Yongolo v. Erasto and Attorney-General Misc. Civ. Cause 6-M-70; 16/7/71; El-Kindy Ag. J.

 

Yongolo v. Erasto and Attorney-General Misc. Civ. Cause 6-M-70; 16/7/71; El-Kindy Ag. J.

            This was a petition challenging the results of the parliamentary elections in Sikonge constituency on the grounds mainly that; (a) the presiding officers engaged in illegal practice during voting by (i) voting for some illiterate voters  without showing the voters that they marked the ballot papers according to their choices, (ii) voting for some voters who were literate and able to vote for themselves; (b) the presiding officers engaged in undue influence in following voters into the voting enclosure where the voters were supposed to exercise their rights to vote freely and secretly  and by advising and/or urging and/or exerting influence on voters to vote for the candidate of their choice. The allegations were not proved but evidence emerged that; (a) there was no screened compartment at one polling station (Kawale) and that anyone could observe how a voter cast his vote which arrangement contravened section 71(d) Elections Act 1970; (b) the presiding officer was present in the screened from at Chaubwa Barazani polling station on a number of occasion without any cause. The issue was whether these non-compliances with the law affected the results of the elections. The petitioner polled 7,389 votes while the successful candidate polled 8, 057 votes winning by a majority of 668 votes.

                        Held: (1) The illegal practice and undue influence alleged against the presiding officers were not proved. (2) “The party which seeks to avoid election results, has to prove, to the satisfaction of the court, that there was non compliance with the provisions of the Elections act 1970 …… and that such non-compliance affected the results ……. I would  

            Respectfully agree and endorse the views of the learned judges (Georges C. J. and Banmerman J. as they were then) in the case of Mbowe v. Eliufoo [1967] E. A. 240 that “proved to the satisfaction of the court” means proof beyond reasonable doubt, and that is the standard of proof which the petitioner has to discharge in this petition if he is to succeed.” (3) “The next issue therefore is whether this noncompliance with the provisions of the law affected the results of the election. On this legal point I was ably addressed by both learned counsel, ad I am grateful to both counsel as I have already said. The case of MBOWE v. ELIUFOO (1967) E. A. p. 240, passages from the commentary at page 116 paragraph 942 of ENGLISH & EMPIRE DIGEST Vol. 20, HALSBURY’S LAWS OF ENGLAND 3^rd Edn, Vol. 14 at page 150, 159 and paragraph 289, and the case of WOODWARD v. SARSONS (1948) 2 All E. R. page 503 were quoted in the course of this submission. Although I avoid quoting these leaned opinions in this petition, I take them into account on the issue. But, it seems to me hat it is a futile exercise to attempt to define what the statutory provision means by the phrase “affected the result of the election” and probably in the course of such attempt the borderline might be unduly affected. In the case of MBOWE V. SARWATT (1967) E. A. p. 240 THE LEARNED Chief Justice (as he then was) attempted to define a similar phrase as it hen appeared in s. 99 of the National Assembly (Elections) Act, No. 11 of 1964, s it can be seen from this passage, at page 242:- “In my view in the phrase ‘affected the result’, the word ‘result’ means not only the result  in the sense that a certain candidate won and another candidate lost. The result may be said to be affected if after making adjustments for the effect of proved irregularities the contest seems much closer than it appeared to be when first determined. But when the winning majority is so large that even a substantial reduction still leaves the successful candidate a wide margin, then it cannot be said that the result of the election would be affected by any particular non-compliance of the rules.” And at page 245 (para2 from bottom) the same learned judge said:- “In these circumstances, it is not necessary for me to define exactly what the term ‘affected the results of the election’ would mean in this particular case, and I would certainly refrain from doing so as this is a matter of some difficulty. We would prefer to leave the matter open in the event that in another petition the facts proved raise this issue more precisely for determination.” In this passage, the attempt was abandoned as the matter was of “some difficulty and it was found unnecessary to define “exactly what phrase meant. In other words, this court did not In fact define what this phrase meant. This position was subsequently confirmed in the case of BURA V. SARWATT (1967) E. A. p. 234. In that case, the previous case of Mbowe was quoted to the same learned Chief Justice (as he was then). While he did not wish to resile from the stand he took in the case of Mbowe, he clearly said that the decision in Mbowe’s case should be seen in its context here the allegations were of unlawful campaigning and undue influence. This passage seems to me to confirm that this Court did not find it expedient to define a similar phrase. Nor do I think that it is necessary in the case in hand to attempt such a definition since whether or not the results of the election were

         affected, would depend on the facts of the case and the allegations made. Effects on the results could be several and varied in form so that what could be said to have amounted to any effect on a case in one case may not be so in respect pr another with different set of facts . a similar position appears to have been taken in the recent petition in the case of NG’WESHEMI v. KISENHA, Misc. Civ. cause No. 5 of 1970 (unreported as yet ) (see [1971]H.C.D. 251). In my view, the non availability of screened compartment at Kawale polling station and the presence of the presiding officer in the screened chamber at Chabutwa Barazani polling station in the circumstances of this petition did not affect the results of the election in this petition. I would say the same thing even in connection of Chabutwa Barazani where the actual number o people who voted were not known. Even if one assumed that the 300 people, who were expected to vote at Chabutwa Barazani, were conceded for the petitioner, the first respondent would still the successful candidate. “(4) “Two other matters need be stressed …. The right to vote is the sacred tight of the people, and it is only exercised once in every fife years in normal circumstances. If the people are to express their choice in the true spirit of free elections, they ought to be served with the necessary care and requisite knowledge. Station should not have occurred if the presiding officer had been sufficiently careful, diligent and had acted with the necessary knowledge which one presumes to have been given to him. The majority of our people are illiterate and it is important that their expressions of free choice should not be destroyed or hampered by such carelessness of or lack or deficient knowledge of election officials. And more important the work has to be done consciously and with the necessary knowledge.” … “And, finally, people who are related to either candidate, as it happened in the case of Ernest Nkulu, wherever it was practicable should not be chosen to hold key positions, such as that of a presiding officer, in election. This would avoid unnecessary suspicion of partisanship on the part of such persons. I hope these criticisms will be taken into account in future organisation of elections.” (5) Petition dismissed.