19810616 TZHC Mbeya

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AT IEYA NISC CIVIL CLE NO, 9160 GILBERP LOUIS NGUA ................. PETITIONER Versus i cimisi MLIJIYAT.ANGA NZINDAKLiYA)• RESP0Nn1TS 2 THE A1'BORNEY - GENERAL ) J1JD4ENT OF THE COURT On 0tober 26 9 1980, a aereral electiorL was held in this country. Among the cons tituenc'.es in which the parliamentary election was contes ted was Sumbawanga rual, The candidates in that constituency were Gilbert Louis Ngua and Chrisant Najiyatanga Mzindaicaya, Thir s3inbojs ware Nba and Jembe reative1P. Chrisant Majiyatanga Mzindakaya polled 33,974 votes, while Gilbert • Louis Ngua polled 21,263 votes. There were 1838 spoilt votes. In consequence the Returning Officer declared Chrisant Najiyatanga IIzindakaya as the winner, having secured a majority of 12,711. • However, Gilbert Louis Ngua was dissatisfied with the results and has petitioned this court with a prayer that the said election be declared void. In this petition Chrisant Najiyatanga Mzindakaya is the first respondent and thE Attorney-Genera1 is the second respondent by virtue of Rule 4(1) of the Elections (Election Petitions) Rules, 0 1971. The petition contains a number of allegations whioh we do not consider necessary to set cut at length. In a nutshell they consIst of non—compliance with the provisions of the Elections Act, )970 (hereinafter referred to as the Act), illegal practices and currupt practices. Both respondents denied

the allegations in their entirety. Issues were framed but which again we do not consider.uecessary to set out. We shall, howe-var, answer them in the course of this judnent. We propose to begin with issues whioh fall under the heading of non—oompliance with the provisions of the Act. In paragraph 6 of the petition it was claimed that the number of -votes cast in the constituency was greater than that of registered voters. No evidence was adduced to establish this allegation. We therefore do not consider ourselves bound to give it any consideration. j In paragraphs 9 and 15 of the petition the [petitioner alleges non—compliance with s.84 and 95 of the Act. gec, tion,84 deals with the 0 • -: N ••• peTA .tflO UT ST xad il ons uo qs o o eoA'e qxtq 'ze.1.rç ST .ZO.0A V o. 1T03.OUfl0 o ST tpt .zethd s jo enss eqa P aaoTjjo kztuzjq.ej oq .tzes Puv pepos eq o. vç Utfl. UT it eocI v trç p°i eq o. icfuenbosqns pue .xeojjo ufl.çse.xd etq tk urvule.x o, a zm sToJxe.unoo 4.uqT ST topijo q. XOCTUT ot 4 (q)(t)fr8 s s jo suoTs&o.xd eq. iVq moTA sp; -uT pejpxoj eit o;' [ç0;.1e;Un00 sç opnotz q.ou soap recTct q.opq uorçcIo et.p jc ame am 'qo ° ()frL s Jo sUOçsçAO.1ct eqq. Jo PU1UT UT tC1X0E 'IOthI .I9.oA et; oq. xe.&çep . pe.rçnbax ST 'I0.04 et. jo I4prua1,T et o. Sle peTJsTs .trçeq • uTttocI .10 .1001330 $3UpS1 etiJoV et. JO (q)9Ls Jo stzoTaTAo.1d ot, tj j pA eoup.z000e UI 'tfl UT UC'.cA st

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Stt'S.1r'Sct 0!k. 0tfl Ut SU014'3?e1T'S et U0 11tP OT £rcss000tIrn 1T Z9P15U00 e.I0J0a0tfl 8A f suoT ~ 003 OsOL4 JO .10T410 T4Tbt OOUSflth)iOO -UOU qSflqVS0 OJ. P°I SM 00UepTJ3 OU 'UT'St? OOUO 'S9.OA BUT4unoo JO UOTSnIOUOO eti; .1001330 UTtrL.e?i eq jo sep.np eq tjPt svep • 6 ttOT0S pTt'S TO lq-0 eLIT uo -°iiq pesnun pue sexoq -°tiq etç. S'S t3flS SIV1.1e'SEt pU'S q ueuffTnbe c 0 Toote jo U11pUt UT Iloct OL4 30 - vt eqve jOfl -e* z -t eo qV- e xap000md - .• • - - • Ii *1 - —3- We now wish to turn to the delay in- starting the count. As pointed out above, there was a twelve-hour lapse between the receipt of the last ballot box and the start of the count. We consider it useful to set out here the provisions of section 86(1) of the Act, which governs the aspect now under consideration. The sub-section reads as follows: 11 The Returning Officer shall make arrangements for counting the votes in the presence of the coun-ting.agents as soon as practicable after the close of the poll in the constituency, or as the case may be, the ward and shall, so far as practicable proceed continuously with the counting, allowing only reasonable time for refreshment, until it is complete." 1 Attempting to explain away the twelve-hour delay, the Returning Officer claimed that there were electrical power problems in the counting hall and he had not finalised the arrangements for alternative supply of

light. We think, with respect, that the explanation is unacceptable and we reject it. While it may be conceded that artificial light may have been required for part of the period aforesaid, we can think of no reasonable explanation, and the Returning Officer literally failed to furnish any, as to why the, counting could not start shortly after sunrise. We are therefore of the view that the Returning Officer failed to comply with the provisions cited above. It is not possible to over-emphasize the importance of an election in the democratic process and, if we may state the obvious, we think that great responsibility lies upoi those whose duty it is to ensure the success of that process. We -believe that in this case not everybody concerned appreciated this fact. As pointed out earlier, it. was conceded by the Returning Officer that at a least.thir -1,een ballot boxes had to be broken in order to retrieve the ballot papers therein. It was claimed that keys could not openthe locks. - There was lack, of unanimity as to the exact number of such boxes. According to the Returning Officer, there were ten for the parliamentary votes and three for the. presidential -votes. According to Chief Louis Dantes Ngua (Pi8), there were seventeen such ballot boxes- twelve for the parliamentary votes and five for the presidential votes. According to Yesaya Ngonile (P19),- there were twelve such

3.oxes - nine for, the parliamentary votes and three for the presidential votes. We ôonsider these. eoes o/4 . 4 d.iffererices -to' 1e of little significance. The. d.is1urbing £a-ccr is as to how this situation came about. The Returning Officer told the court that before he despatched the ballot boxes he checked and. found serviceable the locks thereon: each key opened its respective lock. He then put the keys in an envelope which he sealed and kept under lock and key until the counting time. The Returning Officer was emphatic that no one else handled the keys. According to him, the locks might have got damaged due to vibrations during transportation of the ballot boxes from polling stations to the counting hail. The witness identified in court a lock which he said was identical to those which were used on ballot boxes in his constituency. The lock was of LARK make and of the hardened type. We are of the settled view that short of deliberate tampering with the locks mere vibrations could not have adversely affected.their mechanism. There was an allegation, too, that s.88 of the Act, which provides - for the method of counting of votes, was not complied with. This section provides as follows: " Before the Returning Officer and '. Assistant Returning Officers probeed to count the vobes, they shall, in the presence of the counting agents, if any,' open each ballot box and, taldng

out the ballot papers, shall count and record the total number thereof, 'and then 'mix together the whole of the papers contained in the ballot boxes" According to PW8 and Pi'J9,there was no mixing together of the ballot papers contained in all the ballot boxes. There was mixing of the ballot papers only according to symbols. This was disputed by the Returning Officer, but we see no reason why PiIO and PW9 should lie. It may be pointed out that Pi19 1 who was the chairman of the supervisory delegates, . impressed us as the most independent, frank and honest witness. We are satisfied that s.88 of the Act was not complied with, Finally, on the subject of non—compliance, it was alleged that at 14kima polling, station some voters were denied the opportunity to cast their votes. According the direction issued by the Electoral Commission under s.62(4) of the Act, the poll was to start at 7.00 a,m, and close at 5.00 p.m. There was evidence that Nkima polling station closed at 10.00 p.izi. and that a number of people who had turned up after 5.00 p.m. were turned away. .15 - --. -5- * - 'Beftring in mind the provisions of. a. 33 of the Act, we LIM no faalt in the decision of the presiding officer to tuxn then away. In the absence of any evidence that any such people had arrived at the polling station before 5.00 p.m. we reject the ,contei tion that some people were wrongly denied the

right to cast their vdtes We now come to the allegations of illegal practices, which are summarised in paragraph 11 oi' the petition, the import of which is that some of the Party and Government leaders in the region Qampaighed for the 1st respondent, We would wish to refer to the evidenóe relating to specific instances. A -t a campaign meeting held on October 10 at Tatanda vi.lage the question was put to the 1st respondent as to what he had done in the past fifteen years he had beeri a Member of Parliament 0 After he had answered the question the Sumbawanga district Party cI airman Baltazaa' Npendakuia ICameka (1W5), suddenly took the floor and added that the 1st respondent was responsible for the creation of the Rukwa region, for the creation of Nkansi district, and for the creation of the Lyangalile Villagesi Developuint company (popularly 1iown as LYAVIDEC0) 'Por clarification, the shareholders of LYAVIDECO are five villages within the Sumbawanga rural constituency, including the 1st respondent's and Baltazar Kameka's villages. The 1st respondent is the Chairman of the Board of Directors and Karacka is his deputy. The company has a subsidiary transport company which was established in April 1980 and owns some lorries. Kameka' a conduct drew instant disapproval from the supervisory delegates who banged the.table in an attempt to make him resume his seat. In his evidence,

however, 'Kameka denied giving any credit to the 1st respondent. He asserted that what he told the meeting was that the adhievements recorded were the result of collective effort. He admitted, however, that efforts were made to stop him from continuing with his speech. We had the advantage of hearing the supervisory delegate (1W9) and of reading the report (iibch.P1) prepared by his team immediately after the election. We also had the advantage of observing Ka.meka in the witnessbox. Once again, we have no hesitation in believing PT9 on this matter. We would add that his evidence on this point was substantially similar to that of the petitioner and that of Remigrms Daniel Kalubu (P.W2). It was also in evidence that immediately after the Tata.nda campaigr meeting there was a sitting at Sopa at which iCaneka was reprimanded and asked to ... ON 6 •- aoe ' he tionr. Wo ar bond doubt that KamekaTs conduct at Tatanda was a campaii in favour of the 1st respondent. Secondly, it was testified, and not disputed, that the Party Regional Secretary for Rukwa, one Michael Baruti, unexpectedly turned up at a carapai1 meeting at Kaenesa on October 16. He arrived at the meeting in the motor vhic1e Reg, No. SU 2748, the property of the Small Industries Development Organisation (SIDO) which was at the time being used by the, 1st mspondent, He was accompanied by the 1st respondentts wife and the

wife of the Regional Party Chairman, Zeno Noel Nkoswe (JMi). The Regional Chairman was at the time the 1st respondent 1 s host. There was evidence from 1W2 that, according to the campaign programme, the Regional Secretary was expected to be elsewhere compaigriing for the presidential candidate. According to Kalubu and Kameka, the Regional Secretary , an admitted friend of the 1st respondent, told them that he had come there because he had been informed that the candidites were fighting. The witnesses and the candidates agreed in the witness.. box that the campaign was very peaceful. Unfortimatelr, we had, no opportunity to hear the Regional Secretary on this matter. Nevertheless we are satisfied that the explanation given by him was lame. We are of the view that the appearance of the Regional Secretary in the 1st respondent's wife and the wife of the Regional Chairman rmzst have created the impression to. the public that the Party was backing the 1st respondent, Thirdly, there is evidence of a campaign at Miangalua village. It came from Valentine Nmngu (1w3), i3enedicto Pambwa (P14), Anania Mwananzyur&gu (147) and George Stima (iwlo), The substance of this evidence was that on the evening of October 23, 1980, one Marcelo Kamanga and one Isaa Mbela called and addressed a meeting of ten—cell leaders and other 1ders urging them to campaign for the 1st respondent. According to P13,

the ward secretary, Kamanga stated: ' Chama Nkoani na WilayanI wanetuagiza kuwa uchaguzi wa niaka huu ni mguniu.. Munchague Nzindakaya, Mkimchagia Ngua atarudisha uchlfu. Kama swila alikuuma au kukutemea mate, ukimwona mtoto wake anatembea unaweza ukamwacha? Baba yake alitunyanganya ardhi ya huko Kwela. Akichaguljwa anaweza kuichukua tena lie ardhi, Nchagueni Mzindakaya, ameleta magari," & I -7- After this .ioeting Xaxaanga and IVlbela proo4eded to Novu. v3.11age, In the meantime, Id4 and P17, who were cell leaders, passei o the message to villagers under their jurisdictions I-Ioweve, the ward secretary had received the message with suspicion, He decided to arrest Kamanga and Mbela on their way back from Movu Indeed, they were arrested, at about 11.00 p.m., and upon interrogation they disclosed that they had been sent by the Regional Party Chairinan Nkoswe, the District Party Chairman, Kameka, and the 1st respondent, Since he knew them the ward secretary released them and decided to take up the matter with the police on the following day. Kananga was and is a member of the District Working Committee and the Regional Exeoutive Committee of the Party. Mbela was and is the chairman of Laela 'B' Party branch. On the following day a report was made at the Laela police post conoernihg the activities of the two men, and according to Cpl. Edson Nwangatnba IM5) and P.C. Albert Elisaria

Urasa (PW6), similar reports about the same persohz had already been received from Mititi, Kisalala, Movu. and Turilco villages. The police therefore decided to arreót them. The arrests were effected on the same day. The two men had been using motor vehicle Reg. No. TZ 40997, the property of one Bojaki, •a Sumbawanga businessrian. Back at the police post the two men, who were later taken to the 0.C.D. at Suinbawanga, repeated that they had been sent by the Regional and District Party Chairmen. According to P.C. Albert Urasa, Mbela said, when his statement was being recorded, that it was the 1st respondent who had hired the vehicle, But Kameka later came to tell the court that he had himself hired the vehicle on behalf of the Party to distribute campaign posters in respect of the President and the Vice President. There was, however, evidence from the Returning Officer that he had assigned six vehicles for the distribution of campaign and election materials. We had the advantage of seeing and observing the various witnesses on this matter. We believe that EW3, EW4, P159 Pi6, W7 and P410 were witnesses of truth, We therefore find without any hesitation that icarnanga and Mbela had gone to Miangalua and campaigned for the 1st respondent. We reject as being implausible the explanation of Kameka that he had hired Bojaki's vehicle for the purpose alleged by him. In the first instance,

we see no reason why the Vice President's posters, if they were, had to be distributed on the mainland. Secondly, in view of the Returning Officer's evidence, which we accept, that six public vehicles . . . . . ./8 - 8 - were available to facilitate the U.stribution of èlectioi materials, we find, it inconceivable that Kaaeka (or anyone else for that matter) should have found it necessary to hire private transport for the same purpose. It is in fact on record that Kameka never approached the Returning Officer with a reqiest for trahsport. We therefore hold and find as a fact that Bojaki's vehicle was hired to facilitate an unfficial campai1 for the 1st respondent. It is also not without sigsificänce that the respondent's side refrained from calling Kainanga and/or Mbela to' deny the allegation that they had campaigsed for the 1st respondent. We are entitled under s422 of the Evidence Act, 1967, to presume that if they had been called the 'two men would have given evidence unfavourable to the respondents, for omniapraesumuntur contr torem. Before we leave the subject of illegal practices we wish to refer to the evidence relatingto a public meeting held late Notrember 1980 at Miangalua. It is undisputed that the meeting was addressed by Kameka and th 1st respondent. According to W4 and Pi11O, the 1st respondent, ainog øthei' things, referred to rumours Uh.'at: the..elebtioh was

not faii and thr,atehed that..anhmdy.ass.oithg - himself w.ith..stich.rthnours would - lose , iisjoior. go to ,rison: We. hid a.. di ff.ér.ent Version from Kameka and. the.' 1st respondnt.': They said that thea 1st respondent.. thanked theeop1e for .hav±nreelectd him: dfid urged thea to cocentrate. on fàrndhg., The st.rep.ondnt. I caegorica11y, denied 'to have.i uttuie'd! any.. theats. However, .acc,ording. to. Kameka, 'Addressin:hin 9 a. memb.ei' of the iuib1ic.eLiarked:: • ...............1' .: . . . Mt.fenyékiti, tuhashangaa unabngozana -. 4 ... wakatIsisi •' . • katika uchaguzi uliofanyika tuna3ua haukuwa wa haiali .Kameka sid i-xe could not an3wer the question., and asked Mzindakiya C •. . ..... .................,. . ..• . .. to answer it Aing to h.in(Kaxaeka). Nzindakaya's reply was in the following terms: Nclugu wananchi, uchaguzi ai,mi rajua umthaIizika, ña mLthi tarai Him61rishi • `àpishwa.:kama inmge: ..... ': maneno rnayasiida lcwa .watu hayp yaithzie . kufara kai.' Kana kuna thà1aiiko • . ,. yatajitokezyehyewe." ': Nzircda'kaya bimse1f a&itted tht .a sthtérthitwha. re'eting. on the vaIidity'of the election. According toh±, his ..... cmentonthattatement.Mas.as follows:. • . :.. •' L -• • •• • • .. .. . - ,. . • . ., . . -9- " Mimi sifahctniu u.ta-bio yoyote kuhusu uchaguzi huu arubao muliufanya tarehe 26. Nawaom'ba wananchi wote tuungane kuleta maendeleo." We have

already stated that P44 and P110 were witnesses of truth in respect of the ca?:ipaigu by Kamanga and Mbela. We find no' reason to doubt their credibility on what transpired - at the meeting under consideration. On the contrary, we believe that what they said is what took place. We have therefore come to. the unfortunate conclusion that the' threats were intended to silence potential witnesses in this case. Upon the credible evidence before us we are satisfied beyond reasonable doubt that the Party leadership campaigued for the 1st respondent. This was contrary to the law. It is not surprising that innediately after the results were arnounoed the Party leadership mounted a jubilant procession to escort the 1st respondent to the Regiona1 Party Chairman's residence, On the' following day, October 30, he was escorted in a Party vehicle to his home village by the Regional Party Chairman, Nkoswe, the Sumbawanga rural district Party Chairman, Kameka, the Sunbawanga urban Party Chairman, one Peter Mtuka, the Sumbawanga Urban Member of Parliament, one Kinyonto, the District ]xecutive Secretary, one Mbegani, and the District Accountant, one Maarufu. At the village a grand party was organised by the local branch at the brandh chairman's house. The last subject is thatof corrupt practices There were a number of corrupt instances alleged in this connection. First, it was alleged by Simon

Alberto Yulamasi (1M13) that in September 1960-, at Mpui village, the 1st respondent gave him a pair of kitenge to deliver to Mwene Maria, the petitioner's grandmother, as an inducement to her to caaige for him. We have considered this allegation and we reject it for three reasons. First, the witness admitted that he and the 1st respondent were strangers to each &ther. Secondly, the alleged transaction took place twenty - five paces from Mwene Maria's residence. Thirdly, as just pointed out, Mwene MaIia is the peti -tionerts grandmother. Taking these factors into consideration,, it occurs to us as being improbable -that. the alleged tansaction could have taken place. . ..,. ./10 S ' ' - 10 .- The second a1lgation was that at a campaiga meeting held at Ilambila village the District Party Chairman, Kaneka, gave shs. 200/= to one Ntungo, a primary school teacher. This was in the evidence of the petitioner and iat of Ka1uu (W2). The allegation was denied by Kameka., lie consider it unnecessary to make a finding on this matter for there was no evidence that the alleged transaction had any connection with the campaiga. Next, there was an allegation that on the polling day, at the Mkima polling station, the 1st respondent gave out forty shillings to procure refreshments for votors. It was further alleged that the money was used to buy some liquor which was consumed at the polling

station. This tesUmony was given by Nazalia Adolph Tariba (Wll). In view of the :'act that no evidence was adduced from the village chairman, Musa YacLitwi, who was alleged to have received the money, and taking into consideration the circumstances under which the money was a113 ed to have been given, we consider it unsafe to accept the allegation. Finally, on this subjectof corrupt practices, there was evidence thatmilling machines were supplied in the 1st respoxident' s constituency immediately before and during the election campaign. This ,evidnce came from Jogwak.i. Tunfunde Mwatujobe (P,i12) 0 Kameka (Th15) and Ailoyce Henga (Ud6), the Rukwa Regional Small Industries Promotion Officer. According to RJ12, these machines were being prcdured by the 1st respondent in Dar es Salaam who was then recting their distribution to villages in Sumbawanga rural. constituency. According to Th16, villages were making applications foz loan to purchase these machines and when procured the machines ijare being supplied to the villages upon the payment of ten per cent of the price thereof. More background information was larticularly given by Kanieka. He told the court that during the tour of his constituency the 1st respondent had encouraged villages tomake the applications and had promised, in his oapacity as the Chairman of the Board of Directors of SIDO, that he would ensure the qipply of

the machines. The evidence of the 1st respondent was to the effect that loans for the purchase of the machines were being. approved by a sub-cormiittee of SIDO's Board of Directors and that he was not a member of the sub—committee. Secondly, he agreed that he lmew that such machines were being supplied in his constituency. But, thirdly, he claimed that the machines were being supplied throughout the country. We have eG11y oonjta th e-idenoQ thi e beyond reasonable doubt that the 1st respondent was behind the supply of the machines in his constituenc:,r. In this view we are strengthened by two factors. First, while in the witness—box the 1st respondent did not seek to dispute the evidence of Kameka on the point. Secondly, the evidence before us demonstrates beyond peradventure that at least ten machines were distributed in the constituency during the campaign period. And according to the Ru1a Regional Small Industries Promotion Officer (Th16), only eleven milling machines were received by his office throughout 1980. It is also significant that no evidence was adduced to establish the supply of such machines anywhere else in the RukwaRegion. Having regard to the whole evidence on this subject, we hold that the supply of these machines was inteMd to influence the voters. We are satisfied that this was a corrupt practice within the meaning of s. 112(a) of the Elections Act, 1970 To

summarise, we have found the following established by the evidence. Under the subject of non—compliance with the prolrisions of thQ Act we found that there was delay in starting the count of the votes, there was an omission to mix all the votes before the. counting, and there was a wrong rejection of, two hunth'ed and four votes. Under illegal practices we found that the Party leadership campaigned for the 1st respondent contrary to the law. Under corrupt praotices we fouhd that the 1st respondent caused to be supplied to his constituency milling machines with a view to influencing the voters. Non—compliance with the provisions of the Act is governed by s. 123(3)(c) thereof. Under this provision an election is liable to be declared void if the non—compliance has affected the result of the same. The expression "affected the result" has been the subject of discussion by this court on divers occasions and we do not, there1or, feel compelled to discuss it here, 'We are of the view that non—compliances Proved in this case have not been shown to have affected the result of the election.. - We have found, on the other hand, that illegal praOtices were committed in connectioi' with the election s The question of the impact of illegal practices on an election is goverhed by s. 123(3)(a) of the Act, which reads as follows: - 12 - " (3) The election of a candidate as a member shall be

declared void on any of the following grounds which are proved to the satisfaction of the court, namely- (a) that by reason of corrupt or illegal practices committed in oonnection with the election, or other misconduct s or other circumstances whether similar to those before enumerated or not, the majority of voters were, or may have been, prevented from electing the candidate whom they preferred." We have seriously considered the impact on the election of the conduct of the Party leadership during the campaigri period and we have come to the conclusion that such conduct may have prevented the majority of the voters from clecting the candidate whom they preferred. This finding is by iself sufficient to dispose of thie petition, but we would go further. As will be recalled, we found that the 1st respondent committed a corrupt practice in connection with the election s Under sd 123(3)(d) of the Act a corrupt practice automatically avoids an election. For the reasons which we have given, it becomes our duty to declare, as we do', that the parliamentary election held on October, 26, 1980, in the Sumbawanga rural constituency is void. We accordingly allow the petition with costs and certify for one dounsel. K. S • K. LUGAKINGIRA JUDGE. B.A. SINAL'TA

JUDGE

BEYA N. N. MtJSIJI 6Ll98l, JUMD. I certify that this is the tre-7pyof ginal. ?Tche)

DISTRICT REGISTRAR