The Lema Verdict: Did the Court of Appeal encroach on litigation rights of a voter?

[George Jinasa]

It would have been among good judgements in my view if the Election Act was silent on who can challenge election results. The fact that the law is clear and unambigous on that point renders the judgement inconsistent with the law. it seems to me that the justices of the Court of Appeal had in their mind common law while the specific law governing election petitions in Tanzania is the National Elections Act.

This judgement should not remian in the laws of Tanzania as it lay down a very bad precedent which may lead to political problems. For, if the Parliament legislate and the Court constructively amend the legislation which it think bad what will happen if the legislature amends the judgements of courts by enacting new pieces of legislation where it finds that the judgements are bad? Who will be the legislature of legislature and a judge of judge?

In this very age of rule of law and Constitutional supremacy, the judge of judge and legislature of legislature should be the Constitution. So that the Court can only nullify a Parliamentary enactment if it is repugnant to the Constitution and the Legislature would legislate to prevent the judicairy from making decisions inconstent with the Constitution.

The effect of this unnecessary incrochment of powers between the two organs of state was evident in the Mtikila case. The High Court had rightly nullified the statutory provision in the Election Act which imposed a condition for a Parliamentary and Presidential candidate to be a member of a political party on the ground that it was inconsisted with the Constitutional provision on right to vote and being voted for. The Parliament reacted by amending the Constitution and inserting the same provision of the Election Act in the Constitution knowing that the Judiciary will not be able to nullify the said provision because the Judiciary is inferior to the Constitution. The problem is yet to be resolved as the matter is subjudice to the African Court of Justice. Why should the Judiciary repeats the same problem? Is that not tentamount into making whaet of one and chaf of another.




QUOTE=masanjas;5301609]The verdct is among the good judgement in our country,you cannot challenge anything that you were not injured,you have to show how the act your complaining affected you personally not to come complaining without reasonable course.

In short matters of locus stand were raised by both the ag and lemas advocate and we expected the trial judges to make a rulling on it favourable to the lema side but to the surporise it was different.

Election result are voice of perple which need be respected. this also is not new in the case of wilblod slaa against arusha kalwa the voters were asked to show injuries they suffered only to find that there vote was a problem they were adviced that they have to add there vote to person they want if he will win, automatically he failed and the case come to end.so this is not new, challenging election result you have to show the injury you sufferd.

Its costive to call another election on unreasonable ground,simply to sutisfy one or two or three person the hired gun.with this jurgement all the case like that of meatu and shinyanga are dead cases, i advice them to withdral.

The isssue of integrity of election are protected by the c ommision of election through established principles that give power to several organs to oversee the campaing process including the ag,police and obsevers we belive election which are not objected by them is genuine.[/QUOTE]

 

[S.M.P2503]

JokaKuu Hatujui hadi leo ni nini haswa Lema alisema kwenye hiyo mikanda ya kideo na ambacho ndiyo msingi wa kesi hii. Mahakama zote zilikwepa kuchunguza kiini cha mgogoro na hivyo hatuko kwenye nafasi ya kujua kama matamshi yake yanagusa makosa ya kesi ya jinai.

Kuhusu malaki ya waliopiga kura jimbo la Arusha...............hilo linaamana kama sheria ya uchaguzi ilizingatiwa kama haikuzingatiwa uchaguzi huo haukuwa huru wala wa haki kwa hiyo uwingi wa wapigakura hauwezi kufifilisha misingi ya kidemokrasia..............

Katika rufaa huwa wanaangalia legal issues na sio Yale yaliyojadiliwa katika mahakama za awali !

Kama ni kutaka kujua ni nini kilikuwepo au kuwemo kwenye hiyo kideo au video , basi Hilo lingefanyika katika mahakama kuu! Maadam halikufanyika ingawaje liliibuliwa na akina kimomogoro , ndio maana walikata rufaa ili liweze jibiwa!
Hakuna mahali ambapo Lema alikiri kwamba kamwaga matusi na hata Kama angekiri bado tafsiri ya neno tusi au matusi ingekuwa issue kubwa na Kama mawakili wafungua kesi walisema wana ushahidi Wa matusi basi ingepaswa wautoe!

Kuhusu kuwa na card ya kupiga kura sio maana kwamba walipiga kura na Hili lingekuwa jambo la kuweza kulazimisha uchunguzi Wa upigaji kura jambo ambalo pia linazuiliwa kisheria maana kura ni Siri ya mtu na akipiga inakuwa ni Siri yake !

Mahakama iliweza kujadili locus standing maana mahakama kuu haikujadili hii issue pasipo kuacha walakini!

 

[George Jinasa]

Dear Ruta,

I have gone through the judgement of the Court of Appeal between lines and that is the gist of the judgement. They ratio seems to be that for a registred voter to petition to challenge the election results he must establish special interest over and above the interests of the others. in otherwords, he must establish to have specifically been affected by the election results. The rationale of the borader interpretation of the provision to capture all registred voters may lead abursadity.


The Court of appeal did not see the relevancy of determing whether the evidence was sufficient or not having established that the petition was incompitent for being brought by persons who had no locus.

Your argument whether for or against the judgement should be premised on the said proposition.

Rutashubanyuma,

..can u provide us with a copy of the ruling made by the Court of Appeals.

..I dont think the court ruled that voters have no rights to question the legitimacy of an election.

..Instead the court ruled that the alleged utterances that Lema made during the campaigns did not amount to anything that could have affected the voters or the election results.

..now, let me put it in Swahili: mahakama ilimhukumu Lema kwa kutoa maneno ya kashfa ambayo ilisemekana yaliwaathiri wapiga kura na matokeo ya uchaguzi.

 

[George Jinasa]

Kwa heshima na taadhima naomba tutofautine katika hilo. nijuavyo mimi, pale rufaa inapokuwa rufaa ya kwanza (first appeal) kama ilivyo mazingira ya kesi ys Lema Mahakama ya Rufani ina nafasi ya kujielekeza katika masuala ya kisheria na kimantiki pia. Hivyo ni kusema kwamba kama kiini cha rufaa ni makosa ya jaji wa mahakama ya chini kimantiki, Mahakama ya Rufani inaweza kupembua ushahidi uliopo katika mwenendo wa mahakama ya chini na kuamua kama uamuzi wao katika pointi hiyo ulikuwa sahihi kimantiki au la

Katika rufaa huwa wanaangalia legal issues na sio Yale yaliyojadiliwa katika mahakama za awali !

Kama ni kutaka kujua ni nini kilikuwepo au kuwemo kwenye hiyo kideo au video , basi Hilo lingefanyika katika mahakama kuu! Maadam halikufanyika ingawaje liliibuliwa na akina kimomogoro , ndio maana walikata rufaa ili liweze jibiwa!
Hakuna mahali ambapo Lema alikiri kwamba kamwaga matusi na hata Kama angekiri bado tafsiri ya neno tusi au matusi ingekuwa issue kubwa na Kama mawakili wafungua kesi walisema wana ushahidi Wa matusi basi ingepaswa wautoe!

Kuhusu kuwa na card ya kupiga kura sio maana kwamba walipiga kura na Hili lingekuwa jambo la kuweza kulazimisha uchunguzi Wa upigaji kura jambo ambalo pia linazuiliwa kisheria maana kura ni Siri ya mtu na akipiga inakuwa ni Siri yake !

Mahakama iliweza kujadili locus standing maana mahakama kuu haikujadili hii issue pasipo kuacha walakini!

 

[Ronn M]

Rutashubanyuma, Kiranga, AshaDii, Gaijin, Azimio Jipya, Maxence Melo, JokaKuu, Mzee Mwanakijiji et al

With due respect to the foregoing arguments, may I submit my understand as to the correctness of the verdict of Court of Appeal of Tanzania. Its decision is based on two arguments, that

1) The respondents were not proved in evidence to have been valid voters ( registered voter) in Arusha region and

2) even if they were registered voters they had no locus stand to file that election petition in the first place.

On the first ground concerning the evidence and its admission it is important to know that a judge/magistrate decides, and of course must decide the case on the strength of evidence so admitted in the court. It is important that the evidence be admitted (i.e. the presiding judge has gone through it and he is satisfied of its relevancy in a particular case). Now tendering in the court of law what is believed to be evidence does not in itself amounts to admission.

Procedures for admission of evidence in High court are provided for under Order XIII of CPC, Cap 33 [R.E] 2002. I will reproduce the rules I consider relevant

This is what rule 1 of Order XIII provides1. Documentary evidence to be produced at first hearing (G.N. No. 375 of 1966) (1) The parties or their advocates shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has not already been filed in court, and all documents which the court has ordered to be produced. (2) The court shall receive the document so produced provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

Then rule four provide on endorsement of documentary evidence as a necessary step in its admission

4. Endorsements on documents admitted in evidence
(1) Subject to the provisions of the subrule (2), there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely–
(a) the number and title of the suit;
(b) the name of the person producing the document;
(c) the date on which it was produced; and
(d) a statement of its having been so admitted;and the endorsement shall be signed or initialled by the judge or magistrate.

Now it is important to note that every admitted evidence under rule 7 of the same order forms part of record and if not admitted does not form the part of record. What the High Court Judge did was not an admission of evidence. It follows therefore when the record was called in Court of Appeal, evidence as to the validity plaintiffs as registered voters were nowhere to be found. This was enough by itself to dispose the appeal in favour of Lema.

Nevertheless, the Court for argument's sake assumed that they were registered voters. Did they have locus stand? It should be noted that not everyone can go to court. To be able to sue in the court of law you must be able to prove that your right has been infringed. Now let us now examine the rights of Arusha voters. Strictly speaking the right of Arusha voters is to vote for the candidate of their desire! Now assume Lema really uttered those offensive words to Batilda Burian. Did that infringe their rights to vote? If it was infringed then they are having locus stand. If it was not infringed then they have no locus stand. And to my understanding their right to vote was not infringed by those words. They still had an opportunity to vote and actually they did vote! The right person with locus stand to sue was Batilda Burian as rightly advanced by EMT.

Now in alternative Article 26 (2) of our constitution gives one locus stand to sue if the subject in dispute is of public interest. This could be done under Basic Rights and Duties Enforcement Act of 1994. Well they did not. Assume that they did, is the matter one of public interest?In 2004 the same court had a time to define what amounts to public interest in the case of Sisi Enterprises against Attorney General concerning disputed plot of land. The point was that if a land was acquired to be given to the Embassy of United State it amounts to public interest. The court ruled in negative, that it was not!I am producing an extract of the relevant sections defining public interest. The coram was Ramadhan, Msoffe and Kaji

6​

The starting point is the definition of "public interest/' or "public
purpose" as it is sometimes called. In Stroud's Judicial Dictionary
\ Fifth Edition, Vol. 4 a matter of public interest:
"is that in which a class of the community ha.ve a pecuniary interest, or some interest by which their legal rights or liabilities are affected."In Black's Law Dictionary, Seventh Edition by Bryan A. Garner, "public interest" means:-

- "1. The general welfare of the public that​

warrants recognition and protection.
2. Something in which the public as a whole has a stake; esp. an interest that justifies governmental regulation."Black's Law Dictionary also defines "public purpose" as:-
"An action by or at the direction of a government for the benefit of the Community as a whole."

7​

In Ellis V. Home Office (1953) 2 QB 135, Morris LJ. stated:-
*
"One feature of the public interest is that
\ justice should always be done and should
be seen to be done."
To come back home, we have the case of Agro Industries Ltd Versus Attorney General 1994 TLR 43 where this Court cited a head note in B.P. Bhatt and Another Versus Habib Rajani 1958 EA 536 that to be in the "public interest":-"it is not sufficient that public interest may benefit indirectly or incidentally, if the primary purpose of the application is to benefit the landlord's interest and not that of the public."In Bhatt's case, Law J. relied on the Indian case of Hawabai Franjee Petit Versus Secretary of State for India 1915 39 BOM 279 where in defining "public purpose" it was stated:-"................... the phrase, whatever else it
may mean, must include a purpose, that is to say an aim or object, in which the general interest of the community, as opposed to the particular interest of

8​

individuals, is directly and vitally concerned."\ In Agro's case (supra) this court then concluded:-
"So what do we understand by an action being in the public interest? We think it is so when looked at objectively with impartial eyes, the action is primarily and not incidentally in the interest of the public . . ."In the light of the above definitions, it is clear to us that "public interest" or "public purpose" must include a purpose, that is to say an aim or object in which the general interest of the community is concerned or involved, as opposed to the particular interest of individuals or institutions.



As it is seen above a matter must be of public interest affecting large a whole society. If by whatever Lema did their right to vote was affected, then that amounts to public interest. But the question as to who should be our member of parliament is not of public interest as to my understanding

 

[George Jinasa]

Ronn M,

I, in the first place appreciate the way you have summarised the judgement of the Court of Appeal. Truly, that was the reasoning of the Court.

I have also noted your correction observation of the production and admistion of document procedure under Order 9 of CPC. You have put it more cleraly that on the first day of hearing documents can be produced by parties or their advocates not necessarily the owner. I have to add on that point that in election proceedings, the specific procedural rules are provided for in the National Elections Act and its regulations. The provisions of the Civil Procedure Code come in place where the Act and rules are silent.

I share the same glass of tea with you on the fact that evidence is that which is admitted as to form part of records. I noted from the judgement that the certificates were produced by the advocate on the first day of hearing and then returned to the advocate. I do not have the details for what grounds and whether certified copies remained in the records. That in itself would be an irregularity.

The question which is necessary to draw our attention on is whether the registration of the petitioners as voters were contested by way of pleadings. if not, and i think it was not, there it was not necessary for the petitioner to prove that they were registred voters. For, the duty to prove arises where there is contention. In view of the preliminery objection raised at the trial court it seems to me that parties were not in dispute whether the petitioners were voters, the dispute was whether mere registration as voters entitles a person a right to challenge the election results.

Youre correct also that the second limb of the judgement was framed in the alternative. That assuming the justices were wrong on the issue of the proof of their registration as voters, the Court of Appeal was preparing to hold that for a voter to have the right to pursue an action for avoidance of the election results he must prove to have special interest over and above the general interest. That reasoning, in my view is correct where the matter is governed by commmon law. My submission on this point is that the matter was neither governed by common law nor by the Constitutional law. The source of the locus was the express provision of the National Elections Act which confer right to challenge election results to candidates, registered voters and the AG. The authority in Mtikila case much as it was revolving arround locus stand in public interest litigations in line with the Basici Rights and Duties as well as common law is inapplicable in the curcumstances. Equally so for the various authorities relied upon by the justices of the Court of Appeal which you referred in your post. If I could conclude on this aspect, the error in the decision of the Court of Appeal lies on the fact that it was premised in the wrong assumption that the source of locus to the petitioner was common law. If the premises was wrong why shouldnt the conclusion also not be wrong?

The attempt by the justices to employ golden rule in interpreting the provision was unnecessary owing to the clarity and directness of the provision. Had the justices thought that ordinary interpretation would lead to urbusadity, they would have cleared their minds by employing purposive approach and see what was the intention of the legislature in enact the said provision. Surely, they would have established that the motive behind was to protect the constitutional right to vote and be voted for.

My understanding of the two rights is that they enjoy similar protection. Neither of them is protected than another. It follows therefore that if the right of a candidate (right to be voted) is absolutely protected by confering absolute right to a candidate to challenge the results, right to vote should in the same way be protected by confering absolute right to the voters to challenge the elections. The law provides for some mechanisms to prevent abuse of the rights in a number of ways. First, by imposing a requirement to deposit security for costs. Two, by puting heavy standard of proof in the election petitions.

 

[Ronn M]

George Jinasa, if you may refresh our minds, what does the Election Act provides as far as admission of evidence is concerned? If you go to court claiming your right to ve been infringed, you must be able to show what is that right and what remedies are you asking the court to grant! Now lets take high court decision. Lema did not infringe any plaintiffs' right, yet he was required to pay for costs if im correct! Do we see any justice? The court nullified Lema's victory, how can this be interpreted in terms of plaintiffs' rights?

 

[George Jinasa]

George Jinasa, if you may refresh our minds, what does the Election Act provides as far as admission of evidence is concerned? If you go to court claiming your right to ve been infringed, you must be able to show what is that right and what remedies are you asking the court to grant! Now lets take high court decision. Lema did not infringe any plaintiffs' right, yet he was required to pay for costs if im correct! Do we see any justice? The court nullified Lema's victory, how can this be interpreted in terms of plaintiffs' rights?

Sir for the time being I am entirior part of Tanzania I may not easily have access to the rules. But I understand that the rules introduces what is called preliminery hearing which is conducted in the pretrial stage. At this particular moment parties assist the court to determine and record facts which are in issue and those which are not. Documents which are not in dispute are produced by the parties or their advocates for admission.

That the petitioners did not have rights to petition is not what the Election Act say. It could be that is what the colonial common law says. The Election Act as reproduced by Ruta expressly provide for right to challenge the election results to among other persons, the registred voters. The law does not dicreminate between a candidate and a voter when it comes to petitioning for avoidance of election results. The HIgh Court was right to award judgement with costs and Lema was responsible to pay provided that he lost the case.

Now that the decision of the High Court have been nullified, the Respondents will be responsible to pay the costs both at the level of the High Court and Court of Appeal unless they succesfully challenge the decision of the Court of Appeal. The are two ways through which the decision can be challenged. First, which I would not suggest, by way of review whereupon the same bench of the Court of Appeal would review its own decision and satisfy itself, given the grounds given, were correct. The second option is to apply for reference wherein the full beach of the Court of Appeal constituted by not less than three judges would review the decision

 

[George Jinasa]

Every one has the right to vote and being voted for. Right to vote because by electing a person to be a member of Parliament you are delegating your decision making power to him. So, if a person whom you have not elected comes into power by violating the law, a registred voter will be the first one to be affected

 

[Mzee Mwanakijiji]

Ronn and George, mpiga kura sehemu moja ya nchi anaweza kwenda kuchallenge uchaguzi kwenye eneo jingine la nchi ambapo yeye si mkazi wala si mpiga kura wa eneo hilo (hata kama yumo kwenye daftari la wapiga kura sehemu nyingine)?

 

[George Jinasa]

Every one has the right to vote and being voted for. Right to vote because by electing a person to be a member of Parliament you are delegating your decision making power to him. So, if a person whom you have not elected comes into power by violating the law, a registred voter will be the first one to be affected

Kwa vile haki ya kufungua kesi ya kupinga matokeo ya uchaguzi inatokana na haki ya msingi ya kupiga kura ni wazi kwamba kama vile mpiga kura wa jimbo la Ilala asivyokuwa na haki ya moja kwa moja ya kupiga kura kumchagua mbunge wa Rufijui hawezi kuwa na haki ya kupinga matokeo ya uchaguzi wa jimbo la Rufiji

 

[George Jinasa]

Every one has the right to vote and being voted for. Right to vote because by electing a person to be a member of Parliament you are delegating your decision making power to him. So, if a person whom you have not elected comes into power by violating the law, a registred voter will be the first one to be affected

Kwa vile haki ya kufungua kesi ya kupinga matokeo ya uchaguzi inatokana na haki ya msingi ya kupiga kura ni wazi kwamba kama vile mpiga kura wa jimbo la Ilala asivyokuwa na haki ya moja kwa moja ya kupiga kura kumchagua mbunge wa Rufijui hawezi kuwa na haki ya kupinga matokeo ya uchaguzi wa jimbo la Rufiji

 

[Zakumi]

Kwa vile haki ya kufungua kesi ya kupinga matokeo ya uchaguzi inatokana na haki ya msingi ya kupiga kura ni wazi kwamba kama vile mpiga kura wa jimbo la Ilala asivyokuwa na haki ya moja kwa moja ya kupiga kura kumchagua mbunge wa Rufijui hawezi kuwa na haki ya kupinga matokeo ya uchaguzi wa jimbo la Rufiji

George Jinasa;

Nina swali. Kwa mfano mimi ni mpiga kura wa Ilala na nafahamu kuwa mbunge wa Rufiji sio raia wa Tanzania. Je naweza kupinga matokeo ya uchaguzi kwa sababu mbunge wa Rufiji hana sifa za uraia au itabidi nifungue kasi ya madai ya uraia?

 

[Rutashubanyuma]

Rutashubanyuma, Kiranga, AshaDii, Gaijin, Azimio Jipya, Maxence Melo, JokaKuu, Mzee Mwanakijiji et al

With due respect to the foregoing arguments, may I submit my understand as to the correctness of the verdict of Court of Appeal of Tanzania. Its decision is based on two arguments, that

1) The respondents were not proved in evidence to have been valid voters ( registered voter) in Arusha region and

2) even if they were registered voters they had no locus stand to file that election petition in the first place.

On the first ground concerning the evidence and its admission it is important to know that a judge/magistrate decides, and of course must decide the case on the strength of evidence so admitted in the court. It is important that the evidence be admitted (i.e. the presiding judge has gone through it and he is satisfied of its relevancy in a particular case). Now tendering in the court of law what is believed to be evidence does not in itself amounts to admission.

Procedures for admission of evidence in High court are provided for under Order XIII of CPC, Cap 33 [R.E] 2002. I will reproduce the rules I consider relevant

This is what rule 1 of Order XIII provides1. Documentary evidence to be produced at first hearing (G.N. No. 375 of 1966) (1) The parties or their advocates shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has not already been filed in court, and all documents which the court has ordered to be produced. (2) The court shall receive the document so produced provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

Then rule four provide on endorsement of documentary evidence as a necessary step in its admission

4. Endorsements on documents admitted in evidence
(1) Subject to the provisions of the subrule (2), there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely–
(a) the number and title of the suit;
(b) the name of the person producing the document;
(c) the date on which it was produced; and
(d) a statement of its having been so admitted;and the endorsement shall be signed or initialled by the judge or magistrate.

Now it is important to note that every admitted evidence under rule 7 of the same order forms part of record and if not admitted does not form the part of record. What the High Court Judge did was not an admission of evidence. It follows therefore when the record was called in Court of Appeal, evidence as to the validity plaintiffs as registered voters were nowhere to be found. This was enough by itself to dispose the appeal in favour of Lema.

Nevertheless, the Court for argument's sake assumed that they were registered voters. Did they have locus stand? It should be noted that not everyone can go to court. To be able to sue in the court of law you must be able to prove that your right has been infringed. Now let us now examine the rights of Arusha voters. Strictly speaking the right of Arusha voters is to vote for the candidate of their desire! Now assume Lema really uttered those offensive words to Batilda Burian. Did that infringe their rights to vote? If it was infringed then they are having locus stand. If it was not infringed then they have no locus stand. And to my understanding their right to vote was not infringed by those words. They still had an opportunity to vote and actually they did vote! The right person with locus stand to sue was Batilda Burian as rightly advanced by EMT.

Now in alternative Article 26 (2) of our constitution gives one locus stand to sue if the subject in dispute is of public interest. This could be done under Basic Rights and Duties Enforcement Act of 1994. Well they did not. Assume that they did, is the matter one of public interest?In 2004 the same court had a time to define what amounts to public interest in the case of Sisi Enterprises against Attorney General concerning disputed plot of land. The point was that if a land was acquired to be given to the Embassy of United State it amounts to public interest. The court ruled in negative, that it was not!I am producing an extract of the relevant sections defining public interest. The coram was Ramadhan, Msoffe and Kaji

6​

The starting point is the definition of "public interest/' or "public
purpose" as it is sometimes called. In Stroud's Judicial Dictionary
\ Fifth Edition, Vol. 4 a matter of public interest:
"is that in which a class of the community ha.ve a pecuniary interest, or some interest by which their legal rights or liabilities are affected."In Black's Law Dictionary, Seventh Edition by Bryan A. Garner, "public interest" means:-

- "1. The general welfare of the public that​

warrants recognition and protection.
2. Something in which the public as a whole has a stake; esp. an interest that justifies governmental regulation."Black's Law Dictionary also defines "public purpose" as:-
"An action by or at the direction of a government for the benefit of the Community as a whole."

7​

In Ellis V. Home Office (1953) 2 QB 135, Morris LJ. stated:-
*
"One feature of the public interest is that
\ justice should always be done and should
be seen to be done."
To come back home, we have the case of Agro Industries Ltd Versus Attorney General 1994 TLR 43 where this Court cited a head note in B.P. Bhatt and Another Versus Habib Rajani 1958 EA 536 that to be in the "public interest":-"it is not sufficient that public interest may benefit indirectly or incidentally, if the primary purpose of the application is to benefit the landlord's interest and not that of the public."In Bhatt's case, Law J. relied on the Indian case of Hawabai Franjee Petit Versus Secretary of State for India 1915 39 BOM 279 where in defining "public purpose" it was stated:-"................... the phrase, whatever else it
may mean, must include a purpose, that is to say an aim or object, in which the general interest of the community, as opposed to the particular interest of

8​

individuals, is directly and vitally concerned."\ In Agro's case (supra) this court then concluded:-
"So what do we understand by an action being in the public interest? We think it is so when looked at objectively with impartial eyes, the action is primarily and not incidentally in the interest of the public . . ."In the light of the above definitions, it is clear to us that "public interest" or "public purpose" must include a purpose, that is to say an aim or object in which the general interest of the community is concerned or involved, as opposed to the particular interest of individuals or institutions.



As it is seen above a matter must be of public interest affecting large a whole society. If by whatever Lema did their right to vote was affected, then that amounts to public interest. But the question as to who should be our member of parliament is not of public interest as to my understanding

Last edited by Ronn M; Yesterday at 15:06.
​

Ronn M Please note the following major anomalies to your analysis:-

1) You have presumed the record was correctly taken. I have seen many cases where the parties disputed to the correctness of the record taken by a trial Judge! Knowing that the issue of whether the Respondents to this appeal were bonafide registered voters in Arusha constituent was never raised or canvassed in a lower court or even raised in the Appeals Court, the rights of Respondents to respond to this matter were brutally taken away from them.

In many occasion as I have demonstrated clearly in my original discourse, The Appeals Court is of the stand that Judges ought not to raise issues which were not in dispute and this one was not. At least the Appeals Court ought to have asked the parties on a matter that the Court had raised sou motu before deciding on it without the inputs of the parties.

2) There was no way the Court could have reached conclusions that this was not a matter of public interest unless the Court had investigated what those utterances were. The Court only made flimsy references to the crux of this dispute as mere uncivil words! The Court did not take time to view the contested videos and determine what was said and whether the purported insults had passed the threshold of "in the "public interest."

Therefore in coming to the conclusion this was not a public interest litigation, the Court had acted presumptuous of the content of the video. By the way, if the videos contained insults that were derogatory and demeaning to women does other members of the society -particularly the registered voters of the Arusha constituent?- debarred from seeking a redress in a court of law simply because they were not candidates? I find that kind of legal position another "crawl-back" step in the fight against injustices leveled against a certain group or community. Again what do we really know what was said and not said? It is sad even after all the man-hours squandered in judicial corridors of justice, the courts could not answer even such a simple question!

3) Your contextualizing of the CPC did not deal decisively with the issue of who is in the right position to display evidence in a court of law. In fact from the citations you have made, it is clear either an advocate or a witness may do it, then where is the judicial audacity the Appeals Court obtains to fault a trial Judge on that frontier? There is absolutely none. This is what I call judicial misconduct and malpractice of the highest order!

4) On the issue of constitutionality of the Article 26 (2) which is loud on the rights of a registered voter to question the legitimacy and the integrity of an election the Court made some serious errors:-

a) The laws ought to be interpreted in a simple manner and whoever reads them has to comprehend them in a straightforward manner. Obviously, the interpretation now offered by the Court is not what the legislature had in mind when they wrote it. The Court's version that it is now those who seek public office are the custodians of the integrity of our elections is in itself unconstitutional. Our laws are very vocal when it comes to the sovereignty of the nation is bestowed in the hands of the people of Tanzania. This ruling is a confirmation that the Appeals Court is now legislating from the Bench and other allusions to the contrary are hellbent to mislead the general public

b) Why did the Court waste a lot of time on this issue which was not raised, canvassed or even investigated in a trial court if it is not judicial ambulance chasing? Now the Court has opened a pandora box that ought to be resealed by themselves. Neither the trial or the Appeals Court bothered to look in the central issue of dispute the video...............the Appeals Court did not even bother to fault a trial Judge on weighing his decision on oral evidence while the documentary evidence was there in the videos!!!!!!!!!!!!!!!!

I do not see the analysis and conclusions reached by the Appeals are worth the paper they were written on when I know the evidence that was to be used to gauge the applicability of the Article 26 (2) were utterly ignored..........it is shameful to our system of governance, to put it mildly.

 

[Rutashubanyuma]

George Jinasa;

Nina swali. Kwa mfano mimi ni mpiga kura wa Ilala na nafahamu kuwa mbunge wa Rufiji sio raia wa Tanzania. Je naweza kupinga matokeo ya uchaguzi kwa sababu mbunge wa Rufiji hana sifa za uraia au itabidi nifungue kasi ya madai ya uraia?

Zakumi Hili swali ni la msingi sana. Lakini kulingana na huu ubabaishaji wa hawa majaji ni kuwa huwezi na ni aibu kwanini usiweze kujihakikishia uchaguzi ulikuwa wa huru na haki? na hii ni haki ya kila mtanzania na ni ya kikatiba...........

 

[Rutashubanyuma]

Ronn and George, mpiga kura sehemu moja ya nchi anaweza kwenda kuchallenge uchaguzi kwenye eneo jingine la nchi ambapo yeye si mkazi wala si mpiga kura wa eneo hilo (hata kama yumo kwenye daftari la wapiga kura sehemu nyingine)?

Mzee Mwanakijiji Hawezi kwa sababu hakuathirika a matokeo ya kura za eneo ambalo siyo la kwake

 

[Rutashubanyuma]

Every one has the right to vote and being voted for. Right to vote because by electing a person to be a member of Parliament you are delegating your decision making power to him. So, if a person whom you have not elected comes into power by violating the law, a registred voter will be the first one to be affected

George Jinasa Yaani umeiweka vizuri sana nashindwa kuelewa wanaoutetea huu uamuzi wamepungukiwa na nini?

 

[Rutashubanyuma]

Ronn M,

I, in the first place appreciate the way you have summarised the judgement of the Court of Appeal. Truly, that was the reasoning of the Court.

I have also noted your correction observation of the production and admistion of document procedure under Order 9 of CPC. You have put it more cleraly that on the first day of hearing documents can be produced by parties or their advocates not necessarily the owner. I have to add on that point that in election proceedings, the specific procedural rules are provided for in the National Elections Act and its regulations. The provisions of the Civil Procedure Code come in place where the Act and rules are silent.

I share the same glass of tea with you on the fact that evidence is that which is admitted as to form part of records. I noted from the judgement that the certificates were produced by the advocate on the first day of hearing and then returned to the advocate. I do not have the details for what grounds and whether certified copies remained in the records. That in itself would be an irregularity.

The question which is necessary to draw our attention on is whether the registration of the petitioners as voters were contested by way of pleadings. if not, and i think it was not, there it was not necessary for the petitioner to prove that they were registred voters. For, the duty to prove arises where there is contention. In view of the preliminery objection raised at the trial court it seems to me that parties were not in dispute whether the petitioners were voters, the dispute was whether mere registration as voters entitles a person a right to challenge the election results.

Youre correct also that the second limb of the judgement was framed in the alternative. That assuming the justices were wrong on the issue of the proof of their registration as voters, the Court of Appeal was preparing to hold that for a voter to have the right to pursue an action for avoidance of the election results he must prove to have special interest over and above the general interest. That reasoning, in my view is correct where the matter is governed by commmon law. My submission on this point is that the matter was neither governed by common law nor by the Constitutional law. The source of the locus was the express provision of the National Elections Act which confer right to challenge election results to candidates, registered voters and the AG. The authority in Mtikila case much as it was revolving arround locus stand in public interest litigations in line with the Basici Rights and Duties as well as common law is inapplicable in the curcumstances. Equally so for the various authorities relied upon by the justices of the Court of Appeal which you referred in your post. If I could conclude on this aspect, the error in the decision of the Court of Appeal lies on the fact that it was premised in the wrong assumption that the source of locus to the petitioner was common law. If the premises was wrong why shouldnt the conclusion also not be wrong?

The attempt by the justices to employ golden rule in interpreting the provision was unnecessary owing to the clarity and directness of the provision. Had the justices thought that ordinary interpretation would lead to urbusadity, they would have cleared their minds by employing purposive approach and see what was the intention of the legislature in enact the said provision. Surely, they would have established that the motive behind was to protect the constitutional right to vote and be voted for.

My understanding of the two rights is that they enjoy similar protection. Neither of them is protected than another. It follows therefore that if the right of a candidate (right to be voted) is absolutely protected by confering absolute right to a candidate to challenge the results, right to vote should in the same way be protected by confering absolute right to the voters to challenge the elections. The law provides for some mechanisms to prevent abuse of the rights in a number of ways. First, by imposing a requirement to deposit security for costs. Two, by puting heavy standard of proof in the election petitions.

George Jinasa hapo nilipowaweka rangi nyekundu umejiongoza vibaya. tatizo la hawa majaji ni kuw kama ilivyokuwa kwa jaji mwenzao wa mahakama Kuu ni kuwa hawakuchunguza kabisa madai ya wajibu rufani. Hivyo Mahakama ya Rufaa isngeliweza kufikia mahitimisho iliyoyafabya wakati hata hawajui kumbukumbu za kideo zinasemaje.

Nitakupoa mfano yawezekana, Lema aliutusi uchi wa batilda Buriani kama hilo limo ndani ya kideo hivi wapigakura wa Arusha hawana haki ya kuomba mahakama itengue kwa kutumia lugha zinazoidhalilisha jamii?

Mathalani Lema alitumia lugha ya kuitusi jinsia ya wanawake kupitia Batilda, hivi wapigakura kweli hawaa haki ya kuiomba mahakama imtengue Lema? Haya maswali hayana majibu maana kilichoko kwenye kideo hakijulikani na kama hakijulikani Mahakama ya Rufaa haikuwa na taarifa za kutosha kufikia tamati ya kuwa wapinga rufani hawakuwa na masilahi kwenye kesi hiyo hivyo hawana locus stand

 

[Rutashubanyuma]

George Jinasa, if you may refresh our minds, what does the Election Act provides as far as admission of evidence is concerned? If you go to court claiming your right to ve been infringed, you must be able to show what is that right and what remedies are you asking the court to grant!

Now lets take high court decision. Lema did not infringe any plaintiffs' right, yet he was required to pay for costs if im correct!

Do we see any justice? The court nullified Lema's victory, how can this be interpreted in terms of plaintiffs' rights?

Ronn M Huwezi kufikia mahitimisho haya wakati ushahidi wa kideo si mahakama kuu au Mahakama ya Rufaa ambayo ilichunguza hilo............................you are only being prejudicial in making such vacuous assertions.......

 

[Rutashubanyuma]

By Rutashubanyuma

JokaKuu Hatujui hadi leo ni nini haswa Lema alisema kwenye hiyo mikanda ya kideo na ambacho ndiyo msingi wa kesi hii. Mahakama zote zilikwepa kuchunguza kiini cha mgogoro na hivyo hatuko kwenye nafasi ya kujua kama matamshi yake yanagusa makosa ya kesi ya jinai.

Kuhusu malaki ya waliopiga kura jimbo la Arusha...............hilo linaamana kama sheria ya uchaguzi ilizingatiwa kama haikuzingatiwa uchaguzi huo haukuwa huru wala wa haki kwa hiyo uwingi wa wapigakura hauwezi kufifilisha misingi ya kidemokrasia..............
Katika rufaa huwa wanaangalia legal issues na sio Yale yaliyojadiliwa katika mahakama za awali !

Kama ni kutaka kujua ni nini kilikuwepo au kuwemo kwenye hiyo kideo au video , basi Hilo lingefanyika katika mahakama kuu! Maadam halikufanyika ingawaje liliibuliwa na akina kimomogoro , ndio maana walikata rufaa ili liweze jibiwa!
Hakuna mahali ambapo Lema alikiri kwamba kamwaga matusi na hata Kama angekiri bado tafsiri ya neno tusi au matusi ingekuwa issue kubwa na Kama mawakili wafungua kesi walisema wana ushahidi Wa matusi basi ingepaswa wautoe!

Kuhusu kuwa na card ya kupiga kura sio maana kwamba walipiga kura na Hili lingekuwa jambo la kuweza kulazimisha uchunguzi Wa upigaji kura jambo ambalo pia linazuiliwa kisheria maana kura ni Siri ya mtu na akipiga inakuwa ni Siri yake !

Mahakama iliweza kujadili locus standing maana mahakama kuu haikujadili hii issue pasipo kuacha walakini!

S.M.P2503 mahakama ya rufaa inayo mamlaka ya kisheria ya kutathmini ushahid katika mahama ya chini yake bila ya kujali kama ushahidi ulitathminiwa au la..........................kutotathimiwa kideo katika mahakama kuu siyo kigezo cha kuizuia mahakama ya rufaa kutekeleza majukumu yake.......period..........tusitetee huu uzembe wa hawa waheshimiwa...........