ATTORNEY-GENERAL AND TWO OTHERS v AMAN WALID KABOUROU 1996 TLR 156 (CA)

 ATTORNEY-GENERAL AND TWO OTHERS v AMAN WALID KABOUROU 1996 TLR 156 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Nyalali CJ, Kisanga JJA and Mfalila JJA

F

CIVIL APPEALS NOS 32 AND 42 OF 1994

28 December, 1994, and 31 January, 1995 G

Flynote

Constitutional Law - Elections - Official proclamation (tamko rasmi) by Electoral

Commission - Whether the courts can inquire into the validity thereof - Article

74(12) of the Constitution.

Administrative Law - Elections - Electoral Commission's power to issue regulations -

extent of H such power - Article 74(6)(b) of the Constitution and Section 124(1) of

the Elections Act, 1985.

Electoral Law - Nullification of elections - Grounds for - What constitutes such

grounds - Section 108 of the Elections Act, 1985.

Electoral Law - Elections - Complaints pursuant thereto - whether a `corrupt

practice' or `corrupt I motive' constitutes a tenable com-

1996 TLR p157

plaint - What amounts to a `corrupt practice' or `corrupt motive' - Elections Act,

1985, and A Prevention of Corruption Act, 1972, compared.

Electoral Law - Counting of ballots - Dissatisfaction with the count - course of action

of dissatisfied party - Section 78 of the Elections Act. B

Civil Practice and Procedure - Locus standi in judicio - Whether Radio Tanzania Dar

es Salaam is a legal person capable of being sued - Whether it was validly joined as a

party.

Defamation - Election campaigns - What constitutes defamation in an electoral

context - C Whether an election campaign can constitute an excuse for defamation.

Nationality - Citizenship - How established - Citizenship Act, 1961, Cap. 512 read

with the British Nationality Act, 1948.

-Headnote

The High Court at Tabora allowed a petition by the Respondent filed under Section

108 D of the Elections Act, 1985, as amended, and duly declared the results of a

certain parliamentary by-election null and void. The Third Appellant, Azim Suleman

Premji, had as a result of the by-election been declared the new M.P. for Kigoma

Urban Constituency. E

The present appeal is a consolidation of two separate appeals begun, on the one hand,

by the aggrieved Third Appellant, and on the other hand, by the First and Second

Appellants jointly. The First Appellant was joined as a respondent in the High Court

petition as a necessary party, pursuant to rule 4(1) of the Elections (Election Petitions)

Rules, 1971. The Second Appellant, Radio Tanzania Dar es Salaam, was sued in the F

petition because the Respondent alleged that its broadcasts had affected the results of

the by-election.

On 28 December 1994, this Court dismissed the appeal with costs, including those

incurred in the Court below. The Court's reasons were supplied on 31 January, 1995.

G

The facts appear from the reasons for judgment.

Held:

(i) The High Court of this country has a supervisory jurisdiction to inquire

into the legality of anything done or made by a public authority, and this jurisdiction

includes the power to inquire into the legality of an official proclamation by the H

Electoral Commission (tamko rasmi).

(ii) The Electoral Commission is empowered in terms of the Elections Act

to make only such regulations as are in furtherance of specific provisions of the Act or

in furtherance of the purpose of the whole Act. This power of the Commission is, I

however, to be exercised subject to the underlying constitutional principle which

requires democratic

1996 TLR p158

A elections to be free and fair, and this principle should be read into the

Elections Act.

(iii) Although, in casu, the tamko rasmi was issued in the furtherance of

free and fair elections, it is invalid due to the Vice-Chairman of the Electoral

Commission having signed it instead of the Chairman, as is required by Section 3 of

the Act. B

(iv) There are grounds other than those stated in Section 108 of the

Elections Act for the nullification of election results. Such other grounds include

`anything which renders the elections unfree (sic) or unfair', as well as any law

which seeks to protect `unfree (sic)' or unfair elections, since such would be

unconstitutional.

C (v) The mere removal of illegal and corrupt practices from Section 108

does not have the effect of rendering such practices permissible in terms of the

Elections Act, 1985. Instead, the effect of such removal is that such practices are no

longer per se sufficient grounds for the nullification of election results. Such practices

are still relevant, however, in determing whether elections were conducted freely and

fairly. D

(vi) A `corrupt practice' for the purposes of the Elections Act is not

necessarily the same as corruption under the Prevention of Corruption Act, 1972. A

`corrupt practice' under the Elections Act may be construed either as being a failure

to abstain from committing the offence of bribery, as defined in Section 97 of the E

Elections Act, or as being a misconduct which renders the election unfair.

(vii) In casu, the maintenance work of the Kigoma-Ujiji road during the

election campaign constituted non-compliance with the prohibition against electoral

bribery, and was executed with the corrupt motive of influencing voters to vote F

for the CCM candidate and accordingly affected the results of the election.

(viii) In casu, further, the political campaigning by Mrema and Kiula (both

M.P.'s) prior to the permissible campaigning period having begun, was illegal and

must have affected the results of the by-election.

(ix) Radio Tanzania Dar es Salaam was purely a government department, at

the G material time, with no separate legal personality enabling it to be joined as a

party to the petition separately from the Attorney General (First Appellant), who

represents the government.

(x) CCM was given more air-time on Radio Tanzania Dar es Salaam than

were given other political parties, and its broadcasts generally were biased in favour

H of the CCM candidate, such that it must have influenced the by-election results in

favour of the CCM candidate.

(xi) When a candidate in an election or a counting agent expresses

dissatisfaction following the counting process, Section 78 of the Act grants a recount

to the dissatisfied individual as his only course of action.

I (xii) The public statements made by various officials of the CCM in respect

of opposition parties generally, and the Respondent's party

1996 TLR p159

A specifically, were clearly defamatory, and such statements cannot be

justified during electioneering since elections are required to be conducted not only

with due observance of the Constitution and the Elections Act, but also of the general

law of the land which forbids defamation.

(xiii) In deciding matters of citizenship, the law on the subject is contained

in the B Citizenship Act, 1961 Cap. 512, and the British Nationality Act, 1948. The

three factors which determine citizenship by birth are firstly, being born in

Tanganyika by 8 December 1961; secondly, being a citizen of the U.K. and Colonies

or being a British protected person on 8 December 1961; and finally, having at least

one parent born in Tanganyika. C

(xiv) According to the law of this country, the Third Appellant at birth

acquired the nationality of both his parents, which nationality continued until he was

required to choose between his original Indian citizenship and Tanzanian citizenship.

D The Third Appellant accordingly lost any Tanzanian citizenship since he failed to

renounce his Indian citizenship.

(xv) The appeal is dismissed with costs, including those incurred in the

court below.

Case Information

Ordered accordingly. E

Cases referred to:

1. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

2. Ndugu Basil P. Mramba and the Attorney General v Ndugu Leons S.

Ngalai Civil Appeal No. 27 of 1991 (unreported)

3. Attorney General v Amiri Zuberi Muya and Abdallah Zuberi Muya

Civil Appeal F No. 32 of 1987 (unreported)

4. Attorney General v Joseph Musa Monko Civil Appeal No. 10 of 1987

(unreported)

5. In Re Abdallah Salim Ali Absalaam [1967] HCD No. 174 G

Werema, assisted by Matupa, Mselem and Nyangarika for the appellants.

Makani, assisted by Boaz, for the Respondent.

[zJDz]Judgment

Nyalali CJ:

This is a consolidation of two appeals involving the Attorney-General and Radio H

Tanzania Dar es Salaam as the joint appellants in the first appeal, and Azim Suleman

Premji as the appellant in the second appeal and in which the respondent is Dr Aman

Walid Kabourou. The two appeals have been instituted in this court against the

judgment of the High Court at Tabora where the respondent had filed an election

petition under I section 108 of the

1996 TLR p160

NYALALI CJ

Elections Act, 1985 as amended by the Elections (Amendment) Act, 1992, seeking the

A nullification of the results of a parliamentary by-election in which the third

appellant, namely, Azim Suleman Premji, who had been a candidate sponsored by

Chama Cha Mapinduzi, otherwise commonly know by its acronym as CCM, had been

declared to be duly elected as the new member of parliament for Kigoma Urban

Constituency. The B respondent, that is, Dr Aman Walid Kabourou, had also been a

candidate sponsored by Chama Cha Demokrasia na Maendeleo otherwise commonly

known by its acronymn as CHADEMA. There were four other political parties which

fielded candidates to contest C the by-election, which was one of several byelections

to occur since Tanzania decided to become a multi-party democratic state.

The Attorney-General was joined as a respondent to the petition in the High Court by

virtue of the requirements of Rule 4(1) of the Elections (Elections Petitions) Rules,

1971. The said Azim Suleman Premji and D Radio Tanzania Dar es Salaam were the

second and third respondents respectively. The High Court, Mchome J, granted the

petition and declared the by-election results void. Predictably, those against whom

judgment was given, were aggrieved by the decision of the High Court hence this

appeal to this court. The Attorney-General and E Radio Tanzania Dar es Salaam are

represented by Mr Werema, Senior State Attorney, assisted by Mr Matupa, State

Attorney, whereas the said Azim Suleman Premji is represented by Mr Mselem,

learned advocate, assisted by Mr Nyangarika, learned advocate. The respondent in

this appeal, that is, Dr Aman Walid Kabourou is F represented by Mr Makani,

learned advocate, assisted by Mr Boaz, learned advocate.

The memorandum of appeal submitted for the Attorney-General contains nine

grounds of appeal whereas that submitted for the said Azim Suleman Premji, contains

eleven grounds of appeal. Most of the grounds of appeal are common to all appellants.

The G grounds of appeal submitted for the Attorney-General read as follows:

1. That the Honourable Judge erred in law in holding that `Tamko Rasmi'

is not repugnant or ultra vires powers of the Electoral Commission and in relying on

H the `Tamko Rasmi' to void the elections.

2. That the Honourable Judge erred in fact in holding that there was a

corrupt practice and erred in law in holding that a corrupt practice is a tenable

complaint under the Elections Act.

I 3. That the Honourable Judge erred in fact and law in holding that road

construction in Kigoma during the campaign period

1996 TLR p161

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A was executed with the corrupt motive of influencing voters to vote for

CCM candidate and that this affected the results of elections.

4. That the Honourable Judge erred in law in holding that there are

grounds other than those stated in section 108 which can void the elections. B

5. That the Honourable Judge erred both in fact and law in holding that

the campaign by the CCM National Chairman, Hon Augustine L Mrema, Minister for

Home Affairs and Nalaila Kiula, Minister for Transport, Communications and C

Works were illegal and that they affected the results of elections. The Honourable

Judge failed to evaluate the evidence of all witnesses who testified on illegal

campaigns.

6. That the Honourable Judge erred in law in holding that Radio Tanzania

Dar es Salaam was properly joined as a co-respondent and that RTD was an agent for a

CCM candidate. D

7. That the Honourable Judge erred in law in holding that RTD broadcasts

affected the results of the Elections.

8. That the Honourable Judge erred in fact and law in holding that the

counting of E votes was not proper and that a recount was requested by the

respondent and denied by the returning officer.

9. That the Honourable Judge erred in fact and law in holding that the

non-filling of complaint Form (CF 7) by the respondent was due to security risk in the

counting room and that this omission was not fatal to the Election Petition. F

All the above cited grounds of appeal submitted on behalf of the Attorney-General

also appear in the Memorandum of appeal submitted on behalf of the said Azim

Suleman Premji. There are however two additional grounds in Premji's memorandum

of appeal. G These are numbers two and four. They read as follows:

`2. That the Honorable Judge erred in law and fact by holding that the

appellant is solely liable to pay the petitioner's costs.

4. That the Honourable Judge erred in fact by holding that the top CCM

leaders Ali Hassan H Mwinyi, Horace Kolimba, Kingunge Ngombale-Mwiru, A L

Mrema and Nalaila Kiula uttered defamatory statements regarding the respondent and

his party and erred in law in holding that such statements affected Elections and

hence a ground to void the Elections.' I

It is apparent from the nature of all these grounds of appeal and

1996 TLR p162

NYALALI CJ

the issues raised at the trial in the High Court and in the course of hearing this appeal,

A that they directly concern matters which urgently require judicial clarification to

ensure that our country continues on the road of peaceful and orderly transformation

from a one party state into a multi-party democracy. With this background, and

bearing in mind the B immediate needs of the people of Kigoma Urban constituency

to have an early decision in this case and of the fact that the matters requiring judicial

clarification are of general public interest, particularly in view of the general

parliamentary and presidential elections expected towards the end of next year, we

have decided to deliver now our C decision on the points raised in the grounds of

appeal, including the ground raised suo motu by the Bench concerning the nationality

of the third appellant, but to reserve our reasons to be given later early next year on a

date to be notified to the parties. These therefore are the decisions, in respect of

which reasons will be given early next year. We D start with the grounds of appeal

as contained in the Memorandum of Appeal of the Attorney-General and which

appear also in that of the third appellant, Azim Suleman Premji.

In respect of ground number 1 in both memoranda of appeal, we find that the

National E Electoral Commission had legal power to issue the `Tamko Rasmi'

tendered at the trial as exhibit P15 but that under the circumstances of this case, that

`Tamko Rasmi' was invalid. As to ground number 2 of the Attorney-General and

number 3 of the third appellant, we find that the learned Trial Judge was correct in

holding that there was a F corrupt practice and that a corrupt practice is a tenable

complaint under the Elections Act. With regard to ground number 3 of the Attorney-

General and number 5 of the third appellant, we find that the learned Trial Judge was

correct in law in holding that the road construction in Kigoma during the campaign

period was executed with the corrupt G motive of influencing voters to vote for

CCM candidate and that this affected the results of the election. As to ground number

4 of the Attorney-General and number 6 of the third appellant, we are satisfied and

find that there are grounds other than those mentioned under s 108 of the Elections

Act, 1985 as amended by Act 6 of 1992 for nullification of H election results. On

ground number 5 of the Attorney-General and number 7 of the third appellant, we

are satisfied and find that the learned Trial Judge was correct in law in holding that

the campaign by Hon Augustine L Mrema, Minister for Home Affairs and Hon I

Nalaila Kiula, Minister for Transport, Communications and Works were illegal

campaigns and that they

1996 TLR p163

NYALALI CJ

affected the results. We however find that the holding by the learned Trial Judge to

the A effect that the campaign by the CCM Chairman, Ali Hassan Mwinyi was also

illegal is incorrect in law.

We regard to ground number 6 of the Attorney-General and number 8 of the third

appellant, we find that the learned Trial Judge erred in law in holding that Radio

Tanzania B Dar es Salaam was properly joined as a co-respondent or party to the

petition. As to ground number 7 of the Attorney-General and 9 of the third appellant,

we are satisfied and find that the learned Trial Judge was correct in law in holding

that the broadcasts of Radio Tanzania Dar es Salaam affected the results of the

elections. On ground number C 8 of the Attorney-General and number 10 of the

third appellant, we are satisfied and we find that the Trial Judge was correct in

holding that the counting of the votes was not proper. On ground number 9 of the

Attorney-General and number 11 of the third appellant, we are satisfied and find that

the learned Trial Judge was correct in holding D that the failure to fill in form CF--7

by the respondent was due to security risk in the counting room and that the failure

was not fatal to the election petition. As to ground number 2 of the third appellant,

we are satisfied and we find that the learned Trial Judge E was wrong in law in

holding that the third appellant was solely liable to pay the petitioner's costs. Finally

as to ground number 4 of the third appellant, we are satisfied and find that the

learned Trial Judge was correct in holding that CCM Chairman Ali Hassan Mwinyi,

Horace Kolimba (Secretary General of CCM) and Kingunge F Ngombale-Mwiru and

A I Mrema uttered defamatory statements regarding the respondent and his party and

that such statements affected the results. However, we are also satisfied and find that

the learned Trial Judge erred in holding that the statements made by Nalaila Kiula

were defamatory. As to the point of nationality or G citizenship of the third

appellant, we are satisfied and find that the third appellant was not a Tanzanian

citizen at the time of the by-election. As already mentioned, we shall give our full

reasons early next year.

In conclusion, the appeals substantially fail and with the few exceptions where we

have faulted the Trial Judge, we dismiss the appeals with costs both in this Court and

the H Court below.

Nyalali CJ:

On the 28th December 1994 we delivered our judgment in these two consolidated I

appeals but we reserved our reasons until now. However, before we proceed to give

our reasons which are the basis of

1996 TLR p164

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our judgment, we must present the matters which constitute the framework of our A

reasons. We start with the matters which appear not to be in dispute between the

parties to this cause. The parliamentary by election which is the subject of this case

was organised and supervised by the National Electoral Commission established under

the B Constitution of the United Republic of Tanzania. The functions and powers of

the National Electoral Commission are derived from the Constitution and the

Elections Act, 1985 as amended from time to time. Its membership includes a

chairman and vice-chairman. At the time material to this case, both the chairman and

vice-chairman C are justices of this Court. One Mr Alex Thomas Danzi, who gave

evidence as the sixth witness for the respondents at the trial in the High Court, was at

the material time serving under the Commission as Director of Elections and

Secretary to the Commission.

There is also no dispute between the parties that prior to election day, the National D

Electoral Commission appointed one Augustine Mudogo to act as a returning officer

for the by-election. His substantive employment at the time was that of Director of

Kigoma-Ujiji Town Council. After his appointment as a returning officer, he

proceeded to E nominate eighteen assistant returning officers to help him in his

duties.

The National Electoral Commission took other steps in connection with the byelection.

These steps include the issuing of an official proclamation in Kiswahilli titled

`Tamako Rasmi La Tume Ya Taifa Ya Uchaguzi Ya Jamhuri Ya Muungano',

hereinafter called F simply `Tamko Rasmi.' Furthermore, he declared the period

between 9 November 1993 and 22 November 1993 as being the period for registration

of voters, the 17 November as the date for nomination of candidates, the period

between 30 January and 12 G February 1994 as being the period for election

campaigns and the 13 February 1994 as the polling day.

There is also no dispute between the parties that prior to the period prescribed by the

Electoral Commission as the election campaigns period, the then Minister for Home

H Affairs and Deputy Prime Minister, namely, Augustine Lyatonga Mrema, and the

Minister for Communications, Transport and Works, namely, Nalaila Kiula, visited

Kigoma Urban Constituency. The former visited the constituency twice, first on 14

January 1994 and second on 29 January 1994. The latter visited once on 26 January

1994. Both ministers I addressed public rallies attended by many people.

Furthermore it is undisputed that among the problems which the people of Ki-

1996 TLR p165

NYALALI CJ

goma Urban Constituency regarded as most pressing were the problems of Burundi

and A Rwanda refugees and the bad condition of the Kigoma-Ujiji Road.

Again it would seem that there is no dispute between the parties to this case, that six

political parties contested this by-election. The most serious contenders were Chama

Cha Mapinduzi, commonly known by its acronym as CCM, and Chama Cha B

Demokrasia Na Maendeleo, commonly known by its acronym as CHADEMA. As

already mentioned in our judgment, the third appellant, namely Azim Suleman

Premji was a candidate sponsored by CCM, whereas the respondent, namely, Dr

Aman Walid C Kabourou, was a candidate sponsored by CHADEMA.

The parties are also not in dispute regarding the following matters concerning the

status of the third appellant. He was born in 1954 in Kigoma Town. According to his

birth certificate tendered at the trial as exhibit P18, both his parents, namely

Suleiman Premji D and Nurbanu Suleiman Premji were of Indian nationality. One of

these parents, namely, the said Nurbanu Suleiman Premji was born in this country at

Dodoma in 1926. Subsequently both parents applied and became Tanzanian citizens

by registration in 1963. In the same year, third appellant's father wrote a letter to the

Principal Immigration E Officer seeking clarification about the status of his children.

The letter, tendered at the trial as exhibit P22 got no response. When the third

appellant attained the age of 18 years in 1972 he applied for and obtained a Tanzanian

passport. He is currently the F holder of a Tanzanian Passport No 0020324 issued at

Kigoma on 20th August 1992.

No dispute exists between the parties that during the period of election campaigns, a

number of prominent politicians from the contesting political parties went to Kigoma

Urban Constituency to campaign for the candidates sponsored by their respective G

political parties. Among them were His Excellency Ali Hassan Mwinyi, President of

the United Republic of Tanzania and National Chairman of CCM; Kingunge

Ngombale-Mwiru, MP a Minister without portfolio and National Publicity Secretary

of CCM and Horace Kolimba, MP, a Minister in the President's Office and then

Secretary H General of CCM. The campaigns were covered by the Press and Radio

Tanzania, Dar-es-Salaam.

Furthermore, there is no dispute between the parties to this case that after the

conclusion of the polling process, the counting of voters took place at Bangwe Prison

I Hall. The Returning Officer, that is, the first witness for the respondents at the trial

(RWL)

1996 TLR p166

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appointed 15 pupils from Kigoma Secondary School to act as enumerators. The A

process at Bangwe Prison Hall involved the following undisputed steps. At the

beginning there was inspection of the ballot boxed by the candidates and their

counting agents followed by the verification of the number of votes in each ballot box

compared to the number of relevant registered voters. Thereafter all the ballot papers

were put into drum. B Then four enumerators picked the ballot papers from the

drum and handed them to six other enumerators seated at tables and each

representing one of the six political parties contesting the election. Each of these six

enumerators was to receive only the ballot papers for the political party he or she

represented, and to put such ballot papers into C bundles of one hundred each.

Behind each one of these six enumerators was a counting agent of the relevant

political party. The process went on smoothly until the drum was empty of ballot

papers and the six enumerators completed putting the ballot D papers into bundles.

It was apparent that CCM and CHADEMA had most of the bundles and that CCM

had more bundles than CHADEMA.

Again there is no dispute between the parties that after all the ballot papers had been

put into bundles, a representative of CHADEMA expressed dissatisfaction with the

situation E and it was agreed by representatives of CCM, and CHADEMA and by the

returning officer that representatives of CCM and CHADEMA should go through the

bundles of each other. The exercise was completed as far as CHADEMA'S bundles are

concerned and 53 bundles and a part were established. The exercise for CCM bundles

however F was not completed. It was stopped. Neither the Respondent in this appeal

nor any of his counting agents filled in the Form CF--7. The election results as

announced by the Returning Officer were as follows: G

1. CCM: 9,475 votes

2. CHADEMA 5,366 votes

3. PONA 169 votes

4. TPP 45 votes H

5. NRA 36 votes

6. TADEA 24 votes

It was on the basis of these figures that the third appellant was declared the winner of

the by-election.

We now turn to the relevant matters which are in dispute between the parties. It was

part I of the petitioner's case at the trial in the

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Eight Court that in order to ensure that the by-election for Kigema Urban

Constituency A would be free and fair, the Electoral Commission, exercising its

powers granted by the Constitution and the Elections Act 1985, made and issued a

number of directives, regulations and notifications, including the Tamko Rasmi for

compliance or observance B by all those concerned. In this way, the Electoral

Commission prescribed and specified the period for election campaigns, mandated all

contesting political parties to refrain from inter alia, using abusive or defamatory

language or intimidation, and to educate voters about democracy and political

tolerance. The Electoral Commission also C mandated the Ruling party to refrain

from furthering its election campaign by using government employees and property

or by using the government positions or officers held by some of its party leaders. In

the same way the government was mandated to act impartially between the political

parties, to disengage or distance itself from the D electioneering activities of the

ruling party and to give equal opportunity through the radio and the government

press to all contesting political parties.

It was part of the petitioner's case at the trial in the High Court that CCM and its

candidate or their agents as well as the government or its agents violated many of the

E regulations, directives or notifications made and issued by the National Electoral

Commission, in that during their visits to Kigoma Urban Constituency, Hon

Augustine Lyatonga Mrema (MP) the then Minister of Home Affairs and Deputy

Prime Minister, and Hon Nalaila Kiula, (MP), Minister of Communications, Transport

and Works, conducted F election campaigns for CCM and its candidate prior to the

prescribed campaigns period; and in that during such premature campaigns, the Hon

Augustine Lyatonga Mrema, intimidated the voters against voting for a non-CCM

candidate; and in that during the official election campaigns period, His Excellency,

President Ali Hassan Mwinyi used government property, that is, government aircraft

and motor vehicles; and in that he also used defamatory language in furtherance of

the election campaign in favour of the CCM candidate, and in that Hon Kingunge

Ngombale-Mwiru used intimidating language against the CHADEMA candidate, and

in that Hon Horace Kolimba, (MP), Minister in the President's Office and the then

Secretary General of CCM, intimidated the voters against voting for a non-CCM

candidate.

Furthermore, it was part of the petitioner's case that Radio Tanzania Dar-es-Salaam,

which is government owned, openly campaigned for CCM, and favoured CCM is

giving opportunity for

1996 TLR p168

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publicity in respect of the election campaigns. It was also part of the petitioner's case

A that the central government, contrary to established programmes and practices

intervened and took over from the Kigoma-Ujiji Town Council the maintenance work

of the sensitive Kigoma-Ujiji Road in furtherance of the election campaign for the

CCM B candidate. It was the contention for the petitioner that this act was corruptly

done by the government to influence the voters infavour of the CCM candidate, and

that the visits by Hon Augustine Lyatonga Merema, (MP) and Nalaila Kiula (MP)

were connected with that corrupt objective. C

Also, it was part of the case for the Petitioner at the trial in the High Court that the

process of counting votes at Bangwe Prison Hall was not completed but was

prematurely stopped by the returning officer ostensibly for security reasons.

Finally, it was part of the case for the petitioner in the High Court that the CCM D

candidate, that is Azim Suleman Premji was not a Tanzanian citizen and therefore not

qualified to stand as a candidate in the parliamentary by-election. In conclusion the

petitioner's case at the trial was to the effect that the violations of the rules of election

conduct affected the results of the election, and that in any event the election of the

CCM E candidate was null and void since he was not a Tanzanian citizen.

On the other hand the case for the defence at the trial consisted in the denial of the

petitioner's case and in the assertion that the Tamko Rasmi made by the Electorial

Commission was invalid as it was ultra vires the powers of the Commission and, in

any F event, was not properly made and issued. Furthermore, it was the contention

for the defence at the trial to the effect that under the multi-party system, it was no

longer required to prescribe a specific period for election campaigns. It was also part

of the defence base that CCM paid for the expenses of using government property by

the G President in connection with the by-election campaigns, and that in any

event, there was no justification for restricting the President of the United Republic

in using official transport and other facilities attached to his office while campaigning

for a candidate of the President's political party. As to the visits to Kigoma by the two

cabinet ministers, H that is, Hon Augustine Lyatonga Mrema, (MP) and Hon Nalalla

Kiula (MP), the defence case was an assertion to the effect that none of the ministers

went to Kigoma for electioneering purposes but that the former went there in

connection with his ministerial I responsibil-

1996 TLR p169

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ities for the Burundi-Rwanda refugees and the latter went there in connection with

his A ministerial responsibilities for maintenance of the Kigoma-Ujiji road.

Furthermore, it was part of the defence case that the works being undertaken on the

road were part of an on going maintenance programme and had nothing to do with

the by-election. As to the defamation and intimidation allegedly made by CCM

leaders, the defence case consisted mainly of general denial. As to the process of

counting, the defence case is an B assertion to the effect that the counting process

was completed and that the final exercise of going through the bundles of votes was

not part of the counting process but was an exercise of verification requested by

CHADEMA representatives and agreed to by the returning officer and representatives

of CCM to ascertain the state of the votes in C the bundles. That exercise of

verification was stopped at the instance of CHADEMA representatives after being

satisfied with the position.

Again, it was part of the case in defence to the petition that Radio Tanzania D Dares-

Salaam, as a government department, was wrongly joined to the petition in which

the Attorney-General was the sole and proper party to be joined. Furthermore, it was

the defence case that Radio Tanzania Dar-es-Salaam did everything possible within its

limited resources to give equal opportunity of publicity to the contesting political E

parties and was not in any way favouring CCM. Finally it was the contention of the

defence to the petition to the effect that according to the relevant law and the

available evidence, the CCM candidate was a Tanzanian citizen and therefore fully

qualified to contest the by-election.

Fifteen main issues were framed by the High Court for its decision. The findings of

the F High Court on many of these issues form the basis of the grounds of the two

appeals as set out in our judgment. Before we give our reasons for our decisions on

those grounds of appeal, we have to deal with a preliminary matter which arose at the

commencement G of hearing of this appeal. Mr Makani, learned advocate for the

respondent in this appeal gave a Notice of Preliminary Objection seeking to strike out

grounds numbers one, three and six from the memorandum of appeal of the third

appellant, and grounds numbers one, two and four from the memorandum of appeal

of the first and second appellants. H After hearing both sides, we overruled the

objection with costs.

We reserved our reasons until now. The argument of Mr Makani in support of the

objection is that the above mentioned grounds of appeal are too general and not

concise. With due respect to learned counsel, we do not think that he is correct

because I the two memoranda of appeal in which the relevant grounds of appeal are

to be

1996 TLR p170

NYALALI CJ

found are in full conformity with the provisions of Rule 86 of the Court of Appeal

Rules, A 1979 and because the particular grounds of appeal are traceable to specific

parties of the judgment of the High Court. That is why we overruled the objection.

For purposes of clarity, we need only to add that the order for costs is payable in any

event. B

We now come to our reasons in support of our findings on ground number one in

both memoranda of appeal concerning the validity of the Tamko Rasmi. We begin

naturally by considering whether courts of law have jurisdiction to inquire into the

validity of the C Tamko Rasmi in view of the provisions of sub-article (12) of article

74 of the Constitution. That sub-article as amended by Act 4 of 1992 states:

`No Court shall have jurisdiction to inquire into anything done by the

Electoral Commission in the D exercise of its functions according to the provisions

of this Constitution.'

On the face of it, it appears that the Constitution expressly prohibits the courts from

inquiring into the validity of such things like the Tamko Rasmi, but on a deeper

consideration of the principles that underlie the Constitution, it is obvious that such

an E interpretation of the Constitution is wrong. One of the fundamental principles

of any democratic constitution, including ours, is the Rule of Law. The Principle is so

obvious and elementary in a democracy, that it does not have to be expressly stated in

a democratic constitution. However, perhaps for purposes of clarity, there is an

express F provision to that effect under the Constitution of the United Republic of

Tanzania. It is Sub-Article (1) of Article 26 which states:

`Every person is obliged to comply with this Constitution and the laws of the

United Republic.' G

In the light of this principle, we respectfully agree with the submission of Mr

Werema, Learned Senior State Attorney to the effect that Sub-Article (12) of Article

73 of the Constitution cannot be interpreted so as to protect unconstitutional or

illegal acts or H deeds, see the recent famous case of Anismic Ltd v Foreign

Compensation Commission (1). Since Tanzania has reverted to de jure multi-party

democracy, it is time the same was similarly articulated here. We are satisfied and we

find that the High Court in this country, like the High Court in England, has a

supervisory jurisdiction to I inquire into the legality of anything done or made by

public author-

1996 TLR p171

NYALALI CJ

ity, much as the Tamko Rasmi. As a collorary, this Court has similar jurisdiction to do

so A in a matter properly before it, as in the present case.

We now come to our reasons in support of our finding to the effect that the Electoral

Commission is empowered to make and issue the Tamko Rasmi but under the B

circumstances of this case, the Tamko Rasmi is invalid. It is patently clear that the

Electoral Commission derives its powers under the Constitution and the Elections

Act, 1985 as amended from time to time. Under para (b) of sub-article (6) of article 74

as amended by Act 4 of 1992, read together with ss (2) of s 4 of the Elections Act,

1985 as C amended by Act 6 of 1992 it is provided that, `The Commission shall be

responsible for the overall supervision of the general conduct of all Parliamentary and

Presidential Elections in the United Republic'. Similarly under ss (1) of s 124 of the

Elections Act 1985, it is provided that: D

`(1) The commission may make regulations for the better carrying out of the

provisions of this Act and without prejudice to the generality of the foregoing, may

make regulations--

(a) prescribing anything, which under the provisions of the purposes of

this Act, may be prescribed; E

(b) prescribing forms of documents and declarations for the purposes of

this Act.'

We have emphasised the relevant parts of this sub-section. Those parts clearly show

F that the Commission is empowered to make regulations `for the better carrying out

of the provisions of the Act' and to prescribe `anything' or `forms of documents and

declarations' `for the purposes of this Act'.

In our considered opinion, we are satisfied that on a true and proper interpretation of

the G above cited provisions of the Elections Act, the Electoral Commission is

empowered to make regulations not only in furtherance of specific provisions of the

Act, but also in furtherance of the purposes of the whole Act. From the scheme of the

Act as manifested in the various provisions of the Act, including the provisions for

secrecy of the ballot and H for polling agents, counting agents, one person one vote,

one candidate one seat, as well as those provisions concerning election campaigns and

election offences, it is evident that the overriding purpose of the Elections Act is to

secure the election of the President of the United Republic and the members of the

parliament of the United I Republic in a free and fair election. It is also implicit from

the provisions of the Con1996

TLR p172

NYALALI CJ

stitution concerning the people, such as the preamble envisaging a representative A

parliament elected by the people; Article 5 on the franchise or the right to vote;

article 8(1)(a)(c) and (c) on sovereignty of the people, democracy, accountability to

the people and people's participation in their government; article 21 on the

fundamental right to participate in the affairs of the government either directly or

through freely elected B representatives, that there is an underlying constitutional

principle that requires democratic elections to be free and fair.

It is our considered opinion that this constitutional principle of free and fair elections

has to be read into the Elections Act 1985, not only because of the express provisions

of ss C (2) of s 1 of the Act which require the Elections Act, 1985 `to be read as one

with the Constitution ...' but also because the Constitution is the basis of the elections.

It follows therefore that the Electoral Commission has power to make regulations to

ensure Free D and Fair Elections under both the Elections Act, 1985 and the

Constitution. On a close examination of the contents of Tamko Rasmi, we respectfully

agree with Messrs Makani and Boaz, learned counsel for the respondent in this appeal

that the Tamko Rasmi was made and issued by the Electoral Commission to ensure a

free and fair by-election in E Kigoma Urban Constituency. Unfortunately however,

the Electoral Commission did not properly exercise its power as prescribed under s 3

of the Act which states:

F `All regulations, directions and notices which the Commission is empowered

to make, issue or give, shall be deemed to have been validly made, issued or given, if

they are made, issued or given under the signature of the Chairman of the

Commission or the Director of Elections'.

There is no controversy in this appeal that the Tamko Rasmi was not signed by the G

Chairman or the Director of Elections as specifically required by the Act. Instead it

was signed by the Vice-Chairman of the Electoral Commission. Since there is no

provision under the Act or any other relevant law authorizing the Vice-Chairman to

sign such H regulation, the Tamko Rasmi was clearly invalid as we mentioned in our

judgment.

There is another point concerning the Tamko Rasmi which we need to mention not

for purposes of supporting our judgment but as legal guidance for the conduct of

future elections. It was argued in this appeal by learned counsel on the appellants'

side to the I effect that the Tamko Rasmi was legally ineffective since it was neither

1996 TLR p173

NYALALI CJ

published in the Official Gazette nor otherwise made known to all the parties to the

A by-election. Of course there is no controversy between the parties to this appeal

that the Tamko Rasmi was not published in the Official Gazette and that such

publication is not necessary for the validity of the Tamko Rasmi by virtue of the

provisions of s 3 of the Act. It is our considered opinion that there is a distinction

between the validity of a B regulation on the one hand, and the commencement or

coming into effect of such regulation on the other hand. The validity of a regulation,

including the Tamko Rasmi lies in compliance with the conditions for making it.

Such conditions may exist in the C provisions of the Act which confers the power to

make regulations or, under s 32 of the Interpretation of Laws and General Clauses,

Act 1972 which concerns `provisions with respect to power to make subsidiary

legislation'. In the case of regulations made under s 124 of the Elections Act, 1985

read together with s 3 of the same Act, it is apparent that D one of the essential

conditions for the validity of such regulation is the signature of the Chairman or the

Director of Elections.

As to commencement of subsidiary legislation, the relevant provision is s 27 of the

Interpretation of Laws and General Clauses Act, 1972 which states: E

`Any subsidiary legislation published in the Gazette shall come into force on

the date of such publication or, if it is provided either in the subsidiary legislation or

in the Act that such subsidiary legislation or any provisions thereof shall come into

force on some other date, such subsidiary F legislation or as the case may be such

provisions thereof shall, subject to s 28, come into force on such other date.'

Section 28 concerns retrospective operation of subsidiary legislation. Unfortunately,

the Tamko Rasmi was neither published nor did it specify when it was to come into

effect. G Furthermore the Act under which the Tamko Rasmi was made does not

specify the commencement of such regulations. Thus had the Tamko Rasmi been

properly signed, it is doubtful if it could be construed to have come into effect on a

certain date, if at all it did. We hope that this situation would be avoided in the future

by the Electoral H Commission.

As to the reasons in support of our finding on ground number one of the two appeals,

these are connected to the reasons which support our finding on ground number 4 of

the Attorney-General's Memorandum of Appeal, which is number 6 of the Third

Appellant's I Memorandum of Appeal. Our finding on these grounds con-

1996 TLR p174

NYALALI CJ

curs with that of the trial court to the effect that there are grounds other than those

stated A under s 108 of the Elections Act for nullification of election results. The

finding is based partly on the reasons relied upon by the learned Trial Judge and

partly on additional reasons. Section 108 as amended by Act 6 of 1992 states:

B `108(1) The Election of a Candidate as a member shall not be questioned save

on an election petition.

(2) The Election of a candidate as a member shall be declared void on any of

the following groups which are proved to the satisfaction of the court namely--

C (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; D

(b) non-compliance with the provisions of this Act relating to election if it

appears that the election was not conducted in accordance with principles laid down

in such provisions and that such non-compliance affected the result of the election;

E (c) that the candidate was at the time of his election a person not qualified

for election as a member.

(3) Notwithstanding the provisions of ss (2) where upon trial of an election

petition respecting an election under this Act the court finds that an illegal practice in

connection with the election has been committed by or with the knowledge or

approval of any of the candidate' agents and the court further F finds, after giving

the Attorney-General or his representative an opportunity of being heard, that the

candidate has proved to the court--

(a) that no illegal practice was committed by (the) candidate himself or

with the knowledge and consent or approval of such candidate or his agent; and G

(b) that the candidate took all reasonable means for preventing the

commission of any illegal practices at such an election;

(c) that in all respects the election was free from illegal practice on the part

of the candidate and his agents;

then, if the court so recommends, the election of such candidate shall not by

reason of any such practice be void'. H

The learned Trial Judge, Mchome J, was of the opinion that the grounds listed under

paras (a) to (c) of ss (2) above cited are not exhaustive by reason of the fact that the

word `only' is not used therein. He was also of the opinion that the defences provided

I under paras (a) to (b) of ss (3) for illegal practice necessarily imply

1996 TLR p175

NYALALI CJ

that illegal practices are grounds for nullification of election results though not

expressly A stated to that effect under section 108. As we have already stated, we

concur with the reasons given by Mchome J, and we have additional reasons for

upholding his finding. First, we are satisfied that the established rule of interpretation

embodied in the Latin Maxim `Expressio Unius Est Exclusio Alterius' that is, where

matters are expressly B stated, then any other matters of the same class not so

expressly stated are excluded, does not apply to s 108 because that section provides

defences to matters which are not expressly stated therein. Second, taking into

account the principle which underlies C the Constitution and the Elections Act,

1985 that elections shall be free and fair, we are of the considered opinion that an

election which is generally unfree and unfair is not an election at all as envisaged by

the Constitution and the Elections Act, and consequently anything which renders the

elections unfree or, and unfair is in law valid ground for D nullification of such

purported election. We are further of the considered opinion that any law which

seeks to protect unfree and unfair elections from nullification would be

unconstitutional.

For purposes of clarity we need to point out here that the removal of illegal practices

and E corrupt practices from s 108 by the Elections (Amendment) Act 1992 (Act 6 of

1992) as specific grounds for nullification of election results cannot be construed as

having the effect of making illegal practices or corrupt practices permissible under the

Elections Act, 1985. What the amendment achieved was to make illegal practices and

corrupt F practices per se no longer sufficient grounds for nullification of election

results under the circumstances stipulated under s 108(3)(a) and (d) as it then was

before the amendment. Paragraph (a) of ss (3), as it then was, stated;

G `that by reason of corrupt or illegal practices committed in 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.'

As to para (d) it stated: H

`that a corrupt or illegal practice was committed in connection with the

election by or with the knowledge and consent or approval of the candidate or by or

with the knowledge and consent or approval of any of his agents;' I

In our considered opinion, illegal and corrupt practices are still

1996 TLR p176

NYALALI CJ

relevant either as non-compliances or as electoral misconduct which renders elections

A unfree or, and unfair, contrary to the principles and objectives which underlie the

Constitution and the Elections Act.

It is pertinent to point out for purposes of clarity that it is conceivable to have

generally B free and fair elections but which are afflicted with a non-compliance of

specific provisions of the Elections Act and which affects the results of the elections.

In other words not every non-compliance which affects the results of an election

necessarily makes an election unfree and unfair. A case in point is where a significant

number of C unregistered persons are allowed to vote in an election but not for any

particular candidate. Such an incident would clearly be a non-compliance with the

provisions of s 61(a) and (b) concerning methods of voting. A non-compliance of this

nature may affect the results but does not necessarily make the election unfree and

unfair. D

The last point we need to point out, in view of the forthcoming presidential and

parliamentary elections is a lacunae or gap in the Elections Act concerning

presidential elections. Section 108 deals only with challenges to elections of

constituency members of the Parliament of the United Republic. This is clear under s

2 which defines a E `member' as being `in relation to the National Assembly, a

constituency member'. We can find no provision concerning disputed Presidential

elections. We cannot understand why this lacunae was not remedied under the

Elections (Amendment) (No 2) Act, 1992 F (Act 21 of 1992) which amended the

provisions of the Elections Act, 1985 concerning presidential elections. The

amendments therein contained went as far as the apply to presidential elections, the

provisions of Chapters IV and V of the Elections Act, 1985 which deal with

qualification of candidates and election procedure respectively. Chapter G VII which

deals with invalidation of election results was not applied to presidential elections.

The omission is puzzling, since in multi-party Presidential Elections, such lacunae is

an invitation to political chaos. We hope appropriate amendments of the relevant law

would be made before the forthcoming multi-party presidential elections. H

Let us now revert to our finding, concurring with Mchome J, on ground number 2 of

the Attorney General's Memorandum of Appeal, which is ground number 3 of the

third appellant's Memorandum of Appeal. This concerns the holding that there was a

corrupt I practice and that such practice is a tenable complaint under the Elections

Act. We have already disposed of the question of corrupt

1996 TLR p177

NYALALI CJ

practice being a tenable complaint. With regard to the existence of a corrupt practice,

A the finding by Mchome J to the effect that the third appellant corruptly offered to

turn his building popularly known as `Azim Magorofani' into a dispensary providing

free services to the people of Kigoma Urban Constituency appears to be based mainly

on the B credibility of witnesses. There were contradictions between the witnesses

for either side. The learned Trial Judge was of the view that the contradictions

between the witnesses for the petitioner's side concerning whether what was

promised was a dispensary or a clinic were minor compared to the contradictions on

the defence side on C whether the corrupt offer was greeted with cheers or silence

from the public attending the election rally. Furthermore, the learned Trial Judge

found one of the witnesses for the defence side to be a liar. We can find no basis for

differing with the learned Trial Judge in his evaluation of the credibility of the

relevant witnesses. D

Next we come to our reasons in support of our finding on ground number 3 in the

Attorney-General's Memorandum of Appeal, which is number 5 in the third

appellant's Memorandum of Appeal, in which we upheld the finding of the learned

Trial Judge to the E effect that the road construction in Kigoma during the campaign

period was executed with the corrupt motive of influencing voters to vote for the

CCM candidate and that it affected the results of the election. The basis of the finding

of the learned Trial Judge appears to be threefold. Firstly, he was of the view that the

maintenance work of the F Kigoma-Ujiji road was undertaken by the Central

Government as a reward for the people of Kigoma urban constituency agreeing to

vote for the CCM candidate. Secondly, he was of the view that the undertaking by the

Central Government was not made in the ordinary course of business of government.

Thirdly he was also of the view that since G the undertaking was made by

prominent cabinet ministers at well attended public rallies in the constituency, it

must have influenced the voters to vote for the CCM candidate.

We respectfully agree with these reasons. There was credible evidence given by

witnesses who attended the public rallies addressed by Augustine Lyatonga Mrema,

the H then Minister of Home Affairs and Deputy Prime Minister, and by Nalaila

Kiula, the Minister of Communications, Transport and Works. These witnesses

include one Kanyari Donatus, the sixth witness for the petitioner (PW 6), one

Ramadhani Juma Kalovya, the seventh witness for the petitioner (PW 7), one Hamisi

Shabani Maranda, I the ninth witness

1996 TLR p178

NYALALI CJ

for the petitioner (PW 9), one Kudra Mussa, the tenth witness for the petitioner

(PW.10) A who tape-recorded one of the speeches made by Hon Augustine Lyatonga

Mrema, and one Mwinyi Baruti, the eleventh witness for the petitioner (PW 11). The

testimony of the witnesses who attended the public rallies addressed by Hon

Augustine Lyatonga B Mrema and Hon Nalaila Kiula shows clearly that the Kigoma-

Ujiji road was being repaired by the central government as consideration for the

people of Kigoma Urban constituency agreeing to vote for the CCM candidate. PW 6

in a part of his testimony told the trial High Court regarding Hon Mrema's speech: C

`He asked if you get a tarmac road will you have any quarrel with CCM? And

the citizens said they would have none. He asked how many would vote for CCM if

we gave you a tarmac road. All people raised up their arms ...' D

PW 11, in a part of his testimony concerning the speech made by Hon Nalaila Kiula,

told the trial High Court:

`Then he said I have come here to remove the stigma you are putting on

CCM. The tarmac you wanted will be put on the road by the Government'. E

Further on the witness said, inter alia:

`he said he was sent by the President to remove the stigma or in Kiswahili

"nuksi" which was thrown at CCM'. F

No witness was produced by the other side to seriously contradict these or other

witnesses who testified to the same effect. On a paper evaluation of the relevant

evidence directly linking the road works with voting for CCM, no reasonable court or

G tribunal can come to a conclusion other than that the maintenance work of the

Kigoma-Ujiji road was valuable consideration given by the central government to the

people of Kigoma Urban Constituency for agreeing to vote for the CCM candidate. H

As to the second reason, it is beyond controversy on the evidence that the Kigoma-

Ujiji Town Council had failed to live up to its responsibilities of maintaining the road

in question under the road maintenance programme which had been in existence for

a long time. There was credible evidence given by one Ven Kayamba Ndyamkama,

the I seventh witness for the Defence (RW 7) who is a road maintenance

management engineer in the relevant ministry

1996 TLR p179

NYALALI CJ

headquarters in Dar-es-Salaam, to the effect that the responsibility of maintenance of

A the country's roads is divided between the central government and the local

authorities, and that local authorities can request the central Government to assist in

maintenance of local authority roads, whenever the need arose. The evidence given

by one Augustine Mudogo, the first witness for the defence (RW 1) who is the

Director of Kigoma-Ujiji B Town Council, appears to show that the central

government had assisted his council in maintenance of the road in question by

providing funds amounting to Shs7,000,000/= in 1992 and Shs10,000,000/= in 1993.

The evidence of this witness together with that of RW 7 however shows that at the

time of the by-election, the central government decided C to take over the

maintenance work of the Kigoma-Ujiji road, and Hon Augustine Lyatonga Mrema

instructed RW 1 to put aside the Shs10,000,000/= which had been previously supplied

and intended by the central government to assist the town council. This sudden D

and total intervention by the central government, in the absence of an earthquake or

similar disaster or situation affecting the Kigoma-Ujiji road is clearly way out of the

ordinary course of government business.

With regard to the third reason relied upon by the learned Trial Judge concerning the

E large number of people who attended the public rallies addressed, and corruptly

influenced by Hon Mrema and Hon Kiula, there was evidence given by witnesses for

the petitioner, which was not seriously contradicted by the defence, and which

showed that large numbers of people attended these rallies. F

It was contended by counsel for the appellants to the effect that there was no one

who testified about being influenced to vote for CCM by this road maintenance

undertaking. However, the contention collapsed when counsel for the appellants

conceded that under G the principle of secrecy of the ballot, no one could be

expected to testify to that effect. In our considered opinion the fact of influence

affecting the vote can be inferred from the circumstantial evidence relating to the

large number of people who attended the public rallies, the pressing desire of the

people of Kigoma Urban constituency to have their H road repaired and the respect

usually given by the people of this country to ministers of their government.

For purposes of clarity we need to point out here that a corrupt practice under the

Elections Act, 1985 is not necessarily the same as corruption under the Prevention of

I Corruption Act, 1972. This can be seen under the provisions of s 97 of the Elections

Act which states various categories of persons deemed guilty of bribery. It is

1996 TLR p180

NYALALI CJ

evident that such persons are not necessarily guilty under the Prevention of

Corruption A Act, 1972.

We need to point out further that a corrupt practice under the Elections Act is

capable of being construed, as we mentioned earlier, either as being a non-compliance

in the sense of being a failure to abstain from committing the offence of bribery as

defined B under s 97 of the Elections Act, or as, where it is extensively done, as a

misconduct which renders the election unfair. In the present case the corrupt

undertaking to repair the road amounted not only to a non-compliance with the

prohibition against electoral bribery contra s 97 C of the Elections Act, but was also

unfair to the political parties which were challenging CCM. Had the Tamko Rasmi

been properly signed and therefore valid, the intervention by the central government

would also have been a non-compliance with the directives of the Electoral

Commission against the use of government property in furtherance of the campaign

of one political party. D

With regard to our finding on ground number 5 in the Attorney-General's

Memorandum of Appeal, which is number 7 in the third appellant's Memorandum of

Appeal, in which we upheld the learned Trial Judge to the effect that the campaigns

by Hon Augustine E Lyatonga Mrema, (MP) and Hon Nalaila Kiula (MP) were illegal

campaigns which affected the results of the by-election; and in which we faulted the

finding concerning the campaign of the CCM Chairman, Ali Hassan Mwinyi, our

reasons are as follows. We are satisfied that under the Elections Act, 1985 read

together with the Constitution, the F Electoral Commission is empowered to

prescribe a specific period for election campaigns as it did in the present case. As we

have already mentioned earlier, this power is derived under article 74(6)(b) of the

Constitution read together with s 124 of the Elections Act.

Of course no where in the Elections Act, 1985 is to be found a specific provision G

requiring the Electoral Commission to prescribe a period for election campaigns. We

are of the view that the absence of such a requirement does not derogate from the

general power of the Electoral Commission to do so. We think it is wise for the

Commission to continue to do so in order to ensure the fairness of elections and to H

enable to effectively supervise such elections.

In the present case, the period prescribed for campaigns was from 31 January to 12

February 1994. By campaigning before the commencement of this period, Hon

Mrema (MP) and Hon Kiula (MP) did conduct illegal campaigns, which on the

authority of the I case of Ndugu Basil P Mramba and the Attorney-General v Ndugu

Leons S

1996 TLR p181

NYALALI CJ

Ngalai, (2) such illegal campaigns were non-compliance. As already mentioned earlier

in A respect of another point, many people attended the campaign rallies addressed

by these ministers. On the basis of the circumstantial evidence mentioned earlier, the

illegal campaigns must have affected the results of the by-election.

The learned Trial Judge however erred in holding that the election campaign

conducted B by CCM Chairman Ali Hassan Mwinyi was also illegal. All the evidence

show that the CCM Chairman, who is also President of the United Republic, arrived

in Kigoma for election campaign purposes on 10th February 1994. That was within

the prescribed period. The fact that some government property was used in

connection with the visit C and campaign did not turn his campaign into an illegal

one. What can be said is that if the Tamko Rasmi had been valid, such use of

government property might have been a violation of the prohibition contained in the

Tamko Rasmi. But since the Tamko Rasmi D was invalid we do not have to go into

the details of the matter except on one aspect. We must point out that in a country

like ours with a constitution establishing an Executive President, who is also

Commander-in-Chief, restrictions concerning his conduct during multi-party election

campaigns must be such as not to endanger his personal security or E disable him

from effectively discharging his constitutional responsibilities as President and

Commander-in-Chief. We think that restrictions which adversely affect the

President's ability to discharge his responsibilities at anytime would be

unconstitutional. On the other hand, since fairness is one of the important elements

in a democratic F election, the use of government property or government

employees by the President during election campaigns in a manner which is not

necessary for his personal security or the discharge of the responsibilities of the Office

of President or Commander-in-Chief G is prohibited in accordance with the

principle of fairness. We think that a violation of this prohibition, if it renders

elections generally unfair, will result in nullification of elections results.

As for the reasons in support of our finding on ground number 6 of the H Attorney-

General's Memorandum of Appeal, which is number 8 in the third appellant's

Memorandum, in which we faulted the learned Trial Judge in holding that Radio

Tanzania Dar-es-Salaam was properly joined as a party to the petition, it is obvious

that the learned Trial Judge was led to his erroneous conclusion by replying entirely

on I procedural law, where substantive law is also involved. The issue framed for

decision by the High Court at the trial was,

1996 TLR p182

NYALALI CJ

`whether the third respondent was properly joined in this petition'. In resolving this

issue A the trial court relied on the provisions of Rule 4(2) and (3) of the Election

Petition Rules, 1971 as well as the case of Attorney-General v Amiri Zuberi Muya and

Abdallah Zuberi Muya (3) which considered the procedural aspect of joinder of

parties in election petitions. B

Unfortunately, the learned Trial Judge in the case before us failed to notice that,

unlike in the Amiri Zuberi Muya case, there is a matter of substantive law involved,

and that is whether Radio Tanzania Dar-es-Salaam is a legal person capable of being

joined to the election petition. Learned counsel on both sides in this appeal conceded

and we think C rightly so, that Radio Tanzania Dar-es-Salaam was at the material

time purely a government department which is not separately established by any law

as a body corporate. Learned counsel on both sides rightly concurred with us that

under those circumstances Radio Tanzania Dar-es-Salaam, had no legal capacity to be

joined as a D party to the petition, separately from the Attorney-General, who

represents the government.

We must now turn to the reasons supporting our finding on ground number 7 of the

Attorney-General's Memorandum of Appeal, which is number 9 of the third

appellant's E Memorandum of Appeal, on which we confirmed the finding of the

learned Trial Judge to the effect that the broadcasts of Radio Tanzania Dar-es-Salaam

affected the results in favour of the CCM candidate. During the hearing of this appeal,

it was argued by learned counsel for the appellants to the effect that no evidence was

adduced at the trial to show F that the people in Kigoma Urban Constituency possess

any radio sets or receivers and that they listened to the relevant broadcasts of Radio

Tanzania Dar-es-Salaam during the material time.

With due respect to learned counsel for the appellants, we think that this is a

desperate G argument. It is common knowledge in this country, and which therefore

requires no evidential proof, that there is a large number of people both in the rural

and urban areas of Tanzania who possess radio sets or receivers and who regularly

listen to Radio Tanzania Dar-es-Salaam. On that premise, it can reasonably be

inferred that a large H number of people in Kigoma Urban Constituency must have

listened to the broadcasts of Radio Tanzania Dar-es-Salaam regarding the by-election

in their constituency. But did these broadcasts affect the results of the by-election in

favour of the CCM candidate? I

To answer this question, one must consider two aspects of the matter. The first is the

air time given by Radio Tanzania Dar-es-

1996 TLR p183

NYALALI CJ

Salaam for the campaigns in favour of the CCM candidate compared to the campaigns

A in favour of the other political parties contesting the by-election. From the

evidence given by Eric Raymond Mchatta, the fifteenth witness for the petitioner

(PW 15), which was not seriously challenged by the defence, it is quite clear that the

CCM campaigns B were given more air time compared to the combined air time

given for the campaigns of the other political parties contesting the by-election. The

explanation given for this glaring inequality as per the evidence of Habib Juma

Hyundo, the eighth witness for the defence (RW 8), who is the chief editor of Radio

Tanzania Dar-es-Salaam, is that, apart from C CCM, the other political parties did

not know how to utilize the facilities of Radio Tanzania, Dar-es-Salaam. Taking into

account that Radio Tanzania, Dar-es-Salaam is government property, we are of the

considered opinion that this is not a sufficient explanation. As a government radio,

and in fairness to the contesting political parties, it D was duty bound to take the

initiative to offer such political parties equal air time and let them choose to utilize

the whole or part of the air time thus offered. We are satisfied that it was the absence

of such a system which allowed CCM to utilize more air time than the other political

parties. E

The second aspect of the matter is the nature of the contents of the relevant

broadcasts by Radio Tanzania Dar-es-Salaam. It is apparent from the evidence that the

broadcasts, including surprisingly those made to reflect the official position of Radio

Tanzania, F Dar-es-Salaam itself, were biased in favour of the CCM candidate. The

surprising example is the programme known as Mazungumzo Baada Ya Habari aired

for a number of days during the period of the by-election campaigns commencing on

4 February 1994. Ostensibly what was aired in the programme was meant to

congratulate CCM on G its 17 birthday the following day. But as it turned out, the

programme went on for a number of days and much of its contents were clearly

political campaign material in favour of the CCM candidate. We need only to

reproduce a few parts of the board case to demonstrate what we mean. In one part it

says in Kiswahili: H

`Na kwa bahati nzuri sana, wapiga kura wa JIMBO LA ILEJE wiki iliyopita

waliitun za CCM zawadi ya kuanzia sherehe za kuzaliwa kwake kwa kumchagua kwa

kura nyingi sana mgombea wake wa kiti cha Bunge Ndugu CHEYO. Hivi sasa, CCM

inasubiri kwa hamu kubwa kuona kama itapata zawadi ya I kukamilisha sherehe

zake hizo kutoka kwa wapiga kura wa Jimbo la KIGOMA MJINI.

1996 TLR p184

NYALALI CJ

A MATOKEO ya uchaguzi mdogo wa Jimbo la Ileje yanatudhihirishia mambo

mengi muhimu ambayo yanapaswa kuzingatiwa na kila mwanasiasa, na hasa kila

mpinzani wa CCM na kila Chama cha Siasa nchini.

UKWELI wa kwanza na wa dhahiri kabisa ni kwamba CCM bado ni chama

chenye nguvu kubwa sana na chenye wapenzi wengi walio wanachama na wasio

wanachama. Tunasema CCM ina wapenzi B ambao hata siyo wanachama wake kwa

sababu kuna baadhi ya watu wanafanya makosa kwa kufikiria tu kuhusu namba ya

wanachama wa CCM wenye kadi na kupiga hesabu zao zote za kisiasa kwa kuzingatia

nambari hiyo ambayo haijafikia hata milioni tano.

KOSA JINGINE kubwa wanalofanya ni kudhani kwamba WATANZANIA

wote wasio wana-CCM kwa C lazima watavipigia kura vyama vingine. HIYO siyo

kweli hata kidogo'

Yet in another part it says: D

`CCM tokea awali imekuwa Chama cha Umma badala ya wateule wachache.

Tena imekuwa na sera nzuri ambazo zimeitikia matakwa ya wananchi wote kwa

wakati wote ambao imekuwa katika uongozi'. E

Having examined the contents of various broadcasts of Radio Tanzania Dar-es-

Salaam, including the above mentioned Mazungumzo Baada Ya Habari, and bearing

in mind the time tested maxim that information is power, we were bound to

conclude, as the learned F Trial Judge did, to the effect that these broadcasts in

favour of CCM must have influenced the by-election results in favour of the CCM

candidate.

Let us now turn to our reasons supporting our finding on ground number 8 of the

Attorney-General's Memorandum of Appeal, which is number 10 of the third

appellant's G Memorandum of Appeal, on which we upheld the finding of the

learned Trial Judge to the effect that the counting of the votes was not proper. It is

apparent from the proceedings in the High Court and before this Court, that although

there is great controversy on whether the process of counting the votes was

completed or H prematurely stopped before the results were announced, there is

common ground, that the final exercise undertaken by agreement between CCM and

CHADEMA representatives and approved by the returning officer, involved going

through the bundles of votes for each political party, after a representative of

CHADEMA had expressed I dissatisfaction with the position reached. It is this

exercise of going through the bundle of votes which was stopped after a number of

CCM bundles had been gone through.

1996 TLR p185

NYALALI CJ

The first question that arises here is whether this exercise is permitted by law. In our

A considered opinion, we are satisfied that the answer is in the negative. Under s 78

of the Elections Act, there is only one course of action open where, as was the case

here, a candidate or counting agent expresses dissatisfaction, and that course of action

is for the returning officer to grant a recount. On the authority of the case of The B

Attorney-General v Joseph Musa Monko (4), the returning officer is duty bound to

grant a first and second request for recount. This was not done in the present case.

Instead, an extraneous exercise was undertaken. This was clearly not proper in law. C

A more serious impropriety however concerns the petitioner's complaint to the effect

that the actual counting of the votes never really started, and that the exercise of

going through the bundles which was aborted on alleged security grounds, was

merely for the purpose of ascertaining whether the bundles were correct in the

number and kind of D votes contained therein. Ample evidence was adduced on

both sides on this aspect of the case. The evidence on the defence side was intended

to show that the counting of votes had been completed when the exercise of going

through the bundles was undertaken at the request of a CHADEMA representative.

The learned Trial Judge, after E evaluating the evidence on both sides, accepted the

version given for the petitioner's side. Was the learned Trial Judge correct in so

doing?

We have given the evidence a fresh look, and we are satisfied that the learned Trial

Judge was correct, particularly when account is taken of the report made by a

journalist F of Radio Tanzania Dar-es-Salaam, concerning the activities that were

then going on in the counting hall. That report, by one Abbisay Stephen, was

broadcast on the state radio and an official record of the programme was made and

kept by Radio Tanzania Dar-es-Salaam. A transcript of the record was produced as

exhibit R 49 as part of the G evidence for the defence. It is our considered opinion

that since Radio Tanzania Dar-es-Salaam is a government department managed by

public servants, the record of that broadcast was properly admitted as evidence under

the provisions of s 37 of the Evidence Act, 1967 which states: H

`Any entry in any public or other official book, register or record, stating a

fact in issue or relevant fact, and made by a public servant in the discharge of his

official duty or by other person in performance of I a duty specially enjoined by law

of the country in which such book, register or record is kept, is itself a relevant fact.'

1996 TLR p186

NYALALI CJ

That record reads in Kiswahili as follows: A

`Asante Mbonde zoezi la kuhesabu kura lilianza saa moja asubuhi kule

Bangwe Magereza na zoezi hilo litaendelea mpaka saa 10 jioni. Tatizo lililojitokeza ni

kwamba ilipofika saa kumi kura zilikuwa B zimepangwa vizuri kura 100 kwa kila

mgombea ili kurahisisha kazi ya kuhesabu kura. Sasa ilipofika saa kumi jioni ndiyo

ikabidi waanze kuhesabu kura ili kuhakikisha kwamba kweli zile ambazo

zinafungashwa 100/100 ni kweli zimetimia. Zoezi hilo litaendeleo mpaka usiku'.

We are of the considered opinion that this evidence corroborates the evidence given

for C the petitioner's side to the effect that the exercise of going through the bundles

of votes was purely for the purpose of ascertaining the state of the bundles of votes

prior to the actual process of counting the votes case for each candidate. It follows

therefore D that since this exercise of ascertaining the state of the bundles was

prematurely stopped allegedly on security grounds, the counting process had not been

concluded when the election results were announced by the returning officer.

Next we come to the reasons in support of our finding on ground number 9 of the E

Attorney-General's Memorandum of Appeal on which we concurred with the finding

of the learned Trial Judge to the effect that the failure of the petitioner to fill in form

CF--7 at the end of the activities in the counting hall was due to alleged security risk.

Obviously, having found that the counting process was aborted, we were bound, like

the learned F Trial Judge, to accept the evidence given for the petitioner to the effect

that the abortion of the counting process allegedly for security reasons was the cause

of the failure by the petitioner to fill in Form CF--7 as required by the regulations of

the Electoral Commission. We are also satisfied that there is no longer any provision

under the G Elections Act, 1985 as amended or under any other relevant law which

renders the failure by the petitioner to fill in Form CF--7 fatal to the petition.

Undoubtedly, in a proper case, such a failure could undermine the credibility of a

petitioner or his or her agent. This is not such a case.

We now move on to give our reasons in support of our finding on ground number 2

of H the Memorandum of Appeal of the third appellant, on which we faulted the

finding of the learned Trial Judge that the third appellant is solely liable to pay the

petitioner's costs. We are of the considered opinion that the third appellant is liable to

pay only those costs I arising from the electoral misdeeds committed either by

himself or by his agents including the political party which

1996 TLR p187

NYALALI CJ

sponsored him, and which constitute the grounds for nullification of the election

results. A He is not liable to pay the costs arising from the misdeeds of agents of the

Electoral Commission or the government. Those are payable by the government of

the United Republic. For purposes of clarity, we hold that the illegal campaigns

conducted by Hon Augustine Lyatonga Mrema and Hon Nalaila Kiula are to be

construed as having been B done under the auspices of the political party which

sponsored the candidature of the third appellant.

Next we turn to the reasons supporting our finding on ground number 4 of the third

C appellant's Memorandum of Appeal on which we upheld the finding of the learned

Trial Judge to the effect that the CCM Chairman, Ali Hassan Mwinyi; the then CCM

Secretary-General, Horace Kolimba; the CCM National Publicity Secretary, Kingunge

Ngombale-Mwiru, and the Hon Augustine Lyatonga Mrema, (MP), then Minister of

Home D Affairs and Deputy Prime Minister uttered defamatory statements

regarding the petitioner and his political party and that such statements affected the

election results. We however faulted the learned Trial Judge in holding that the

statements made by Hon Nalaila Kiula, (MP), Minister of Communications, Transport

and Works were defamatory. E

We have given the evidence adduced on this point a fresh look as we are bound to do

in a first appeal. The evidence consists in the testimony of witnesses who attended the

campaign meetings or rallies addressed by these eminent persons. All the testimony F

was given on the side of the petitioner. The defence produced no witness to

contradict the petitioner's witnesses. PW 6, one of the witnesses for the petitioner

told the trial High Court in a part of his testimony as follows:

G `On the 15/1/94 I was near Kawawa stadium. We were there waiting to hear

the speech of the Minister for Home Affairs Lyatonga Mrema. Almost the whole town

was there ... then Mr Mrema's speech followed.

He started to warn us against opposition parties. He said who knows not how

to die should look at the grave. He asked us to go to Lake Tanganyika and see Burundi

Refugees and said they were a H product of opposition parties. At Lake Tanganyika

Stadium there were thousands of Burundi Refugees who were living in real hardships.

They slept outside and had no shelter from rain or sun.'

In another part of his testimony the same witness told the trial High Court: I

1996 TLR p188

NYALALI CJ

A `... He repeated that if other parties were elected this will be a cause for war

like in Angola, Burundi, Liberia, etc ...'

Another witness for the petitioner, that is PW 7, in a part of his testimony told the

trial High Court regarding the speech by Hon Mrema (MP): B

`... Then he continued "don't you know that opposition parties will bring

chaos and a breach of the peace in this country?" ...'

There is yet another witness for the petitioner, that is, Salim s/o Malick, the eighth C

witness (PW 8) who, in a part of his testimony, regarding a campaign speech

delivered by Hon Kingunge Ngombale-Mwiru (MP), told the trial High Court:

`A lot of people attended that meeting. They could be three or four thousand

people ... some of the D words by the speaker Mr Ngombale-Mwiru are that the

person we want to elect first tore the national flag and if he had failed to respect the

national flag, will he respect you? He said that that person does not respect his

mother. He comes and lives in a hotel instead of at his mother's house. He said E his

mother lives in a mud house. Even when his father died he did not come to bury him

but stayed in the United States of America....'

There is another witness for the petitioner, namely, Hamisi Shabani Maranda, the

ninth witness (PW 9) who in a part of his testimony concerning a campaign speech

by Hon F Horace Kolimba, told the trial High Court:

`... Kolimba told us that electing another party besides CCM is to bring war

and refugees like in Burundi, Rwanda and other countries. There were very many

people, between 20 and 25 thousand G people. The whole town was called by loud

speaker to attend the meeting ...'

Another witness for the petitioner namely, George Mazula, the second witness, (PW

2) who in a part of his testimony concerning a campaign speech given by the CCM

National H Chairman, His Excellency President Ali Hassan Mwinyi, told the trial

High Court:

`... I heard him talking. He talked many things but one of them is calling

opponents puppets and mercenaries.... And that those puppets were given money and

people should take the money and eat I it as it was their money.... I was not

expecting such words from a president but he uttered them'

1996 TLR p189

NYALALI CJ

In another part of his testimony, this witness told the trial High Court: A

`... "Mamluki au Vibaraka" are mercenaries or people paid by outsiders to do

something for them ...' B

Further on the witness testified inter alia:

`At that meeting the President said, "Hawa wapinzani vibaraka, mamluki

wamepewa pesa, wananchi zichukueni mzile".' C

The evidence adduced at the trial shows that these statements were widely published

in the press. There can be no doubt that those who uttered those statements were

aware that the statements would be published in the press.

It is our considered opinion that the statements disclosed by all this testimony, were

D defamatory of the political parties in opposition to CCM, and in particular, to the

petitioner and his political party. In addition, the statements made by Hon Mrema

MP, and Hon Horace Kolimba MP were intimidating to the electorate of Kigoma

Urban constituency. Since defamation is an offence under the law of the land,

everyone is prohibited from E committing it at all times including during election

campaigns. We are satisfied that legally indefensible or inexcusable defamation

committed in furtherance of an election campaign, as was done in the present case

amounts to a breach of sub-article 26 of the Constitution which categorically states,

`Every person is obliged to comply with this F Constitution and the laws of the

United Republic'. It is our view that this constitutional command applies at all times.

It follows therefore that presidential and parliamentary elections are required to be

conducted not only with due observance of the Constitution G and the Elections

Act, but also with due observance of the general law of the land. We are further

satisfied that because of the large number of people who attended these campaign

rallies and the respect of people of this country usually give to their President and his

ministers, the defamatory and intimidatory statements in question must have affected

the election results. As to the statement made by Hon Nalaila Kiula (MP) H Minister

of Communications, Transport and Works about the road works being aimed at

removing a stigma from CCM, we are satisfied that his remarks did not amount to

defamation of anyone.

Finally we come at last to the reasons in support of our finding concerning the I

citizenship of the third appellant. The issue of citi-

1996 TLR p190

NYALALI CJ

zenship was extensively argued at the trial in the High Court. The learned Trial Judge

A decided to resolve the issue by giving the third appellant the benefit of the doubt.

Although the petitioner's side made no cross-appeal to us on the issue, we decided to

raise the issue on our own initiative in this appeal in the interest of justice. We did so

B because citizenship is the basis of everything else that is exercised by political

parties and candidates under the Elections Act. Undoubtedly we have the jurisdiction

to do so under the provisions of s 4(2) and (3) of the Appellate Jurisdiction Act, 1979

as amended by Act 17 of 1993 concerning powers of revision. C

It is apparent on the face of the record that the learned Trial Judge used the wrong

approach in resolving the issue. He seems to have approached it as an issue which

required to be resolved on the basis of Indian law, rather than on the basis of the law

of Tanzania. This can be seen from the following extract of his judgment: D

`As for the citizenship issue it had been argued that the Indian book referred

to by the Petitioner is an old 1968 book and the condition prevailing at present in

India has not been proved. Mr Makani for the Petitioner had argued that the author

of that book is of high repute and that book is an authority used E in the UK,

Canada, the USA and Tanzania.

... I do not doubt the genuineness of the book cited.... But taken as it is and

presumed to be expounding on the true position of the Law of India the book explains

the position on or before 1968. The present position is not clear. India being a fellow

Commonwealth country with whom our country F shares diplomatic relations I see

no reason why the Petitioner's side did not secure a copy from the Indian High

Commission in Dar-es-Salaam of the present state of the law in India to prove their

case.

... We have no evidence on the true present situation on how much

Parliament in India has legislated G on this issue at present moment. The burden is

on the Petitioner to prove that the 2nd Respondent is not a Tanzanian citizen beyond

reasonable doubt. That burden has not been discharged to the satisfaction of the

court.'

The book on the law in India, which the learned Trial Judge mentions in this part of

his H judgment, is authored by H M Seorvai on `Constitutional Law of India'. We

think that had the learned Trial Judge approached the issue of citizenship correctly

and applied the law of Tanzania, he would have come to the same conclusion as we

have done, that the I CCM candidate was not Tanzanian at the time of the election.

1996 TLR p191

NYALALI CJ

The relevant law on the issue is the Citizenship Act 1961 Cap 512 read together with

the A British Nationality Act, 1948. Under the scheme of the Citizenship Act, 1961,

there are three main categories of Tanzanian citizenship, that is, citizenship by birth,

citizenship by descent, and citizenship by registration as defined or provided under s

2 and 10 of the B Citizenship Act, 1961. Under s 10 a citizen by birth `means a

person who is citizen of the United Republic--

(a) by virtue of section 3 of this Act.

(b) by virtue of the combined effect of ss (1) of s 1 of this Act and para 1 of

the Fourth Schedule to C the Extension and Amendment of Laws (No 5) Decree,

1964; or

(c) by virtue of his birth in Zanzibar and the effect of para 2 of the Fourth

Schedule to the Extension and Amendment of Laws (No 5) Decree, 1964.' D

Similarly under the same section, citizen by descent `means a person who is a citizen

of the United Republic--

(a) by virtue of s 4 of this Act; or

(b) by virtue of the combined effect of ss (2) of s 1 of this Act or of s 4 of

this Act as in force E immediately before the commencement of the Extension and

Amendment of Laws (No 5) Decree, 1964, and of para 1 of the Fourth Schedule to the

said Decree;

(c) by virtue of the combined effect of his being a Zanzibar subject by

descent in accordance with F the former law of Zanzibar (and had that law remained

in force until immediately before Union Day) and of para 2 of the Fourth Schedule to

the said Decree.'

As to the provisions concerning the acquisition of citizenship by registration, these

are to be found under s 2 of the Act read together with Part II of the Citizenship

Ordinance, Cap 452. The position of the third appellant clearly does not fall within

the category of G citizenship by registration or citizenship by descent. It falls within

the category of citizenship by birth within the scope of ss (1) of s 1 of the Act, which

states:

H `Every person who, having been born in Tanganyika is on the eight day of

December, 1961, a citizen of the United Kingdom and Colonies or a British protected

person shall become a citizen of Tanganyika on the ninth day of December, 1961:

Provided that a person shall not become a citizen of Tanganyika by virtue of

this sub-section if neither I of his parents was born in Tanganyia'.

1996 TLR p192

NYALALI CJ

Undoubtedly on the facts of this case, this sub-section of s 1 has to be read together A

with the provisions of s 6 of the Act which concerns dual citizenship. On the facts of

this case the relevant part is ss (1) of s 6 as amended by Act 24 of 1970. It states:

B `Any person who, upon the attainment of the age of 18 years, is a citizen of

the United Republic or was a citizen of the former Republic of Tanganyika and also is

or was a citizen of some country other than the United Republic or the former

Republic of Tanganyika shall, subject to the provisions of ss (7) of this section, cease

to be a citizen of the United Republic upon the specified date unless he has C

renounced his citizenship of that other country, taken the oath of allegiance and, in

the case of a citizen by descent, made and registered such declaration of his intention

concerning residence as may be prescribed by Parliament.'

It is apparent that there are three factors which determine citizenship by birth within

the D scope of ss (1) of s 1 of the Act. These are firstly, being born in Tanganyika by

8 December 1961; secondly, being a citizen of the United Kingdom and Colonies or

being a British protected person on 8 December 1961, and thirdly and finally having

at least one parent who was born in Tanganyika. E

It follows therefore that the impression given in the decision of the High Court in the

case of Abdallah Salim Ali Absalaam (5) to the effect that only one factor is required

in determining citizenship by birth under ss (1) of s 1 cannot be correct. In that case,

Georges, CJ as he then was, is reported to have held: F

`Section 1(1) of the Citizenship Act, 1961 designates persons born in

Tanganyika as citizens, "provided that person shall not be a citizen if neither of his

parents was born in Tanganyika." this section clearly requires only that one parent

have been born in Tanganyka ...' G

We are of the considered opinion that the wrong impression need not arise if one

bears in mind that the factor of parentage appears in a proviso which qualifies a

preceding statement in ss (1). The proceeding statement designates persons born in

Tanganyika and who are citizens of the United Kingdom and Colonies or are British

protected H persons on the 8 December 1961, as citizens of Tanganyika. Clearly the

fact of having one parent born in Tanganyika is not sufficient to confer citizenship by

birth within the scope of ss (1) of s 1 of the Act.

For purposes of clarity we need to point out here that citizenship of the United

Kingdom and Colonies exists under the law of Tanzania only for the purpose of

determining I citizenship by birth within

1996 TLR p193

NYALALI CJ

the scope of ss (1) of s 1 of the Act, and is not recognized as a parallel citizenship

which A a citizen of Tanzania continued to have after 9 December 1961. It would

seem that once citizenship of the United Kingdom and Colonies served its purpose of

determining citizenship by birth for those born before 9 December 1961, it

disappeared from their B lives. Bearing in mind that one of the objectives of the

Citizenship Act 1961 is the exclusion of plurality or duality of citizenship, we are

satisfied that this must be the correct interpretation of the law. The contrary

interpretation leads to an absurdity in the sense that the vast majority of people born

in Tanganyika before 9 December 1961 C would be construed to have continued

with the colonial citizenship of the United Kingdom and colonies and subsequently

forfeited their new citizenship of Tanganyika for failure to renounce their colonial

citizenship under s 6 of the Act. We do not think that such absurdity was the

intended effect of the Act.

Let us now turn to the specific position of the third appellant. There is no dispute D

between the parties that he was born in Tanganyika in 1954 and, one of his parents,

that is, his mother, was similarly born in 1926. The first question that has to be

resolved is whether the third appellant was a citizen of the United Kingdom and

Colonies or was a E British protected person at the time of his birth. The answer is to

be found under the provisions of s 4 of the British Nationality Act, 1948 which states:

`Subject to the provisions of this section, every person born within the United

Kingdom and Colonies F after the commencement of this Act shall be a citizen of

the United Kingdom and Colonies by birth:

Provided that a person shall not be such a citizen by virtue of this section if at

the time of his birth--

(a) his father possesses such immunity from suit and legal process as is

accorded to an envoy of a foreign sovereign power accredited to His Majesty, and is

not a citizen of the United G Kingdom and Colonies; or

(b) his father is an enemy alien and the birth occurs in a place then under

occupation by the enemy.'

It seems to us that since Tanganyika was, as defined under s 32 of the British

Nationality H Act, 1948 a colony of the United Kingdom at the time when the third

appellant was born therein in 1954, he must have been a citizen by birth of the

United Kingdom and Colonies. Undoubtedly that was the legal position concerning

the vast majority of people I born in the colony known as Tanganyika before the 9

December 1961.

1996 TLR p194

NYALALI CJ

However, the third appellant's legal position was significantly different from that of

the A vast majority of people. Unlike them, the third appellant was at the time of his

birth not only a citizen of the United Kingdom and Colonies by virtue of the

provisions of s 4 of the British Nationality Act, 1948, but he was also a citizen of

India. This can be seen from B the particulars of his birth certificate which was

produced in evidence at the trial in the High Court. The particulars show that both

parents of the third appellant were of Indian Nationality at the time of his birth. We

are satisfied that the term `nationality' as used for purposes of registration of births

under the Births and Deaths Registration Ordinance, C Cap 108 connotes

citizenship. We take judicial notice of the fact that at the time of the third appellant's

birth in 1954, India had been an independent nation state for almost 7 years with its

own citizens. We are satisfied that, according to the law of this country, the third

appellant must be regarded as having acquired the nationality or citizenship of D

both his parents at the time he was born, and that such nationality or citizenship is

presumed to have continued until the time when under Tanzanian law he was

required to choose between Tanzanian citizenship or Indian citizenship, unless such

presumption is rebutted by credible evidence. In our considered opinion, the burden

of E rebutting such a presumption lies with the person who seeks to rebut it. In the

present case, it was for the third appellant to satisfy the trial High Court that his

Indian citizenship ceased to exist before he was required under Tanzanian law to

renounce it according to the provisions of ss (1) of s 6 read together with ss (7) of the

Citizenship Act, 1961. F

We note that according to ss (6) of s 6 of the Citizenship Act as amended by Act No

24 of 1979, the specified date for a person like the third appellant who was still a

minor on the 9 December, 1961, is the date of attaining the age of majority, which is

18 years. Sub-section (7) provides for parliamentary extension of the specified date

wherever appropriate.

Since it is apparent from the record of the proceedings in the trial High Court that the

third appellant produced no evidence to show that his Indian citizenship had ceased

to exist at the time he attained the age of 18 years, that is, in 1972, and in the absence

of his renunciation of such Indian citizenship in 1972, then, unless there was an

extension granted by Parliament for the required renunciation, the third appellant

must have automatically lost his Tanzanian citizenship in 1972 that is, at the time he

applied for and obtained his first Tanzanian Passport. As this court is not aware of any

1996 TLR p195

parliamentary extension for renunciation being granted to the third appellant under

the A provisions of ss (7) of s 6 of the Citizenship Act, we are satisfied that the trial

High Court ought not to have given the third appellant the benefit of doubt but

should have found that he was not a Tanzanian citizen at the time of the by-election.

In conclusion, these then are the reasons which compelled us to make the findings we

B did in our judgment delivered on 28th December 1994.

1996 TLR p195

C