[2007] EACJ 5

**22 June 2007**

**Application No 8 of 2007; Reference No. 3 of 2007**

## **EAST AFRICAN COURT OF JUSTICE**

## **CHRISTOPHER MTIKILA**

**v.**

## **THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA, AND THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY**

## **RULING**

| BEFORE: | PRESIDENT: Moijo. M . Ole Keiwua | |-------------|-------------------------------------------------------------------------| | | JUDGES: Augustino. S. L. Ramadhani Kasanga Mulwa, Mary Stella Arach | | | Amoko; Harold R. Nsekela | | Citation: | The East African Law Society v. The Attorney General of the Republic of | | | Kenya, Application No 8, Ref. No. 3, Ruling (EACJ, June. 22, 2007) | | Represented | APPLICANT: Mr. Audax Kahendaguza Vedasto; | | By: | RESPONDENT 1: Mr. Matthew Mwaimu, Mr. Joseph Ndunguru, and<br>Mr. Paul | | | Ngwembe; | | | RESPONDENT 2: Mr. Wilbert Kaahwa; | | | INTERVENERS: Mr. Mabere Marando | | Editor's | INTERVENERS: Dr. George Francis Nangale, Sylvia Kate Kamba, Dr. Waalid | | Note: | Aman Kabourou, Janet Deo Mmari, Abdullah A. H. Mwinyi, Dr. Gharib Said | | | Bilal, Dr. John Didas Masaburi, Septuu Mohamed Nassor and Fortunatus | | | Lwanyantika Masha |

[1] This is an application for review of the ruling delivered by this court on 25th April, 2007 and brought by Christopher Mtikila who had previously come to this Court under Article 30 of the Treaty for the Establishment of the East African Community (the Treaty) and sought the enforcement and the compliance of Articles 48 (1) (a) and50 (1) of the Treaty by the two Respondents. The Respondents were:the Attorney General of the United Republic of Tanzania (1stRespondent), and the Secretary General of the East African Community (2nd Respondent).

[2] The Applicant's case is that one of the organs of the East African Community (the Community) established under Article 9 of the Treaty is the East African Legislative Assembly (the Legislative Assembly which comprises twenty-seven elected Members and five ex officio Members according to Article 48 (1) of the Treaty. Article 50 (1) of the

Treaty provides that each Partner State elects nine members to the Legislative Assembly.

[3] Sometime in 2001 the National Assembly of the United Republic of Tanzania (hereinafter referred to as the National Assembly) elected nine persons to the Legislative Assembly two of whom were Dr. Harrison Mwakyembe and Mrs. Beatrice Shelukindo. In 2005 these two ran for and were elected Members of Parliament of the National Assembly and, pursuant to Article 51 (3) (c), they were required to vacate their seats in the Legislative Assembly. They did that.

[4] The National Assembly held by-elections, as it were, in March 2006, and elected Dr. Norman Sigalla and Mrs. Hulda Stanley Kibacha, to fill the two Tanzanian vacancies in the Legislative Assembly. However, in October, 2006, the National Assembly held a General Election, so to speak, and elected nine persons whose names have been submitted to take up the Tanzanian seats in the second Legislative Assembly since the re-birth of the Community. Dr. Sigalla and Mrs. Kibacha were unsuccessful contenders in that election.

[5] The Applicant argues that Article 51 (1) of the Treaty prescribes the tenure of every Member of the Legislative Assembly to be five years. So, he contends that the tenure of Dr. Sigalla and Mrs. Kibacha has not ended and, therefore, in October, 2006, the National Assembly ought to have elected only seven new Members to the Legislative Assembly. Since nine persons were elected, the Applicant argues, the total number of Members of the Legislative Assembly from Tanzania is eleven and that is contrary to Article 50 (1).

[6] The Applicant has two prayers, to wit:

"(a) An order that the elections of a total of 9 persons to be members of the Assembly conducted by the National Assembly of Tanzania in October, 2006, as averred in paragraph 4 (e) hereinabove while the tenure of the 2 members elected as per paragraph 4 (c) above had not ended, was, and

is, a nullity and without validity; (b) An order prohibiting the East African Community Assembly to administer oaths/affirmations of the 9 persons elected by the National Assembly of Tanzania in October, 2006, as averred in paragraph 4 (e) above."

[7] The Respondents raised a preliminary objection and after a fullhearing of that this Court held that it had

"… no jurisdiction to entertain this application which seeks to annul the elections held by the National Assembly in October, 2006. We allow the preliminary objection raised and dismiss the reference with costs for one advocate for each Respondent."

[8] The application for the review was premised on five grounds.

[9] The applicant, as before, had the services of Mr. Audax Vedasto, learned advocate, while the 1st Respondent was represented by two learned Principal State Attorneys, to wit, Mr. Matthew Mwaimu andMr. Joseph Ndunguru. The learned Counsel to the Community, Mr. Wilbert Kaahwa, appeared for the 2nd Respondent.

[10] Mr. Vedasto proposed to argue together grounds one, two and four. However, for reasons which are not necessary to disclose here, he withdrew these three grounds and, as the learned counsel for the two respondents did not object, this Court granted that

application with costs to the respondents.

[11] The application for review has been made under Article 35 (3) which provides as follows:

"An application for review of a judgment may be made to the Court only if it is based upon the discovery of some fact which by its nature might have had a decisive influence on the judgment if it had been known to the Court at the time the judgment was given, but which fact, at that time, was unknown to both the Court and the party making the application, and which could not, with reasonable diligence, have been discovered by that party before the judgment was made, or on account of some mistake, fraud or error on the face of the record or because an injustice has been done."

[12] This provision prescribes five grounds for review:

i. The discovery of some new fact which would have a decisive influence on the judgment;

- ii. Mistake; - iii. Fraud; - iv. Error on the face of the record; and - v. Because an injustice has been done.

[13] We must point out, however, that the fifth ground, that of in justice, is rather novel. Ordinarily the injustice which is considered is that which results from any of the four preceding grounds of review. But here it would appear that injustice stands out on its own and not asan accompaniment or a consequence of one of the four grounds for review. This provides a wider scope for review than is normally thecase.

[14] Kenya also has a slightly wider scope in review as seen in the Court of Appeal decision in Orero v. Seko, [1984] KLR 238:

"Under the Civil Procedure Rules order XLIV rule1(1), there are three grounds upon which a reviewmay be sought and these are:

a) where there is new and important matter orevidence which after exercise of due diligencewas not within the knowledge of an applicant atthe time the decree was passed. b) Where there is a mistake or error apparent onthe face of the record, andc) for any other sufficient reason."

[15] This was reiterated in Gharib v. Naaman [1999] 2 EALR 88. Thus inthe case of Kenya there is a third ground of "any other sufficientreason". This is broad enough to cover the ground of injustice.

[16] Mr. Vedasto's ground five of the review alleges injustice caused bythe ruling of the Court:

[17] "The Court directed in the Ruling that theApplicant's complaint, whose ground is that theelection of the members of the Assembly by theTanzanian National Assembly was done ininfringement of the provisions of the Treaty byelecting 11 instead of 9 authorized members, bepetitioned in the High Court of Tanzania under theprocedures and jurisdiction and on the grounds fordeclaring void election of a Member of the NationalAssembly of Tanzania, while under suchprocedures, jurisdiction and grounds in Tanzaniainfringement of the provisions of the Treaty or evenof any law if the alleged infringement does not affectthe result of the respective election is not among thejusticiable grounds in such a petition."

[18] Briefly Mr. Vedasto contended that the applicant's complaint cannotfind a purchase under the law and practice of election petition inTanzania as provided in section 108 (2) of the Elections Act:

"(2) The election of a candidate as a Members ofParliament shall be declared void only on anelection petition if the following grounds (sic) isproved to the satisfaction of the High Court and noother ground, namely –

(a) that, during the election campaign, statementswere made by the candidate, or on his behalfand with his knowledge and consent orapproval, with intent to exploit tribal, racial orreligious issues or differences pertinent to theelection 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 Actrelating to election, if it appears that theelection was not conducted in accordance withthe principles laid down in such provisionsand that such non-compliance affected theresult of the election; or(c) that the candidate was at the time of hiselection, a person not qualified for election as aMember of Parliament."

[19] Mr. Vedasto submitted that the applicant's complaint that theNational Assembly ought to have elected seven persons only insteadof nine to go to the Assembly and that the National Assembly hasbreached the provisions of the Treaty is not one of the three groundsfor avoiding an election. Therefore, he contended, when theapplicant was told to go to the High Court to seek redress he wassubjected to an injustice because he cannot do that.

[20] In reply Mr. Ndunguru was very brief:

"It is our submission that the argument raised bythe applicant amounts to a ground of appeal ratherthan a ground of review. Furthermore, it is oursubmission that the issue whether or not the HighCourt in entertaining the applicant's complaint, (sic)is within the domain of the High Court itself, notthis Court. The applicant has failed to show theinjustice occasioned to him and, therefore, we arearguing that the arguments raised by theapplicant's advocate do not amount to grounds ofreview as envisaged under Article 35(3) of theTreaty."

[21] Mr. Kaahwa observed that Mr. Vedasto's submissions were mereassertions that injustice has been committed but no proof wasadvanced by the applicant.

[22] On the face of it, section 108(2) of the Elections Act appears tosupport the submission that the applicant cannot have recourse tothe High Court of Tanzania because there is no enabling legalprovision to do so. If that is so, it is our considered opinion that thatis injustice to the applicant. There is no forum for the applicant toseek redress of his grievances. The respondents, would appear,therefore, not to be right in their contentions that there is noinjustice.

[23] However, we agree with the submissions of Mr. Ndunguru that thedetermination of whether or not the High Court of Tanzania hasjurisdiction to deal with the complaints has to be made by the HighCourt of Tanzania itself and not by this Court. It might as well bethat there is an issue of conflict of laws and the High Court ofTanzania is the proper forum to resolve any such conflict.

[24] Rule 15 of the East African Legislative Assembly Election Rules (theTanzania Election Rules), which the Applicant produced in his list ofauthorities in the reference, provides:

"Pursuant to the provisions of Article 52 (1) of theTreaty, the election of the candidate as a Member ofthe East African Legislative Assembly may bedeclared void only on an election petition."

[25] Then Rule 16 goes further that:

"The procedure, jurisdiction and the grounds fordeclaring void the election of such member, shall bethe same as provided by law for election petitions inrespect of members of the national parliament."

[26] Now, if Rules 15 and 16 cannot be resorted to because of section108(2) of the Elections Act, then there is a conflict of laws. Wecannot also agree with Mr. Vedasto that we were duty bound toensure that the High Court of Tanzania had jurisdiction over thematter before we declared that this Court had no jurisdiction overthe application.

[27] Apart from what we have pointed out above, at the hearing theCourt posed a question to Mr. Kaahwa who, unlike the other twoparties, is not directly involved.

[28] Mr. Kaahwa responded:

"My Lords, in the first instance, without anticipatingwhat would happen at the national level, I think theapplicant would have recourse at the national levelwithin the existing law; the National (sic) ElectionAct and even the East African Legislative AssemblyElection Rules of Tanzania. He would have recourseto justice and he would succeed. But regardingwhat Your Lordship is pointing out, in the eventthat there is a lacuna found, then it is the PartnerState and the Community to address that lacuna."

[29] We agree with Mr. Kaahwa that in case of a conflict of laws it is forTanzania, and indeed, for the first respondent to see to it that thelegal climate is harmonized. The High Court of Tanzania has a rolein that.

[30] Resolving a conflict of law is not a matter for review. We say sobecause at the conclusion of a successful review the Court willrectify its decision accordingly. In the present case that would meanto reverse our decision and deal with the application. But we cannotclothe ourselves with jurisdiction to deal with the matter when weare convinced that we do not have such jurisdiction. As Mr. Kaahwarightly framed it:

"There is no way any litigant will force anhonourable court to assume jurisdiction where itdoes not have."

[31] That is so irrespective of whether or not there is injustice to theapplicant. We do not think that ground three had any substance. Wecompletely failed to understand what Mr. Vedasto wanted us to do. He averred in ground three as follows:

"In his submission through his advocate inaffirming jurisdiction of this Court, the Applicantsubmitted that the core and material pleading in theReference in which it is contended that the electionsconducted by the Tanzanian Legislative Assemblywere 11 members, hence an infringement of theTreaty which requires a Partner State elect only 9members, like a complaint in ProfessorAnyang'nyong'o case (Reference No. 1 of 2006)where the Complainants had contended that Kenyagot its members without conducting an election,hence an infringement of the Treaty which requiresa Partner State to get its members by election, butthe Court in its Ruling distinguished these twocases by citing and referring to the relevantparagraphs of Professor Anyang'nyong'o case, ofwhich, paragraph 29 reads:

'29. The whole process of nomination andelection adopted by the National Assembly ofKenya was incurably and fatally flawed insubstance, law and procedure andcontravenes Article 50 of the Treaty for theEstablishment of the East AfricanCommunity in so far as no election was heldnor debate allowed in Parliament in thematter.'without citing, referring to, showing the differenceor even saying anything on the correspondingprovisions in the Reference before it (Reference no. 2of 2007), of which paragraph 4 (g), reads: '4(g) The National Assembly of Tanzania haselected a total of 11 members of theAssembly, in infringement of Article 50(1) ofthe Treaty which requires each Partner Stateto elect only 9 members of the Assembly.'

[32] Briefly Mr. Vedasto argued that this Court did not point out thedifference between the Anyang'nyong'o Case and the Referenceforming the subject matter of this application for review. A numberof passages from the ruling were pointed out to him which clearlyunderscored the difference between the two case but still Mr. Vedasto stuck to his guns that there were no differences pointedout. However, to be fair to him at one point he admitted thepossibility of himself being at fault when he said:

"Of course, it may be my weakness that I failed tosee the difference, that is why I wanted thedifference to be shown, but I thought that to be just,fair and whatever, the difference between the twocases ought to have been shown."

[33] We are of the well settled view that the sentence we have quotedabove encapsulates the problem with ground three, that is, theweakness of Mr. Vedasto which has caused him to fail to see thedistinction which the Court very elaborately made between the twocases on a number of occasions. We, therefore, dismiss this groundwith costs, too.

[34] It may not be out of place to observe that the application has beenovertaken by events. Only nine persons, and not eleven, were swornas members of the second Assembly from Tanzania.

[35] Therefore, for the above reasons, the application is dismissed withcosts.

Dated at Arusha this day of 2007

MOIJO. M . OLE KEIWUA PRESIDENT

AUGUSTINO. S . L . RAMADHANI JUDGE

> KASANGA MULWA JUDGE

MARY STELLA ARACH-AMOKO JUDGE

> HAROLD R. NSEKELA JUDGE