JOSEPH WARIOBA v STEPHEN WASSIRA AND ANOTHER 1997 TLR 272 (CA)

 

JOSEPH WARIOBA v STEPHEN WASSIRA AND ANOTHER 1997 TLR 272 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Samatta JJA and Mroso AgJA

B CIVIL APPEAL 52 OF 1996

2 October 1997

C (An appeal from the decision of the High court of Tanzania, Mwanza, Lugakingira

J)

Flynote

Elections - Election petition - Corrupt practice - Section 114 of Elections Act -

Omission of corrupt practice from s 114 inadvertently done - Necessary to read the

words `corrupt or' into the section in order to remove absurdity and avoid

discrimination.

D Statute - Interpretation of - Discovering intention of legislation - Objects and

Reasons for Bill relevant to enquiry and recourse may be had thereto.

E Statute - Interpretation of - Reading words into section - Permissible to do so in

appropriate circumstances

-Headnote

The appellant noted an appeal against a finding by the High Court on an election

petition that although the respondent had committed an act of corrupt practice, it was

unable to certify same to the Director of Elections as s 114 of the Elections Act did not

make provision for such certification F and merely made provision for illegal

practices.

Held:

(i) Parliament had deliberately retained the reference to illegal practice in

s 114 to empower the election court to deal with persons found guilty of that offence

where the Director of G Public Prosecutions did not institute criminal proceedings.

There could be no good reason why Parliament would exempt persons found guilty of

corrupt practices where the Director of Public Prosecutions had not taken up the

matter. The omission to re-introduce corrupt practice was accordingly through

inadvertence;

H (ii) In interpreting the section to divine the intention of the Legislature it

was permissible in this regard to have recourse to the Objects and Reasons of the Bill

which was relevant to the enquiry.

(iii) The present was a fit case where the Court should interpret s 114 as

including or extending to corrupt practice even though this meant reading words into

the section. To do so in the present case would remove absurdity and avoid the

discriminatory effect which I would otherwise arise from a literal construction.

1997 TLR p273

Case Information

Appeal allowed. A

Cases referred to:

1. R v Judge of the City of London Court [1892] 1 QB 273

2. Vacher and Sons Ltd v London Society of Compositors [1913] AC 107

3. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1970]

2 All ER 871 B

4. Nothman v Barnet London Borough [1978] 1 All ER 1243

Rweyemamu and Dr Mwaikusa for the appellants,

Marando, Malamsha and Dr Lamwai for the respondents.

Malamsha for the second respondent (Attorney-General) C

[zJDz]Judgment

Kisanga, JA

During the 1995 general election the first respondent Mr Stephen Masatu Wassira,

was elected Member of Parliament for Bunda constituency, but subsequently his

election was nullified by the D High Court (Lugakingira, J) upon an election petition

filed by the appellant, Mr Joseph Sinde Warioba. In the course of dealing with that

petition the trial judge found that the respondent had committed an act of corrupt

practice, but declined to certify the same to the Director of Elections in terms of s 114

of the Elections Act. The appellant was aggrieved by such omission, hence this E

appeal.

Both at the trial and in this appeal the appellant was represented by Mr J S

Rweyemamu and Dr J T Mwaikusa, learned advocates, while Mr M Marando and Dr

M Lamwai, learned advocates, appeared for the first respondent; Mr Malamsha,

learned Senior State Attorney, was for the second respondent, the Attorney General.

The memorandum of appeal contains only one ground of F complaint, namely:

`That the learned trial judge erred in law when, having correctly found the

Respondent to have committed corrupt practices, he declined to certify to the

Director of Elections that the Respondent is guilty of corrupt practices.' G

The trial judge declined to certify to the Director of Elections because corrupt

practice was not made the subject for certifying to the Director under s 114 of the

Elections Act. In other words s 114 of the Elections Act provided for certifying to the

Director of Elections the finding of illegal practice H only, not corrupt practice.

Section 114(1) of the Elections Act says:

`114(1) Where the Court determines that a person if guilty of any illegal

practice, it shall certify the same to the Director of Elections ...' I

1997 TLR p274

KISANGA JA

A Counsel for the respondent had contended before the High Court that in the

absence of any reference to `corrupt practice' in the provision, there could be no basis

for requiring that Court to certify any finding of corrupt practice to the Director of

Elections. To counter that argument, counsel for the appellant submitted that the

omission to require findings of corrupt practice to be certified to B the Director of

Elections was simply through inadvertence. During this appeal counsel arguments

again centred on this point to a very large extent, and the immediate question which

falls for consideration now is whether the omission was deliberate or was through

inadvertence.

C In support of the submission that the omission was through inadvertence, Dr

Mwaikusa traced the legislative history of the offence of corrupt practice. This history

shows that corrupt practice was made an electoral offence under the Elections Act No

1 of 1985. Thus under s 114(1) of the Act, for D instance, the High Court which had

jurisdiction to hear election petitions then was required to report to the Director of

Elections any findings of corrupt or illegal practice. In 1990, however, the law was

amended by Act No 13 of 1990 whereby the offences of corrupt practice were

removed from the Elections Act. Thus ss 94, 96, 97, 98, 100, 102(1) and 107 of the Act

relating to corrupt E practices were replaced, and s 114, partly relating to corrupt

practice, was also repealed but replaced by provisions which no longer made

reference to corrupt practice but to illegal practice F only. So that under sub-sec (1)

of s 114, for instance, the obligation to certify to the Director of Elections lay in

relation to findings of illegal practice only, and not any findings of corrupt practice as

had been the case before. By Act No 20 of 1990 the offences of corrupt practice were

transferred to G the Prevention of Corruption Act. In other words, after the coming

into operation of Act No 20 of 1990 all electoral offences of corrupt practice were

dealt with not under the Elections Act, but under the Prevention of Corruption Act.

The offences of illegal practice, however, were not transferred to the Prevention of

Corruption Act; they continued to be dealt with under the Elections Act. Thus H

under s 114(1) of the Act the findings of any illegal practice, following an election

petition, was to be certified to the Director of Elections. Under the 1990 legislation

the duty to so certify was cast on the Electoral Commission which was, under that

Act, vested with the jurisdiction to hear and determine I election complaints, while

under the Elections (Amendment) Act No 6 of 1992 the duty to so certify was cast on

the High Court petitions was restored to that court.

1997 TLR p275

KISANGA JA

It is clear from this that the purpose of the Bill is to re-introduce into the Elections

Act the offences A of corrupt practice which had been removed from that Act in

1990. Counsel, therefore, contended that there can be no rational explanation why

Parliament should restore corrupt practice in ss 94, 96, 97, 98, 100, 102(1) and 107 but

deliberately omit to restore it in s 114. Such omission, counsel B maintained, can

only be explained on the basis of an oversight or inadvertence.

In response to that, Dr Lamwai took the view that corrupt or illegal practices as reintroduced

by ss 94, 96, 97, 98, 100, 102(1) and 107 of the Act envisage that the

proceedings relating to the trial of C those offences will be of a criminal nature in

which the charge is laid, the Director of Public Prosecutions appears and, if the

charge is proved, conviction is entered. The nature of the D proceedings envisaged

by s 114(1), however, is different. That provision envisages proceedings where no

charge has been laid, the Director of Public Prosecutions does not appear and, if the

offence is proved, the court does not convict, but merely determine that the person

concerned is guilty of illegal practice. Therefore, counsel contended, the omission to

restore corrupt practice in s 114(1) was deliberate in as much as the proceedings

envisaged by that section are not of a E criminal nature; they are those which end up

not with a conviction but with a mere determination of guilt.

With due respect to Dr Lamwai, we could not accept this argument. The

determination referred to under s 114(1) that a person is `guilty' of an illegal practice,

is consistent with a criminal trial F because such determination or finding is

normally followed by a conviction. Therefore, if an election court is empowered

under the provision to make such a determination or finding in respect of illegal

practice, there is no good reason why it should not be equally empowered to make

the same finding in respect of corrupt practice under that provision, which is in fact

what the trial court did in the G present case.

But what is even more important is this: if, as Dr Lamwai argues, corrupt or illegal

practice as restored by ss 94, 96, 97, 98, 100, 102(1) and 107 envisaged that the trial of

these offences will be H a criminal nature, then the question is: why is illegal

practice also retained under s 114(1) where it is envisaged that the trial of that offence

under the Act will not be of a criminal nature? In other words, if Dr Lamwai is right,

then one could expect consistency whereby both offences ie corrupt and illegal

practices are confined within the ambit of ss 94, 96, 97, 98, 100, 102(1) and 107 and

that I the offence

1997 TLR p276

KISANGA JA

A of illegal practice would be deleted from s 114. This was not done. Yet, in our

view, it cannot be said that the omission to delete illegal practice from s 114 was

through inadvertence. For, it is conceivable that there will be instances of alleged

illegal practices in which the Director of Public Prosecutions does not consider it fit

to institute criminal proceedings. In that case the elections B court has to deal with

the allegation or allegations to see whether or not they are proved. It cannot

reasonably be said that where the court finds that the allegation of illegal practice is

proved the court should sit back and do nothing, the court must act. Therefore,

Parliament must have deliberately C retained the reference to illegal practice in s

114 in order to cater for such situations, ie to empower the court to deal with persons

found guilty of illegal practice.

Likewise there will be instances of alleged corrupt practices in which the Director of

Public D Prosecutions does not consider it fit to mount prosecution, in which case

the elections court has to deal with the matter, as was the case in the present case.

Once again if the court finds, as indeed it did in this case, that the allegation of

corrupt practice is established, can the court reasonably be expected to sit back and do

nothing? We think Parliament cannot have intended so, especially E considering the

seriousness with which the society views the offence of corruption.

As was demonstrated earlier, Parliament deliberately retained the reference to illegal

practice in s 114 to empower the election court to deal with persons found guilty of

that offence where the F Director of Public Prosecutions does not institute criminal

proceedings.

In our view, there can be no good reason for thinking that Parliament would exempt

persons found, by an elections court, guilty of corrupt practices where the Director of

Public Prosecutions has not G taken up the matter. It is for this reason that we tend

to agree with Dr Mwaikusa's submission that the omission to re-introduce corrupt

practice in s 114 was through inadvertence, especially as the objects and reasons for

the relevant Bill make it abundantly clear that the intention was to bring back the

offences of corrupt practice to the Elections Act.

H Mr Marando objected to any reference to the objects and reasons of the Bill for

the purposes of discovering the intention of Parliament when enacting the 1995

legislation to re-introduce corrupt practices into the Elections Act. He contended that

for the purposes of discovering that intention, the objects and reasons were irrelevant

and should not be looked at at all. However, learned I counsel did not cite any

authority in support of this view. For our

1997 TLR p277

KISANGA JA

part, we think that the objects and reasons for the Bill are relevant and that we are

entitled to look at A them in trying to discover the intention of Parliament when

enacting the law in question.

Given then that the clear intention of Parliament was to restore corrupt practice into

the Elections Act, there is no indication that such restoration was meant to be

effected only in some parts of the B Act and not in others. We could not gather any

such indication from the objects and reasons for the Bill to enact the law in question.

We also had the occasion of glancing through the relevant pages of the Hansard. The

debate over the Bill focussed on total condemnation of corruption and the great need

to stamp it out from the electoral process. There was no indication whatsoever that

corruption was to be treated or viewed with less seriousness in any of the provisions

of the Act, or that the C intended restoration of the offence was to be effected only

in some parts of the Act and not in others. In other words there can be no rational

explanation why Parliament should decide to restore corrupt practice in respect of ss

94, 96, 97, 98, 100, 102(1) and 107 only but deliberately omit to do D so in respect of

s 114 of the Act.

We are, therefore, firmly of the view that the omission to restore corrupt practice is s

114 of the Act was through inadvertence, and the question that now follows is, what

is the remedy? In order to E remedy this, Dr Mwaikusa urged us to interpret or

construe s 114 as including, or extending to, corrupt practice, so that corrupt practice

is placed side by side with illegal practice and both are treated equally under that

provision, as indeed they are in ss 94, 96, 97, 98, 100, 102(1) and 107. To do so,

learned counsel went on, would avoid absurdity in the operation of s 114 and would

prevent F that provision from being discriminatory in its effect.

Both Dr Lamwai and Mr Marando as well as Mr Malamsha strongly opposed this

submission and contended that to do so would amount to amending the statute by

adding words to it which is the G function of the Legislature, adding that all that the

court can do is to take note of the inadequacy in the law, if the court is satisfied that

such inadequacy in fact exists, and draw the attention of the Legislature to it for its

remedial action. H

We have considered carefully counsel submissions for both sides. We think that this

is a fit case where, as submitted by Dr Mwaikusa, the court should interpret s 114 as

including or extending to corrupt practice. The view that nothing should be added to

a statutory provision was widely accepted by the courts in England during the

nineteenth and first half of the twentieth century. Thus I for

1997 TLR p278

KISANGA JA

A instance, in R v Judge of the City of London Court (1) at 290 the Court of Appeal

(per Lord Esher, MR) said, inter alia, that:

`... If the words of an Act are clear, you must follow them, even though they

lead to a manifest absurdity. The Court B has nothing to do with the question

whether the legislature has committed an absurdity.'

Re-affirming that view, the House of Lords (per Lord Atkinson) in the case of Vacher

and Sons Ltd v London Society of Compositors (2) at 121 said:

C `... But, as Lord Halsbury laid down in Cooke v Charles A Vogeler Co, a Court

of law has nothing to do with the reasonableness or unreasonableness of a provision

of a statute, except so far as it may help it in interpreting what the Legislature has

said. If the language of a statute be plain, admitting of only one meaning, the

Legislature must D be taken to have meant and intended what if has plainly

expressed, and whatever it has in clear terms enacted must be enforced though it

should lead to absurd or mischievous results.'

However, over the years this position has changed, and the view today is that in

interpreting a E statutory provision the court may, in a fit case, read words into the

provision. Thus, for instance, in Kammins Ballrooms Co Ltd v Zenith Investments

(Torquay) Ltd (3) at 893 the House of Lords (as per Lord Diplock) adopted what was

described as the `purposive' approach, instead of the literal F approach, and imputed

to Parliament `an intention not to impose a prohibition inconsistent with the objects

which the statute was designed to achieve, though the draftsman [had] omitted to

incorporate in express words any reference to that intention'.

That approach was re-echoed and elaborated upon by the Court of Appeal in

Nothman v Barnet G London Borough (4) at 1246 where Lord Denning, MR said:

`The literal method (of construction) is now completely out of date. It has

been replaced by ... the "purposive" approach.... In all cases now in the interpretation

of statute we adopt such a construction as will promote the H general legislative

purpose underlying the provision. It is no longer necessary for the judges to wring

their hands and say: There is nothing we can do about it. Whenever the strict

interpretation of a statute gives rise to an absurd and unjust situation, the judges can

and should use their good sense to remedy it -- by reading words in, if I necessary --

so as to do what Parliament would have done had they had the situation in mind.'

1997 TLR p279

KISANGA JA

Consistent with such holding, the Court declined to adopt the literal approach, and

instead read A words into the provision of the statute which it was construing. We

find these last two cases to be very persuasive.

As stated earlier, the objects and reasons for the Bill to enact the Elections Act No 8 of

1995 make it manifestly clear that the intention of the proposed legislation was to reintroduce

corrupt practices B into the Elections Act. But that intention was

implemented only in part in that corrupt practice was not restored in s 114. Yet there

is nothing in the objects and reasons for the Bill, or indeed anywhere else insofar as

we could gather, to show or suggest that that intention was to be carried out only C

with respect to some sections of the Act and not others. So that to the extent that

corrupt practice was not restored in s 114 that section was, in one real sense,

incomplete. That is to say, the section does not reflect or fulfil the aim or intention of

the Legislature which was to bring back the Elections Act to the status which it was

in prior to the 1990 amendment to it. Had the attention of D Parliament been drawn

to that point at the time of enacting that law we feel certain that Parliament would

readily have taken steps to make the provision complete. Therefore, on the strength

of the two cases of Ballrooms and Nothman above which we have found to be very

persuasive, the Court E would be justified to interpret s 114 as including or

extending to corrupt practice, in order to promote or give effect to the general

legislative purpose of restoring corrupt practices to the Elections Act. F

Such construction is even more justified for the purpose of removing the absurdity

which arises from the literal construction of s 114. As rightly contended by Dr

Mwaikusa, s 114 when construed literally, leads to an absurdity in that it empowers

the court to certify to the Director of Elections G findings of illegal practice but gives

no such power in relation to corrupt practice. Corrupt practice is not in any way less

serious than illegal practice; indeed the learned trial judge was of the view that

corrupt practice was the more serious of the two. It would, therefore, be absurd, as Dr

Mwaikusa submitted, for Parliament to empower the elections court to certify for

sanctions persons found H guilty of illegal practice but to let those found guilty of

corrupt practice go scot free, especially considering the fierce war which the society

has been waging against corruption in recent years, and continue to do so in the

present day. Had Parliament been appraised of such blatant absurdity at the time of

enacting the Act, it would have taken steps to remove it; we feel I

1997 TLR p280

KISANGA JA

A justified to construe s 114 in such a way as to achieve just that which Parliament

had set out to do, and no more.

Again such construction is justified in order to remove the discriminatory effect of s

114 which would arise from the literal construction of that provision. Section 114,

literally construed, would be B discriminatory in its effect because, as already noted,

it empowers the court to certify for sanctions persons found guilty of illegal practice

while conferring no such power on the court in respect of those found guilty of

corrupt practice which is a similar or even more serious offence. This would

contravene Article 13(2) of the Constitution of the United Republic which in effect C

prohibits the enactment of any law which is either directly discriminatory or is

discriminatory in its effect.

Dr Lamwai's reply to this was twofold. First, if s 114 is discriminatory in its effect, the

section is D nonetheless saved under article 30(2) of the Constitution of the United

Republic which permits the making of laws that derogate from the guaranteed rights

on the grounds of national interest. With due respect to the learned counsel,

however, we cannot see how discriminating between persons found guilty of illegal

practice and those found guilty of corrupt practice can be said to promote, E

preserve or protect the interests of the nation.

Alternatively, Dr Lamwai submitted that if s 114 is discriminatory in its effect then

the remedy is not to read the words corrupt practice into it because that would

amount to amending the section which the court has no power to do. In his view the

remedy is to initiate in the High Court proceedings to F have that section struck

down for being inconsistent with the Constitution. Again, with due respect to Dr

Lamwai, we could not agree. The issue of construing s 114 was properly before the

Court, and the Court is satisfied that literal construction of that section would render

it discriminatory in its G effect and hence ultra vires the country's Constitution. In

those circumstances we are of the view that the Court is justified, and indeed has a

duty, to construe the provision in a manner that brings it into conformity with the

Constitution, and it would not be necessary or even desirable to wait for Parliament

to amend the section. The question of striking down s 114, as Dr Lamwai submits,

does H not arise because that question was not before the Court; what was before

the Court was whether or not s 114 should be construed literally.

We have, therefore, decided to adopt the purposive approach in interpreting s 114 in

order to I promote the legislative object or pur-

1997 TLR p281

KISANGA JA

pose of restoring corrupt practices to the Election Act, and to remove the absurdity

and the A discriminatory effect which would arise from the literal construction of

that section. Underlying the need to remove the discriminatory effect is the need, as

demonstrated above, to bring that section into conformity with the country's

Constitution. The construction which we have decided to adopt B entails reading

into the section the words `corrupt or' immediately before the word `illegal'

whenever it occurs in that section. But in so doing we desire to make it clear that we

are not amending the section. As amply demonstrated earlier, these words are not

being invented by the Court, and they C are not being used in that section for the

first time. They were originally used by Parliament in the 1985 Elections Act.

Although they were deleted from the Act by the 1990 amendment, Parliament sought

to restore them by the 1995 amendment but through inadvertence the words were

not restored in s 114. So that all that we are doing is to read into the section the words

which D Parliament itself had originally used in the 1985 Elections Act, deleted

them from the Act in 1990 and subsequently sought to restore in 1995 but, through

inadvertence, omitted to restore them in s 114. Those words are not in any way

attributable to the Court; they are the words of Parliament itself; they are the very

choice of Parliament and therefore, we cannot properly be said to be E amending the

law by merely reading into s 114 the words which are Parliament's own choice. But

speaking generally, even if Parliament had not specifically used those words in the

1985 electoral legislation, the Court would still be justified to use those words, or

words to that effect, in order to F achieve exactly that which Parliament had set out

to do, and which it would have done, had the situation been brought to its attention

at the time of passing the Elections (Amendment) Act 1995.

It was also contended that reading the words `corrupt or' into the section would lead

to the court G finding the respondent guilty of an offence the consequences of

which were not known to him at the time of its commission. That would offend the

rule against retroactivity. However, we can find no merit in this. If under s 114 the

court certifies to the Director of Elections that a person is guilty of H corrupt

practice, the consequences that follow would include deleting from the register of

voters the name of the person so certified, and the disqualification of that person for a

period of five years from registering as a voter or from voting. But those are precisely

the same consequences that follow under s 96 of the Act when a person is convicted

of corrupt practice. Therefore it is not correct to I

1997 TLR p282

A say that the consequences of committing the offence of corrupt practice were not

known at the time the respondent committed it.

And lastly it was submitted for the respondent that s 114 was in the nature of a penal

provision insofar as it required a person found guilty of illegal practice to be certified,

for sanctions, to the B Director of Elections. As such, therefore, it was contended,

the provision ought to be construed strictly so as not to include, or extend to, corrupt

practice. Our view of the matter is that where, as in this case, strict construction gives

rise to absurdity or discriminatory effect of the provision, such construction or

approach should not be adopted and that is what we have done.

C Thus, for the reasons set out above, we feel justified to read the word `corrupt or'

into s 114 and it is not necessary or desirable to wait for Parliament to amend the law.

We, therefore, uphold Dr Mwaikusa's submission and find that the learned trial

judge, having found that the respondent was guilty of corrupt practice, wrongly

declined to certify the same to the Director of Elections. The D appeal is allowed

with a direction to the trial court to certify to the Director of Elections in terms of s

114(1) of the Elections Act. The appellant shall have his costs.

1997 TLR p282

F