PRINCE BAGENDA v WILSON MASILINGI AND ANOTHER 1997 TLR 220 (HC)

 

PRINCE BAGENDA v WILSON MASILINGI AND ANOTHER 1997 TLR 220 (HC)

Court High Court of Tanzania - Lukoba

Judge Masanche J

B MISCELLANEOUS CIVIL CAUSE 5 OF 1995

25 August 1997

Flynote

C Elections - Election petition - Whether election free and fair - Cumulative

irregularities and malpractices rendering election unfair

-Headnote

The petitioner, who was a losing candidate in the Muleba South constituency, filed a

suit to challenge the outcome of the election. After examining the evidence,

D Held:

(i) That ballot boxes brought before the returning officer had been broken

into;

(ii) That ballot boxes brought to the returning officer had not been

escorted by the police or petitioner's agent;

E (iii) That petitioner's agents had not been provided with RF2 forms;

(iv) That the district security officer had burnt ballot papers for

demonstration;

(v) That candidates' photographs and voting formats to educate the

electorate on how to vote had been delayed;

(vi) That the counting exercise had been conducted by the returning officer

without involving F the petitioner or his agents;

(vii) That the RF2 forms had been designed in such a way that the results

could easily be tampered with;

(viii) That voting had been allowed to drag until until the day after the

election was scheduled to have been completed;

G (ix) That in the light of the cumulative irregularities and malpractices and

the deployment of FFU, who were mainly concerned with riots, at the election for

reasons of intimidation, the election had been rendered not free and fair and the

result had to be nullified.

Case Information

H Petition allowed and parliamentary election in Muleba South in November 1995

set aside.

Cases referred to:

1. Walid Kabourou v Attorney General and others Misc Civil Cause No 1

of 1994 (Tabora) (unreported)

I 2. Philip Anania Masasi v Returning Officer Njombe North Constituency

and others Misc Civil Cause No 7 of 1995 - Songea (unreported)

1997 TLR p221

3. Joseph Sinde Warioba v Stephen Masatu Wassira and Anor Misc Civil

Cause No 25 of A 1995 (unreported)

4. Dyamwale v Masomo [1982] TLR 69

5. Kasusura v Kabuye [1982] TLR 338

6. Attorney General and others v Walid Kabourou [1996] TLR 156 (CA)

7. George M Shambwe v Attorney General and Anor [1996] TLR 334

(CA) B

8. Maynard Mmita Bujiku Ng'wanansese and Anor v Attorney General

and Anor Misc Civil Case No 6 of 1995 (unreported)

Ndyanabo for the petitioner.

The first respondent appeared in person; Mwambegele for the second respondent. C

[zJDz]Judgment

Masanche J

In 1995, our Country witnessed the first multiparty general election. It was an exiting

phenomena. Thirteen parties were then in existence in the register of the Registrar of

Political Parties. At the D beginning, one thought all parties were going to field

candidates to contest for both the parliamentary seats, and the presidential post. Not

all the parties fielded candidates.

This judgment is concerned with the parliamentary and presidential elections of

Muleba South in Kagera Region. In that constituency five political parties fielded

candidates for the parliamentary E seat. Two fielded candidates for the Presidential

seat. The parties that fielded candidates were: Chama Cha Mapinduzi (CCM); their

candidate was Wilson Mutaganywa Masilingi. (I will refer to him in the rest of the

judgment as Mr Masilingi). Then there was the party called NCCR Mageuzi. They

fielded a candidate called Prince Mahinja Mulokozi Bagenda (I will refer to him in

the rest of the F judgment as Mr Bagenda). There was another Party called CUF

(Civil United Front). This Party fielded a candidate called Mr Angelo Mutta. There

was another Party called the UDP (United Democratic Party). This party fielded a

candidate called Mr Gratian Alphonce Mkoba. The fourth G Party, UMD (Union for

Multiparty Democracy) fielded a person called Simon Kashura. These were the

candidates for the parliamentary seat.

For the Presidential seat, only two parties fielded candidates. These were the CCM

who fielded a H candidate called Benjamin William Mkapa and NCCR Mageuzi who

fielded a candidate called Augustine Lyatonga Mrema. The other three parties, as far

as Muleba South is concerned, did not field any candidates for the Presidential post.

This judgment, as I have to emphasize, concerns only the election for the

parliamentary seat.

It is I think desirable, nay, necessary, to mention, at the outset, I

1997 TLR p222

MASANCHE J

A (especially to a person coming from outside Kagera) that Muleba South was one

constituency in the Muleba District. There was another constituency called Muleba

North. Muleba North was a fully fledged constituency and had a candidate called

Ndimara Tegambwage for the parliamentary post. B Ndimara contested under the

umbrella NCCR Mageuzi and won the seat. I have decided to mention this because

during the trial, counsels, and, indeed witnesses, mentioned the North quite often.

At the end of these parliamentary elections Mr Masilingi emerged the winner. He

scored twenty one C thousand eight hundred and fifty one votes as against the

second placed Mr Bagenda, who scored eighteen thousand one hundred and thirty

one votes. Masilingi, by simple mathematics became a winner by a majority of three

thousand seven hundred and twenty votes. This victory did not please Mr Bagenda

and his party. And so, they sought to challenge that victory in a court of law.

D Indeed, Mr Bagenda filed a suit in court to challenge the victory. Mr Bagenda and

his party, through Mr Ndyanab, learned counsel have fielded twenty nine witnesses,

including Mr Bagenda himself. Mr Masilingi and the Attorney General have fielded

fifteen witnesses, including Mr Masilingi himself. While Mr Masilingi presented his

case himself, the Attorney General was represented by Mr E Mwambegele, the

Senior State Attorney based in Mwanza.

I must state at the outset that the trial of the whole case was commendable. Counsels

presented their case with commendable zeal. They left no stone unturned. It was

gratifying seeing the learned F counsel Mr Ndyanabo spending a month outside Dar

es Salaam. Nobody complained of boredom. Nobody fell sick.

Now, the following issues were framed at the beginning of the whole exercise. Two

issues became added up in the course of the hearing. Certainly, nobody can complain

about the added issues, G because the law allows doing such a thing (see Ord 16 Rule

5 of the Civil Procedure Code). Even my brother Mchome J had to adopt a similar

approach in the case of Walid Kabourou v Attorney General (1).

So, the following nine issues were to be adjudicated upon, and it is upon these that

the rest of the H judgment will dwell. The issues were as follows:

1. Whether the ballot boxes were brought before the Returning Officers

broken into;

I 2. Whether ballot boxes were brought at the Returning Officer's office

without escort by either police or petitioners agent;

1997 TLR p223

MASANCHE J

3. Whether petitioner's agents were not provided with Returning Officers

Form (RF forms A referred to);

4. Whether the District Security Officer (we came to know him by the

name of Mr Aron Mpole, RWM) burnt 30 ballot papers for demonstration at Memory

Bar Muleba after he had forcefully taken them from the petitioner's agent one Gerald

Omubunda; B

5. Whether candidate's photographs and voting formats to educate the

electorate on how to vote were delayed.

6. Whether the counting exercise was conducted by the Returning

Officer without involving the petitioner or his agents;

7. Whether the forms for recording the results were designed in such a

way that the result C would be easily tampered with;

8. Whether voting exercise proceed uninterrupted until 30 October 1995;

9. To what relief or reliefs are the parties entitled.

So, we had nine issues in all. D

Like the submissions I have received and read, from all the parties involved (Mr

Ndyanabo, Mr Mwambegele and Mr Masilingi), I will proceed to discuss these issues

in the same order, or seratio. But before I do that, let me give the position at law with

regard to General Elections: It seems to me that the established is this that: E

1. `An election petition must be construed more strictly than a plaint in a

civil suit. This principle arises because (1) the right to file an election petition is not a

common law right but a statutory right; (2) one of the respondents is a person who

has been declared by the F Returning Officer to have the confidence of the

electorate and the Courts are slow to interfere with such verdicts except when a clear

case is made out; and (3) where the petitioner establishes corrupt practices, the

successful candidate may not only be unseated but even disqualified to stand as a

candidate in future elections.' Nogha's Law of Pleadings 14th Edition. Samatta JK (as

he then was) endorses this view in Philip Anania G Masasi v Returning Officer

Njombe North Constituency and others (2).

2. It is still available to challenge the validity of an election on the ground

of illegalities that are otherwise not expressly stated under 2. 108 [of the Election

Act]. H

Secondly, there is the jurisprudential argument which derives from the

spirit of the Constitution and the Election Act, and that is democratic elections have

to be free and fair. This too, has not been effected and Parliament has no power to

legislate against such principle. `An election riddled with chicanery and I

1997 TLR p224

MASANCHE J

A criminality is not an election in the eyes of the law, because it does not

express the true wishes of the electorate.' (Lugakingira J, in Joseph Sinde Warioba v

Stephen Masatu Wassira and Anor (3)).

3. The franchise is the very cornerstone of democracy; it is the one right,

perhaps more than B any other, upon which all other constitutional rights depend

for their effective protection. When the right to vote is denied or abrogated,

democracy and freedom fail.' (Lugakingira J in Joseph Sinde Warioba's case supra)

4. It is now the law that number of votes scored by candidates in an

election may not per se be used to argue that `after all even if he was given those

votes, numerically he will still lag C behind' -- So the cases of Dyamwale v Masomo

(4) and Kasusura v Kabuye (5) are now, in advent of the incorporation of fundamental

rights in our constitution, of no practical value.

5. The position then is this, as stated by Court of Appeal in Attorney

General v Walid D Kabourou (6) that:

`taking into account the principle which underlies the

Constitution and the Elections Act 1985, that elections shall be free and fair, ... an

election which is generally unfree and unfair is not an election as E envisaged by the

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

election unfree and unfair is in law valid ground for nullification of such purported

election.'

6. As has been said in a number of cases on elections, in the end:

F `the trial judge will have to take into account -- the cumulation

effect on the election of the proved irregularity'. Masasis' case (supra): Samatta J K.

The Court of Appeal in the case of George M Shambwe v Attorney General (7) had

observed that G the petition:

`[rested] entirely on the cumulative adverse effect of the series of alleged noncompliance

or irregularities in the conduct of the electoral process.'

H Having said all that, let is now look at the issues framed:

Issue No 1

Whether the ballot boxes were brought before the Returning Officer broken into:

I We had several witnesses who testified on this issue. The story

1997 TLR p225

MASANCHE J

behind this issue is that, after the election exercise, the ballot boxes locked and sealed,

would be A transported to Muleba District Headquarters by escortees who would

include representatives of the parties that would have taken part. Muleba District

Headquarters was supposed to have been the place where different results from the

boxes would be added up. The evidence received in Court, B and which has not been

much contraverted, is that some boxes for parliamentary results arrived in Muleba in

bad shape either no locks or with locks with tampered seals. Of particular attraction

to this deficiency were boxes from Nshamba, the birth place of Mr Masilingi and also

boxes that emanated from Kimwani. Nshamba and Kimwani were divisions (tarafas).

The allegation was that C Kasharunga, which was chosen to be the centre for

collection of the boxes en-route Muleba, was the most notorious in the exercise of

breaking the boxes.

On this issue we had witnesses like Wencheslaus Joseph PW6 the NCCR polling

agent at Itongo, D who testified that in the first place posters for demonstration

came late. They were in fact put up or pasted on the wall or whatever place they were

to be pasted to, at 11.30 am. Wencheslaus became lucky in that while proceeding

home he passed through Nshamba and saw four ballot boxes opened. Sensing some

foul play, Wenchslaus told the Court that their senior party official, E Byombalirwa,

PW27, decided to escort these to the District Headquarters.

There are other witnesses who testified on this aspect of boxes arriving at both the

Divisions and at the Headquarters tampered with. These were Philip Byombalirwa,

PW27 -- the one I have just F mentioned: Zuberi Mbyana RW5, the District

Education Officer of Muleba District, who called himself a `reserve' polling assistant;

Mr Singomba, RW3, the Immigration Officer and one who was an assistant Returning

Officer at Kimwani; Mr Aloyce Mpole RW1, the Security Officer, and the G

Returning Officer himself, Mr Mtalo RW9. All these testified that some 14 boxes for

the parliamentary election and 8 boxes for the presidential election got tampered

with.

As for this tampering with the boxes, the respondents give the following explanation:

H

1. That some of the boxes arrived at either tarafani or at the headquarters

itself with tampered locks and seals because of bad roads which became worse

because of the rains that were falling;

2. That the opening of the boxes (at the headquarters and not I

1997 TLR p226

MASANCHE J

A tarafani -- per Aloyce Mtalo RW9), was done to retrieve RF2s which

had been inadvertently locked inside the ballot boxes. The purpose was to get the

RF2s and RF2As out as the instructions were that they had to be in special envelopes

and ferried away separately.

B Now I agree that the boxes were sent before the Returning Officer at the District

Headquarters in bad shape. I do not, however, agree with Mr Mtalo, and Mr Mbyama,

that the seals went off and the locks became un-operational because of the bad roads.

On the contrary, the boxes were opened to retrieve RF2 forms which had been locked

in there. In doing that exercise there was every likelihood C of tampering with the

actual votes. Again, from the totality of evidence, I am satisfied that the boxes were

opened at the arafa level -- Nshamba and Kasharunga. Opening of boxes at any stage

of the electorate process before the destination was contrary to directive that these

very Assistant D Returning Officers had received from the Electoral Commission.

For example para 5 of the `Maelezo kwa Wasimamizi wa Vituo vya kura' reads:

`Vifaa vifuatavyo ni muhimu sana na vinapaswa vitunzwe na wewe

mwenyewe mpaka utakapomkabidhi E msimamizi wako wa Uchaguzi au msaidizi

wake

(h) Funguo na kufuli'

Then, Part Four goes on to state (para 55 (ii)):

F `Makosa mengine mnayoonwa mjiepushe nayo ni haya:

(i) . . .

(ii) Kubandua lakiri, kufungua au kujaribu kufungua masanduku ya kura

na bahasha zilizofungwa kama ilivyoolezwa katika Ibara ya 16 na 42 ya maelezo

haya.'

G These instructions are quite clear and I am sure the Returning Officer Mr Mtalo

and his assistants Mr Singombe RW3 and Mr Kakuleterwa RW6, to mention just a

few, knew of these instructions. By the way, in the Kishapu Case Maynard Mwita

Bujiku Ng'wanansese v Attorney General my brother Mchome J, went further and

said:

`Also among the materials to be handed to the presiding officers before the

poll are kufuli lisilofungwa, and `funguo za kufuli.'

Mchome J goes on to say, that:

1997 TLR p227

MASANCHE J

`And the ballot boxes after being locked and sealed are to be handed to the

Returning Officer and not to be opened A on the way.'

Mchome J then concludes:

`These provisions of the law are mandatory and go to the root of an election.'

B

I could not have a better assistance than those observations of my brother Mchome J.

The Assistant Returning Officers, even if RF2 forms had been inadvertently locked

inside the ballot boxes, ought to have used their good sense and judgment by not

opening them en-route. C

I have read the submission by Mr Mwambegele where he says:

`No person testified to have seen fake votes being either put or even seen in

the ballot boxes. The petitioner D capitalised on bringing evidence to show that the

boxes arrived at Muleba broken into and as such this remains a mere allegation which

did not affect the result of the election.'

I do not agree with Mr Mwambegele. Later in this judgment I will demonstrate how

that lapse E affected another issue.

On the first issue I hold in the affirmative that boxes were brought to the

Headquarters broken into.

Issue No 2 F

Whether Ballot Boxes brought to the Returning Officer were not escorted by police

or petitioner's agent:

The witnesses who came to say something on this issue were the Returning Officer

himself, Mr Aloyce Mtalo, Wencheslaus Joseph PW6; Kashaju Bazigiza PW7,

Aristides Jeremiah PW10; G Benedict Mutongore RW10, Sam Kashura PW26, to

mention just a few. Their evidence, in totality, was clear and simple. The boxes were

not escorted by all these who were supposed to have escorted them. And, we are

given the reasons for that: It is alleged that there was no space in the vehicles to

accommodate the Party agents. Was that explanation plausible? I think it was. But

then H one would ask why did the Returning Officer, right at the beginning, not

make sure that there was enough transport to ferry the boxes, and most importantly

the escortees? Mr Mwambegele, in his submission, admits that there was such a lapse

(although he puts it as a `sake of argument') and adds: I

1997 TLR p228

MASANCHE J

A `It is one thing to prove that the boxes were not escorted by neither the police

nor Petitioners' agents to the Returning Officer and it is quite another to prove that in

that course, some boxes were tampered with.'

B I do not agree with that proposition. In all these election processes, transparency

should be always be the target. This aspect of drivers of the lorries leaving behind

agents, and in most cases they were agents of the other parties other than CCM, has so

notoriously been spoken of that it is unnecessary to labour on the point. I answer the

second issue in the affirmative.

C Issue No 3

Whether petitioner's agents were not provided with RF2 Forms:

This issue has also so notoriously been spoken of. The best evidence, of course, came

from the D Returning Officer, Mr Mtalo, himself. He admits that RF2 forms were

few. He put it this way:

`After discovering that they [RF2] were few, we made a cyclostyling of the

copies. But even cyclostyling did not E produce enough copies. I advised my

assistants to tell the agents to write on any piece of paper.'

Witnesses, who testified on shortage of these vital forms -- forms that were to bear

the entire results of the election, were just too many. There was Valentino Karoli,

PW5; Wencheslaus, PW2; F Kashaju Bazigiza PW7; Stanslaus Sotery PW8; Aristides

Jeremiah PW9. Frederick Baharuza PW4, for example who was a polling agent of

NCCR at Kashenge, talks of inadequacy of these forms. Valentino Karoli of Kiholele

Primary School polling station testified that they were refused the G forms, being

told that they were not in existence. In other words not a single form was there.

As I say, the issue of RF2s being in short supply is true.

The Attorney General argues on the other hand, that RF2s were indeed in short

supply. He goes on to state that, in any case, the law provides that they can be

distributed to every polling agent `if H available in sufficient numbers' (s 79I(e) of

Election Act).

Now, what I say is this, that in the first place Kagera Region, as a whole, and Muleba

District, in particular, received sufficient supplies of RF2s, RF2As and ballot papers. In

any case each polling station was supposed to have the two sets for just the five

political parties that had contested for the I parliamentary set. This Court was

informed of this through Mr Bagenda the petitioner, who was read-

1997 TLR p229

MASANCHE J

ing Taarifa ya Tume ya Taifa ya Uchaguzi kuhusu Uchaguzi wa Rais na Wabunge

1995 -- a book A which was tendered as Exhibit P15. On p 42 of the book, it is

categorically stated that Kagera was, in fact the first region which received its quarter

of voting materials from England. The papers were received in Dar es Salaam on 11

October 1995. Truly, the papers (all) were late in reaching Kagera, but they

eventually reached Kagera. (See 6.11 on p 44). B

The problem which beset these RF2 forms were necessitated by Mr Mtalo, the

Returning Officer, himself who took a casual attitude of the type of work he was

supposed to do. Part of his own evidence in fact says: C

`I did not make a follow up to find out whether what I told them was done. I

got a report that all was fine.'

All was not fine with the RF2 forms. There was a serious allegation that many agents,

including Mr D Bagenda himself saw piles and piles of RF2 forms in the office of Mr

Mtalo. If I make take up the story on this aspect of the case by Mr Bagenda himself,

from the proceedings: He said:

`In the office of Mr Mtalo we found RF2s. Of course the report talks of

negligence in Dar es Salaam. But the pattern E was the same in Muleba. I saw them.

They were RF2s and not RF5 or RF4. I went there and touched them and asked Mr

Mtalo "what are these?"'

Mr Mtalo's reply was:

`It is not true that there were piles and piles of RF2 forms in my office.' F

He went on to say:

`I had other forms like RF2A, RF3A and RF5.' G

I have no slight hesitation in saying that Mr Bagenda saw RF2 forms in the office of

Mr Mtalo. I have no reason to disbelieve Mr Bagenda who impressed me by being

steady and composed in the H dock.

I therefore answer the third issue in the affirmative.

Issue No 4

Whether the District Security Officer (Mr Mpole) burnt thirty I

1997 TLR p230

MASANCHE J

A ballot papers for demonstration at Memory Bar in Muleba:

The story goes that on 28 October 1995, a day before the actual voting, Gerald

William Ndyamkama was given between ten to twenty posters (with pictures of

candidates) so that they are sent to what ever polling station that was supposed to get

them for pasting. He met Mr Mpole, RW1, B the Security Officer of Muleba District

on the way. It was roughly between 10.00 am and 12.00 noon. Mr Mpole it is said,

asked Gerald, after he (Mr Mpole) had found Gerald with these posters. He said:

C `Wewe ndugu yangu kwa nini unataka kujiingiza katika migogoro?'

Then, it is also said that Mr Mpole told Gerald that it was a criminal offence to be

carrying those posters. Then, it is said, Mr Mpole took them away and proceeded to

Memory Bar, in that broad daylight, and burnt them with kerosene. The kerosene

was brought to him by a barmaid, who of D course was not called as a witness. Poor

Gerald, he was later taken into the same bar and given a beer.

This story was controverted by Mr Mpole himself. He, indeed, agreed that such forms

were burnt, E but said that they were burnt by Gerald himself because, according to

Mr Mpole himself, Gerald had a grudge against Mr Bagenda. Mr Bagenda had refused

to pay Gerald some money. What is surprising, however, is that even when Mr Mpole

met Mr Bagenda a few minutes after the burning of F the posters, Mr Mpole never

told Mr Bagenda that he (Bagenda) had refused a person payment of money. Let me

reproduce what Mr Mpole said. Mr Mpole's evidence reads:

`He (Bagenda) said that the act of burning papers I had done was bad. I told

him that I had not burnt any papers. I G told him that if any papers were burnt, he

should report to the police. I did not tell him that the one who burnt the papers was

Gerald (audience laughs).'

Now, after evaluating all the evidence regarding this allegation of burning these

papers, I am H satisfied beyond reasonable doubt that Mr Mpole burnt these papers

for reasons which are obvious -- to prevent Gerald from reaching and teaching his

people on the posters.

Frankly speaking I was not impressed at all by the evidence of Mr Mpole. I am just

wondering what type of Security Officer this is -- a person who did such a childish

thing, and without foreseeing its I consequences. Mr Bagenda has said this, on these

posters, (and I

1997 TLR p231

MASANCHE J

agree with him), that actually they are `visual aids'. Mr Bagenda informed the Court

that: A

`In any case, in adult education theory, visual aids are most effective.

Illiterates become well informed on visual aids. Some old men do not hear well.

Pictures are very important to show personality or composure. We would, for

example, explain that `our man in the picture is the one with a hat or we would say,

`our man is the last one in the B line' or things to that effect.'

Mr Mwambegele has complained, in his submission, that maybe, the barmaid ought

to have been called to testify on who had burnt the papers. She should have come to

say that it was Mr Mpole C who burnt them. I do not agree with that proposition. In

the first place burning of those papers by who ever would have done it was bad

enough. It was worse that it was done by a Security Officer. Even if Gerald had burnt

them, the blame would have equally been thrown on Mr Mpole. He was a D

Security Officer of a country. One of his duties, like any other organ of state, is to see

that peace and tranquillity prevail in a country. He would have been castigated for

failing to prevent who ever burnt them from burning them. I answer the fourth issue

in the affirmative. E

Issue No 5

Whether candidate's photographs and voting formats to educate the electorate on

how to vote were delayed: F

This issue need not involve us much. Almost all witnesses who were agents of the

polling stations -- be it for CCM or the other parties have been at one that these

posters were late in going up on Notice Boards or where ever that were to be placed.

If I may mention a few of the witnesses who said so: They were Ruben Tibenda PW1;

Valentine Karoli; Wencheslaus Joseph PW6; Thadeo G Mugusha. These, with others,

testified that posters were pasted late.

As I said earlier on, it was not for fun that the Electoral Commission provided for the

issuance of these posters. One would have therefore expected the Returning Officer

to have been more vigilant in seeing that they were pasted early. But what did Mr

Mtalo do? At p 125 of the proceedings he H says:

`We showed the officials the forms and how to use them. We gave party

representatives some of the papers. Some were given to polling agents. They were to

be posted on open space at the polling station. I did not get a I

1997 TLR p232

MASANCHE J

A report from anyone or voter saying that he did not vote because of not having

posters.'

With due respect, that is not an acceptable explanation. It is a lackadaisical

explanation.

B I answer the fifth issue in the affirmative:

Issue No 6

Whether counting exercise was conducted by the Returning Officer without

involving the petitioner on his agents:

C Mr Mtalo has refuted to have conducted the counting without involving the

Petitioner. He says he made the totalling at the District Headquarters without Mr

Bagenda, the petitioner, because the petitioner himself refused to cooperate.

The story unfurled in Court about this issue is as follows:

D After it was discovered that some ballot boxes from the polling stations had been

opened at the tarafa level for purposes of correcting what had gone wrong with regard

to where the RF2s were to be preserved, the petitioner and his agents, who included

Philip Byombalirwa, asked for a recount. They were refused. This was, indeed

contrary to sub section 3 of s 80 of the Election Act No 1 of E 1985 which provides

`The candidate or polling agent may request the Returning Officer to check

on any part of the addition to ascertain its accuracy but shall not be entitled to request

a recount of all the votes or all the ballot papers from any polling F station, unless

the accuracy of the report of the results from that polling station, were disputed by

the polling agent or candidate present.'

Subsection 4 reads:

G `Where a request is made pursuant to sub section (3) the Returning Officer

shall not unreasonably refuse to check the addition or to recount the ballot papers of

any particular polling station.'

I have indeed minuted somewhere in this judgment that with the advent of the Bill of

Rights, a H candidate's request for a recount has no debate. Refusing a recount is

against the spirit of fair play in the electoral process.

The evidence unfurled in Court is to the effect that the petitioner in no uncertain

terms asked for a I recount. He said, in Court, for example:

1997 TLR p233

MASANCHE J

`I insisted on a re-count. If there was a point of dispute which I had, I was

entitled to a request of a recount. Some A of the matters in dispute took place at

transit point. There were no forms at these transit points. We were entitled to be

listened to, and have a recount.'

It was interesting to see how the respondent went about defending this issue. The

respondent's B (both) explanation or defence to this vital aspect of the case was a

total confusion. Whereas in examination in chief Mr Mtalo said:

`When we discovered that RF2 had no signature or any other problem, we

decided to recount, that is, in respect of that particular box.' C

Later Mr Mtalo is recorded to have said:

`We agreed that where there were RF2 or RF2A which were defective or they

were not there at all we would make a recount. Where there was no RF2 either inside

the boxes or outside the boxes we were to make a recount.' D

Then on cross examination, Mr Mtalo is reported to have said:

`It is not true that I refused a recount for Muleba South.' E

But earlier on, a witness from the respondent's side, Mr Zuberi Mbyana, RW5, the

District Education Officer, said something to the contrary. This witness, coming from

the respondent's side was so steady and impressive that I intend to quote him

extensively. F

Mr Mbyana is a District Education Officer of Muleba District. He is a graduate of the

university of Dar es Salaam, having obtained his degree in 1991. Apart from saying

something on this particular point of a recount, he said some other pertinent things as

I will demonstrate. G

On election materials he said this:

`Some people had told me that they had placed the RF2 forms in boxes. I

consulted Kasika who was the boss there, for guidance -- Kasika told me that since the

agents were there they should be allowed to open the boxes so H that they hand

over the RF2s properly. I told them to open and hand over the RF2 forms to me --

that was for those who had locked them inside.'

About the RF2 forms being pulled out from the boxes, Mr Mbyana agreed that there

were such boxes which were broken into. I

1997 TLR p234

MASANCHE J

A And when Mr Zuberi Mbyana, RW5 was cross examined by Mr Ndyanabo for the

petitioner he said (now on the recount aspect):

`There was adding up. We were in group. NCCR had wanted a recount of the

votes. They were refused. Other parties apart from NCCR agreed for the addition. In

the North they did a recount.'

B I think now is opportune time to explain the Muleba North analogy in the

counting and adding of votes.

There was evidence that Mr Mtalo was equally a Returning Officer for Muleba North.

The petitioner C brought a witness James William Rwayongeza PW28, an

Evangelist, who came to tell the Court that as far as Muleba North was concerned, Mr

Mtalo had allowed a recount. Something happened when this witness was testifying

which I think is not insignificant. To me it goes to real credibility. D There was a

time when Mr Masilingi, the first respondent, suggested, in Court that he (James

Rweyongeza PW28) was telling lies. We all remember what he retorted.

He said:

E `I have not been taught. I am a God's man. I have handled this Bible. I fear

this Bible -- its God's work. Don't talk about my being taught.'

And indeed, as I observed this witness, he looked angry at being told that he had been

taught to say F that in Muleba North there was a recount of the votes.

And concluding his evidence, on being led by Mr Ndyanabo, this particular witness

said:

`In the North, the misunderstanding was between CCM and NCCR. Mr Mtalo

solved it by saying we should do the G counting again. In the South it was the same,

Mr Mtalo was called to solve the problem between CCM and NCCR. He allowed in

one area and refused in the other. Where he allowed a recount, NCCR Mageuzi won.

Where he refused, CCM won.'

H But, why was there a refusal of a recount in Muleba South while in Muleba North

such a request was granted? The explanation is a `beat about the bush' Mr

Mwambegele, says:

`There was no complaint envisaged by this provision (s 80(3) of the Election

Act) and therefore the Returning I Officer was in no way, in a

1997 TLR p235

MASANCHE J

position to accept to recount all the votes from any polling station. For these

reasons we humbly submit that the A Petitioner has not proved this issue and pray

for the dismissal of the same on account of its not being proved, let alone its not being

proved to the standard.'

Without labouring much on the point, it is not true that there was no complaint.

There was verbal B complaint from the mouths of Mr Bagenda himself and Phillip

Byombalirwa. Again there was the letter from Bagenda (Exh P16).

I answer that sixth issue in the affirmative. C

Issue No 7

Whether RF2 forms were designed in such a way that the results would easily be

tampered with:

On this issue we can only express opinion.

I am made to understand from the petitioner that these forms were designed by the

National D Electoral Commission. I think they have a mandate to design such forms.

There have been criticisms from both sides on the format of the forms. Mr Mtalo

RW9, the Returning Officer himself said, that:

`The RF2 forms are not in good format. They are prone to tamper. One can

pull out the first page and fill fake E numbers.'

Bagenda, the petitioner, said, if I may quote him (at p 65) of the typed proceedings

that:

`The design of RF2 is bad. It is a document of the Electoral Commission. I

thought, in first place, it ought to have F been eritten `tume ya uchaguzi', so that if

it fell in wrong hands we would know where to sent it. Again, I thought they should

have put their address there. Right now we do not know whether this belongs to the

Government of Tanzania or Tanganyika or Uganda.' G

He went on to say; that:

`The M.P. forms are of two sheets. The two can be separated and on each one

can be written anything. The pieces of paper should have been folding, if there was

need of having two papers.' H

I think the format of the RF2s is bad. Surprisingly in their report `Taarifa ya Tume ya

Taifa Uchaguzi kuhusu Uchaguzi wa Rais na Wabunge 1995,' the Electoral

Commission does not point out this I

1997 TLR p236

MASANCHE J

A weakness. But, I am not prepared to say, with exactitude, that in the case before

us the RF2 forms were tampered with in a particular way. Maybe, if we have had a

recount we would have seen what was tampered with. Surely, however, the forms are

badly designed and they are prone to a rig. I answer the seventh issue in the

affirmative.

B Issue No 8

Whether voting exercise proceeded uninterrupted until 30 October:

C Well, without beating about the bush, yes, indeed, the voting proceeded to 30

October 1995. Tikenda PW1 said so. Reuben Fredrick PW2 said so. But why did the

voting overflow to 30 October 1995? We are told that it was because of the poor

supervision of the electoral process by Mr Mtalo RW9. Mr Mwambagele, the learned

state attorney for the Attorney General, concedes in his D submission when he says:

`it was interrupted by shortage of ballot papers for parliamentary elections.

The papers were sought from the Assistant Returning Officer during which the

exercise was stopped but resumed after getting papers'.

E I have already held that there was no short supply of ballot papers from Dar es

Salaam. In fact Kagera (according to the Report of the Electoral Commission -- Exh

P15) got three thousand six hundred and thirty two extra ballot papers for the

parliamentary election. And, it is these shortcomings by the Returning Officer which

made the voting go into the night and even overflowing F to the next day, as I have

already pointed out. Such things are to be avoided if, in a democratic society, an

election is to be seen to be free and fair.

True, it may not be an offence to proceed to vote, until all people in a queue have

exercised their G vote. But as we were told, it was envisaged that there would be no

such overflow to the next day.

And that is why a polling station was to take a maximum of three hundred registered

voters. I answer the eight issue in the affirmative.

H I will jump the ninth issue which is normally adjudicated at the end of civil

litigation -- it is to what reliefs are the parties entitled to.

There is a body of submissions from both sides on what appears to be a synthesis of

malpractices which, in the course of hearing the petition, have cropped up and which

the Court cannot close its I eyes to.

1997 TLR p237

MASANCHE J

There are four typed pages of such submissions by Mr Ndyanabo, learned counsel for

the A petitioner, and seven such typed pages by Mr Mwambegele, the learned state

attorney for the Attorney General, the second respondent. Mr Masilingi's was the

shortest. It has just a page.

In the course of hearing the petition matters have indeed cropped up which in the

end we have to make findings on. I think we agree that the following matters have

surfaced: B

1. Infiltration of Government Officials for purposes of spoiling the smooth

running of the voting; C

2. Creation of an additional polling station at Nkomera (No 159/A/187)

Kimea Health Centre without the knowledge of other participating political parties

except CCM;

3. Unnecessary deployment of FFU (Field Force Unit) at Muleba during

the addition or counting of the votes; and D

4. Creation of transit and processing centres.

These are issues which came to light and which either I have said very little of them

in the judgment or not at all.

On infiltration of government officials for purposes of spoiling the smooth running of

the voting, this E is what has been unfurled:

During the hearing of the petition, the Court came to know that the Returning

Officer Mr Mtalo deployed the following people to participate fully in assisting him,

but these have been found to have had no locus standi and a nomclature Assistant

Returning Officer `Reserve' was created. The real F Assistant Returning Officers --

proper if I may use that word, who are on record to have been duly appointed and

sworn were:

1. Mr Ndyaigati (not called to give evidence) G

2. Mr Kasika (not called to give evidence)

3. Mr Muchunguzi (not called to give evidence)

4. Mr Sing'ombe RW3

It is said that these were appointed by the Electoral Commission itself in Dar es

Salaam. The H Returning Officer was empowered to appoint other cadres with

specific titles. These were the polling assistants and presiding assistants. These were

numerous.

But then there has come a complaint that others were also appointed to the Assistanty

Returning Officers `reserve'. And these were: I

1997 TLR p238

MASANCHE J

A 1. Cyprian Minja (not called to testify)

2. Zuberi Masoud Mbyana RW5, The District Education Officer

3. Peter Hollybone Karugira RW10 the District Cultural Officer

4. F M Kaluleterwa RW6 the District Land Officer of Muleba District, and

B 5. The late Philip Chawe.

These were appointed by the Returning Officer as `reserve'. In trying to probe the

authenticity and locus standi of these people, some oaths (Exh R3) were tendered in

Court. These oaths have been C a subject of criticism. The petitioner's advocate Mr

Ndyanabo has asked the Court to see them as forged oath certificates. The reasons for

asking these certificates to be regarded as forged are the following:

D 1. That Karugila, RW10, did not tell exactly which type of magistrate

swore him in. At first, he said the District Magistrate swore him. When he was shown

his alleged certificate of oath, which shows that it was the primary Court Magistrate

who swore him, he changed the story and said that it was the Primary Court who

swore him. Now, this man is a District E Cultural Officer who completed standard

12 at Grewal Secondary School. He went to a Teachers College and obtained Grade

`A' Teaching Certificate. I do not believe that such a person would not know the

difference between a primary Court Magistrate and a District F Magistrate.

2. Whereas Mr Karugila was in confusion as who to had swore them in,

Mr Ephraim Kaluleterwa, RW6, the other `reserve' officer, said it was the District

Magistrate Mr Mashauri who swore them at the District Commissioner's Office. And

yet, the same Mr G Mtalo RW9, when cross examined by Mr Ndyanabo (page 136 of

the typed proceeding -- way down) replied:

`Yes I know some people never took oath.'

H Now what comes clear to my mind is that these `reserve' officers never took oath

at all. I therefore agree that RW3s tendered are forged documents. The Returning

Officer must have realised late, after election, that his `reserve' officers never took

oath. He must therefore have rushed to the primary Court for a late oath taking, not

knowing that the perfunctory way he was I going about the matter would create

more problems.

1997 TLR p239

MASANCHE J

It is therefore true that Civil Servants who had nothing to do with the election were

made to A supervise the election: this was against s 3.7(4) of the Election Act 1985

which says that:

`Every Returning Officer and Assistant Returning Officer (note there is no

Assistant Returning Officer or: Reserve' Officer) shall, before embarking on the

functions of that office during any election, take and subscribe to an oath or B

secrecy in the prescribed form before a magistrate.'

For purposes of completion on this issue of Government Officials infiltrating without

mandate, I must single out one particular official, Mr Karugila. This person was the

most troublesome, I am C sorry to say. It was said by Kashaju Bazigiza PW7 that this

person was:

`Opening big envelopes. He was opening envelopes of rubber stamps, papers,

RF2s and candles and pouring them on the table.' D

This is the person who, again, was attacked very vehemently by Philip Byombalirwa,

PW27. The opposition group had put up a case refusing Karugila from having any

connection with the election. Philip had said of Karugila. E

`I had a problem with Karugila. He had tampered with previous elections.

People saw ... We did not like the behaviour of Karugila. We had put up an objection

to Mr Karugila. I notice that the Returning Officer picked him.' F

These allegations were not seriously controverted by the Respondents apart from

saying that there were a lot more other people who were listed out by the

Byombalirwa group as being not fit to supervise the election as polling assistants or

polling agents. Mr Mtalo, in fact, informed the Court G that, if he was to listen to

these allegations, he would have nobody to act as polling assistants or polling agents.

I think there was enough evidence to show that Karugila was seriously opposed by

the NCCR group and other parties. Mr Mtalo could have easily pulled out Karugila,

thus demonstrating to the political H parties that he was bent on making the

election free and fair.

Karugila himself came into the witness box and spent considerable time testifying. He

was not impressive. He was, in fact, very uneasy. While in the witness box while

being cross examined by I Mr

1997 TLR p240

MASANCHE J

A Mwambegele on the bad picture given of him by the opposition side, especially

Philip Byombalirwa, he only hit back by saying that Philip Byombalirwa had abused

him. He said at one time at Nshamba:

`Wewe na ufupi wako toka hapa.'

B And the same Karugila called Philip Byombalirwa a `mad' man.

Mr Mwambegele submits that

`these [Karugila and the rest] were appointed as polling assistants but were put

reserve at the transit points to C await any assignment from the Returning Officer in

case of any emergency'.

That is not true. The naked fact is that Mr Matalo allowed them to do what they did

without lawful mandate.

D I will, at the end of this judgment, say something on Government Officials who

deliberately become over zealous in elections.

The next issue that cropped up in the course of the trial was the deployment of FFU at

Muliba during the addition.

The OCD (Officer Commanding District) of Police Muleba Mr Ndegera RW2

confirmed that he E deployed FFU to the scene of addition of votes and counting.

According to him, he called them to be `stand by.' He went further to state that the

FFU did not beat people.

F But there is evidence on record from Bagenda, that FFU came to the scene in

combat gear and were chasing every one from the scene, including Bagenda himself. I

am satisfied that FFU were deployed for reasons of intimidation. This was contrary to

fair practice in a fair and free election. The ordinary policemen who were there,

including the policewoman, D/Cpl Judith, RW4, were G adequate for purposes of

maintaining peace.

It is common knowledge that FFU are mainly concerned with riots. Therefore their

deployment was deplorable.

I have already said something about creating transit points en-route to Muleba

District H Headquarters. I have also held that they were so put up and, indeed,

there, RF2 forms, were retrieved. This was a practice against the instructions from the

Electoral Commission.

Now, the biggest question comes: Have all these malpractices, in their cumulative

form affected the results of Muleba South, to the extent that they were not free and

fair and that, therefore, the results I should be nullified? That is the question.

1997 TLR p241

MASANCHE J

Mr Masilingi, the first respondent and the incumbant member of parliament for

Muleba South has A submitted that they should not as he himself never got

involved. He argued that he never was a party to any malpractice. He said he was

cooperative throughout. In any case he is a lawyer, he argued, and would know the

dire consequences of malpractices in an election. B

Mr Bagenda, the petitioner, in his evidence on the other hand pointed out that in

election petitions the question is not whether the winner became part and parcel of

the fraud. The main issue is whether the entire election could be termed free and fair.

I add that parties, or contestants may be absolved from any malpractice. But if the

whole electoral process gets marred by irregularities and C malpractices whose

cumulative effect make the whole election unfree and unfair, a Court of law must

declare the elections void, and I must hasten to add, that this is not unnecessarily

setting high standard in our electoral process. I would therefore vehemently disagree

with the remarks made D recently in Zanzibar by a reputable English journalist,

David Martin, who, in a paper he read at a seminar there, the paper being titled

`Democracy versus Diplomacy: the case for a Dialogue in Zanzibar.' said:

`. . . sadly in Africa it is rare for a loser to accept defeat without saying the

elections have been rigged, staging or E planning a coup detat, or going to Court. All

too often individual ambitions ignore the collective good'. (Reported in Sunday News

of 13 July 1997).

That is absolutely not true. F

It is now time, at this earliest opportunity, to impress upon society that, as my brother

Lugakingira J said in Warioba's case supra:

`. . . the franchise is the very cornerstone of democracy; it is the one right,

perhaps more than any other, upon which G all other constitutional rights depend

for their effective protection'.

The petitioner, Mr Bagenda himself, put it this way: absolving his adversary, the

incumbent member of parliament the Hon Mr Wilson Masilingi, he has said,

observations to which I entirely agree with, H that in this country:

`We are trying to build democracy. Some things must be corrected as early as

this, before it becomes to late. We are fighting for a good system.' I

1997 TLR p242

A I have answered practically all issues framed, in the affirmative. But before I end,

I should perhaps put on record that in all these irregularities and malpractices, the

culprit has been the Returning Officer Mr Mtalo and his assistants. It could be

nothing but over zealousness and a sheer lack of responsibility. I must also single out

Mr Mpole, the District Security Officer, who for reasons B best known himself but

which border on childishness, burnt demonstration posters.

I end by saying that the irregularities and malpractices I have pointed out in this

judgment went to the root of the election, making the whole process meaningless and

thus making the election not C free and fair. I have every hope that in future, if not

now, government officials who, because of over zealousness mar or spoil the smooth

conduct of elections be disciplined.

I allow the petition and declare the parliamentary elections held in Muleba South in

November 1995 D null and void and it is set aside. The petition is allowed with costs

to be taxed.

But, as I have found the first respondent, Wilson Masilingi, not concerned with these

irregularities and malpractices, I order that he be awarded costs by the Attorney

General. These costs will also E have to be taxed.

1997 TLR p242

F