19810821 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALMM (CORAM: Mustafa, .J.A. 1 Mwakasendu 1 JoA .. , Makame, J.A., Kisanga, J.Ao and Lugaking1ra 1 Ag.J.A.) CIVIL APPEAL NO. 11 OF 1981 / .....___ ~-TWEEN • SOLOMON ALEXANDER OLE SAfBULL o •• 0 0 0 • APPELLANT

A N D 1. HUBERT HEMED MBAGA o ••• . . .. . • First RESPONDENT .

2. THE HON. ATTORNEY GENERAL • 0 0 • Second RLSPONDENT

JUDGEMENT OF THE COURT MUSTAFA, J.A.: In the 1980 Parliamentary Election two candidates, namely, Mr. Solomon Alex&nde~ Ole Saibull and Mr. Hubert Hemed Mbaga were nominated to contest the Arusha Constituency. There .. were over 40,000 registered voters and Mr. Saibull polled 12,489 votes and Mr. Mbaga polled 24,038 votes. Mr. Mbaga won by 11,549 votes. Mr. Saibull filed a pet1tioo in the High Court to nullify the election and cited Mr. Mbaga as the first re~iondent and the Attorney General as the second respondent • .. The petiUon was heard by a bench of three High Court judges anq it was dismissed with costs. against such dismissal • Mr. Saibull has appealed .·~·,;.':,,. ,,··,-.:-, At the hearing of the petition in the High Court MrD Saibull through his counsel alleged that the successful candidate, the first respondent, had exploited tribal differences and ln,_dulged in corrupt practices. It was also alleged that the 2nd respondent had failed to comply witJ:l the election provisions. He also alleged that the first respondent had carried out illegal practices in the form of illegal campaigns. The High Court dismissed the allegations of tribalism and corruption. The High Court however held that a number of voters were denied the ~:right to· vote because of confusion by some Registration Officers over the polling district boundarieso / ooooooeo•·/2 _/ 1 2 It appears that there

were tvo polling stations, · for Arusha and for Arumeru, in Nadosoito Village .. A number of voters who were registered for Arusha were alleged to have been residents of Arumeru and had their cards withdrawn ~nd were told to re-register for Arurneru. However, the High Court held that these irregulaJ:ities took place due to ignorance and that the election officials did not act maliciously. The number of voters involved was small, not more than ' 100 voters were denied the vote, and that could not have affected the election resul to However,, the High Court found that there was illegal public campa19ning by the supporters of the first respondento These supporters displayed the 1st respondent's symbol "jembe'' in places-other than at the meetings organised and supervised by the Party., It helc' that ·th:11s co"nstit.U-ted illegal public campaigning in terms of the provisions of section 66 (1) (b) of ':he Elections Act, 1970, (hereinafter called the Act)., On this is:me the High Court stated:- "We have very carefully cons:ldered the: public canvassing by the supporters of the 1st respondent and believe that the effect, if any, on the electors ,.,1as minimal as we are satisfied that no substantial ,number of votes were obtained as a result of it., Also considering the wide margin of votes cast for the successful candidate as against those for the Petitioner we are wholly satisfied

that the contravention of the Act did not in the least affect the result of the election.,"., Although the High Court did not say so, wettbink ~,at it must have considered that this contravention was non-compliance in terms of section 123(3)(c) of the Act, which reads:- 11 123(3) The election of a candidate 0 e 0 s!1all be declared void eoo (a) ooo (b) ooo (c) non-compliance with the prov1. s1.ons of th~.s Act relating to election, if it appears that ehe election was not co:1.ducted in accordancE with the principles laid dowo in such provisions· and that such no~compliance affected ther resul ':: of the election;"o Mro Mkude argued the appeal on behalf of the pE,titioner before us., He submitted that the . High C:.,urt-erred in r., t f'J.ndi1'ig thlo!t: the first respondent;, had, during the election campaigr:-:, made statements :' . wi i;h intent to exo1.oi.t tribal differc~n,; es pertinent ~- to the election or relating to~~~ appellant; that 1~ also erred in not finding thc:.t the first _.,_ spc.·~~ :.mt ha, l cct,y1 ,...c- -~ _,'1tl:-'" - 3 - He also referred to the non-compliance with the election provisions on the part of the second respondento He submitted that the finding I , . by the High Court of ill~gal public campaigning by the supporters of the 1st respondent would offend the provisions of Section 123 (3)(a) or section 123(3)(d) of the Act~ Section 123(3)(a)

reads:- "123(3) The.election of a candidate ooo shali be declared void ooo Ca) that by reason of corrupt or illega1 practices committed in connection with the election; or other misconduct, qr other ci;-cumsta.nces whether similar to those pefore em.imerated or not, the maj.z_tl_ty_of vote~s were, or may have been, prevented from electing the candidate whom they preferred;"., Sect~on 123(3)(d) reads:- "that a corrupt or illegal practice was committed in connection with the election by or with the knowledge and consent or approvai of the candidate or by or with the knowledge and consent or approval of any of his agentso' 1 • .. On the issue of incitement of tribalism, Mto Mkude submitted that at an election meeting at Kimandolu the first respondent ha<l made a speech which inflamed or was intended to exploit tribal differences pertinent to the election .. 'l'l1e High Court had found thnt in that area it was apparently public knowledge that the Wapare and Wachagga were buying land and that there were problems arising from these land transactions. In the course of his speech the first respondent was found by the High Court to have uttered this sentence or proverb:- "Usipoanika unga mchana utashindwa kupika ugali usiku ukiingia .. ", which loosely translated means "unless you dry your maize flour in the day time you won't .be able to cook stiff porridge when niglit comes" .. The

first respondent was alleged also to have said that if there was any complaint about such land transactions, the matter should be referred to the ,.. · .. courts for decisiono He was alleged to have said "if you elect me these problems would cease". Mr .. Mkudc submitted that the first respondent was a Mpare, and he was addressing an audience which included Wapare and Wachagga in a Waarusha aren, and he knew or must have known of the problems arising from the sale of lando Mr. Mkude contended that the. 1st respondent was in fact appealing to tribal sentiments when he., spoke about land at th.at nc. ~ '::.:--<· o / 4 In his petition the~ petitioner had alleged that ~he first • respondent had referred specifically to Wachagga and Wapace. The High Court found that there was no mention of such tribes at allo However, Mr~ Mkude submitted that even if the Wachagga and Wapare were not mentioned, yet with the background and in the context of the difficulties arising from purchases of land by the Wachagga and Wapare, the first respondent's reference to the land problem was directly or indirectly designed to incite tribal differenceso The High Court found that ther~ was no basis or justification for that contention and held that the phrase used by the 1st respondent was innocuouso The High Court accepted the evidence of defence witness Letawo wh<' 'wu'c: the Arusha District Party

Chairman who chaired the campaign meetings and who was the Chairman of the Kimandolu campaign meeting on this matter. It is common ground that the land issue was exercising the minds of· the electorateo It· was unexceptional for the first respondent, as a parliamentary candidate, to advert to it in his election campaigno Mr. Mkude has submitted that in view of the fact that Wachagga and Wapare were the purchasers and Waarusha the sellers of land, tribal confrontation would be stirred up by referring to such land problemso We think that it would depend on the terms and circumstances in which such a reference was madeo The first respondent spoke on the land problem without any reference to tribeso He promised that if elected he would solve it •. _He advised· parties who had purer .sed land to cultivate it and keep it cleano He also advised parties in the land disputes to refer their problems to the courts for decision, if difficulties were created in such land·dealso If the implication of any trib3l confliGt was there at all, it would have been merely a peripheral incident attaching to any land dealing in that areao The first respondent could not be held responsible for that situation. There was no evidence that the first respondent was inciting tribal animosities in any wayo We are not s~tisfied that the petitioner has established that-'--'he first .respondent .incited or

intended to incite tribal differenceso As regards the issue of corruption, two witnesses had given evidence, that is, Sarnwel (PoWo36) and Solomon (PoWo60)c •0000000/S ./' .. - 5 - Samwel alleged that one Hussein Turnbo at a campaign meeting at Sombetini approached him and took him to his car and there gave him shso 40/=, and asked Samwel to buy registration cards from potential voters and give such cards to Hussein Tumboo Samwel said that this took place in the motor vehicleo He and Turnbo and another person were presento He said he thought that Hussein Turnbo was campaigning for the first respondent because Hussein Turnbo had told him soo This witness admitted in cross-examin;::ition that he had lied about who first addressed the campaign meeting at Sombetinio He admitted that he did not tell the truth • .-,~:iJ when he said that lw):-• had attended all the campaign meetings .. Solomon alleged that he left the Sombetini meeting with Samwel., They were given a lift in a car by Hussein Turnbo., There were about six of them and they talked about the election carnpaigno When t!hey reached the town centre they got out and when they got out Hussein Turnbo gave Samwel shso 40/= in his presenceo He said that Hussein Turnbo told Samwel to "vuruga" Saibull's campaigne He promised to give Samwel shse 3,000/= if he could make Saibull lose the election" He told Sarnwel that Mbaga had

given him shs., 100,000/- for buying up election cards. He said that Hussein Turnbo and Samwel ,moved about 20 paces away and he Solomon remained in the care This ' witness alleged that when he went to vote the officials who conducted the election tried to force him to vote for the 11 jembe" symbol which was Mbaga's., He.also said that the election officials further ordered him out because time was up. He also said that.he did not know that it was wrong to compel a voter to vote for a particular ) candidate., The High Court analysed the evidence given by these two witnesses and found their evidence "most unreliable and not worthy of any consideration". The trial court concluded that there was no evidence to sustain the alleg~tion that Turnbo distributed money to the voters.:• It then went on to say "These findings make superfluous the question whether Hussein Turnbo was an agent of the first respondent.". We ourselves, despite Mro Mkude's valiant efforts, do not think that the evidence of Samwel and Solomon is worthy of credit" We need much more credible evidence than that given by these two unreali'.able witnessese We think that the High Court was justified in rej8cting that evidenceo However, in our view the High Court - 6 - I should have made a finding whether Hussein Turnbo was an agent of tne first respondento In this case we have agreed with the High Court that there was

no creidible evidence to support the allegation that Hussein Turnbo corruptiy gave shso 40/= to Samwel. However, if we had found that such money did pass·thert the question whether Hussein Turnbo was an agent of the 1st Respondent would be crucialo In that event we would not have had the benefit of the finding of the High Court on this issueo We trust that a trial court will make all the necessary findings on issues put before ito In order to complete the matter, we find that there was no evidence to show that Hussein Turnbo was the first respondent~s agento In view of our finding that it has not been proved that .money was paid to Samwel by Turnbo, it will not be necessary for us to deal in detail with the submissions of Mro Mkude concerning the issue of agencyo There was an allegation that the first respondent's son had run up a bill of about shso 20,000/- during October, 1980, at the Mount Meru Hotel, Arusha, where he workedo It was submitted by Mro Mkurl.e that that indebtedness was sufficient tc- establish that the first respondent had treated voters at the Mount Meru Hotel in contrav2ntion of the Elections Act., We are surprised that an allegation of tr8ating has been submitted on such flimsy groundso Treating is a serious offence, and requires substantial credible evidence to support ito There was also an allegati'on. by the appellant that on 10th, 11th, and 12th

October, 1980, the: first respondent was entertaining a large number of persons a.t his 1.house. The first respondent has denied ito No other witness has testified to such alleged prolonged enter- tainmento If there was such entertainment or treating, one would have expected some independent witness or witnesses to have noticed ito We are not satisfied that the allegation of treating has been establishedo In respect of non-compliance with the election provisions we agree with the High Court that a number of voters were deprived of the right to voteo ?his was due to the confusion and uncertainty over the boundaries of the polling districtso Mro Mkude informed us from the Bar that the total number of voters deprived of the right to vote due to such non~compliance was ninety-threeo 0 00-,000000/7 - 7 - Even if the ni~ety-three votes were added to the votes cast for Mr. Saibull, it would make no differPnce to the election resulto This ground was not pursued in the circu~stances. The last ground of appeal was· in respect of the illegal campaigns \. which the High Court found were carried ou~ by supporters of the first respondent., This issue has caused us some anxietyo Mro Mkude submitted that this was an illegal practice and would be caught by the prov,isions of section 123(3) Ca) or section 123(3) (d) of the Act., , He submitted that the election campaign lasted from the 1st

of October to the 25th of October, 19800 On.the 15th October,·1980, as a result of the Party's direction at a meeting at ~lerai, the displaying and carrying of 'jembes,1 and 'all election symbols was stopped at all campaign meetingso However,.there was evidence from PoWo 59 Senare, that on the 25th October, 1980, while he was at a bus stand at Arusha, he saw a landrover carrying about nine people stopping some distance fro~ himo 1ney were carrying 'jembes'o He'heard them say "this is the symbol to·ch9ose tomorrow"o Aga~n Po~o66, Loy, on the 16th October, 1980, at Arusha, saw a passenger in the front seat of a landrover asking.him if he was a supporter of "Nyumba", the petitioner's symbolo That person was shouting "Nyumba ni zii"o It would seem, therefore, that after the official ban on exhibiting or displaying election symbols on the 15th October, supporters of the first respondent continued with illegal campaigns as witnessed by Sanare and Loy. We have duly considered, in terms of section 123{3)(a), whether by reason of such illegal practices or camp•aigns "the majority of voters were, or may have been prevented from electing the candidate whom they preferred"o We are of the view that these two incidents on the 25th October anci the 16th October were isolated or sporadic instances involving an insignificant number of peopleo In view of the size of the electorate.and the large

number of people who actually voted, we are·,ocot satisfied that the majority of voters were, or may have been prevented by this illegal practice from electing the can:lh1atc whom they preferred. We now consider the provi~ions of section 123(3)(d). In reg3rd to the illegal public campaigning·by the supporters of the first respondent, the High Court stated, inter alia:- , OOOftOCCle/8 , I - 8 - We are satist"ied that the first respondent must have been aw<.1.rc 0 of such campaigning and it is irrelevant that he approved or .consented to it"o As we have stated earlier, the Hi.gh Court apparently held that this infraction offended the provisions of section 123(3)(c) of the Acto It dealt with the illegal campaigning as non-compliance with the provisions of the Act relating to elections and directed its attention to whether non- compliance with the provisions affected the result of the electiono It decided that the election result was not affectedo However, the finding of the High 'Court is that the first respondent was aware of such illegal public campaigning. There is no finding that he approved or consented to ito We accept this finding as it standso To bring illegal campaigning under the provisions of section 123(3)(d) of the Act it must be shown that such illegal campaigning was committed with the knowledge and consent or approval of the first respondent .. There is no finding

that it was committed with the consent or approval of the first " respondento We do not think that knowledge or awareness necessarily imports or impli~s consent or approvalo One may know of an act and disagree with or disapprove of ito We have to be,..,..,satisfied that this was done with the consent or approval of the first respondent. There is no such findin0, nor was such evidence adduced. We do not think that i:he illegal campai,;ning was within the ambit of section 123(3)(d) of the Act. In our view, the appeal failso We dismiss it with costso DATED at DAR ES SALAAM this 21st day bf August, 19810 Ao MUSTAFA

JUSTICE OF APPEAL Yo Mo Mo MWAKASENDO

JUSTICE OF APPEAL Lo Mo MAKAME

JUSTICE OF APPEAL Ro Ho KISANGA

JUSTICE OF APPEAL