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- Jan 13, 2010
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Siyo tuu kwamba Mahakama ya Rufaa imemrudisha Mh. Lema bungeni.
Bali pia kisheria, kuna kitu ambacho Mahakama ya Rufaa imekifanyia uamuzi.
Nacho ni kwamba kuanzia leo hakuna tena wagombea walioshindwa uchaguzi kujificha nyuma ya wapiga kura kufungua kesi mahakamani.
Mahakama ya Rufaa imesema wazi kuwa ukishindwa uchaguzi shitaki mwenyewe.
Mpiga kura akitaka kushitaki aonyeshe pilipili ambayo hajaila inamwashia nini.
Extract ya ruling yenyewe, thanks to Nyani Ngabu.
"In our case the issue for consideration and decision is whether or not a registered voter under section 111(1)(a) of the Act has an absolute right to challenge the election result even where his rights were not infringed. We have given a deep thought to the matter. First, we wish to point out that election petitions are not in our view public interest litigation though they are matters of great public importance. This is because the relief sought would not benefit the entire society as a whole. Second the petition was not brought under Article 26(2) of the Constitution which permits any person to bring a public interest litigation. The Article provides:-
26(2) Every person is entitled, subject to the procedure provided for by the law, to institute proceedings for the protection of the constitution and legality.
Since an election petition is not a public interest litigation we do not read the section to have done away with the rule of locus standi. We think in our view, section 111(1)(a) of the Act give rights to registered voter whose rights to vote have been interfered with or violated. In case violation effects the candidate it is for the candidate to challenge the election because his rights were violated. To give the section a broader interpretation that he has an absolute right to petition even where his rights were not interfered with is to defeat the well established principle of law of locus standi and indeed it does not sound well. We are not prepared to do so. We entirely agree with Mr. Vitalis, Mr. Kimogomoro and Mr. Lissu on the issue of standing of a registered voter.
In view of the above finding we are of the settled mind that Mgonja Case was wrongly decided on the question of locus standi. This is because we don't think that the legislature intended to say for example any voter irrespective of the place where he had registered and voted can challenge any election results in any constituency in the country. That is absurd. The statute must be construed to make it effective and workable."
[video=youtube_share;MbRCCUPbltM]http://youtu.be/MbRCCUPbltM[/video]
Bali pia kisheria, kuna kitu ambacho Mahakama ya Rufaa imekifanyia uamuzi.
Nacho ni kwamba kuanzia leo hakuna tena wagombea walioshindwa uchaguzi kujificha nyuma ya wapiga kura kufungua kesi mahakamani.
Mahakama ya Rufaa imesema wazi kuwa ukishindwa uchaguzi shitaki mwenyewe.
Mpiga kura akitaka kushitaki aonyeshe pilipili ambayo hajaila inamwashia nini.
Extract ya ruling yenyewe, thanks to Nyani Ngabu.
"In our case the issue for consideration and decision is whether or not a registered voter under section 111(1)(a) of the Act has an absolute right to challenge the election result even where his rights were not infringed. We have given a deep thought to the matter. First, we wish to point out that election petitions are not in our view public interest litigation though they are matters of great public importance. This is because the relief sought would not benefit the entire society as a whole. Second the petition was not brought under Article 26(2) of the Constitution which permits any person to bring a public interest litigation. The Article provides:-
26(2) Every person is entitled, subject to the procedure provided for by the law, to institute proceedings for the protection of the constitution and legality.
Since an election petition is not a public interest litigation we do not read the section to have done away with the rule of locus standi. We think in our view, section 111(1)(a) of the Act give rights to registered voter whose rights to vote have been interfered with or violated. In case violation effects the candidate it is for the candidate to challenge the election because his rights were violated. To give the section a broader interpretation that he has an absolute right to petition even where his rights were not interfered with is to defeat the well established principle of law of locus standi and indeed it does not sound well. We are not prepared to do so. We entirely agree with Mr. Vitalis, Mr. Kimogomoro and Mr. Lissu on the issue of standing of a registered voter.
In view of the above finding we are of the settled mind that Mgonja Case was wrongly decided on the question of locus standi. This is because we don't think that the legislature intended to say for example any voter irrespective of the place where he had registered and voted can challenge any election results in any constituency in the country. That is absurd. The statute must be construed to make it effective and workable."
[video=youtube_share;MbRCCUPbltM]http://youtu.be/MbRCCUPbltM[/video]