KESI YA MAUJI YA MTOTO WA FUNDIKILA YAIVA
Na Happiness Katabazi
MAHAKAMA Kuu Kanda ya Dar es Salaam, Juni 4-8 mwaka huu, itaanza kusikiliza kesi ya mauji ya mtoto wa marehemu Chifu Abdallah Fundikila,Swetu Fundikila inayowakabili MT 1900 Sajenti Roda Robert(42) wa Jeshi la Kujenga Taifa (JKT) Kikosi cha Mbweni na wenzake.
Kwa mujibu wa ratiba ya vikao vya uendeshaji wa kesi za Mahakama Kuu ambayo gazeti hili imeiona nakala yake, kesi hiyo imepangwa kusikilizwa mbele ya Jaji Zainabu Mruke na jumla ya mashahidi tisa wa upande wa jamhuri wanakuja kutoa ushahidi katika kesi hiyo.
Mbali na Dorisi washtakiwa wengine ni MT 75854 Koplo Ally Ngumbe (37) wa Jeshi la Wananchi (JWTZ) Kikosi cha Kunduchi na MT 85067 Koplo Mohamed Rashid wa JKT Mbweni.
Wakili wa serikili Dionisia Saiga awali alidai mahakamani hapo kuwa Januari 23 mwaka 2010 kuanzia majira ya saa 6 usiku, kuwa marehemu akiwa na wenzake wawili wakitumia gari aina ya Toyota Corolla, walikuwa wanatoka Mwananyamala na kwamba walikutana na washtakiwa wakiwa kwenye gari lao wakitokea kwenye maegesho ya magari ya Baa ya Mango Garden.
Wakili Saiga alidai kuwa mshtakiwa wa kwanza alimwamuru dereva wa gari alilokuwemo marehemu, arudi nyuma na kwamba dereva huyo alitii.Alidai kuwa washtakiwa walilifuata gari hilo na kusimama pembeni na baadaye mshtakiwa wa kwanza alishuka na kumfuata dereva na kumuonya kuwa siku nyingine asipowaheshimu viongozi wa nchi atapata shida.
Aliendelea kudai kuwa baada ya hapo marehemu na wenzake waliondoka lakini walipofika kwenye makutano ya Barabara ya Kawawa na MwinyiJuma, walikutana tena na washtakiwa ndipo mshtakiwa wa kwanza akawatukana.
Alidai kuwa marehemu aliuliza sababu ya kuwatukana bila kosa, lakini badala yake mshtakiwa wa kwanza aliaanza kumpiga dereva, jambo lililomlazimisha marehemu kwenda kuzuia dereva asipigwe.
Chanzo:Gazeti la Tanzania Daima la Ijumaa, Juni Mosi mwaka 2012.
IDD SIMBA ABURUZWA KORTINI
MAMIA YAMZIKA WAKILI STANSLAUS BONIFACE
Na Happiness Katabazi
MKURUGENZI wa Mashitaka nchini,Dk.Eliezer Feleshi amemwelezea aliyekuwa Mkurugenzi Msaidizi wa mashitaka marehemu Stanslaus Boniface(44) ,kuwa alikuwa ni mtumishi aliyejituma ,mwadilifu na aliyekuwa na ushirikiano na watumishi wa kada zote bila kujali umri wala cheo chake.
Dk.Feleshi aliyasema hayo jana katika ibada ya kuuga mwili wa marehemu Boniface iliyofanyika Chuo Kikuu cha Dar es Salaam, na kuudhuliwa mamia ya watu wakiwemo wanataaluma ya sheria wakiwemo majaji, mawakili,mwanasheria Mkuu wa Serikali Jaji Fredrick Werema na wengine wote ambao muda mwingi waombolezaji hao walijikutaja wakishindwa kujizuia na kuanza kuangua vilio.
Katika hotuba yake hiyo Dk.Feleshi alisema katika utumishi wake Boniface alikuwa ni mwalimu kwa watu wa kada ya Sheria hasa Waendesha mashitaka kutokana na ueledi mkubwa aliokuwa nao katika fani ya sheria. Na kwamba wanachoweza kufanya ni kuheshimu tukio hilo la jana na kumwombea marehemu apate pumziko la amani.
“Boniface alipenda sana kazi ya Uwakili wa Serikali na hasa kuendesha mashtaka.Alikuwa tayari kuendesha kesi yoyote bila woga.Alikuwa msaada kwa mahakama katika kufikia maamuzi ya haki.Hii inadhiirika kwa kusoma hukumu na maamuzi ya mahakama ya mashauri ambayo aliiwakilisha serikali.
“Mfano mzuri ni hukumu ya Mahakama ya Rufaa Na. 250/2006 katika kesi ya Silivester Hillu Dawi na wenzake dhidi ya Mkurugenzi wa Mashitaka ambapo jaji Rutakangwa alimwelezea Boniface aliyekuwa akiiwakilishia serikali katika shauri hilo kuwa ni mkweli na mpenda haki”alisema Dk.Feleshi.
Alisema katika kesi hiyo Jaji Rutakangwa aliweka kanuni ya washitakiwa wanaokabiliwa na shitaka kuchangia nusu ya thamani ya mali inayohusika shtaka husika ili kupata dhamana badala ya kila mshitakiwa kutoa nusu ya thamani hiyo.
Aidha Dk.Feleshi ambaye wakati akisoma hotuba hiyo huku akionekana kulengwa na machozi, aliitaja kesi nyingine ni ya Mwenyekiti wa Timu ya Simba, Ismail Aden Rage dhi dio ya Jamhuri (rufaa na. 286/2005, ambapo jaji Mroso alieleza wazi kuwa Jamhuri iliyokuwa ikiwakilishwa na Boniface,ilikuwa imewakilishwa na mtu mwenye uwezo na msaada pale alipotamka.
“Kwa kusoma hukumu za mahakama,kila mmoja wetu ataafiki ataona uwezo wa Boniface.Pamoja na na kazi ya kuiwakiloisha serikali mahakamani ,Boniface alipenda kuwafundisha mawakili wenzake.hakuchoka kufanya kazi hiyo.alikuwa tayari kumsikiliza na kumwelekeza kila aliyemwomba ushauri wake.Leo ndugu yetu na mpendwa wetu amemamaliza safari hapa duniani.Tunamshukuru mungu aliyempa uwezo wa kufanya aliyofanya wakati wa uhai wake.
Boniface alifariki mei 27 mwaka huu, katika hospital ya regency. Na amezikwa jana katika makaburi ya Kinondoni na mamia ya watu walioongozwa na Mwanasheria Mkuu wa Serikali Jaji Werema.
Bwana ametoa na bwana ametwaa jina lake liimidiwe.
Chanzo:Gazeti la Tanzania Daima la Jumatano, Mei 30 mwaka 2012
NAMLILIA WAKILI STANSLAUS BONIFACE 'JEMBE'
WAKILI STANSLAUS BONIFACE KUZIKWA LEO DAR
ANTHONY MTAKA
Rais mdogo zaidi riadha duniani
.Apania kuirejesha Tanzania katika ramani
Na Happiness Katabazi
MEI 20 mwaka huu, Chama cha Riadha Tanzania (RT), kiliandika historia mpya baada ya kumchagua kijana mwenye umri mdogo, ambaye pia ni Mkuu wa Wilaya (DC), ya Mvomero, Anthony Mtaka (30), kuwa Rais mpya wa chama hicho.
Mtaka anaweza kuingia katika rekodi ya kuwa rais mdogo zaidi miongoni mwa nchi wanachama wa Shirikisho la Riadha la Kimataifa (IAAF).
Yafuatayo ni mahojiano ya ana kwa ana, aliyofanya mwandishi wa makala hii na Mtaka, kuhusu alivyojipanga kuleta mageuzi ya maendeleo katika chama hicho, ambapo licha ya mchezo wa riadha kuwa na historia iliyotukuka katika kuitangaza Tanzania kimataifa, miaka ya hivi karibuni umedorora.
Swali: Umeupokeaje ushindi wa kuwa Rais wa Chama cha Riadha Tanzania (RT)?
Jibu: Binafsi nimeupokea kwa furaha, nikiwa pia na utayari wa kuzikabili changamoto za mageuzi ya riadha nchini.
Swali: Wapenzi wa riadha nchini, watarajie kupata na mageuzi yapi ya kimaendeleo katika kipindi hiki cha uongozi wako?
Jibu: Kikubwa wapenzi wa riadha watarajie mafanikio, japo itachukua muda kuyafikia, kwani riadha ya Tanzania inahitaji mabadiliko na mageuzi ya kimfumo katika chombo chenyewe na baadaye kuwapata wanariadha mahiri wa kutufaa kama tuliowahi kuwapata miaka ya nyuma.
Ahadi yangu kwa wapenzi wa riadha nchini ni kutupa muda mimi na wenzangu tuliochaguliwa, kuhakikisha tunaleta mapinduzi yenye tija katika mchezo huu wa riadha nchini; natambua watu wanahamu ya kuona medali, lakini hazitakuja kwa usiku mmoja, tuko kwenye mipango ya muda mfupi na mrefu, kuhakikisha mashindano yajayo nchi yetu inaondokana na kuwa msindikizaji.
Swali: RT imekuwa ikikabiliwa na changamoto mbalimbali, je umejipangaje kuzitatua?
Jibu: Ni kweli zipo changamoto nyingi, mimi kama rais na wenzangu, tunao utayari wa kuzitatua tukianza na katiba inayokidhi mahitaji ya riadha ya sasa, jambo ambalo ndani ya miezi mitatu panapo majaliwa tunaamini tutakuwa tumelikamilisha.
Swali: Unauzungumziaje uchaguzi mkuu wa RT uliofanyika Mei 20 mwaka huu? Je, ulikuwa wa uhuru na haki?
Jibu: Uchaguzi ulikuwa wa uhuru na haki, kila mgombea alikubaliana na matokeo na kila mmoja aliridhika na mwenendo wa zoezi zima la uchaguzi, kwa maana ulitawaliwa na uwazi, usio na mizengwe wala harufu ya rushwa.
Mpaka sasa, wagombea walioshinda na kushindwa tumebaki marafiki na nina imani watakuwa msaada kwangu mwenyewe na safu yetu ya uongozi, itakapobidi tutawashirikisha kupata ushauri na uzoefu wao, kamwe hatutasita kufanya hivyo.
Swali: Hivi karibuni uliteuliwa na Rais Jakaya Kikwete kuwa Mkuu wa Wilaya ya Mvomero, je utawezaje kutenda kazi za ukuu wa wilaya na zile za riadha?
Jibu: Ni kweli nimeteuliwa na Rais Kikwete kuwa Mkuu wa Wilaya ya Mvomero. Jambo ambalo namshakuru sana Rais kwa kuniamini na kuniteua, nami namhakikishia sitamuangusha, kama ambavyo nawahakikishia wananchi wa Mvomero kwamba sitawaangusha katika utekelezaji wa majukumu yangu. Ukuu wa wilaya ni kazi ya kila siku.
Nafasi ya urais katika riadha ni kazi ya vikao, si utendaji wa kila siku, mimi kama rais nabaki kuwa mwendesha vikao, mtoa dira na pia haya yote nayafanya nikisaidiana na wenzangu, makamu wangu wawili wa rais, William Kallage anayeshughulikia mambo ya utawala na Dk. Hamad Ndee, anayeshughulikia ufundi.
Katibu Mkuu, Suleiman Nyambui, Katibu Msaidizi, Ombeni Zavalla, Mhazini, Is-Haq Suleiman huku wajumbe wa Kamati ya Utendaji ni Mwinga Mwanjala, Meta Petro, Peter Mwita, Rehema Killo, Lwiza John, Zakaria Barrie, Zakaria Gwanda, Robert Kalyahe, Christian Matembo na Tullo Chambo.
Katika utaratibu huu ni dhahiri majukumu yangu ya ukuu wa wilaya hayataathirika na kazi za Chama cha Riadha, sambamba na hilo, natoa rai kwa Watanzania kuchagua watu wenye anuani, ama za ajira au vipato vinavyoeleweka, hasa kwenye hizi taasisi za michezo ili kuepuka waganga njaa, ambao siku zote wanageuza vyama vya michezo kuwa mahala pa kujipatia vipato vyao na kujikuta michezo inakufa kwa migogoro isiyokwisha kila siku.
Mimi ni Mkuu wa Wilaya, Makamu wangu Kallaghe yuko benki ya NBC na Dk. Ndee ni mhadhiri Chuo Kikuu cha Dar es Salaam. Hata kamati yetu utendaji kwa sehemu kubwa inaundwa na watumishi wa umma, sekta binafsi na wadau wa riadha wenye majukumu yao ya kuwaingizia kipato, jambo linalotupa moyo wa kuona ufanisi katika mipango yetu.
Swali: Umeandika historia mpya ya kuwa rais kijana wa chama cha riadha, je umejipanga vipi kuuthibitishia umma kuwa vijana wakipewa nafasi za uongozi wanaweza?
Jibu: Ni kweli nimeandika historia, si tu Tanzania bali katika riadha ya dunia, mimi ndiye Rais mdogo zaidi nikiwa na miaka 30, ninayeongoza chama cha riadha katika nchi.
Napenda kuwahakishia Watanzania kwamba, sitawaangusha vijana wenzangu katika uaminifu na uwajibikaji, ni suala la muda lakini naamini chini ya uongozi wangu, riadha itahuishwa upya na matunda yataonekana, kikubwa wadau watuunge mkono, tunahitaji kuona eneo hili linazalisha ajira na kipato kwa vijana wa Kitanzania kama ambavyo soka, muziki, uigizaji na michezo mingine ilivyowakwamua kutoka katika umaskini wa kipato.
Swali: Wananchi wa Mvomero watarajie nini kutoka kwako?
Jibu: Kama mkuu wao wa wilaya, wategemee utumishi wangu wa dhati kwao, changamoto kubwa ni kuhimiza na kusimamia shughuli za maendeleo, nawaomba waniunge mkono, kuhakikisha vipaumbele vya elimu, afya, kilimo, migogoro ya ardhi, wakulima na wafugaji, kwa pamoja vinapata suluhisho lenye afya kwa wanajamii wa Mvomero.
Lakini pia, kama rais wa riadha, wana Mvomero watarajie hamasa kubwa katika michezo, hasa ikizingatiwa Mbunge wa Mvomero, ambaye pia ni Naibu Waziri wa Habari, Vijana, Utamaduni na Michezo, Amos Makalla, ni mwanamichezo mahiri, kwa pamoja wana Mvomero watarajie mafanikio katika shughuli za maendeleo na michezo.
Swali: Ni mikakati gani mipya ambayo unayo na unaamini watangulizi wako katika chama cha riadha hawakuwa nayo, ili hatimaye mchezo wa riadha uweze kutambulika na kuheshimika ndani na nje ya nchi?
Jibu: Kikubwa uongozi uliopita ulifanya mengi mazuri, chini ya uongozi wangu na wenzangu, katika yote tutajitahidi walau turudishe mashindano ya riadha ya taifa na tutajitahidi uwenyeji wa mashindano haya uzunguke kwa kila mkoa kwa zamu, ili kuhuisha mchezo huu kote nchini, lakini pia kuwashirikisha wadau wa ndani na nje katika kuwanoa walimu wa riadha nchini, kuhakikisha upatikanaji wa vifaa vya mchezo wa riadha vya kisasa, walau kujenga Athletic Academy Center, ambayo itatumiwa na timu ya taifa kujiandaa katika mashindano mbalimbali na kwa baadaye kuangalia nafasi ya chama cha riadha kuwa na kitega uchumi chake, ili mbeleni isimame kwa miguu yake.
Swali: Hivi unajisikiaje wewe ukiwa kijana hivyo, halafu katika kipindi kisichozidi wiki mbili umeteuliwa kuwa mkuu wa wilaya na kisha ukachaguliwa kuwa Rais wa Chama Riadha?
Jibu: Kama mwanadamu mwingine yeyote mwenye akili timamu, namshukuru sana Mungu wangu, hakika amenitendea makuu katika siku za ujana wangu, namuomba Mungu anisimamie, daima aniongoze katika dhamana hizi nilizonazo, maana katika yeye yote yanawezekana.
Swali: Kitu gani kilikusukuma hadi ukaamua kugombea nafasi hiyo ya urais wa RT?
Jibu: Siku zote nimekuwa nikikwazwa na matokeo mabovu ya riadha nchini, sikupenda kuwa sehemu ya kulaumu, nikaamua mimi mwenyewe kwa hiyari yangu kujitosa ili kuona namna ya kuuokoa mchezo huu; mimi naamini vijana wa Kitanzania bado tunao uwezo wa kurudisha hadhi ya michezo katika nchi yetu, kikubwa tujiondoe katika makundi ya kulalamika na sasa tuwe na uthubutu wa kuomba ridhaa ya kutumikia na tukiaminiwa, basi kweli watu wayaone matunda na si ubabaishaji.
Swali: Matarajia yako ya siku za usoni ni yapi?
Jibu: Matarajio yangu ya siku za usoni ni kuiona Tanzania siku moja inairudia historia iliyowahi kuandikwa na wanariadha mashuhuri kina Meja mstaafu, Filbert Bayi, Suleiman Nyambui, Kanali mstaafu Juma Ikangaa, Nzael Kyomo, Mwinga Mwanjala, Simon Mrashani wa Jeshi la Polisi na wengineo wengi.
Pia Watanzania wakirejea kutoka kwenye mashindano ya Olimpiki na mengineyo mbalimbali wawe na medali za dhahabu na fedha, ndoto hii yaweza chelewa, lakini kama Mungu atanipa uhai mimi na wenzangu katika uongozi huu, chini ya uenyekiti wa Dioniz Malinzi kama Mwenyekiti wa Baraza la Michezo la Taifa (BMT), mwenye maono ya mafanikio, hakika Watanzania miaka ijayo watarajie medali, mwanzo ni mgumu, lakini naamini tutaweza.
Swali: Unawaeleza nini vijana wenzako?
Jibu: Vijana tuache kulaumu na kulalamika, nchi hii inazo fursa nyingi, naomba wajitokeze kuzitumia.
Swali: Nieleze ni jambo gani ambalo hutalisahau katika maisha yako na je ni kwa nini?
Jibu: Nimepatwa na matukio mengi ya furaha yaliyonigusa katika maisha yangu, hakika sitasahau siku nilipoteuliwa kuwa Mkuu wa Wilaya na siku niliposhinda kiti cha urais wa Riadha Tanzania, sikuamini kama Mtanzania wa kawaida wa aina yangu yangewezekana haya.
Swali: Tueleze historia ya maisha yako kwa upana wake?
Jibu: Mimi ni mtoto wa kwanza kati ya wanne wa mwalimu Meryciana Magati na Mzee John Mtaka Chiganga. Ndugu zangu wengine ni Masegenya, Msafiri na Mgengere.
Nimesoma elimu yangu ya Msingi, Suguti iliyopo Wilaya Musoma Vijijini Mkoa wa Mara, ambapo baadaye nilihitimu shahada ya kwanza ya Utawala, Menejimenti ya Utumishi wa Umma Chuo Kikuu Mzumbe mwaka 2009.
Nimeshiriki michezo katika ngazi ya shule ya msingi na sekondari, nikiwa mshiriki katika riadha mbio za kupokezana vijiti ‘relay’, mbio fupi mita 100, kurusha kisahani, kurusha tufe, kulenga shabaha na kidogo nimecheza basketball nikiwa sekondari ya Mwembeni Musoma.
Kama mwanafunzi, michezo hii yote sikuicheza katika mafanikio makubwa ya kujulikana kitaifa, lakini imenijenga kuwa mwanamichezo na mpenzi wa michezo hata kunichochea kuomba ridhaa ya kuongoza chama cha riadha Tanzania, nikiamini ninao uwezo wa kuurudisha mchezo wa riadha katika ramani ya nchi yetu, kwani naamini ni mchezo wenye mashabiki kila kona au pembe ya nchi yetu ndani na nje.
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Chanzo:Gazeti la Tanzania Daima la Jumatatu, Mei 28 mwaka 2012.
WAKILI MAARUFU AFARIKI DUNIA
Na Happiness Katabazi
MKURUGENZI Msaidizi wa ofisi ya Mkurugenzi wa Mashitaka nchini, Stanslaus Boniface Makulilo (44) ‘Jembe’ amefariki ghafla usiku wa kuamkia jana katika Hospitali ya Regency jijini Dar es Salaam.
Mkurugenzi wa Mashitaka nchini(DPP), Dk.Eliezer Feleshi alilithibishia Tanzania Daima jana asubuhi kutokea kwa kifo hicho ambapo alisema bado ofisi yake na taifa limepata pigo kubwa lakuondokewa na gwiji hilo la uendeshaji wa mashitaka hususani ya jinai hapa nchini na kwamba mchango wake mzuri katika uendeshaji wa kesi hususani za jinai hautasaulika na utaenziwa.
Dk.Feleshi alikuwa akizungumza na gazeti hili kwa uzuni alisema Jumamosi jioni Boniface ambaye pia alikuwa Msimamizi wa Uendeshaji wa Kesi zenye maslahi kwa umma, aliingia Dar es Salaam, akitokea Moshi kwaajili ya kutoa mafunzo ya jinsi ya uendeshaji wa mashitaka kwa maofisa wa Idara ya Uhamiaji akiwa mwenye afya njema na alirejea nyumbani kwake Kinondoni lakini ilipofika usiku wa siku hiyo hali yake ilibadilika ghafla na kukimbizwa katika Hospitali ya Regency kwaajili ya matibabu.
“Baada ya kufikishwa hospitalini hapo alifariki dunia ila mimi kama kiongozi wake wa kazi kwa sasa siwezi kusema chanzo cha kifo hicho hadi pale tutakapopata taarifa rasmi za madaktari na msiba upo Chuo Kikuu cha Dar es Salaam, Mtaa wa Sinza Load Kitalu Na.4 na hadi kufikia leo utaratibu shughuli za msiba zitakuwa zimefahamika na tutawajulisha”alisema Dk.Feleshi.
Dk.Feleshi alimuelezea Boniface kuwa ni miongoni mwa mawakili wa serikali waliokuwa wakijitoa kwa moyo wao wote katika kuitumikia serikali yao katika uendeshaji wa kesi bila woga na katika kuthibitisha hilo ni katika kesi za mauji yaliyoibuika miaka ya nyumba mkoani Mbeya ambapo watu walikuwa wakiwachunya binadamu wenzao ngozi, kesi za wizi wa fedha za EPA, matumizi mabaya ya ofisi ya umma na kuongeza kuwa marehemu alikuwa akitumia taaluma yake kwa kuwapatia watu wengine waliokuwa wakiitaji.
Miongoni mwa kesi kubwa ambazo mwandishi wa habari hizi amekuwa akimshuhudia akiziendesha kwa zaidi ya miaka mitano katika mahakama mbalimbali hapa nchini sasa ni kesi ya wizi wa shilingi bilioni 1.8 katika EPA, iliyokuwa ikimkabili Kada wa CCM, Rajabu Maranda na Farijala Hussein ambapo mahakama ya Hakimu Mkazi Kisutu, Mei 23 mwaka jana, iliwahukumu kwenda jela miaka mitano, kesi ya kula njama na kuomba rushwa ya shilingi milioni 10 iliyokuwa ikimkabili aliyekuwa Mtangazaji wa Shirika la Utangazaji la TBC, Jerry Murro na wenzake ambapo Murro alishinda kesi hiyo mwaka jana, kesi ya Kikatiba iliyofunguliwa na mfanyabishara Jayankumar Patel “Jeetu Patel’ na wenzake dhidi ya Mwanasheria Mkuu wa Serikali, DPP na Reginal Mengi iliyokuwa akitaka afutiwe kesi zake nne za EPA zilizopo katika mahakama ya Kisutu kwasababu Mengi alimuhukumu kabla ya hajahukumiwa na mahakama kwa sababu alimuita ni Fisadi Papa, ambapo Boniface alimwakilisha AG na DPP na aliibuka mshindi katika kesi hiyo.
Kesi nyingine kubwa ambayo marehemu alikuwa akiziendesha ambazo bado hadi umauti unamkuta hazijatolewa hukumu ni ile ya mauji ya Ubungo Mataa ambayo inaendelewa kusikilizwa na Jaji Projestus Rugazia, rufaa ya kupinga hukumu ya mahakama ya Hakimu Mkazi Kisutu iliyomwona mfanyabiashara Naeem Gile ambayo inasikilizwa mbele ya Jaji Laurence Kaduri ambaye alikuwa akikabiliwa na makosa ya kutoa taarifa za uongo kuhusu kampuni ya kufua umeme ya Richmond LCC, kuwa hana kesi ya kujibu, rufaa ya kupinga hukumu ya mahakama ya Kisutu iliyomuona Jerry Murro hana hatia na kesi ya matumizi mabaya na kuisababishia serikali hasara ya shilingi bilioni 11.7 inayomkabili waliokuwa mawaziri wa Fedha na Nishati, Basil Mramba, Daniel Yona na Gray Mgonja.
Boniface alizaliwa Februali 21 mwaka 1968 ameacha mke na watoto watatu, aliitimu shahaha ya kwanza ya Sheria mwaka 1995 na shahada ya pili ya sheria alimaliza mwaka 2008 katika Chuo Kikuu cha Dar es Salaam.
Julai Mosi mwaka 1995 aliajiriwa rasmi katika ofisi ya Mwanasheria Mkuu wa serikali kama Wakili wa Serikali, ilipofika Oktoba Mosi mwaka 2006 alipandishwa cheo na kuwa Wakili wa Serikali Mwandamizi.Oktoba Mosi mwaka 2007 alipandishwa cheo tena na kuwa Wakili Kiongozi wa Serikali.
Nyadhifa ambazo Boniface aliwahi kuzishika enzi za uhai wake ni kati ya mwaka 2003-2007 alikuwa ni Wakili wa Serikali Mfawidhi Mkoa wa Mbeya.Kati ya Mei 2007 na Oktoba 2010 alikuwa Wakili wa Serikali Mfawidhi Kanda ya Mwanza.Novemba 2009 hadi Novemba 2010 alikuwa Mwanasheria Mfawidhi wa Serikali mkoani Dar es Salaam.
Kutokana na utendaji kazi wake mzuri ilipofika Desemba 2010 hadi mauti yanamkuta aliteuliwa kushika wadhifa wa Mkurugenzi Msaidizi wa Kitengo cha uendesha mashitaka na pia awaka Msimamizi wa uendeshaji kesi zenye maslahi kwa umma.
Bwana alitoa na bwana ametwaa jina lake liimidiwe.
Chanzo:Gazeti la Tanzania Daima la Jumatatu, Mei 28 mwaka 2012.
MAPAPARAZI TUKISUBIRI HUKUMU YA KESI YA NG'UMBI vs MNYIKA
MNYIKA AMBWAGA NG'UMBI KORTINI
Na Happiness Katabazi
HATIMAYE Mahakama Kuu Kanda ya Dar es Salaam, imepigilia msumari wa mwisho kwa kusema kuwa Mbunge wa Jimbo la Ubungo kwa tiketi ya (Chadema), John Mnyika ndiye mbunge halali wa jimbo hilo na matokeo ya uchaguzi ya jimbo hilo yaliyotangazwa na Tume ya Taifa ya Uchaguzi Novemba mwaka 2010,yalikidhi matakwa ya kisheria.
Kesi hiyo ilifufunguliwa aliyekuwa mgombea wa jimbo hilo kwa tiketi ya Chama cha Mapinduzi(CCM), Hawa Ng’umbi aliyekuwa akitetewa na wakili wa kujitegemea Issa Maige dhidi ya Mwanasheria Mkuu wa Serikali aliyekuwa akitetewa na wakili Kiongozi wa serikali
Justus Mulokozi, John Mnyika aliyekuwa akitetewa na Edson Mbogoro na Msimamizi wa Uchaguzi wa jimbo hilo.
Kwa mujibu wa hati ya madai ya kesi hiyo ya madai Na. 107/2010, mlalamikaji(Ng’umbi)alikuwa anaomba mahakama hiyo itamke kuwa uchaguzi wa Jimbo la Ubungo ulikuwa ni batiri kwasababu haukuwa huru na haki, taratibu za uchaguzi zilikiukwa kwani kuna baadhi ya fomu hazikujumlisha matokeo, pia Mnyika aliingiza Laptop kwenye chumba cha kuhesabia kura na kwamba alizitumia laptop hizo kujiongezea kula, Mnyika aliingiza watu watano katika chumba cha kujumlishia kura wakati watu hao hawakuwa na kibali cha kuingia ndani ya chumba hicho,pia Mnyika alimtolea maneno ya alimkashifu kwa kumita fisadi kwani alipokuwa Mwenyekiti wa Jumuiya ya Wanawake(CWT) Kinondoni, aliuza kifisadi nyumba za jumuiya hiyo na kwamba kuna baadhi ya kula zimeongezeka.
Hukumu hiyo iliyokuwa ikisubiriwa kwa shauku kubwa ndani na nje ya Dar es Salaam na kuudhuliwa na mamia ya wafuasi wa chama cha CCM na Chadema ilisomwa jana na Jaji Upendo Msuya ambaye aliketi katika kiti cha enzi na kuanza kuisoma hukumu hiyo kwa lugha ya Kiingereza.
Jaji Msuya alianza kwa kulichambua dai la kwamba mdaiwa wa pili(Mnyika) aliingiza Laptop binafsi katika chumba cha kujumlishia kura ambazo zilimuongezea kura hewa 14,857 ambazo hazikuwa zimehesabiwa, ambapo jaji huyo alisema mlalamikaji katika kesi hiyo alileta jumla ya mashahidi wa tatu lakini mashahidi wote hao walishindwa kuthibitisha dai hilo.
Alisema kwa mujibu wa Kanuni za Mahakama kifungu cha 50(1) na kanuni zake kinasema vifaa vyote vya uchaguzi vitakiwa visambazwe na Tume ya Uchaguzi kwa Msimamizi wa uchaguzi ,Kamishna au Mkurugenzi wa Uchaguzi na wao watatoa maelekezo yanatoondana na matumizi na usambazi wa na jinsi ya kuviifadhi vifaa hivyo maalum kwaajili ya uchaguzi.
“Hoja katika dai hili ni je Laptop hizo zilitumika kuongezea kura au la..lakini mahakama baada ya kupitia ushahidi wa pande zote mbili umeona Ng’umbi ameshindwa kutoa vielezo au kuleta ushahidi wa kuunga mkono dai lake hilo la kwamba kompyuta hizo mali ya Mnyika ambazo kisheria hazikupaswa kutumika kujumlishia kula, zilitumika ndani ya chumba hicho kujumlishia kula na kwa sababu hiyo mahakama hii itapilia mbali dai hilo kwasababu sheria na maamuzi mbalimbali ya mahakama ya Rufaa yanatamka wazi kuwa ni jukumu la mlalamikaji kuthibitisha madai yake”alisema Jaji Msuya.
Aliendelea kuchambua hoja ya kura 14,857 kuwa ni hewa, jaji huyo alisema amelazimika kuzifanyia mahesabu idadi za kura walizopata ambapo alisema Mnyika alipata kura 66,742, Ng’umbi 50,554 jumla ya kura hizo ni 117,286 na wagombea wengine 14 toka vyma vingine walipa kura 15,210 kwa hiyo jumla ya kura zote walizopigiwa wagombea wote 16 ilikuwa ni 132,496.
“Baada ya kufanya mahesabu ya kura hizo nimebaini ya kuwepo kwa tofauti ya kura 353 kati ya jumla ya kura zilizopigiwa chama cha Chadema na CCM..kwa hiyo tofauti hapa ni asilimi 0.3 ya jumla ya kura halali zilizopigwa ambazo kwa mawazo yangu zinafanya kuwepo kwa dosari za kibinadamu katika kielelezo cha kwanza;
“Kuhusu mnadai ya upande wa utetezi ambao walielezea hizo kura 14,857 zinazobishaniwa na mdaiwa zinaweza kuhesabiwa kwa jumla ya wagombea 16 ambao walipata 132,496 ambapo kura halali zilizopigwa ni 117,639 ,kura zilizoaribika ni 2,184 unapata jumla kura 14,857.
“Katika akili yangu nimetafakari dai hili ,pia nimezingatia mazingira ya kujumlishia kura yaliyoelezwa na pande zote katika kesi hii,nimezingatia muda wa kazi na kielelezo kilicholetwa na upande wa utetezi nimekubali kielelezo hicho ni sahihi na kwamba dosari hiyo ya kura 14,857 haikuweza kufanywa na laptop hizo na kwamba katika utetezi wake Mnyika hakupinga kuingia na laptop hizo ndani ya chumba alidai aliingia nazo kwaajili ya kuhakiki kura ambazo zilishahesabiwa na maofisa wa NEC ….kwa maelezo hayo hapo juu mahakama hii inasema hata sheria haikatazi wakala wa mgombea kuingia laptop kwenye chumba cha kujumlishia kura na pia Ng’umbi ameshindwa kuleta wataalamu wa kompyuta waje kutoa ushahidi ambao ungeonyesha laptop hizo zilitumika kujumlishia kura na kwa maana hiyo ombi hilo nimelikataa ”alisema Jaji Msuya.
Kuhusu dai kuwa Mnyika aliingiza watu zaidi ya nane ambao hawakustahili kuingia kwenye chumba cha kujumlishia kura, jaji huyo alisema Ng’umbi ameshindwa kutoa ushahidi unaonyesha watu hao waliingia kwenye chumba hicho na hata kama waliingia kwenye chumba hicho waliathiri vipi taratibu na kanuni za uchaguzi wa jimbo hilo.
Jaji Msuya alisema kuhusu dai kwamba Mnyika alimkashifu Ng’umbi katika mkutano wake wa adhara alioufanya Septemba mwaka 2010 ambayo alidai alimuita ni fisadi kwasababu aliuza nyumba za UWT ,alisema pia mlalamikaji huyo ameshindwa kuthibitisha dai hilo kwani lilijikita katika misingi ya ushahidi wa kusikia ambao hautakiwi mahakamani.
“Kwa kuitimisha mahakama hii imetupilia mbali madai yote ya mlalamikaji kwasababu ushahidi alioutoa wakati akijitetea kwenye kesi hii ulikita katika ushahidi wa kusikia ambao mahakama kamwe haiwezi kuupokea ushahidi huo wa kusikia na kwa maana hiyo mahakama hii kwa kauli moja ina mtangaza Mnyika kuwa ndiye mbunge halali wa jimbo la Ubungo na kwamba taratibu zote za uchaguzi zilifuatwa “alimaliza Jaji Msuya na kusababisha kulipuka kwa nderemo na vifijo toka kwa wafuasi wa Chadema.
Baada ya kumalizika kusomwa kwa hukumu hiyo, wanachama hao wa Chadema walimbeba juu juu Mnyika na kumtoa nje ya viwanja vya mahakama huku wakionyesha juu alama ya V na wakiimba Chadema,Chadema.
Lakini hukumu hiyo ilipokelewa kwa uzuni kwa upande wa wanachama wa CCM, ambao walimsindikiza Ng’umbi mahakamani hapo ambapo walionekana kupooza na wafuasi wa Chadema walipomaliza kuondoka katika viwanja hivyo, ndiyo wafuasi wa CCM huku wakiwa wameongozana na Ng’umbi nao waliondoka katika eneo la viwanja hivyo kimya kimya.
Chanzo:Gazeti la Tanzania Daima la Ijumaa, Mei 25 mwaka 2012.
JUGDEMENT OF NG'UMBI V MNYIKA CASE
IN THE HIGH COURT OF TANZANIA AT DR ES SALAAM
MISCELLANEOUS CIVIL CAUSE NO 107 OF 2010
IN THE MATTER OF ELECTION PETITION UNDER THE NATIONAL ELECTIONS ACT CAP. 343 R.E 2010 AND THE ELECTIONS (ELECTION PETITIONS) RULES
HAWA NG’HUMBI……………………………………………………………..PETITIONER
VERSUS
1. THE HONOURABLE ATTORNEY GENERAL…………..1ST RESPONDENT
2. JOHN MNYIKA…………………………………………….……………….. 2ND RESPONDENT
3. THE RETURNING OFFICER FOR UBUNGO
PARLIAMENTARY CONSTITUENCY………..……………. 3RD RESPONDENT
Date of last order: 18/4/2012
Date of Final Submission 4/5/2012
Date of the Judgment 24/5/2012
JUDGMENT
The Petitioner, Hawa Ng’humbi of Chama Cha Mapinduzi (CCM Candidate) was unsuccessful candidate for the Ubungo Parliamentary Constituency having obtained 50,544 votes in the General Election held on the 31st October, 2010. The 2nd Respondent, John Mnyika of Chama Cha Demokrasia na Maendeleo (CHADEMA Candidate) on the other hand became a successful candidate and as a result, on 2nd November, 2010 the Returning Officer one Raphael Ndunguru (Dw4) declared him (John Mnyika) a winner having obtained 66,742 votes. In the Constituency there were a total of 16 candidates in that election, who, in the final result, secured the following votes:-
1. John Mnyika of CHADEMA got 66,742 votes
2. Hawa Ng’umbi of CCM got 50,544 votes
3. Julius Mtatito of CUF got 12,964 votes
4. Prosper Karisha John of AFP got 437 votes
5. Emil John Ruvunja of APPF Maendeleo got 317 votes
6. Amina Amiri Mcheka of CHAUSTA got 519 votes
7. Kanunambeo Ismail Rajab of DP got 149 votes
8. Samira Pravin Lakhan of Jahazi Asilia got 138 votes
9. Kazimoto Rajab Thabit of NCCR Mageuzi got253 votes
10. Rashid Mawazo Rashid of NLD got 94 votes
11. Rachel Balama George of NRA got 47 vote
12. Kibogoyo Mark Rweyunga of SAU 40 votes
13. Kambona Axon Mwansasu of TLP got 113 votes
14. Kamana Masudi Mrenda of UMD got 22 votes
15. Zablon Shilinde Mazengo of UDP got 48 votes
16. Ngomi William Mabruk of UPDP got 69 votes
The Polling stations for Ubungo Constituency were 1,113.
The 2nd Respondent thus had a majority of 16,198 votes over the Petitioner. The latter now questions the validity of the 2nd Respondent’s election on 16 grounds of the Amended Petition which was presented in this Honorable Court for filing on 11th October 2011. The Petitioner is praying for judgment and decree against the Respondents as follows:
i.) A declaration that the election for Ubungo Constituency was null and void,
ii.) An Order of this Honorable Court directing for a transparent, free and fair by-election for the Ubungo Constituency,
iii.) Costs of the case be provided for by the Respondents.
iv.) Any other relief(s) that the Honorable Court may deem just to grant.
The avoidance of the election results by the Petitioner as agreed rooted on the grounds specifically stipulated in paragraphs 9, 10 and 11 of the Amended Petition. Mr. Maige for the Petitioner has not categorically brought any evidence in the allegations raised in paragraphs 9(ii), 10 and 11(i), and (v) of Amended Petition, consequently the same are treated as withdrawn and are dismissed. Thus the reasons for the Petitioner’s prayers are contained in the following paragraphs:-
Para 9. That during the campaign period, the 2nd Respondent and his agent committed illegal practices in connection with election as enumerated hereunder.
i.) That on 11th day of September 2010, while addressing a public rally at the election campaign held at Riverside, the 2nd Respondent made a false and defamatory allegation against the Petitioner to the effect that she was involved in the illegal and fraudulent sale of a house previously belonging to Umoja wa Wanawake (UWT), the fact which the 2nd Respondent knew or ought to have known that it was not true.
Para 11. The Electoral Commission and the third Respondent failed to ensure compliance with the Law and fairness as shown hereunder.
ii.) Similar to the above point, there were serious and irregularities in filling in RF 21B forms in that the particulars of the disputed and rejected votes were not provided. Further that the figures of the voters shown in forms RF 21B materially differed with those in the ballot boxes. The 3rd Respondent was requested by the principle agent of the Petitioner to open the relevant ballot boxes to verify the votes, but categorically refused to do so. The production of the same would have facilitated examination of the ballot papers in question and produce a definitive decision. Copies of the samples of the erroneous forms are hereto attached and marked collectively MJ-1 and for which leave is sought to read as part of this Amended Petition.
iii.) During the addition of votes by the 3rd Respondent, unauthorized laptop computers of the 2nd Respondent were used instead of the authorized laptop computers from the Electoral Commission. The use of the strange laptop computers was made without there being prior inspection to verify if there were no cooked data therein.
iv.) Although in law the 2nd Respondent would have not been permitted to have more than one representative during the addition of votes at the level of the Returning Officer, there were more than five CHADEMA’S followers present at the counting of the votes. Reference shall be made to a copy of a video tape recorded at the material time showing the persons who were present at the counting of votes at the level of the Returning Officer as Annexture MJ-2, for which leave is hereby craved to refer to it as part of this Petition.
vi.) There were serious errors in the addition and counting of the votes in Form No. 24B by the 3rd Respondent such that the announced results did not tally with the number of the voters. Copy of the Election Results Form is hereto attached and marked MJ-3 and for which leave is sought to read as part of this Petition.
vii.) Owing to this reasons, the Petitioner declined to countersign the official declared results by the 3rd Respondent.
The hearing of the petition commenced by Preliminary Hearing conducted in terms of Rule 19(1) of the National Elections (Election Petitions) Rules, 2010 G.N No. 447 published on the 19th November, 2010 where the following issues were agreed:-
1. Whether or not the Respondents committed serious errors, irregularities and non compliances during the election process as alleged in paragraphs 9 and 11 of the Amended Petition or at all.
2. If the first issue is answered in affirmative whether the irregularities and non – compliance of the Respondents alleged in paragraphs 9 and 11 of the Amended petition or part thereof affected fundamentally the election results at the detriment of the Petitioner.
3. To what reliefs are the parties entitled to.
It is the Petitioner’s contention that the election was not conducted in accordance with the provisions of the law. In that the Respondents committed serious errors, irregularities and non compliances during the election process. Therefore the issues complained are as follows:-
One, that there were discrepancies in the final aggregate tally of votes cast; the figures so declared showed unaccounted votes of about 14,857 as reflected in paragraph 11(vi) of the Amended Petition.
Two, that the Petitioner was defamed by the 2nd Respondent by being called “Fisadi” because she was involved in illegal and fraudulent sale of the “Umoja wa Wanawake” Building (UWT). This is as shown in paragraph 9(i) of the Amended Petition.
Three, is non existence of form No. 16, which is a National Electoral Commission Dissatisfaction or Satisfaction of a candidate or agent at the counting of votes made under Regulation 59 of the Elections (Presidential and Parliamentary) Regulations 2010, (hereinafter to be referred to as form No. 16). This was not pleaded in the Amended Petition.
Four, The use of the laptop computers of the 2nd Respondent in addition of votes in the addition room; this is as it appears in paragraph 11 (iii) of the Amended Petition.
Five, Irregularities in forms No. 21B, a form which should be filled by a Returning Officer during the determination of disputed votes. The gist of the Petitioner is that the forms had errors which the officers who were in the addition room were forced to correct so that the results may tally. These forms tendered as exhibits P2, P3, P4, P5 and P6 are made under Regulation 60 (1) of the Elections (Presidential and Parliamentary Elections) Regulations, 2010(hereinafter to be referred to as the Regulation) relating to polling station election results and report of presiding officer. This is as indicated in paragraph 11(ii) of the Amended Petition.
Six, The allegation that the 2nd Respondent entered in the addition room with more than five unauthorized members of his party; this allegation is under paragraph 11(iv) of the Amended Petition.
Scrutiny of the allegations raised in the pleadings reflect that the issue related to non existence of the form No. 16, (as provided for in paragraph 3 above) which is the National Electoral Commission Dissatisfaction or Satisfaction of a candidate or agent at the counting of votes made under the Regulation 59 that is a complaint form was not pleaded. Under Order VI Rule 7 of the Civil Procedure Code Cap 33 R.E. 2002 and Rule 23 of National Elections (Elections Petitions) Rules 2010, (hereinafter to be referred as the Rules) an issue which is not raised in the pleadings cannot be resolved by a Court. It is a rule against departure from pleadings. In the same lines I agree with Mr. Maige’s final submission that the rule avoids parties not to be taken by surprise. I also agree with the authorities he referred to that effect. In James Funke Ngwagilo Vs AG (2004) TLR 161 the Court of Appeal stated inter alia that:-
“… the function of pleadings is to give notice of the case which has to be met. A party must therefore so state his case that his opponent will not be taken by surprise. It is also to define with precision the matters on which the parties differ and points on which they agree, thereby to identify with clarity the issues on which the Court will be called upon to adjudicate to determine the matters in dispute...”
In this ground of non existence of form No. 16, the respondents were taken by surprise by the new ground. In such a situation the justice of the case demands that the unpleaded grounds should be ignored. The ground three above is so treated. Additionally to that, all the arguments outside the scope of pleaded issues in this case shall not attract the determination of this Court.
Before venturing into the real business of determining the issues before this Court, I feel indebted to commend all the Learned Counsels for doing their utmost to defend and protect their clients’ interests. In particular they made sure they avoided unnecessary delays by not calling too many witnesses or witnesses taking too long giving their evidences. They were all thorough and direct to the issues in examination in chief, cross examination and re-examination. This led in not having many objections which are some of the causes of delay. Apart from that, I am as well gratified by the Learned Counsels and all the parties for their tolerance and indulgence when I had my personal problems which interfered with the scheduled session. Last but not least, I wish to express my sincere gratitude to the audience for peace and harmony portrayed throughout the trial.
Having said that, I now turn to the facts in issue. After the closure of the Respondent’s case all the learned counsels made oral submissions. In consensus with learned counsels in their final submissions, I find it pertinent at this stage, to put clear the position of the law in cases of election petitions.
It is worth noting that “election is the right of every eligible citizen to determine who will represent them in government without encumbrance. Is the basic unit and cornerstone of any democracy and a pre-requisite for social cohesion and solidarity. Elections are indeed an element of within the principle of rule of law” Compendium of 2007 Election Petitions Emerging Jurisprudence, 2nd Edition at page 205
It is a constitutional right and as pointed out by both learned Counsels in their final submissions is as well a statutory right, provided for under section 108 (2) of the National Election Act, Cap 343 of the laws (hereinafter to be referred to as the Act)
An election petition therefore represents a potential abuse of this basic constitutional right and as final arbiter of the outcome of the electoral process. Therefore this Court has a heavy and solemnly responsibility.
I concur with the learned Counsels’ final submissions that the provision of the law under the National Election Act, relevant to the issues before this Court for consideration and determination, is section 108 (2) (b), relating to avoidance of elections by election petition. The section reads:-
Section 108 (1) …
(2) The election of a candidate as a Member of Parliament shall be declared void only on an election petition if the following grounds is proved to the satisfaction of the High Court and on no other ground, namely:-
(a) …
(b) non-compliance with the provisions of this Act relating to election, if it appears that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of the election;
In determining the issue of non compliance, the Court should be guided by the principle of law settled by the Court of Appeal directing that where the issue of non compliance with provisions of the Act is raised; such non compliance must be shown to have reference to the results of the election. The petitioner must satisfy the Court beyond doubt that the Respondents committed serious errors, irregularities and non compliances which amounted to non compliance within the provisions of the Act and it affected the election results which the Returning Officer used to declare the final results under section 81 of the Act.
Another issue before the Courts when trying election petition cases involves the meaning of “to the satisfaction of the Court”. This means that such standard of proof must be such that no reasonable doubt exists that one or more grounds set out in the relevant section have been proved beyond reasonable doubt. The said was considered by Sisya J. (as he then was) in the case of CHABANGA DYAMWALE Vs ALHAJ MUSA SEIF MASOMO & THE ATTORNEY GENERAL (1982) TLR 69 referring the case of MBOWE Vs ELIUFOO (1967) E.A 240, and NG’WESHENI Vs ATTORNEY GENERAL (1971) HCD No. 251. It is now settled that the law relating to the standard of proof required for the avoidance of an election result is proof beyond reasonable doubt. Any other measure below that will not suffice.
The other phrase is “affected the results”. In a series of cases the same as cited above Chabanga Dyamwale’s case, Ng’wesheni’s case, Mbowe’s case and the case of Bura Vs Sarwat (1967) E.A 234 and in Re K.A Thabit 1967 E.A 177 where the phrase was considered. Onyiuke J. (as he then was) had this to say and I quote:-
“In the light of this authorities I would hold that the question whether non compliance within the provisions of the Act relating to the elections affected the result of the election would depend on the nature of the particular complaint or irregularity and on the margin of victory then the irregularity has not really affected the result of the election where however, the complaint goes to the root of free election such as a case of organized campaign or undue influence and it appears that the substantial number of votes obtained, (or I may add, may have been obtained) thereby then since the extent of such wrong practice may never be known, the Court may be inclined to hold that it affected the result of election without proof of actual reversal of the result”
It is as well held in the case of CHABANGA, above cited that:-
“Although a few irregularities had been proved they could not be said to have affected the result of the election because even if the adversely affected votes were added to the Petitioner’s the Respondent would still have won the election by big majority”
Therefore not every contravention of the Election Act amount to an illegal practice which must be confined to specific offences or contravention so described. REV. ELIYA CHIWANGA Vs REV. SEVERINO ANDREA SUPA (1982) TLR No 12
Having addressed the position of the law let me turn to the issues raised in this petition by applying the above mentioned rules and principles of law. By so doing I will evaluate each of the witnesses, assesses their credibility and make a finding on the contested facts in issue.
At the hearing of the case the Petitioner called three witnesses namely the Petitioner, Hawa Ng’humbi (hereinafter to be referred to as Pw 1 the Petitioner), Pw2 Robert Kondela (referred to as Pw2) and Pw3 Henry Kishato (hereinafter to be referred to as Pw3). The Petitioner tendered form 24B relating to Parliamentary Election Results in a Constituency made under Regulation 66(1)(a) of the Elections (Presidential and Parliamentary) Regulations, 2010 as exhibit P1, at the Preliminary Hearing through the 3rd Respondent after he was served with a Notice to produce. (the same to be referred to as exhibit. P1). Through Dw3 five copies of Form No. 21B which is a Polling station election results and report of presiding officer filled by Returning Officer during the determination of disputed votes at the hearing of the case, were tendered at the hearing. The forms will be referred to as exhibits P2, P3, P4, P5 and P6 respectively. The Petitioner was represented by the learned Counsel Mr. Maige.
Mr. Mulokozi Principal State Attorney assisted by Mr. Sarungi Senior State Attorney represented the 1st Respondent who is the Attorney General joined in compliance with the Rule 6 (1) of the Rules which requires in every election petition the Attorney General to be made a part as the respondent. They also represented the 3rd Respondent.
The 3rd Respondent brought three witnesses who were Dw1 Gaudence Odilo (hereinafter to be referred to as Dw1), Dw3 Sioni Nko (hereinafter to be referred to as Dw3) and Raphael I. Ndunguru Dw4 (hereinafter to be referred to as Dw4)
The 2nd Respondent called three witnesses namely the 2nd Respondent John Mnyika as Dw2 (hereinafter to be referred to as Dw2); Dw5 Ally Saidi Makwilo (hereinafter to be referred to as Dw5) and Dw6 Erick Ongara (hereinafter to be referred to as Dw6). Dw5 tendered a programme of campaign meetings and was admitted as exhibit “D1” (hereinafter to be referred to as exhibit “D1”). He was represented by the learned Counsel Mr. Mbogoro.
The first issue is of defamation, contained in the paragraph 9(i) of the Amended Petition. It is the evidence of Pw1 that on the 11/9/2010 when the 2nd Respondent was addressing a meeting at Riverside, he defamed the Petitioner by calling her “fisadi” in that she was involved in selling an “Umoja wa Wanawake” building fraudulently. The witness told the Court that she was not in the meeting but she was informed by Pw2 Robert Kondela. To this extent her evidence is hearsay and not admissible.
In his part Kondela, Pw2 testified that before the election he participated in different campaign meetings conducted by the candidates. That on 11/9/2010 he attended a CHADEMA meeting at Riverside Ubungo where the speaker was Dw2. He informed the audience of his intention to petition for election. He said in the meeting Dw2 told the audience not to elect CCM candidate because CCM is embracing “ufisadi” and the Petitioner is a “fisadi”. Dw2, he said, went on to tell the Court that the CCM candidate was involved in the sale of UWT building. He further said in that meeting that there were about 500 to 600 people. When he was asked in cross-examination about the effect to the results he said the audience present would have influenced voters not to vote for Pw1.
In his evidence Dw2 supported Ally Said Makwilo (Dw5) who was a champagne Manager of election at Ubungo Constituency for CHADEMA who also tendered a programme for campaign meetings admitted as exhibit D1 denied to have made defamatory statements because on the 11th September, 2010 he was not at Riverside he was addressing another meeting at the Ubungo Ward Msewe Msikitini in the morning and from the afternoon to evening he was at Saranga Ward Kimara stop over and that it was on Sunday and not Monday as alleged. Dw2 further stated that for the first time he remembers to have heard the allegation that CCM candidate is corrupt one in the CCM campaigns. The second time was on 28th August, 2010 when they were in a TBC TV Programme known as “Kipindi cha Mchakato Majimboni” where those allegations were raised by one of the people who attended the programme. The witness argued that if he really defamed the Petitioner she would have complained under the Election Act.
In my humble view the issue here which stands for determination is whether the Petitioner was defamed. To prove the allegation one witness Robert Kondela was called.
Dw2 disputed that there was no such meeting. This evidence is challenged by the Counsel for Petitioner in the final submissions for not being pleaded in the defence. He referred the Court to Oder VII Rule 6 of the Civil Procedure Code Cap 33 R.E 2002, the rule against departure from proceedings. The Petitioner prayed that the evidence that there was no meeting be dismissed.
Campaign meeting are regulated by programme. So for one to allege that there were defamatory words uttered in a meeting it has to be proved that on the date the defamatory words were uttered there was a meeting at the time and the place of meeting as shown in the programme of the campaign . In undisputed evidence the witnesses explained very thoroughly how that programme was prepared and the procedures followed when there were changes. Because the campaign programme is the one followed in holding meeting there was nothing wrong for the Dw2 to say he did not utter those defamatory words and after all on the alleged date, time and place as alleged by Pw2 there was no meeting. According to the programme the meeting was held at Ubungo Ward Msewe Msikitini and at Saranga Ward Kimara stop over. It cannot be said to be a rule against departure on proceedings, in saying that there was no meeting. Therefore evidence that there was no meeting cannot be dismissed.
In finding out the merit of this ground, it has been proved that the Petitioner, Pw1 was defamed by Dw2. Apart from Pw2 no other witness was called to testify. Out of 500 or 600 people who were in the meeting no one had come forward to prove that Dw2 uttered those defamatory words. Even if the evidence that there was no such meeting was dismissed, the question is that has it been proved that Dw2 uttered those defamatory words? The allegation of defamation is very serious. Substantial credible evidence is required to support it, and it has to be corroborated by an independent testimony.
Over and above that no evidence tendered to prove how the defamatory statement induced the voters not to vote for Petitioner. Therefore I dismiss the issue as being baseless.
The second issue is relating to form No. 24B which was tendered as exhibit P1. On this issue Pw1 Hawa Ng’humbi testified that she was a Parliamentary election candidate for Ubungo Constituency in the year 2010 conducted on 31/10/2010. The 2nd Respondent John Mnyika was declared the winner. She told the Court that the problem is not for him, to be declared the winner, but it is the errors, irregularities and non compliances during the election process. She was aggrieved by non compliance in addition of votes which led to all the results not to be valid according to law and that is why her part in exhibit P1 was not signed by her counting Agent Pw3. She said after the addition of all votes, in the filling of form No. 24B exhibit “P1” the 3rd Respondent made fundamental errors and non compliance with procedures in adding and entries made in exhibit P1 were not correct. In calculations she made in the exhibit P1, she said the non compliance led to 14,854 votes which were unaccountable.
Although in the verification clause as it reads in the Amended Petition she said all what is stated in all the paragraphs is known to the best of her knowledge, in her testimony she told the Court that she was not in the adding room but she was informed by her counting Agent, Pw3 Henry Kishato. Therefore to this extent, the Petitioner’s evidence is hearsay and is accredited no weight.
Henry Kishato, Pw3 on this issue informed the Court that being a counting Agent of Pw1 he was in the adding room where he realized discrepancies in some of the election forms, where the results were not tallying. An Assistant Returning Officer Lambert Kyaro ordered them to make corrections in those forms but he refused. The forms he was referring to were exhibit P3 in which 6 votes were missing; In relation to exhibit P4 there was a difference of 2 votes; in exhibit P5 the original form differed with the photocopy by 3 votes and there is an error of 1 vote in exhibit P6. The errors in the above mentioned forms he said affected the votes in exhibit P1 because the form was not correct, as there were unaccounted votes.
The issue of the discrepancy in exhibit P1 was not disputed. Dw1, Dw2, Dw3 and Dw4 admitted in their defence that there is an error in filling exhibit P1, in that the votes were not tallying.
In his final submission the learned Counsel Mr. Maige told the Court that the Petitioner has proved beyond all reasonable doubt from the evidence of Pw1 and Pw3 and the evidence in exhibit P1 that there were fundamental errors and non compliance with procedure which led to 14,854 unaccounted votes. Mr. Maige submitted that once they have established that there are unaccounted 14,854 votes the evidential burden shifted from the Petitioner to the Respondent, who were supposed to explain how the 14,854 votes were arrived at.
Due to the fact that it is undisputed that there were discrepancies in exhibit P1 the issue now is whether it has been proved to the satisfaction of the Court that the non compliance complained of was malicious.
According to the testimony of Pw3, the Agent who was in the adding room, assuming he was in the room, according to the evidence of Dw2 who said that he saw him briefly while drunk and left, he did not prove to the satisfaction of the Court that the errors were malicious. Further that there was no any other witness called to prove that fact. If there was a really serious problem on that issue out of all the people who were in the adding room would have as well complained, or would have been ready to come to Court to testify but none was called. It is my finding in this issue that the evidence did not show how the admittedly substantial error in the total number of unaccounted votes occurred maliciously and that it was declared in favor of the 2nd Respondent. However the error as admitted did not show ipso facto that the election was so badly conducted that it could not really be said to be an election.
In absence of substantial credible evidence to establish malice I find no substance in this second issue, but nevertheless that the evidence thus far recorded would, together with the other grounds raised in the petition, and remaining for our consideration, be taken into account in the petition, and remaining for our consideration, be taken into account in determining at the end of the case whether or not the petitioner has established that the election should be set aside. The irregularities took place due to human error; the 3rd Respondent did not act maliciously.
With due respect to the learned Counsel, Mr. Maige the law is very clear about the burden and the standard of proof. That it is the Petitioner who has a duty to prove the issue raised against reasonable doubt. It is not enough to just allege. One has to prove the allegations to the satisfaction of the Court, according to the cases of CHABANGA HASSAN DYAMWALE above cited, STANSLAUS RUGABA KASUSURA & AG Vs PHARES KABUYE (1982) TLR 388 and the case of LUTTER NELSON Vs AG & ANOR E.A.LR 1992 (1999) 2 E.A 160 just to mention few.
Therefore the issue is not answered in affirmative.
The third issue is in relation to form No. 21B that is exhibit P2, P3, P4, P5 and P6 respectively. Just like the issue relating to exhibit P1, Pw1 told the Court she was informed by Pw3 that there were discrepancies in the forms from the Polling stations, as the results were not tallying with the valid votes and other forms had no total number of votes.
On this issue Pw3 was called who testified that when exhibits P2, P3, P4, P5 and P6 respectively were added he found out that there were discrepancies in those forms. Referring to the forms he said in the exhibit P2 there are 3 votes missing, in exhibit P3 there are 6 votes missing in exhibit P4 there is a difference of 2 votes. The other exhibit P5 the original form differ with the photocopy by 3 votes and in exhibit P6 there is one vote missing. This led the Returning Officer, Mr. Lambert Kyaro to order them to change the figures and correct the errors where Pw3 refused and as a result he refused to sign exhibit P1 and demanded the ballot boxes to be opened.
In the defence Dw2 and Dw6 denied to have been involved in making corrections in exhibit P2, P3, P4, P5 and P6 respectively. They submitted that corrections if any in the above referred to exhibits are done in the Polling stations. Dw6 further refused to have corrected exhibits P2, P3 and P6 at the level of the constituency, and refused to have signed the same when he was shown his name. He said he was not an Agent at the Polling station.
Challenging the contradiction of Dw2, Dw5 and Dw6 on the issue of the correction of the votes at the constituency level the learned Counsel for the Petitioner, Pw1 prayed to the Court for the witnesses to be treated as incredible.
In their final submission the learned Counsels for the defence submitted that according to section 79 of the Act, corrections are made at the Polling station. They can reach the director through complaining to the Returning Officer by lodging the form No. 16, which was not done. They also submitted that if the Court will be satisfied that the corrections were made in the adding room it did not affect the results as it is only 15 votes, considering the margin between the petitioner and the 2nd Respondent.
The question here now is whether it has been proved at the standard required, that there were irregularities in exhibits P2 to P6 and the officers were ordered to correct the same at the constituency level. Here again the only witness to prove the issue is Pw3. The evidence of Pw1 cannot be considered as she was not in the adding room. Dw2 and Dw6 who were in the adding room denied to have made corrections. Even when Dw6 was shown his name and signature in the exhibits P5 and P6 he refused to have signed.
To prove that the corrections were made in the addition room and that Dw6 was involved in making corrections as alleged, the petitioner was obliged to bring expert evidence of handwriting, to prove beyond doubt that the exhibits P5 and P6 respectively were corrected at the constituency level. Not only that but also because Pw3 was not alone in the addition room, the Pw1 was supposed to call witnesses to corroborate the evidence of Pw3. Failure of which makes the issue to have not been proved beyond reasonable doubt.
So the fact that there is no evidence to corroborate the evidence of Pw3 and the fact also that Pw3 did not complain in compliance with section 79A (1) (c) of the Act shows that there was no seriousness in proving the case to the required standard. It as well makes the evidence of Pw3 incredible, because as a CCM party Secretary, Ubungo Ward and the counting Agent of Pw1 must have an interest to serve, and his evidence should be treated cautiously. Therefore this issue is not proved beyond reasonable doubt. However because election are a process and not an event, the number of votes in exhibit P2 to P6 were very small, they were only 15.They could not have affected the election results.
The forth issue is whether the 2nd Respondent went in the addition room with the laptop computers and were used for addition. Pw1 testified that the 2nd Respondent brought his laptop computers in the votes adding hall which were used by the officer adding votes for addition of the votes. She further argued that the computers used were unauthorized because it is only National Electoral Commission who were supposed to bring the computers for addition of votes. She deposed that the unauthorized computers might have unauthorized information that it is possible the 14,854 unaccounted votes were already in the laptop computers. Although she was not in the addition room, she said she was informed by Pw3 his counting Agent. Her evidence is hearsay and is in law inadmissible.
On the issue of computers, Pw3 told the Court that on 1/11/2010 at about 21.00 hours the 2nd Respondent complained to the Assistant Returning Officer, Lambert Kyaro that the National Electoral Commission computers are slow hence delaying the addition of votes. He said that is because the 2nd Respondent wanted to bring his own computers. He objected but despite his objection the 2nd Respondent left the room and came back with five laptop computers. He put them on the table and convinced the Assistant Returning Officer to use the computers in adding the votes. But he said he heard the Assistant Returning Officer saying that he has to consult the Returning Officer on whether to use the laptop computers or not. After 25 minutes he said the Returning Officer, Dw4 got into the addition room and after another 5 minutes Mr. Kiravu the Director of Elections also appeared. They were all pressurized by Dw2’s followers and the computers of the 2nd Respondent were used in addition of the votes. He said the computers are privately owned by the 2nd Respondent and were not verified, it is not known what was in them. So he said they were brought to temper with the results.
The Respondents strongly denied to have used the computers of the Dw2. All the defence witnesses who were in the addition room proved that the laptop computers of CHADEMA were not used. It is undisputed that before abandoning the computers alleged to be of the National Electoral Commission, the Returning Officers used two computers belonging to the National Electoral Commission.
The issue now is whether the computers used are those of Dw2 and whether they were verified and authorized.
In his submission the learned Counsel for the Pw1 Mr. Maige challenged the use of the computers of Dw2 in that they were not verified by a computer expert who was also supposed to appear in Court to give evidence. He also argued that the laptop computers may be having information which led to the discrepancies in exhibit P1. That the unaccounted votes might have been in Dw2’s laptop computers, he stated.
Referring to the evidence of Dw1 supported by the evidence of Dw2, Dw3 and Dw4 Mr. Maige said it is not true that the 4 laptop computers were obtained from the officers of the Municipal Council namely the Accountant, Hassan Mussa Assistant Returning Officer of Ubungo Constituency and IT Department of the Kinondoni Municipal Council, as it was not easy to get them after 20.00 hours when the decision to use the other system was made. As the entire officer would have not been in the office.
Assuming that the computers were for the Municipal Council he said they were as well unauthorized as they are properties of officers they mentioned. He referred the Court to Rule 50 (1) of the Regulations, The Rule reads:-
50(1) “All the election equipments and materials shall be supplied by the Commission to the Returning Officer and the Commission or the Director of Elections shall issue directives relating to utilization, distribution and safe custody of such election equipment and materials”.
According to the Rules the learned Counsel stated, the person authorized to supply election equipments and materials is the Commission.
In the evidence of Pw3 which was corroborated by Dw1 the laptops were used after consultation with Dw4 Mr. Ndunguru the Returning Officer and the Director of Elections Mr. Kiravu who according to the Rule could issue directives relating to utilization of the equipments. We are told that Mr. Kiravu accompanied by Dr. Cyst an IT consultant of the Commission who according to the evidence of Dw1 and Dw4 Mr. Kiravu went there in response to a call relating to the use of other laptop computers because the Electoral Commission computers were delaying the process of adding the votes.
The issue of whether the computers were verified it was subject to proof. It is my humble view that the Petitioner who is alleging that the laptop computers were not authorized and verified has a duty to prove that allegation. That is by bringing witnesses to first prove that the laptops were not authorized, not verified and had information which caused 14,857unaccounted votes.
The learned Counsel Mr. Maige is as well challenging the defence of Dw1, Dw2 and Dw3 that they have failed to explain the procedure used for verification and that the laptops could not be tempered with. The burden is upon the Petitioner to prove by calling the expert like Dr. Cyst to testify on the status of the laptop computers on the issue of verification, and Mr. Kiravu the Director of Elections on the issue authorization. Mr. Maige argued very strongly that it was the duty of the defence to call those witnesses to give evidence on the verification and authorization of the laptop computers. That is not proper according to the law. It has been repeatedly been emphasized that the one who alleges must prove his allegations. It is the Petitioner who is alleging that the laptop computers whether they are for the 2nd Respondent or the Municipal Council they had to be verified and authorized. Now that he is alleging that they were not he had to bring supporting evidence to that effect. Not to shift the burden of proof to the defence.
Finally that the assumption that the use of unauthorized laptop computers led to the erroneous additional of votes as reflected on the second issue raises doubt as to whether the use of the laptop computers is the cause of unaccounted votes. The defence through Dw4 gave an explanation on the cause of the error and as I have said it was a human error. That in the final results they just added the votes for the Pw1 and Pw2 and left out the votes of the other 14 candidates.
I have had the opportunity of dispassionately scrutinizing the entire evidence and exhibits as tendered in Court and in so doing I have observed at the outset the votes as obtained and recorded in the exhibit P1. I wish to do some calculations on the face of the exhibit P1 to justify my reasoning.
John Mnyika of CHADEMA 66,742 votes
Hawa Ng’umbi of CCM 50,544 votes
a. Sub Total CHADEMA and CCM 117,286
b. Sub Total for other 14 candidates 15,210
c. Grand Total for all 16 candidates 132,496
I have observed that there is a difference of about 353 votes between the total votes for CHADEMA and CCM (as reflected in paragraph ‘a’ above) and the total number of valid votes as recorded in the exhibit P1 which the defence alleges to be the total of the rival parties. Mathematically it reflects that;
Total number of valid votes 117,639
Total CHADEMA and CCM 117,286
Difference 353
The difference is only 0.3% of recorded total number of valid votes, the difference which in my humble view makes the error in exhibit P1 human error.
Further to that as argued by the defence side the discrepancy of about 14,857 votes can mathematically be viewed as follows
The Grand Total all 16 candidates (paragraph ‘c’ above) 132,496
Minus
The recorded total number of valid votes 117,639
Minus
The recorded total number of rejected votes 2,184
Remaining: 14,857 votes
I have kept in mind the allegation of the Petitioner and also I have considered the nature of the process of the adding the votes as explained by parties in this Honorable Court. I have also considered the long working hours and a cumbersome process and I find the evidence tendered by defence side to be credible. The error had nothing to do with the laptops, as again from the defence on an evidence which is undisputed what was being done at the constituency level was just to add the votes from form No. 21B and record the final results in exhibit P1.
It is not disputed by Dw2 that he did not have a laptop computer in the addition room. He said that himself and other counting agents for other political parties had computers. But the laptops were not used by the election officers for adding. They were used for verification of their votes, also that the law does not prohibit the agents from entering the addition room with a laptop computers.
For the above reasons I find the Petitioner to have not proved her case beyond reasonable doubt. It is only Pw3 who testified on the issue of computes, his evidence is incredible. To prove that what he is saying exactly happened he would have called witnesses like Lambert Kyaro and the Director of Elections Mr. Kiravu but he did not do so. He wants the defence to call them and prove authorization and verification. That is not proper. The Petitioner is the one alleging she has to prove her allegation beyond reasonable doubt. For the reasons above the issue is not answered in affirmative and is dismissed.
The last issue is of unauthorized people in the room of adding votes. It is the evidence of Pw3 who told Pw1 that Dw2 entered the additional room with unauthorized persons. In his testimony Pw3 said that Dw2 entered the addition of vote’s room with more than eight (8) members of his party. He mentioned those members to include one Bonoface Jacob a Councilor of Ubungo Ward, Renatus a Councilor of Sinza Ward, Nassoro and one Mallya. He even identified some of them in Court. He said according to law people who were supposed to be in the addition room were Returning Officer, Assistant Returning Officers, Electoral Commission members, Candidates and/ or their agents, Police and Observers. He also said the Agent of the 2nd Respondent was one Erick, Dw6. Pw3 said further that he was not happy with the situation, he reported to Mr. Lambert Kyaro but he was told that there were no forms No. 16.
It is the evidence of Pw1 that the issue of allowing more people in the addition room as required has affected the results because it affected the concentration of the adding officers and that is the reason they made mistakes in filling exhibit P1.
Dw2 on the other hand denied to have entered with his fellow party members more than allowed. Testifying on this all defence witnesses stated that it was not possible for unauthorized people to get into the adding room. All the authorized people had to identify themselves before they entered. Some were identified by their uniforms like Police Officers, others had identity cards, and Agents had introduction letters from their respective parties. There was a very tight security to the extent of it be impossible for an unauthorized people to get in.
Considering the state of affair in the addition room I do not think it is possible for people who are not authorized to get into the adding room. I think most of the officers and candidates and agents are literate and they all know their rights. I do not envisage a situation where Dw2 could enter into the addition room with so many people without the other agents and or candidates complaining. More than eight people are too many to enter the addition room unnoticed by all the other people in the room except Pw3. Pw3 did not even mention in his evidence that there were other authorized people in the room who complained about the issue of Dw2 entering the room with such a big number of unauthorized people.
The issue now is whether it has been proved to the required standard that Dw2 entered with more than 8 unauthorized people in the addition room.
Apart from Pw3 there is no other witness called to testify on the issue. The defence denied that Dw2 entered into the additional room with more than eight people. The petitioner was supposed to call witnesses who were in the room to prove that Dw2 entered with such a big number of unauthorized people. In absence of that, the evidence of Pw3 is untrustworthy. This issue as well not answered in affirmative. It is therefore dismissed.
Before I leave this issue I am inclined to put it clear that it is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good reasons for not believing a witness. The Petitioner herein called 3 witnesses to prove her case. Their testimony was challenged big time. I understand that what is important is the credibility and reliability of the evidence and not the number of witnesses called to testify in consideration of section 143 of the Evidence Act Cap 6 R.E 2002. This Court have seriously and very carefully considered and weighted all the evidence of the three petitioner’s witnesses before it, and the same is satisfied that they were not credible. I am very supprised that if they were, why didn’t they call witnesses to corroborate their testimony? This taking into consideration the fact that in addition room and in the meeting there were many people.
As also observed in the case of Riziki Method Vs R Criminal Appeal No. 80 of 2008 CA (Unreported) where the case of Aziz Abdalha Vs R (1991) TLR 71 was referred, it was succinctly that:-
“the general and well known rules is that the prosecutor is under a prima facie duty to call those witnesses, who from their connection with the transaction in question, are able to testify on material facts. If such witness are within reach but are not called without sufficient reason being shown the Court may draw an inference adverse to the prosecution”
I abide by this holding and accordingly I apply the same.
In the final analysis after considering all the evidence on the grounds raised and argued in this petition I do not think that the evidence of either the Petitioner or her two witnesses Pw2, Robert Kondela and Pw3, Henry Kishato; was sufficiently reliable. As a result, the Petitioner has not proved the allegation at the required standard that there was non-compliance with the provisions of the Act in relation to Parliamentary elections which have affected the final results declared by the Returning Officer on the 2nd November, 2010.
It is thus undisputed fact before this Honorable Court that the 2nd Respondent’s majority over his nearest rival the Petitioner was over 16,198 votes. It remains for me to see whether this majority was achieved by the 14,857 votes alleged to have been an unaccounted for. As argued above by the defence side in this judgment, the 14,857 votes which was a result of human error as clearly evidenced Dw1, Dw2 and Dw4 is in my settled mind credible. I am of that unyielding view due to the fact that the adding officer spent more than 17 hours 40 minutes in the adding room without a break. As reflected in the evidence the adding process started on about 11.00 hours (1/11/2010) and the results were declared on 04.40 hours (2/11/2010) when the results were declared. For the record, I do not think the evidence of the Petitioner has come anywhere near establishing the commission of an election offence in relation to the issues in dispute as contended in the Amended Petition dully filed in this Honorable Court.
The evidence has not shown one way or the other how this admittedly substantial error affected the final result. It could have happened either at the process of adding the votes to get the final results or in the course of the figures being transmitted from the computer to the exhibit P1. In either case I maintain that, that I do not think that the error, and or irregularities ipso facto shows that the election was conducted so badly that it cannot be said really to have been an election.
In my conclusion therefore, I find that none of the grounds of the Amended Petition of this petition as argued herein above has been proved, consequently I dismiss the petition and declare that the 2nd Respondent was validly elected for the Ubungo Constituency at the General Election of 31st October 2010 with a majority over his nearest rival, the Petitioner, of 16,198 votes. The Petitioner shall pay the costs of this petition to the 1st 2nd and 3rd Respondents.
Petition Dismissed.
U. Msuya
JUDGE
24/05/2012
Date: 24/05/2012
Coram: U. Msuya, J.
The Petitioner:-
For the Petitioner:-
For 1st Respondent:-
2nd Respondent:-
For the 2nd Respondent:-
For 3rd Respondent:-
Court: Judgment delivered at Dar es salaam this 24th day of May, 2012 at presence of parties as stated in the corum for today and right to appeal in time has been explained thoroughly.
U. Msuya
JUDGE
24/05/2012
Chanzo:www.katabazihappy.blogspot.com. Alhamisi, Mei 24 mwaka 2012