Nonga v. Attorney-General and Bunuma Misc. Civ. Cause 9-M-70; 28/7/71; El-Kindy Ag. J.

Nonga v. Attorney-General and Bunuma Misc. Civ. Cause 9-M-70; 28/7/71; El-Kindy Ag. J.

This was a petition challenging the results of the elections in Msalala/Busanda constituency on the ground that there was non-compliance with section 88 of the Election act 1970, that is the Returning Officer and Assistant Returning Officers failed to open the Ballot boxes and to count the ballot papers personally, but abdicated their functions to enumerators, and this affected the result. The Attorney-General admitted that there was the non-compliance alleged. The petitioner was beaten by a majority of 1,606 votes; he polled 10,978 and the successful candidate polled 12, 684 votes.

            Held: (1) “Section 88 of the Elections act, 1970 provides that the Returning Officer and Assistant Returning Officers “shall” open the ballot boxes, count the ballot papers therein and record the totals of each ballot box before mixing them. The facts in this case showed that enumerators opened the ballot boxes, counted the ballot papers and announced the result. This was contrary to law and therefore it cannot be said that here was compliance of this provision …… it appears that the opening of each ballot box by the Returning Officer and Assistant Returning Officers is the guarantee against tampering with the ballot papers by enumerators or anybody else before the counting of votes commenced. If this provision is not followed tot eh letter, the Returning Officers and their assistants cannot be certain about the totals of ballot papers.” (2) “This case illustrated his clearly. At the first count the total was 32, 956 but the final total was 26541, and the Returning Officer or his assistant cannot possibly be certain as to which total was in fact the correct one. By allowing enumerators to take the first count, the Returning officer or his assistant deprived himself f the means of making sure as to the correctness of the grand total. In such circumstances, such election officers cannot hope to explain satisfactorily the discrepancy of figures. As a result of this, this Court cannot know how many people voted in Msalala/Busanda constituency out of the registered total of voters of 44,516. This Court has no reason to accept one figure as against the other. If it accepted that in fact there were 26, 541 ballot papers, the question arises as to where the rest of 6415 ballot papers went to. This figure could easily tip the results of this election as to which candidate would have been successful. This Court they would not be reasonably sure that the

Petitioner would not have won had the 6415 ballot papers not disappeared. The other possible explanation was that the total of 32,956 was mathematically wrong. Assuming for the moment that the figure of 32956 was wrong, and that the figure of 26, 541 was correct, this court would still not be certain whether the results would to have been affected when (a) one of the ballot boxes was produced in open state and (b) the fate of three other ballot boxes was not known. This Court is not certain about the total number of ballot papers which were in all these four ballot boxes. It is possible that their grand total could have been less that 1006 but it could also be that they were more than 1606. The production of the opened ballot box by unknown person, from unknown place, with unknown number of ballot papers, does not make it easy for this Court to hold that this state of affairs did not affect the final results of elections. And bearing in mind that there were lights out twice during the vote counting, the possibility of tampering with votes, either by taking away or adding to the heap of ballot paper on the counting table, cannot entirely be ruled out. In all the circumstances, this Court is satisfied that the petitioner has proved noncompliance of section 88 of the Elections Act 1970 and that, as a result of this noncompliance the results were affected within the meaning of section 123(3) (c) of the Elections Act 1970.” (3) Petition allowed.