally liable to disagree on immaterial points. It must be remembered that there are discrepancies of truth as well as falsehood. It is the broad facts of a case and not the little details that are to be considered in the weighing of evidence.” Having stated these principles, we proceed to consider the validity or otherwise of the criticisms which Mr. Magafu has forcefully made against the learned trial Judge's findings, and arguments tenaciously made »n behalf of the 2nd respondent by Mr. Mselem in support «f th*se findings. The second ground of appeal, the one which concerned the Attorney General, having been abandoned by Mr. Magafu, Mr. Salula, Principal State Attorney, merely assisted the Court ?*n one point nf law which we .ahall later have occasion to consider in the course of this judgment. We propose to deal with the complaints against the learned Judge's findings on the four subject-matters raised in the remaining ground of appeal, namely, treating, intimidation, corrupt practices and tribalism seriatim. In so far as the issue of treating was concerned, it was the appellant's case at the trial that rice-meals commonly known as :,'pilau” were served by the 2nd respondent and his agents t*. members of the public who attended the 2nd respondent's campaign meetings at Mlandizi A and B, Disunyara Village,

Mwendapole, Kwa Mfipa, Msanganyi, Mkuza, Bokomonemela, Menginau, Vikawe, Kongowe, Ruvu Station and Mlandizi Kwa Dosa. The food was served either before or after the rallies. The following witnesses on the appellant's side gave evidence on treating: Rehema Sudi Sadi (FW2), Salum Leja (PW^), Said Zinga (PW6), Rajabu Yusufu Athumani (PW7 ) and Kinyama Song»rUlaiti (PW19). It was the appellant's case that the message accompanying the “'hospitality" was that the consumers should cast their votes for the 2nd respondent. According to the Appellant's testimony a total of about twenty five thousand people ate the pilau. The 2nd respondent’s defence was total denial that food was served to members of the public. He asserted that only members of his campaign groups, which included choirs and one traditional dance group, were served with food, the funds for which were supplied by his Party, friends and supporters. He called six witnesses: Ali Nassoro Rufumba (RW11), Hamisi Ramadhani Chanzi (RW14), Simba Saiai Simba (RW22), Kassumu Ahmad Liyame (RW23), Muharami Mohamed Lubawa (RW25) and Yasini Abdalla Majuto (RW26). Each one of these witnesses supported the 2nd respondent’s denials and assertions. In the course of his evidence RW26 said: E,I am the one who supervised the distribution and consumption »f the meal by the choir groups. Each group had an average *f twenty (20) participants. On

the average five plates of pilau meal were consumed by each group ... The meals were n*t eaten in the *pen. They were always eaten inside the provided buildings. These were invariably CCM's offices. The meals were n»t meant to be eaten by the public. They were exclusively for choir groups.:l The learned trial Judge analysed the evidence of the scales of justice and found himself unable to make a positive finding that, as was alleged by the appellant and his witnesses, the pilau was also served to members of the public. He entertained the view that what might have occurred was that pilau was prepared for, and served to the members of the campaign groups but some members of the public invited themselves to the meal. He accordingly found no substance in the complaint against treating. Mr. Magafu sought to persuade us to hold that the learned Judge erred in so concluding. While very fairly conceding that the evidence of PW6 was hearsay, he contended that the evidence »f PW2 stood unchallenged on the point, and Frf6 was unshaken during cross-examination, and, therefore, the learned trial Judge should have preferred the evidence of those two witnesses to that of the 2nd respondent, which, according to counsel, constituted general denials. Mr. Magafu concluded his submission on the issue of treating by contending that what occurred at the named rallies constituted treating in law. Mr.

Mselem, on the other hand, urged us to hold that the learned trial Judge directed himself properly and arrived at a correct conclusion. He submitted that the evidence of the 2nd respondent, RW12, RW1 3, HW23, RW25 and RW26 established that members of the public were not served with the pilau. The learned advocate concluded his argument by submitting that if there were gate­ crashers in the places where the pilau was served, the 2nd respondent cannot in law be condemned for that. We have carefully considered the rival arguments and in the end we are of the opinion that, upon the evidence on the record, it cannot be said that the learned trial Judge was not entitled to find, as he did, that treating was not proved in this case. None of the appellant's witnesses told the trial court that members of the public were invited to go and eat the pilau. In the course of his testimony, FW7 was constrained to admit that no invitation was made at the rally he attended, namely, the Mwendapole rally. In the light of these facts, it seems to us that the version given by the 2nd respondent and his witnesses was more plausible. Since the onus of proof in this case lay on the appellant, we have no hesitation in concluding, as did the learned trial Judge, that treating was not proved. As was held by this Court in (1) Gilliard Joseph Mlaseko (2) Dr. Aziz K. Ahmed and (3) Waikela B. Rehacii v (1)

Corona^ Fai~da~Busongo ..and (2) The Attorney General, Civil Appeal No. 57 of 1996 (unreported), the serving of food to members of election campaign teams is a perfectly lawful thing. We can detect no fault in the learned trial Judge's findings on the complaint against treating. We proceed to consider whether the learned Judge misdirected himself in holding that intimidation was not proved. The appellant called four witnesses to prove several alleged episodes of intimidation by the 2nd respondent and his agents. The first of those episodes was alleged to have taken place at Mlandizi. It was the evidence of Iddi Saidi Wenge (PW14), a vendor at Mlandizi market, that during the campaign period Ibrahim Ismail Kambanyaka (RW16), a Ward Councillor, came to the market in the company of one Morris Foeks, and told the traders at the market that if they voted for the appellant they would find themselves paying higher fees for their business licences. In his testimony HW16 denied to have made the alleged ’'threat". He said that at the market vendors paid a daily fee of Shs. 5Q/= and a monthly fee of Shs. 300/=. These charges, according to the witness, were levied by the District Council and not CCM. In the course of his submission Mr. Magafu conceded that the alleged statement by RW16 did not in law constitute intimidation because CCM was entitled, if it found it necessary, to caution the

people that a victory for CHADEM& could result in business fees being raised. In view of that concession of which we ,../8 approve, we say no more on the matter. Another intimidation was alleged to have been made at Visiga Kwa Vipofu. The evidence here was given by one Sijaoni Athumani Mzuzuri (PW12). His testimony was to the effect that on September 28, 1995, on the eve of the polling day, a video film depicting what he called -'the Uganda WarS! was shown to an audience of "almost fene hundred persons". He asserted that he was the one Operating the video-set. According to the witness’ testimony, the film included horrifying scenes of killings, and that a Ward Councillor, one Omari Rashid Nonganonga (RW19), cautioned the audience that if they voted for the opposition parties what they had seen on the film would befall this country. The 2nd respondent brought RW19 and one Salum Rajabu Muhunzi (HWl8)'t© refute PW12's evidence. Both witnesses said nothing about where they were or what they did on September 28, 1995. Apparently assuming that PW12 meant to talk of the events which occurred on October 28, 1995, they asserted that on the night of that day they were at Ruvu Secondary School attending an election seminar. The evidence of an Assistant Returning Officer, Suleiman Mfaume Bigi (RW21), who claimed to have been the supervisor of the seminar, supported the testimony of the two

witnesses. This support moved the learned trial Judge to hold that there was no "powerful evidence to establish the complaint'11. Mr. Magafu submitted that that finding was not justified. He contended that the evidence of PW12 was reliable and enough to establish the electoral misconduct complained against. Mr. Mselem submitted that the learned trial Judge's finding cannot be faulted, because, as he put it, there was sufficient credible evidence before the court proving that RW18 and RW19 were at the Ruvu Secondary School on the night in question. With respect to Mr. Magafu, we are of the opinion that the rejection by the learned trial Judge of PW12's solitary testimony was justified. First, according to his evidence, the appellant was told that the film was screened on October 28, 1995. This information appears to have come from PW12. That witness was, however, emphatic in his evidence that the !,show'*’ took place on September 28, 1995> not on October 28j 1995* Under cross-examination by Mr. Mselem, wh* also represented the 2nd respondent at the trial, the witness said, among" - other things: S!I am telling the truth - election was held on the 29_9 _9 5 . The film was screened «n the 28/9/95* This was .just a night before the election day. I had operated the video machine. The house of Mhunzi is in the compound where the video was screened. The vide* was not shown on the

28/10/95* It' was in the month of September, 1995“ (the emphasis is ours). Plainly, the witness was confused. As everyone else knows, the general election did not take place in the m*nth *f September. Was the witness' confusion confined to dates? We cannot be sure of that. In our settled opinion, the learned trial Judge would not have been justified to accept PW12's unimpressive testimony. It is not, in our opinion, insignificant that none *f the members mf the audience, estimated by the witness to be almost a hundred, was called as a witness to support that evidence. Be that as it may, we are decisively of the opinion that, in the absence *f evidence proving, or from which it could reasonably be inferred, that a substantial number of votes were obtained as a result of the alleged intimidation, the appellant's complaint must be found to lack merit. One Dr. Zainabu Gama (RW28), an Assistant Medical Officer employed by Shirika la Elimu, Kibaha, was alleged by Asha Juma (PW18) and Salum Issa Kiny»gori (PW21), both of whom are residents of Miswe Village, to have uttered a threat that if the residents of the village voted for the appellant or if that candidate won the election she would refuse to attend them if they came to the hospital for treatment. PW21 told the trial court that one night, a few days before the election day, the Village and CCM Chairman, Sahabana Chaurembo,

brought Dr. Gama to his (the witness’) house. As t« what allegedly transpired there, we shall permit the witness to take up the story: "She Dr. Gama7 arrested me. In the process she asked me why I have /defected7 from CCM to CHADEMA. She told me as I had been there was no point why I should abandon it. She further told me that we should not be unwise to vote for LUTTER who is a Bahaya. She .. - further threatened that people from Miswe village will be denied treatment in her hospital in case LUTTER NELSON emerged the winner in the election. She also asked me to inform ray co-villagers to attend a meeting on the following morning.w The witness was the Chairman of CHADEMA at the village. Dr. Gama was a Regional and District Executive Committee member of U.W.T., an organisation affiliated to CCM. She was also a member of the Political Committee of that Party at the regional and district level. PW18 testified to the effect that, in response to an invitation by the Village Chairman, one morning before the polling day she attended a women's meeting. About fifty women attended it. Dr. Gama was the main speaker. As to what Dr, Gama allegedly said, the witness told the trial court as follows: 7JShe introduced herself to us. Her message to us was briefly to the effect that we should cast our votes for DR. M3ABAHA and not LUTTER NELSON. She ... told us that if we elected NELSON then we

should be prepared to face the consequences of being turned away when we go to Kibaha for treatment.i! While admitting the holding of the meeting, Dr. Gama emphatically denied to have exhorted those present to vote for the 2nd respondent or to have threatened to refuse them medical treatment if they voted for the appellant or if the candidate emerged the winner in the election. Although she admitted to have told the appellant, whl passed by the meeting hall, that the meetingwas a •imkoleis, a Zaramo initiation meeting for women,she asserted that the gathering was a UWT meeting. During the meeting, she told the trial court, she exhorted those present to vote for the 2nd respondent. Analysing the evidence of PW18 and that of Dr. Gama, the learned trial Judge said, among other things: “Taking into consideration RW28!s denial in this matter and the way she straightforwardly gave her evidence-in-chief and how unshaken shestood the fiery cross-examination I was left with a lasting impression of sincerity on her part. In the result, I cannot say that she was not a credible witness. I am fortified in this view when I bear in mind that PW18 did not at all impress me as a witness of belief and that PWl8 's testimony is, as is evident from the record, lonesome. Having this in mind I find it extremely unsafe to believe P1V18 and discredit HW28 .!i He went on to conclude as follows: ,rEven

assuming in arguendo that RW28 had uttered those threats as alleged by NELSON and his witnesses, I am still not persuaded that such remarks or utterances could have any effect or substantial influence on the electorate.,? Mr. Magafu forcefully criticised the learned trial Judge's finding that HW28 was a credible witness. He contended that the witness could not correctly be regarded as being a reliable one. He gave two reasons for that contention. ■First, in examination-in-chief the witness said that the meeting was exclusively for women but during cross-examination she admitted that a man, too, attended the meeting. Secondly, the witness contradicted herself because at one time she said that the meeting was a "mkole1 ’1, but later she said it was a UWT meeting. Mr. Magafu submitted that the learned trial Judge should have preferred FWl8's testimony to that of RW28. Mr. Mselem, on the other hand, urged us to hold that the learned trial Judge was entitled to make the finding Mr. Magafu had attacked. According to the learned advocate, the police, to whom a complaint had been made against the witness, would not have been so insouciant as to ignore the contravention if there was some evidence showing that it had been made. The learned advocate did not, however, disclose in respect of what offence the witness could be arrested. We have given a careful consideration to these arguments

and in the upshot we are of the opinion that there is no warrant for disturbing the learned trial Judge's finding. As far as the making of the alleged threat is concerned, we think it was one man's word against another. Neither evidence of PW18 nor that of PW21 was supported directly or indirectly. N* reason was given at the trial why no other member of CHADEMA or any of the other opposition parties who attended the meeting could not be called to lend some colour to PWl8's testimony. According to the evidence of PW21, the meeting was for women “regardless of their party affiliations.*1 Be that as it may, we do not think Mr.Magafu's criticisms against the evidence of RW28 carry much weight. We hold that opinion mainly for two reasons. First, the delay in disclosing to the trial court that there was one man at the meeting intended exclusively for women did not, in our opinion, constitute a substantial blot on the credibility of the witness. Secondly, at no time during her testimony did the witness say that the meeting was a nmkole;<. She used that word in connection with what she had told the appellant when the latter had wanted to know whether the meeting was a public one. Mr. Magafu appears to have misunderstood the witness' answers to the questions posed by the learned trial Judge. For these reasons, we are of the opinion that there is no basis for interfering with the learned

trial Judge's findings on the intimidation allegedly made by RW28. Finally, as far as intimidation is concerned, there is the complaint against the rejection by the learned trial Judge of the evidence of PW15, Issa Jumanne Mngombanya, that at the Kwa Dosa campaign meeting threats were made by RW14, RW21 (the Kibaha District Commissioner) and RW27 that those who would not vote for CCM would be dispossessed of their shambas. The evidence was strongly disputed by the defence witnesses and the 2nd respondent. One of the principal common features of their evidence was that the meeting in question did not last long because it started to rain heavily a short period after it had commenced. The learned trial Judge was impressed by the credibility of the defence witnesses. Having given the matter careful consideration, we are unable to agree with Mr. Magafu that, upon the evidence on the record, we are entitled to take a different view from that taken by the learned trial Judge. Having subjected the impugned judgment to close scrutiny, we are unable to say that the learned trial Judge failed to use or palpably misused the advantage he enjoyed, which we lack, of observing the manner and demeanour of the witnesses. Mr. Magafu strongly urged us to hold that, contrary to the findings made by the learned trial Judge, it was proved beyond reasonable doubt at the trial that the election in the

Kibaha constituency was not, because of intimidation by the 2nd respondent and his agents, free and fair. For the reasons we have given, we cannot prevail on ourselves to believe that it would be right for us to accede to the learned advocate's arguments. That conclusion brings us face to face with the appellant's complaints against the learned trial Judge's findings on the evidence to the allegations of corrupt practices. ...M There were not less than seven alleged acts of bribery by the 2nd respondent and some of his agents. We shall start with the evidence of Kinyama Songo Dlaiti (PW19)» This witness was a member of the CCM's campaign team in the Kibaha constituency. Testifying on what allegedly occured on October 26, 1995j he said: !I... I was called by the CCM1s branch secretary. He is called SAIDI KOKOTA. He gave /me7 Shs. 20,000/= which he said I should use in luring the voters into casting their ballot in favour of MSABAHA. The notes were all in Shs, 500 currency notes denomination. I was instructed to give money only to those with registration certificates. I gave each one of these Shs. 500/=. I gave the money to forty persons. I was not given anything as an inducement. I was to be rewarded later on. I was promised Shs. 2,000/=. /This mone^ I was to be paid when MSABAHA wins. I know the persons who I have paid ... I approached the individuals in person and I did

it secretly.” Cross-examined by counsel for the Attorney General, the witness said, among other things: 3!I had given /Shs. 500/=7 to one Mkumbwa. He is blind. I took him to the polling station. I left him sitting outside. I left him with my uncle. He is called KIBWANA SULEIMAN KIYANI. ... I had given him /M£UMBWa 7 the money three days before the election day.” (the emphasis is ours) Mkumbwa gave evidence as PW16. He confirmed receiving 500/= from FW19, but his story differed from the latter's story in two respects. First, he said he received the money on the polling day. Secondly, he said it was one Kinyamasigwa who led him to the polling station. The evidence of the two witnesses was disputed by the 2nd respondent's side. According to Said Kokuza (RW17), EW19 had ceased to be a member of CCM when, on June 6, 1995, he resigned from the Party. The witness produced before the court as an exhibit minutes of a meeting of CCM which were said to demonstrate that faCti Having taken into account the inconsistencies fretwean fobp--pvi.dertc.e at the two witnesses, the learned trial Judge found, himself unable to accept the evidence of PW16 and FW19. In his brief attack on that finding, Mr. Magafu submitted that the issue was not who assisted the witness to go to the polling station, but whether PW19 was given Shs. 20,000/=. Mr. Mselem submitted that, bearing in mind

the inconsistencies between their evidence and the "lie” by FW19 that he was a member of CCM, the learned trial Judge was perfectly entitled to arrive at the conclusion he did. With respect to Mr. Magafu, we are of the opinion that Mr. Mselem1s argument is well-founded. Assuming that FW19 did not tell a lie on his membership of CCM, his evidence .reminds us of the caution voiced by the Supreme Court of India in Rahim Khan V Khurshid Ahmed and others S.C.R. 6^3 regarding the acceptance of turncoat testimony in election petitions. Speaking through Krishna Iyer, J., the Court said, at p. 657? 'We cannot understand how tergiversation can become a virtue. Defection in politics is becoming a pervasive vice and its projection into election cases must be frowned upon by Courts. It scandalises us that a person should be the campaign agent of one candidate during elections and should shift loyalties during the election case to undo the victory he contributed to attain. The price of post-election swivelling must slump. It is naivete to pin faith on such probative circus and it is necessary to discourage such defection in the interests of the purity of the Court process. Except in special circumstances which are not present in the present case we decline to dismantle an electoral result by the technique of turncoat testimony* '* it will be recalled that it was the evidence of PW19 that he

was a member of the CCM campaign team. In that capacity, he exhorted the voters in the Kibaha constituency to cast their votes for the 2nd respondent, CCM candidate, and yet, by his own testimony, he tried to persuade the learned trial Judge to declare the 2nd respondent’s election void. We can see no special circumstances in this case justifying the acceptance of theevidence of this swivel-chair witness. On the contrary, the very material inconsistencies between his evidence and that of hisfellow player, PW16 , dictate, in our settled opinion, the rejection of that evidence. It is very difficult to believe that the two witnesses were talking of the same incident when they were in the witness-box. We find no merit in Mr. Magafu1s submission. That conclusion brings us to the question whether the learned trial Judge was wrong in not finding that a few days before a CCM campaign meeting was held at Mwendapole village the 2nd respondent bribed some villagers there. The appellant adduced evidence from two witnesses on the complaint - Rajabu Ali Ngateka (PW10) and Salum Suleiman Difa (PW11). It was the evidence of the two witnesses that on a Sunday morning the 2nd respondent came to their village and parked his vehicle at a bus stand. Soon thereafter a crowd of men and women gathered there. The 2nd respondent addressed them briefly; be exhorted them to vote for him. Cot>/ *16 Then he

dipped his hand into his trouser pocket and dished out Shs. 30,000/= in three currency notes. The crowd scrambled for the money. FW10 grabbed it and threw two of the notes to the crowd. The witness then went to a shop where he changed the note he had retained into Shs. 5*000/= notes, one of which he gave to FW11. There were some inconsistencies in the evidence of the witnesses. According to PW10, the 2nd respondent told the women to wait for their turn as the Shs. .30,000/= was for men. According to PW11, however, the 2nd respondent also gave women Shs. 20,000/=. FW11 iried to explain the inconsistency during cross-examination. He said that the women were given the Shs. 20,000/= when PW10 had gone to the shop to change the Shs. 10,000/= he had retained. The 2nd respondent vehemently disputed having bribed the crowd. He asserted that he could not indulge in bribery when his mobilization groups denounced corruption in their songs and poems. The learned trial Judge was not impressed by the evidence of PW10 and PW11. In his opinion, the disharmony between their evidence left a reasonable doubt as to whether the alleged bribery took place. Mr. Magafu attacked this view. He contended that the 2nd respondent's evidence on the issue was no more than a general denial. Relying on (1) Basil P. Mramba (2) The Hon. the Attorney General v Leons S. Ngalai, Civil Appeal No. 27 of 1987

(unreported), the learned advocate submitted that a general denial of an electoral irregularity or misconduct cannot suffice. He concluded his submission by arguing that the evidence of PW10 and PW11 was credible and proved the alleged bribery beyond reasonable doubt. Mr. Mselem's response was two-fold. First, it was improbable that the 2nd respondent, a man who is highly educated, would have acted in such a reckless manner in broad daylight as described by the two witnesses. Secondly, the unresolvable inconsistencies between the evidence of the witnesses were material and robbed the witnesses' accounts of their persuasiveness. Mr. Mselem concluded his submission by reminding us of the fact that being a very grave charge, corruption ougght to be strictly proved. Whose contention is correct? Mr. Magafu1s that bribery by the 2nd respondent was proved? Or is it Mr. Mselem's that there was no such proof* There cannot be doubt that if it is true that the 2nd respondent behaved as alleged by FW10 and PW11 he acted with reckless courage. Like the learned trial Judge, however, we are not satisfied that it was proved that he so behaved. In our opinion, the inconsistency between the evidence of the two witnesses regarding whether or not women were also bribed was not of a trifling character. The belated explanation by Ftf11 that the bribery occurred when FW10 had gone to the shop flies

in the face of the testimony of FW10, which suggested, very strongly, that PW11 accompanied him to the shop. It is not irrelevant to add, we think, that the omission by the appellant to call as a witness at least one of the women who witnessed the alleged bribery gives rise to doubt whether the accounts of PW10 and PW11 were true. We conclude, therefore, that there is no basis for faulting the learned trial Judge's findings on the evidence of PW10 and PW11. We now turn to a consideration of the appellant's complaint against the learned trial Judge's finding that it was not proved beyond reasonable doubt that Dr. Lawrence Gama, the then Secretary General of CCM, handed over bribe money to PW2. The witness gave a very interesting story. We propose to tell the greater part of it in her own words. This is what she told the trial Court: s,0n the 6-10-95 I and two other CHADEMA. members attended a meeting at the CCM Lumumba Office in Dar es Salaam. I was a leader in Tumbi Ward. I was a CHADEMA Secretary. The CCM's Party Secretaries for Dar es Salaam and Coast Regions and a chairman for Visiga Village were also present at the CCM Sub-headquarters at Lumumba in the city. With me there were MOHAMED MKANDA. and SEIF RASHID. We had all pretended to have deserted CHADEMA in favour of CCM, I was a security agent of CHADEMA.. We were directed by the CCM leaders in attendance to

entice CHADEMA members to vote for DR. IBRAHIM MSABAHA. In order to achieve this objective the former Secretary General of CCM, DR. LAWRENCE GAMA, gave me a bribe of Shs. 50,000/= and 25 CCM cards* I was directed to offer each person I had enticed a CCM card and Shs. 1,000/=. The remaining Shs. 5)000/= was not for luring CHADEMA (Sic). It was given to me as transport allowance.” The witness went on to assert that after leaving the CCM Sub-Headquarters she proceeded to CHADEMA National Headquarters where she reported the alleged incident to the Party's Vice Chairman, one Mr. Brown Ngwilulupi. She said she left the CCM cards and Shs. 25,000/= with that leader. It should also be pointed out that, according to the witness1' 1 testimony, her companions, Mohamed Mikanda and Seif Rashid, were also given some money for the same purpose by the Secretary General. In rebuttal, the 2nd respondent called one Abbas Shabani Mfikurwa (RW29). In October 1995 the witness was Personal Assistant to the Secretary General of CCM. He told the trial court that on October 6, 1995> he officiated at a ceremony for welcoming to CCM Kibaha defectors from CHADEMA. He had been told they were two hundred defectors but only thirty would attend the ceremony. He obtained thirty CCM cards for the occasion, but in the end only three '’defectors” turned up - PW2, Mikanda and one whose name he could not recall. The

witness asserted that on that date the Secretary General was at Songea where he was also involved, as a candidate, in a contest for a parliamentary seat. He went on to tell the trial court that he presented the trio with CCM membership cards and handed over the remaining cards to one Mr. Mhagama, the Coast Region CCM's Secretary, for distribution to those defectors who had not turned up at the ceremony. According to the witness, the three :!defectorsSI had insisted that the ceremony take place in Dar es Salaam and not Kibaha because they feared to be subjected to harassment by the appellant's followers. The learned trial Judge subjected the evidence of the two witnesses, PW2 and RW29, to a critical analysis. He said: s,The evidence of FW2 is lonesome as the said BROWN NGWILULUPI was not called to lend credence to her version. If her story is credible, one wonders why he did not come. PW2 had asserted that DR. LAWRENCE GAMA, was in attendance on that day but the same is borne out in Exh, R13 £ news report in UHURU issue of October 7j 19957* Had he been there quite obviously he would have hit the headlines. In the circumstances, of the two RW29 is more credible and worth of belief.1' Mr. Magafu made a general attack against the rejection by the learned trial Judge of PW2's evidence. With respect, we agree with Mr. Mselem that the reasons given by the learned Judge for that

rejection are incapable of being faulted. In our view, the learned Judge could also have doubted the veracity of the witness' evidence on the additional ground that the unexplained omission by the appellant to call Mohamed Mikanda or Seif Rashid as a witness suggested that the solitary evidence of PW.2 was not going to be supported if those persons gave evidence. The only remaining story of alleged bribery worthy our attention is that given by Faustin Everista (PW5). This witness told the trial court that on the polling day, while he and one Haule and Mohamed were going to a polling station to cast their votes, one Felician Kisutu, a CCM ten cell leader, who was at his house, called them. As to what allegedly happened at the house, we shall tell the story in the witness' own words: f/*He ^Feliciax/ gave a thousand shillings each and asked us to vote for Dr. Msabaha. He promised us more money if MSABAHA was elected. He told us that about /Shs/ 200,000/= was available. I cast my vote for MSABAHA. I have not been paid the money todate. I had gone in search of the money.,J In his analysis of the evidence laid before him the learned trial Judge made no specific reference to the evidence of this witness, Mr. Magafu, not unexpectedly, attacked the omission. He contended that thewitness' evidence was capable of belief, Mr. Mselem, on the other hand, submitted that the witness had told

palpable lies and therefore his evidence was not worthy of the court's consideration. Since the learned trial Judge does not appear to have evaluated the evidence of the witness, we shall discharge that task. In doing so, we remember, of course, that we have not had the benefit of observing the witness' demeanour in the witness-box. As a matter of reason, we think it is unsafe to rely on the witness' evidence. If his story were true, it seems unlikely that counsel for the appellant, an experienced one, would have omitted to call as a witness at least one of the witness' companions (Haule and Mohamed) at the time the bribes were allegedly given. The omission seems to suggest to us that the appellant's side was not sure that if those companions had gone into the witness-box they would have supported PW5's story. We would attach little weight to that story. Corruption is a grave misconduct, and the allegation of it is a very serious charge. When it is proved in an election petition very serious consequences follow. It must, therefore, be strictly proved. Although the conditions prevailing in this country with regard to elections may not be very similar to those obtaining in India, the observations made by the Supreme Court of that country in Rahim Khan's on allegations of corrupt practices are, we think, useful here: "We must emphasize the danger of believing at its face value

oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring a dozen witnesses apparently respectable and dis-interested ... There is no X-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkennycat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life.” Cogent and clear evidence is required to prove a corrupt practice in an election petition. The evidence adduced by the appellant in the present case being, as we have demonstrated, of a shaky and pre­ varicating character, we are satisfied that the learned trial Judge was perfectly right to hold, as he did, that no corrupt practice was proved beyond reasonable doubt. We, therefore,

see no merit in the appellant’s complaint. Finally, we turn to the appellant's complaint against the learned trial Judge's findings on his (the appellant's) allegations of tribalism. To prove those allegations, the appellant adduced evidence from twelve witnesses. The witnesses were PW2; Collence Wilisoni (PW3); PW^l-j. PW6; PW7; Mohamed Kabondo (FW8); FW10; Ali Chizo (PW13)» PW1*f, Issa Jumanne Magombanya (PW15) and Salum Issa Kinyogori (PW21). Save els for PW21, the essence of these witnesses was that at the CCM campaign rallies they attended in the constituency of Kibaha - FW2 and Fi6 at Mkuza, PW3 and PWA- at Kwa Mfipa, PW7, PW8 and PW10 at Mwendapole, PW13 at nearly all the rallies, PWl^ at Mlandizi, and FW15 at Vikuruto - the 2nd respondent and his agents (in the presence of the former) exhorted the crowds not to vote for the appellant who they described as a Mhaya, Waku.ja (non- indegenous person in the area), TX, or foreigner. They urged the people to vote for the 2nd respondent, their fellow Zaramo or Mzawa (a son of the land). According to the witnesses, the choirs and dancing groups conveyed the same message to the crowds. According to FW3, at the meeting he attended, one line of one of the songs ran as follows: ,J... Wazaramo nambari one ... Wahaya hawana bao.” The ten witnesses asserted that the following were the 2nd respondent's principal agents whose speeches

contained tribalistic messages: RWI^t, the CCM's District Chairman; RW16, Ward Councilor; RW21, Ward Executive Secretary; and Morris Foeks, who did not give evidence in this case. PW21 testified to the effect that one night before the polling day RW28 (Dr. Zainab Gama) visited his house and exhorted him not to cast his vote for the appellant, a Mhaya. The evidence of PW13 was to the effect that he was a member of one of CCM's campaign choirs. He produced before the court as an exhibit an audio tape which he asserted contained some of the songs which he had taped at some of the campaign rallies. The thrust of the 2nd respondent campaign, the witness asserted, was to potray the appellant as unfit to be Member of Parliament for Kibaha Constituency on the ground that he was not indegenous to that constituency. The appellant himself essentially testified on the reports he received from his agents and supporters. In the witness-box the 2nd respondent vehemently denied that he or his agents conducted the campaign rallies on the lines of tribe as alleged by the appellant's witnesses or at all. He called nine witnesses to refute those allegations. Those witnesses were: Alii Nassoro Rufumba (RW11), Athuman Maje (RW12), Deogratia Kishura (RW13), RW14 (Hamisi Ramadhani Chanzi), Msafiri Jackson (RW20), Simba Saidi Simba (RW22), Abdallah Juma Mbonga (RW2*f) and Muharami Mohamed Lubawa

(RW25). Each of these witnesses denied that speeches on tribal lines were made at the campaign meetings they attended. According to them, in the speeches and songs voters were exhorted to cast their votes for the CCM Presidential election candidate and the 2nd respondent. RW11, RW12, RW13, RW1*t and the 2nd respondent himself asserted that the subject-matter of tribes was touched upon by the speakers at the CCM campaign rallies only for the purpose of demolishing the baseless utterances which the appellant had been making at some of his campaign rallies that, (1) although at the CCM nominations, before he had defected to CHADEMA, he had polled the highest number of votes thereby beating the 2nd respondent by far, he was not nominated by that Party sis its candidate in the constituency because he was a Mhaya and not a Zaramo, and (2) the 2nd respondent was a Muha. The 2nd respondent told the trial court that he ’’found it prudent for the inhabitants of Kibaha to know the truth". It was not in dispute at the trial that the 2nd respondent is a Zaramo. and the appellant is a native of West Lake region, who has now settled in the constituency. On the issue of tribalism the learned trial Judge analysed the evidence of three witnesses only - the appellant, PW13 and RW20. He .. ./2b was silent as to the truthfulness or otherwise of the evidence of PW2, PW3, FUk, PW6j PW7, PW8, PW10,

PWl^f, PW15, RW11, RW12, RW13,RW1^f RW22, RW24, RW25 and RW26. We shall quote him in extenso. This is what he said: f,There can scarcely he any doubt that NELSON was an exciting witness. He was in the witness box for a relatively long time. It will be recalled that it is common ground that NELSON in the election posters, sample ballot papers and in his speeches at several campaign rallies described himself as a doctor. It later on transpired that the said credential was spurious and NELSON himself has unblushing conceded (sic) that his claim in respect of that credential was utter falsity. And I venture to say as a result of this falsehood the court has to approach his evidence with the greatest circumspection. Besides, I could not help but get the feeling that parts of his evidence were assimilations of suspicions and inferences and that there is some likelihood that he was carrying out a vendetta and a jaundiced eye against Dr. MSABAHA after being jilted by CCM from the candidature. This being the position NELSON's evidence should be suspect. The reason is that he has a palpable interest to serve. At any rate, I think, as already stated NELSON's evidence in respect of this issue was a fusion of suspicions and deductions. I find it difficult to buy the account of PW13 particularly when it is pitted against that of RW20 who I find credible. His evidence finds support in the

cassette itself. Most of the evidence given show that during the campaign rallies there was cheering, jubilation and all sorts of applauses. It strains credulity and xnueea one wonders why the cassette did not pick a single voice from the crowd, it having been recorded amid a crowd as per FW13 himself. This raises great doubts which should be resolved in favour of DR. MSABAHA.” Having evaluated the evidence of the three witnesses in that manner, the learned trial Judge concluded his consideration of the issue of tribalism as follows: 'Without prejudice to the foregoing, I wish to further state that on my part it is by no means new or obsolete law that evening assuming for argument sake that tribalism was the theme in the campaign rallies, I am far from persuaded that the substantial number of votes were obtained from such utterances bearing in mind the cosmopolitan nature of the constituency. The decision in NGWASHEMI'S CASE /Tl97l) H.C.D. n. 25j7 hereby relevant. I am quite unable to hold that such a situation obtained in the Parliamentary election in the Kibaha constituency. I so find.SJ Mr. Magafu made a strenuous attack against the learned trial Judge's reasoning in these passages. He submitted that the learned trial Judge gravely misdirected himself in analysing the evidence because he concentrated on the appellant's evidence. According to the learned advocate, the

omission by the learned Judge to evaluate and make findings on the evidence of the other witnesses, other than PW13 and RW20, who testified on the issue of tribalism, was a serious misdirection. Mr.Magafu went on to contend that the evidence of PW2 (who, he said, was not challenged during cross-examination on the issue of tribalism), PW3, PW^f, PW6 , PW7 , PW8 , PW15 and PW16 was reliable and ought to have been accepted by the learned trial Judge. The learned advocate described the evidence of the 2nd respondent and hisagents as mere general denials, and wenton to submit, relying on Basil P. Mramba* s case supra, that those denials were not sufficient in law to constitute a defence. He invited us to hold that it was proved beyond reasonable doubt that the 2nd respondent and his agents made statements during the election campaign with intent to exploit tribal differences relating to the appellant and the 2nd respondent, and that the agents made those statements with the 2nd respondent's knowledge and consent or approval. Finally, Mr. Magafu submitted that in considering the effect of the tribalistic statements on the result of the electionthe learned trial Judge misdirected himself in law because, as he put it,once any of the objectionable statements described in S. 108 (2) (a) of the Act are proved to have been made, the election of the returned candidate must be declared void.

According to the learned advocate, the question of the result on the election being affected arises only when the proved complaint is a non-compliance with the provisions of the Act. In his response, Mr. Mselem was ingenuous enough to confess that he was not at ease with the way the learned trial Judge approached his task on the issue of tribalism. He conceded that the learned trial Judge gave no reasons for disbelieving the witnesses other than the appellant, PW13 and H$20, who testified on that issue. The learned advocate nevertheless contended that if he had considered the evidence of those witnesses the learned trial Judge would inevitably have disbelieved it. He reminded us that on the issue of corruption the learned trial Judge found PW2 a liar, and went on to submit that having been so labelled, the witness could not possibly be believed on the issue of tribalism. He pointed out what he regarded as weaknesses on the evidence of the following witnesses of the appellant: PW3 (disharmony with evidence of PW13), PVlk (he admitted to have sold his registration certificate) and PW13 (the audio cassette he produced before the trial court had no sound made by the crowds, a fact which, he said, supported RW20!s assertion that it was recorded after the election had been held). Mr. Mselem further submitted that if the assertion by the 2nd respondent and his witnesses that the

question of tribalism was commented upon by the speakers of their camp merely for the purpose of exposing the falsity of the allegation which the appellant was making that the 2nd respondent’s nomination by CCM as a paliamentary candidate was influenced by tribalism was true, then it could not be said that the statements were made with intent to exploit tribal differences. The learned advocate, who conceded that once a contravention of S.108 (2) (a) of the Act is proved, nullification of the election must follow regardless of the result on it, concluded his argument by submitting that no such contravention was proved in the present case. Mr. Salula agreed with the interpretation on S.108 (2) (a) of the Act urged by Mr. Magafu and Mr. Mselem. He invited us to hold that the absence in that paragraph of the test of effect on the result of the election which is provided in paragraph (b) of the subsection demonstrates that Parliament intended not to have that test applied to statements on the lines of religion, race, tribe or sex. He sought to remind us that, for the sake of national unity, both the Constitution of the United Republic of Tanzania of 1977 (hereinafter referred to as ”the Constitution*®) and the Political Parties Act, 1992 prohibit discrimination. We have paid due attention to the submissions made by counsel for all the three parties. Having done so, we are left in no

doubt that the learned trial Judge strayed into some serious errors in his treatment of the evidence laid before him on the issue of tribalism. First, he did not apply his mind to the evidence of seventeen witnesses, including that of PW8, PWl^f and PW15. A judgment must convey some indication that the judge or magistrate has applied his mind to the evidence on the record. Though it may be reduced to a minimum, it must show that no material portion of the evidence laid before the court has been ignored. In Amirali Ismail v Regina, 1 T.L.R. 370, Abernethy, J., made some observations on the requirements of judgment. He said: A good judgment is clear, systematic and straightforward. Every judgment should state the facts of the case, establishing each fact by reference to the particular evidence by which it is supported; and it should give sufficiently and plainly the reasons which justify the finding. It should state sufficient particulars to enable a Court of Appeal to know what facts are found and how.” Though they were made in a criminal case, we think these observations equally apply to judgments given in non-criminal proceedings. Since, in the present case, the learned trial Judge completely ignored a portion of the material evidence, we shall, unfortunately, embark upon the task of evaluating that evidence without the advantage of his assessment. Secondly, the learned trial

Judge misdirected himself in rejecting the evidence of the appellant partly on the ground that the appellant had ,fa palpable interest to serve” in the case. The fact that, as the returned candidate, the 2nd respondent had equal, if not greater, purpose of his own to serve in the case, seems to have escaped the attention of the learned trial Judge. Thirdly, as we shall demonstrate later, the learned trial Judge erred in law in considering the effect of statements, if proved, made in contravention of S.108 (2) (a) of the Act on the result of the election. Although, unlike the learned trial Judge, we did not enjoy the advantage of observing the manner and demeanour of the witnesses when they were in the witness-box, we are of the settled opinion, having regard to, among other things, the totality of the evidence on the record, the fact that RW26 was recorded by the learned trial Judge to have been evasive at a certain stage of his evidence, and the admission made by RW11 in the course of his evidence, to which we shall shortly revert, that there was no basis for the learned trial Judge not to accept the evidence of PW8, PW1^ and PW15» The trio appear to us to have given simple and straightforward stories. They did not embellish those accounts. The evidence of the three witnesses was, among other things, to the effect that at Mwendapole, Mlandizi and Ruvu Kwa Dosa, respectively,

the 2nd respondent and his agents made speeches exhorting the people not to vote for the appellant a non-Zaramo, but vote for the 2nd respondent, their fellow tribesman. Of course, the 2nd respondent and his witnesses disputed those assertions, but their case that the question of tribes was raised at the CCM campaign rallies only to refute the story the appellant had been telling the crowds at his campaign rallies as to why CCM had not nominated him as its candidate in the constituency was put only to the appellant, who disputed it. We are at a loss to understand why counsel did not put that case to PW2, PW3, PW4, PW6, PW7, PW8, FW10, PW1^+ and FW15. It seems to us not unreasonable to infer from the omission that counsel realised after the appellant's emphatic denial that it would be futile to pursue the matter. Be that as it may, the evidence of PW8, FW1^f and PW15 appears to find some support from the admission made by RW11, the CCM's District Secretary, in his evidence. Under cross-examination by Mr. Swai, for the appellant, the witness said, among other things: S?I concede that there was that tribal difference talk that surrounded the campaign atmosphere.i? This admission shows, we think, that, although the witness' heart was with his Party and the 2nd respondent, he did not so lose his head as to avoid telling the trial court that which the 2nd respondent and the rest of

his witnesses who testified on the issue of tribalism seemed very- reluctant to say. Be that as it may, we think the evidence of PW8, FW1^ and FW15 could stand its ground without RW11's admission. To put it differently, we would be prepared to act on the evidence of the trio in the absence of the admission. It cannot be disputed that the evidence of PW3 (who sold his registration certificate), PW6 (a former prisoner), PW7 (one of the witnesses whose evidence on treating was found lacking veracity), PW10 (the witness whose story about a bribe of Shs. 30,000/= the learned trial Judge rightly found unconvincing) and PW13 (the witness whose evidence on recorded tape was rightly doubted by the learned trial Judge, and who was imprisoned in 1993 for assaulting a school teacher) required supporting evidence before it could be acted upon. There is such evidence on the record in respect of the evidence of FW3, PW7, and PW10. That evidence is that of PW8. Bearing in mind the compelling nature of the evidence of PW8, PWlA- and PV/15, the fact that the allegation that in talking about tribes the 2nd respondent and his agents were merely responding to false statements by the appellant regarding his failure to secure a nomination in CCM was not put to any of the appellant's witnesses, and, finally, the admission made by RW11, we are of the opinion that the learned trial Judge should have

rejected the 2nd respondent's camp's version regarding the issue of tribalism. Accordingly, we find as a fact that the 2nd respondent and his agents conducted a campaign on tribal lines as asserted by PW3, PW7, PW8, PW10, PW1*f and PW15. We entertain no doubt that those agents did so with the knowledge and consent or approval of the 2nd respondent and that both the 2nd respondent and his agents made those statements with intent to exploit differences between the appellant and the 2nd respondent. In what we regard as a half-hearted submission, Mr. Mselem contended that there was no proof of such intent. It suffices to say on that argument that, upon the evidence, the only rational conclusion is that the statements were made with that intent. Without any hesitation we reject thelearned advocate's contention. The making, during an election campaign, of statements, by the candidate or his agents with his knowledge and consent or approval, with intent to exploit tribal differences pertinent to the election or relating to any of the candidates is frowned upon by S.108 (2) (a) of the Act. The sub-section reads: (2) The election of a candidate as a Member of Parliament shall be declared void only on an election petition ^/if an^7 of the following grounds is proved to the satisfaction of the High Court and on no other ground, namely - (a) that during the election campaign, statements

were made by the candidate, or on his behalf and with his knowledge and consent or approval, with intent to exploit tribal, racial or religious issues or differences 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 difference; (b) non-compliance with the provisions of this Act relating to election, if it appears that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of the election; or (c) that the candidate was at the time of his election, a person not qualified for election as a Member of Parliament.” (the emphasis is supplied) It will be recalled that the learned trial Judge held that in accordance with the principle laid down in Ngwashemi* s case supra he could not say, assuming that the appellant's complaint was proved, that ‘'the substantial number of votes were obtained from such utterances bearing in mind the cosmopolitan nature of /the/ constituency'**. With great respect, we are satisfied that the learned trial Judge misdirected himself in law in considering the effect of tribalism in the speeches on the result of the election. When, contrary to S.108 (2) (a) of the Act, an election campaign is conducted on the lines of tribe, race, religion or sex, the law is jealously qualitative,

not clumsily quantitative, in its nullification test. It does not count the number of contraventions, for, one contravention has the same ultimate result as ten contraventions. When there is such proof the question of the contravention affecting the result of the election does not arise. That question arises only if the provision of the subsection which has been contravened is paragraph (b). Contrary to what the learned trial Judge held, Ngwashemi's case supra concerned the contravention of paragraph (b) of the subsection and not paragraph (a). The complaints in that case were: (1 ) more votes were counted than the number of registered voters; (-2iilailure to keep the poll open at some of the polling stations; (3) failure to provide screened compartments wherein electors could cast their votes secretly; and (k) a substantial number of voters were denied the opportunity to vote. The decision in that case was plainly irrelevant to this case. In its great wisdom, Parliament found it necessary to impose an absolute prohibition of the making by an election candidate, or on the candidate's behalf with his knowledge and consent or approval, of statements with intent to exploit tribal, racial, religious or sex differences pertinent to the election or relating to any of the candidates. However big the margin of the victory of the returned candidate may be, if the candidate conducted

his campaign, or permitted his agents to campaign, on the lines of any of those pernicious evils, the High Court is bound by the law to invalidate the poll verdict regardless of the effect of the illegal practice on the result of the election: see the very recent decision of this Court in Azim Suleiman Premji v 1. The Attorney General (2) Dr. Aman Walid Kabourou, Civil Appeal No. 63 of 1998 (unreported). The law's aversion to short-cuts to power is boundless. We want to say in the clearest terms that it is of first importance that elections should not only be fairly and properly held but should also be seen to be so conducted. John Adams, a renowned jurist, who, between 1797 and 1801, was President of U.S.A. is said to have once remarked: "Remember, remember, democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide." The vices prohibited by S.108 (2) (a) of the Act are capable of posing a very grave threat to the national cohesion and our young democracy. The spirit underlying the provisions of Articles 9 (g) and (h), 13 (*0 and (5), 20 (2) (a), 21 (l) and 29 (2) of the Constitution, and section 9 (2) of the Political Parties Act, 1992, is that discrimination on the basis of tribe, race, religion or sex has no place in this country. It is of earth-shaking importance that those cancerous vices be

eradicated from the hearts and minds of the leaders and those who aspire to become leaders. The politics of stoop-to-conquer must be denounced with a loud voice. JL-5"l1l l 1 “ J Upon a close and fresh re-evaluation of the evidence on the record, we are satisfied beyond reasonable doubt that, contrary to the provisions of S.108 (2) (a) of the Act, the 2nd respondent and his agents, with his knowledge and consent or approval, made statements during the election campaign with intent to exploit tribal differences relating to that candidate and the appellant. For the reasons we have given, we cannot in law pause to consider whether those illegal practices affected the result of the election. A campaign on tribal lines having been proved, the electoral purity must claim its victim. Accordingly, we allow the appeal, reverse the decision of the High Court dismissing the election petition, and declare that the election of the 2nd respondent as a Member of Parliament for Kibaha constituency is void. The 2nd respondent is to pay the costs of the appellant and those of the 1st respondent, both in this Court and the Court below. DATED AT DAR ES SALAAM THIS 6th DAY OF SEPTEMBER, 1999. L.M. MFALILA.

JUSTICE OF APPEAL D.Z. LUBUVA

JUSTICE OF APPEAL B.A. SAMATTA

JUSTICE OF APPEAL I certify that this is a true copy of the original.

DEPUTY REGISTRAR