This is a consolidation of two appeals involving the Attorney-General and Radio H Tanzania Dar es Salaam as the joint appellants in the first appeal, and Azim Suleman Premji as the appellant in the second appeal and in which the respondent is Dr Aman Walid Kabourou. The two appeals have been instituted in this court against the judgment of the High Court at Tabora where the respondent had filed an election petition under I section 108 of the
Elections Act, 1985 as amended by the Elections (Amendment) Act, 1992, seeking the A nullification of the results of a parliamentary by-election in which the third appellant, namely, Azim Suleman Premji, who had been a candidate sponsored by Chama Cha Mapinduzi, otherwise commonly know by its acronym as CCM, had been declared to be duly elected as the new member of parliament for Kigoma Urban Constituency. The B respondent, that is, Dr Aman Walid Kabourou, had also been a candidate sponsored by Chama Cha Demokrasia na Maendeleo otherwise commonly known by its acronymn as CHADEMA. There were four other political parties which fielded candidates to contest C the by-election, which was one of several by-elections to occur since Tanzania decided to become a multi-party democratic state. The Attorney-General was joined as a respondent to the petition in the High Court by virtue of the requirements of Rule 4(1) of the Elections (Elections Petitions) Rules, 1971. The said Azim Suleman Premji and DRadio Tanzania Dar es Salaam were the second and third respondents respectively. The High Court, Mchome J, granted the petition and declared the by-election results void. Predictably, those against whom judgment was given, were aggrieved by the decision of the High Court hence this appeal to this court. The Attorney-General and E Radio Tanzania Dar es Salaam are represented by Mr Werema, Senior State Attorney, assisted by Mr Matupa, State Attorney, whereas the said Azim Suleman Premji is represented by Mr Mselem, learned advocate, assisted by Mr Nyangarika, learned advocate. The respondent in this appeal, that is, Dr Aman Walid Kabourou is F represented by Mr Makani, learned advocate, assisted by Mr Boaz, learned advocate.
The memorandum of appeal submitted for the Attorney-General contains nine grounds of appeal whereas that submitted for the said Azim Suleman Premji, contains eleven grounds of appeal. Most of the grounds of appeal are common to all appellants. The G grounds of appeal submitted for the Attorney-General read as follows:
1. That the Honourable Judge erred in law in holding that `Tamko Rasmi' is not repugnant or ultra vires powers of the Electoral Commission and in relying on H the `Tamko Rasmi' to void the elections.
2. That the Honourable Judge erred in fact in holding that there was a corrupt practice and erred in law in holding that a corrupt practice is a tenable complaint under the Elections Act.
I 3. That the Honourable Judge erred in fact and law in holding that road construction in Kigoma during the campaign period
A was executed with the corrupt motive of influencing voters to vote for CCM candidate and that this affected the results of elections.
4. That the Honourable Judge erred in law in holding that there are grounds other than those stated in section 108 which can void the elections. B
5. That the Honourable Judge erred both in fact and law in holding that the campaign by the CCM National Chairman, Hon Augustine L Mrema, Minister for Home Affairs and Nalaila Kiula, Minister for Transport, Communications and C Works were illegal and that they affected the results of elections. The Honourable Judge failed to evaluate the evidence of all witnesses who testified on illegal campaigns.
6. That the Honourable Judge erred in law in holding that Radio Tanzania Dar es Salaam was properly joined as a co-respondent and that RTD was an agent for a CCM candidate. D
7. That the Honourable Judge erred in law in holding that RTD broadcasts affected the results of the Elections.
8. That the Honourable Judge erred in fact and law in holding that the counting of E votes was not proper and that a recount was requested by the respondent and denied by the returning officer.
9. That the Honourable Judge erred in fact and law in holding that the non-filling of complaint Form (CF 7) by the respondent was due to security risk in the counting room and that this omission was not fatal to the Election Petition. F
All the above cited grounds of appeal submitted on behalf of the Attorney-General also appear in the Memorandum of appeal submitted on behalf of the said Azim Suleman Premji. There are however two additional grounds in Premji's memorandum of appeal. G These are numbers two and four. They read as follows:
`2. That the Honorable Judge erred in law and fact by holding that the appellant is solely liable to pay the petitioner's costs.
4. That the Honourable Judge erred in fact by holding that the top CCM leaders Ali Hassan H Mwinyi, Horace Kolimba, Kingunge Ngombale-Mwiru, A L Mrema and Nalaila Kiula uttered defamatory statements regarding the respondent and his party and erred in law in holding that such statements affected Elections and hence a ground to void the Elections.' I
It is apparent from the nature of all these grounds of appeal and
the issues raised at the trial in the High Court and in the course of hearing this appeal, A that they directly concern matters which urgently require judicial clarification to ensure that our country continues on the road of peaceful and orderly transformation from a one party state into a multi-party democracy. With this background, and bearing in mind the B immediate needs of the people of Kigoma Urban constituency to have an early decision in this case and of the fact that the matters requiring judicial clarification are of general public interest, particularly in view of the general parliamentary and presidential elections expected towards the end of next year, we have decided to deliver now our C decision on the points raised in the grounds of appeal, including the ground raised suo motu by the Bench concerning the nationality of the third appellant, but to reserve our reasons to be given later early next year on a date to be notified to the parties. These therefore are the decisions, in respect of which reasons will be given early next year. We D start with the grounds of appeal as contained in the Memorandum of Appeal of the Attorney-General and which appear also in that of the third appellant, Azim Suleman Premji.
In respect of ground number 1 in both memoranda of appeal, we find that the National E Electoral Commission had legal power to issue the `Tamko Rasmi' tendered at the trial as exhibit P15 but that under the circumstances of this case, that `Tamko Rasmi' was invalid. As to ground number 2 of the Attorney-General and number 3 of the third appellant, we find that the learned Trial Judge was correct in holding that there was a F corrupt practice and that a corrupt practice is a tenable complaint under the Elections Act. With regard to ground number 3 of the Attorney-General and number 5 of the third appellant, we find that the learned Trial Judge was correct in law in holding that the road construction in Kigoma during the campaign period was executed with the corrupt G motive of influencing voters to vote for CCM candidate and that this affected the results of the election. As to ground number 4 of the Attorney-General and number 6 of the third appellant, we are satisfied and find that there are grounds other than those mentioned under s 108 of the Elections Act, 1985 as amended by Act 6 of 1992 for nullification of H election results. On ground number 5 of the Attorney-General and number 7 of the third appellant, we are satisfied and find that the learned Trial Judge was correct in law in holding that the campaign by Hon Augustine L Mrema, Minister for Home Affairs and Hon I Nalaila Kiula, Minister for Transport, Communications and Works were illegal campaigns and that they
affected the results. We however find that the holding by the learned Trial Judge to the A effect that the campaign by the CCM Chairman, Ali Hassan Mwinyi was also illegal is incorrect in law.
We regard to ground number 6 of the Attorney-General and number 8 of the third appellant, we find that the learned Trial Judge erred in law in holding that Radio Tanzania B Dar es Salaam was properly joined as a co-respondent or party to the petition. As to ground number 7 of the Attorney-General and 9 of the third appellant, we are satisfied and find that the learned Trial Judge was correct in law in holding that the broadcasts of Radio Tanzania Dar es Salaam affected the results of the elections. On ground number C 8 of the Attorney-General and number 10 of the third appellant, we are satisfied and we find that the Trial Judge was correct in holding that the counting of the votes was not proper. On ground number 9 of the Attorney-General and number 11 of the third appellant, we are satisfied and find that the learned Trial Judge was correct in holding D that the failure to fill in form CF--7 by the respondent was due to security risk in the counting room and that the failure was not fatal to the election petition. As to ground number 2 of the third appellant, we are satisfied and we find that the learned Trial Judge E was wrong in law in holding that the third appellant was solely liable to pay the petitioner's costs. Finally as to ground number 4 of the third appellant, we are satisfied and find that the learned Trial Judge was correct in holding that CCM Chairman Ali Hassan Mwinyi, Horace Kolimba (Secretary General of CCM) and Kingunge FNgombale-Mwiru and A I Mrema uttered defamatory statements regarding the respondent and his party and that such statements affected the results. However, we are also satisfied and find that the learned Trial Judge erred in holding that the statements made by Nalaila Kiula were defamatory. As to the point of nationality or G citizenship of the third appellant, we are satisfied and find that the third appellant was not a Tanzanian citizen at the time of the by-election. As already mentioned, we shall give our full reasons early next year.
In conclusion, the appeals substantially fail and with the few exceptions where we have faulted the Trial Judge, we dismiss the appeals with costs both in this Court and the H Court below.
On the 28th December 1994 we delivered our judgment in these two consolidated I appeals but we reserved our reasons until now. However, before we proceed to give our reasons which are the basis of
our judgment, we must present the matters which constitute the framework of our A reasons. We start with the matters which appear not to be in dispute between the parties to this cause. The parliamentary by election which is the subject of this case was organised and supervised by the National Electoral Commission established under the B Constitution of the United Republic of Tanzania. The functions and powers of the National Electoral Commission are derived from the Constitution and the Elections Act, 1985 as amended from time to time. Its membership includes a chairman and vice-chairman. At the time material to this case, both the chairman and vice-chairman C are justices of this Court. One Mr Alex Thomas Danzi, who gave evidence as the sixth witness for the respondents at the trial in the High Court, was at the material time serving under the Commission as Director of Elections and Secretary to the Commission.
There is also no dispute between the parties that prior to election day, the National D Electoral Commission appointed one Augustine Mudogo to act as a returning officer for the by-election. His substantive employment at the time was that of Director of Kigoma-Ujiji Town Council. After his appointment as a returning officer, he proceeded to E nominate eighteen assistant returning officers to help him in his duties.
The National Electoral Commission took other steps in connection with the by-election. These steps include the issuing of an official proclamation in Kiswahilli titled `Tamako Rasmi La Tume Ya Taifa Ya Uchaguzi Ya Jamhuri Ya Muungano', hereinafter called F simply `Tamko Rasmi.' Furthermore, he declared the period between 9 November 1993 and 22 November 1993 as being the period for registration of voters, the 17 November as the date for nomination of candidates, the period between 30 January and 12 G February 1994 as being the period for election campaigns and the 13 February 1994 as the polling day.
There is also no dispute between the parties that prior to the period prescribed by the Electoral Commission as the election campaigns period, the then Minister for Home H Affairs and Deputy Prime Minister, namely, Augustine Lyatonga Mrema, and the Minister for Communications, Transport and Works, namely, Nalaila Kiula, visited Kigoma Urban Constituency. The former visited the constituency twice, first on 14 January 1994 and second on 29 January 1994. The latter visited once on 26 January 1994. Both ministers I addressed public rallies attended by many people. Furthermore it is undisputed that among the problems which the people of Ki-
goma Urban Constituency regarded as most pressing were the problems of Burundi and A Rwanda refugees and the bad condition of the Kigoma-Ujiji Road.
Again it would seem that there is no dispute between the parties to this case, that six political parties contested this by-election. The most serious contenders were Chama Cha Mapinduzi, commonly known by its acronym as CCM, and Chama Cha B Demokrasia Na Maendeleo, commonly known by its acronym as CHADEMA. As already mentioned in our judgment, the third appellant, namely Azim Suleman Premji was a candidate sponsored by CCM, whereas the respondent, namely, Dr Aman Walid C Kabourou, was a candidate sponsored by CHADEMA.
The parties are also not in dispute regarding the following matters concerning the status of the third appellant. He was born in 1954 in Kigoma Town. According to his birth certificate tendered at the trial as exhibit P18, both his parents, namely Suleiman Premji D and Nurbanu Suleiman Premji were of Indian nationality. One of these parents, namely, the said Nurbanu Suleiman Premji was born in this country at Dodoma in 1926. Subsequently both parents applied and became Tanzanian citizens by registration in 1963. In the same year, third appellant's father wrote a letter to the Principal Immigration E Officer seeking clarification about the status of his children. The letter, tendered at the trial as exhibit P22 got no response. When the third appellant attained the age of 18 years in 1972 he applied for and obtained a Tanzanian passport. He is currently the F holder of a Tanzanian Passport No 0020324 issued at Kigoma on 20th August 1992.
No dispute exists between the parties that during the period of election campaigns, a number of prominent politicians from the contesting political parties went to Kigoma Urban Constituency to campaign for the candidates sponsored by their respective G political parties. Among them were His Excellency Ali Hassan Mwinyi, President of the United Republic of Tanzania and National Chairman of CCM; Kingunge Ngombale-Mwiru, MP a Minister without portfolio and National Publicity Secretary of CCM and Horace Kolimba, MP, a Minister in the President's Office and then Secretary H General of CCM. The campaigns were covered by the Press and Radio Tanzania, Dar-es-Salaam.
Furthermore, there is no dispute between the parties to this case that after the conclusion of the polling process, the counting of voters took place at Bangwe Prison I Hall. The Returning Officer, that is, the first witness for the respondents at the trial (RWL)
appointed 15 pupils from Kigoma Secondary School to act as enumerators. The A process at Bangwe Prison Hall involved the following undisputed steps. At the beginning there was inspection of the ballot boxed by the candidates and their counting agents followed by the verification of the number of votes in each ballot box compared to the number of relevant registered voters. Thereafter all the ballot papers were put into drum. B Then four enumerators picked the ballot papers from the drum and handed them to six other enumerators seated at tables and each representing one of the six political parties contesting the election. Each of these six enumerators was to receive only the ballot papers for the political party he or she represented, and to put such ballot papers into C bundles of one hundred each. Behind each one of these six enumerators was a counting agent of the relevant political party. The process went on smoothly until the drum was empty of ballot papers and the six enumerators completed putting the ballot Dpapers into bundles. It was apparent that CCM and CHADEMA had most of the bundles and that CCM had more bundles than CHADEMA.
Again there is no dispute between the parties that after all the ballot papers had been put into bundles, a representative of CHADEMA expressed dissatisfaction with the situation E and it was agreed by representatives of CCM, and CHADEMA and by the returning officer that representatives of CCM and CHADEMA should go through the bundles of each other. The exercise was completed as far as CHADEMA'S bundles are concerned and 53 bundles and a part were established. The exercise for CCM bundles however F was not completed. It was stopped. Neither the Respondent in this appeal nor any of his counting agents filled in the Form CF--7. The election results as announced by the Returning Officer were as follows: G
45 votes H
It was on the basis of these figures that the third appellant was declared the winner of the by-election.
We now turn to the relevant matters which are in dispute between the parties. It was part I of the petitioner's case at the trial in the
Eight Court that in order to ensure that the by-election for Kigema Urban Constituency A would be free and fair, the Electoral Commission, exercising its powers granted by the Constitution and the Elections Act 1985, made and issued a number of directives, regulations and notifications, including the Tamko Rasmi for compliance or observance B by all those concerned. In this way, the Electoral Commission prescribed and specified the period for election campaigns, mandated all contesting political parties to refrain from inter alia, using abusive or defamatory language or intimidation, and to educate voters about democracy and political tolerance. The Electoral Commission also C mandated the Ruling party to refrain from furthering its election campaign by using government employees and property or by using the government positions or officers held by some of its party leaders. In the same way the government was mandated to act impartially between the political parties, to disengage or distance itself from the D electioneering activities of the ruling party and to give equal opportunity through the radio and the government press to all contesting political parties.
It was part of the petitioner's case at the trial in the High Court that CCM and its candidate or their agents as well as the government or its agents violated many of the E regulations, directives or notifications made and issued by the National Electoral Commission, in that during their visits to Kigoma Urban Constituency, Hon Augustine Lyatonga Mrema (MP) the then Minister of Home Affairs and Deputy Prime Minister, and Hon Nalaila Kiula, (MP), Minister of Communications, Transport and Works, conducted F election campaigns for CCM and its candidate prior to the prescribed campaigns period; and in that during such premature campaigns, the Hon Augustine Lyatonga Mrema, intimidated the voters against voting for a non-CCM candidate; and in that during the official election campaigns period, His Excellency, President Ali Hassan Mwinyi used government property, that is, government aircraft and motor vehicles; and in that he also used defamatory language in furtherance of the election campaign in favour of the CCM candidate, and in that Hon Kingunge Ngombale-Mwiru used intimidating language against the CHADEMA candidate, and in that Hon Horace Kolimba, (MP), Minister in the President's Office and the then Secretary General of CCM, intimidated the voters against voting for a non-CCM candidate.
Furthermore, it was part of the petitioner's case that Radio Tanzania Dar-es-Salaam, which is government owned, openly campaigned for CCM, and favoured CCM is giving opportunity for
publicity in respect of the election campaigns. It was also part of the petitioner's case A that the central government, contrary to established programmes and practices intervened and took over from the Kigoma-Ujiji Town Council the maintenance work of the sensitive Kigoma-Ujiji Road in furtherance of the election campaign for the CCM B candidate. It was the contention for the petitioner that this act was corruptly done by the government to influence the voters infavour of the CCM candidate, and that the visits by Hon Augustine Lyatonga Merema, (MP) and Nalaila Kiula (MP) were connected with that corrupt objective. C
Also, it was part of the case for the Petitioner at the trial in the High Court that the process of counting votes at Bangwe Prison Hall was not completed but was prematurely stopped by the returning officer ostensibly for security reasons.
Finally, it was part of the case for the petitioner in the High Court that the CCM D candidate, that is Azim Suleman Premji was not a Tanzanian citizen and therefore not qualified to stand as a candidate in the parliamentary by-election. In conclusion the petitioner's case at the trial was to the effect that the violations of the rules of election conduct affected the results of the election, and that in any event the election of the CCM E candidate was null and void since he was not a Tanzanian citizen.
On the other hand the case for the defence at the trial consisted in the denial of the petitioner's case and in the assertion that the Tamko Rasmi made by the Electorial Commission was invalid as it was ultra vires the powers of the Commission and, in any F event, was not properly made and issued. Furthermore, it was the contention for the defence at the trial to the effect that under the multi-party system, it was no longer required to prescribe a specific period for election campaigns. It was also part of the defence base that CCM paid for the expenses of using government property by the G President in connection with the by-election campaigns, and that in any event, there was no justification for restricting the President of the United Republic in using official transport and other facilities attached to his office while campaigning for a candidate of the President's political party. As to the visits to Kigoma by the two cabinet ministers, H that is, Hon Augustine Lyatonga Mrema, (MP) and Hon Nalalla Kiula (MP), the defence case was an assertion to the effect that none of the ministers went to Kigoma for electioneering purposes but that the former went there in connection with his ministerial I responsibil-
ities for the Burundi-Rwanda refugees and the latter went there in connection with his A ministerial responsibilities for maintenance of the Kigoma-Ujiji road. Furthermore, it was part of the defence case that the works being undertaken on the road were part of an on going maintenance programme and had nothing to do with the by-election. As to the defamation and intimidation allegedly made by CCM leaders, the defence case consisted mainly of general denial. As to the process of counting, the defence case is an B assertion to the effect that the counting process was completed and that the final exercise of going through the bundles of votes was not part of the counting process but was an exercise of verification requested by CHADEMA representatives and agreed to by the returning officer and representatives of CCM to ascertain the state of the votes in C the bundles. That exercise of verification was stopped at the instance of CHADEMA representatives after being satisfied with the position.
Again, it was part of the case in defence to the petition that Radio Tanzania D Dar-es-Salaam, as a government department, was wrongly joined to the petition in which the Attorney-General was the sole and proper party to be joined. Furthermore, it was the defence case that Radio Tanzania Dar-es-Salaam did everything possible within its limited resources to give equal opportunity of publicity to the contesting political E parties and was not in any way favouring CCM. Finally it was the contention of the defence to the petition to the effect that according to the relevant law and the available evidence, the CCM candidate was a Tanzanian citizen and therefore fully qualified to contest the by-election.
Fifteen main issues were framed by the High Court for its decision. The findings of the F High Court on many of these issues form the basis of the grounds of the two appeals as set out in our judgment. Before we give our reasons for our decisions on those grounds of appeal, we have to deal with a preliminary matter which arose at the commencement G of hearing of this appeal. Mr Makani, learned advocate for the respondent in this appeal gave a Notice of Preliminary Objection seeking to strike out grounds numbers one, three and six from the memorandum of appeal of the third appellant, and grounds numbers one, two and four from the memorandum of appeal of the first and second appellants. H After hearing both sides, we overruled the objection with costs.
We reserved our reasons until now. The argument of Mr Makani in support of the objection is that the above mentioned grounds of appeal are too general and not concise. With due respect to learned counsel, we do not think that he is correct because I the two memoranda of appeal in which the relevant grounds of appeal are to be
found are in full conformity with the provisions of Rule 86 of the Court of Appeal Rules, A 1979 and because the particular grounds of appeal are traceable to specific parties of the judgment of the High Court. That is why we overruled the objection. For purposes of clarity, we need only to add that the order for costs is payable in any event. B
We now come to our reasons in support of our findings on ground number one in both memoranda of appeal concerning the validity of the Tamko Rasmi. We begin naturally by considering whether courts of law have jurisdiction to inquire into the validity of the C Tamko Rasmi in view of the provisions of sub-article (12) of article 74 of the Constitution. That sub-article as amended by Act 4 of 1992 states:
`No Court shall have jurisdiction to inquire into anything done by the Electoral Commission in the D exercise of its functions according to the provisions of this Constitution.'
On the face of it, it appears that the Constitution expressly prohibits the courts from inquiring into the validity of such things like the Tamko Rasmi, but on a deeper consideration of the principles that underlie the Constitution, it is obvious that such an E interpretation of the Constitution is wrong. One of the fundamental principles of any democratic constitution, including ours, is the Rule of Law. The Principle is so obvious and elementary in a democracy, that it does not have to be expressly stated in a democratic constitution. However, perhaps for purposes of clarity, there is an express F provision to that effect under the Constitution of the United Republic of Tanzania. It is Sub-Article (1) of Article 26 which states:
`Every person is obliged to comply with this Constitution and the laws of the United Republic.' G
In the light of this principle, we respectfully agree with the submission of Mr Werema, Learned Senior State Attorney to the effect that Sub-Article (12) of Article 73 of the Constitution cannot be interpreted so as to protect unconstitutional or illegal acts or H deeds, see the recent famous case of Anismic Ltd v Foreign Compensation Commission (1). Since Tanzania has reverted to de jure multi-party democracy, it is time the same was similarly articulated here. We are satisfied and we find that the High Court in this country, like the High Court in England, has a supervisory jurisdiction to I inquire into the legality of anything done or made by public author-
ity, much as the Tamko Rasmi. As a collorary, this Court has similar jurisdiction to do so A in a matter properly before it, as in the present case.
We now come to our reasons in support of our finding to the effect that the Electoral Commission is empowered to make and issue the Tamko Rasmi but under the B circumstances of this case, the Tamko Rasmi is invalid. It is patently clear that the Electoral Commission derives its powers under the Constitution and the Elections Act, 1985 as amended from time to time. Under para (b) of sub-article (6) of article 74 as amended by Act 4 of 1992, read together with ss (2) of s 4 of the Elections Act, 1985 as C amended by Act 6 of 1992 it is provided that, `The Commission shall be responsible for the overall supervision of the general conduct of all Parliamentary and Presidential Elections in the United Republic'. Similarly under ss (1) of s 124 of the Elections Act 1985, it is provided that: D
`(1) The commission may make regulations for the better carrying out of the provisions of this Act and without prejudice to the generality of the foregoing, may make regulations--
(a) prescribing anything, which under the provisions of the purposes of this Act, may be prescribed; E
(b) prescribing forms of documents and declarations for the purposes of this Act.'
We have emphasised the relevant parts of this sub-section. Those parts clearly show F that the Commission is empowered to make regulations `for the better carrying out of the provisions of the Act' and to prescribe `anything' or `forms of documents and declarations' `for the purposes of this Act'.
In our considered opinion, we are satisfied that on a true and proper interpretation of the G above cited provisions of the Elections Act, the Electoral Commission is empowered to make regulations not only in furtherance of specific provisions of the Act, but also in furtherance of the purposes of the whole Act. From the scheme of the Act as manifested in the various provisions of the Act, including the provisions for secrecy of the ballot and H for polling agents, counting agents, one person one vote, one candidate one seat, as well as those provisions concerning election campaigns and election offences, it is evident that the overriding purpose of the Elections Act is to secure the election of the President of the United Republic and the members of the parliament of the United I Republic in a free and fair election. It is also implicit from the provisions of the Con-
stitution concerning the people, such as the preamble envisaging a representative A parliament elected by the people; Article 5 on the franchise or the right to vote; article 8(1)(a)(c) and (c) on sovereignty of the people, democracy, accountability to the people and people's participation in their government; article 21 on the fundamental right to participate in the affairs of the government either directly or through freely elected B representatives, that there is an underlying constitutional principle that requires democratic elections to be free and fair.
It is our considered opinion that this constitutional principle of free and fair elections has to be read into the Elections Act 1985, not only because of the express provisions of ss C (2) of s 1 of the Act which require the Elections Act, 1985 `to be read as one with the Constitution ...' but also because the Constitution is the basis of the elections. It follows therefore that the Electoral Commission has power to make regulations to ensure Free D and Fair Elections under both the Elections Act, 1985 and the Constitution. On a close examination of the contents of Tamko Rasmi, we respectfully agree with Messrs Makani and Boaz, learned counsel for the respondent in this appeal that the Tamko Rasmi was made and issued by the Electoral Commission to ensure a free and fair by-election in E Kigoma Urban Constituency. Unfortunately however, the Electoral Commission did not properly exercise its power as prescribed under s 3 of the Act which states:
F `All regulations, directions and notices which the Commission is empowered to make, issue or give, shall be deemed to have been validly made, issued or given, if they are made, issued or given under the signature of the Chairman of the Commission or the Director of Elections'.
There is no controversy in this appeal that the Tamko Rasmi was not signed by the G Chairman or the Director of Elections as specifically required by the Act. Instead it was signed by the Vice-Chairman of the Electoral Commission. Since there is no provision under the Act or any other relevant law authorizing the Vice-Chairman to sign such H regulation, the Tamko Rasmi was clearly invalid as we mentioned in our judgment.
There is another point concerning the Tamko Rasmi which we need to mention not for purposes of supporting our judgment but as legal guidance for the conduct of future elections. It was argued in this appeal by learned counsel on the appellants' side to the I effect that the Tamko Rasmi was legally ineffective since it was neither
published in the Official Gazette nor otherwise made known to all the parties to the A by-election. Of course there is no controversy between the parties to this appeal that the Tamko Rasmi was not published in the Official Gazette and that such publication is not necessary for the validity of the Tamko Rasmi by virtue of the provisions of s 3 of the Act. It is our considered opinion that there is a distinction between the validity of a B regulation on the one hand, and the commencement or coming into effect of such regulation on the other hand. The validity of a regulation, including the Tamko Rasmi lies in compliance with the conditions for making it. Such conditions may exist in the C provisions of the Act which confers the power to make regulations or, under s 32 of the Interpretation of Laws and General Clauses, Act 1972 which concerns `provisions with respect to power to make subsidiary legislation'. In the case of regulations made under s 124 of the Elections Act, 1985 read together with s 3 of the same Act, it is apparent that D one of the essential conditions for the validity of such regulation is the signature of the Chairman or the Director of Elections.
As to commencement of subsidiary legislation, the relevant provision is s 27 of the Interpretation of Laws and General Clauses Act, 1972 which states: E
`Any subsidiary legislation published in the Gazette shall come into force on the date of such publication or, if it is provided either in the subsidiary legislation or in the Act that such subsidiary legislation or any provisions thereof shall come into force on some other date, such subsidiary F legislation or as the case may be such provisions thereof shall, subject to s 28, come into force on such other date.'
Section 28 concerns retrospective operation of subsidiary legislation. Unfortunately, the Tamko Rasmi was neither published nor did it specify when it was to come into effect. G Furthermore the Act under which the Tamko Rasmi was made does not specify the commencement of such regulations. Thus had the Tamko Rasmi been properly signed, it is doubtful if it could be construed to have come into effect on a certain date, if at all it did. We hope that this situation would be avoided in the future by the Electoral H Commission.
As to the reasons in support of our finding on ground number one of the two appeals, these are connected to the reasons which support our finding on ground number 4 of the Attorney-General's Memorandum of Appeal, which is number 6 of the Third Appellant's I Memorandum of Appeal. Our finding on these grounds con-
curs with that of the trial court to the effect that there are grounds other than those stated A under s 108 of the Elections Act for nullification of election results. The finding is based partly on the reasons relied upon by the learned Trial Judge and partly on additional reasons. Section 108 as amended by Act 6 of 1992 states:
B `108(1) The Election of a Candidate as a member shall not be questioned save on an election petition.
(2) The Election of a candidate as a member shall be declared void on any of the following groups which are proved to the satisfaction of the court namely--
C (a) that, during the election campaign, statements were made by the candidate or on his behalf and with his knowledge and consent or approval with intent to exploit tribal, racial or religious issues or differences pertinent to the election or relating to any of the candidates or where the candidates are not of the same sex, with intent to exploit such difference; D
(b) non-compliance with the provisions of this Act relating to election if it appears that the election was not conducted in accordance with principles laid down in such provisions and that such non-compliance affected the result of the election;
E (c) that the candidate was at the time of his election a person not qualified for election as a member.
(3) Notwithstanding the provisions of ss (2) where upon trial of an election petition respecting an election under this Act the court finds that an illegal practice in connection with the election has been committed by or with the knowledge or approval of any of the candidate' agents and the court further F finds, after giving the Attorney-General or his representative an opportunity of being heard, that the candidate has proved to the court--
(a) that no illegal practice was committed by (the) candidate himself or with the knowledge and consent or approval of such candidate or his agent; and G
(b) that the candidate took all reasonable means for preventing the commission of any illegal practices at such an election;
(c) that in all respects the election was free from illegal practice on the part of the candidate and his agents;
then, if the court so recommends, the election of such candidate shall not by reason of any such practice be void'. H
The learned Trial Judge, Mchome J, was of the opinion that the grounds listed under paras (a) to (c) of ss (2) above cited are not exhaustive by reason of the fact that the word `only' is not used therein. He was also of the opinion that the defences provided I under paras (a) to (b) of ss (3) for illegal practice necessarily imply
that illegal practices are grounds for nullification of election results though not expressly A stated to that effect under section 108. As we have already stated, we concur with the reasons given by Mchome J, and we have additional reasons for upholding his finding. First, we are satisfied that the established rule of interpretation embodied in the Latin Maxim `Expressio Unius Est Exclusio Alterius' that is, where matters are expressly B stated, then any other matters of the same class not so expressly stated are excluded, does not apply to s 108 because that section provides defences to matters which are not expressly stated therein. Second, taking into account the principle which underlies C the Constitution and the Elections Act, 1985 that elections shall be free and fair, we are of the considered opinion that an election which is generally unfree and unfair is not an election at all as envisaged by the Constitution and the Elections Act, and consequently anything which renders the elections unfree or, and unfair is in law valid ground for D nullification of such purported election. We are further of the considered opinion that any law which seeks to protect unfree and unfair elections from nullification would be unconstitutional.
For purposes of clarity we need to point out here that the removal of illegal practices and E corrupt practices from s 108 by the Elections (Amendment) Act 1992 (Act 6 of 1992) as specific grounds for nullification of election results cannot be construed as having the effect of making illegal practices or corrupt practices permissible under the Elections Act, 1985. What the amendment achieved was to make illegal practices and corrupt F practices per se no longer sufficient grounds for nullification of election results under the circumstances stipulated under s 108(3)(a) and (d) as it then was before the amendment. Paragraph (a) of ss (3), as it then was, stated;
G `that by reason of corrupt or illegal practices committed in circumstances whether similar to those before enumerated or not the majority of voters were, or may have been, prevented from electing the candidate whom they preferred.'
As to para (d) it stated: H
`that a corrupt or illegal practice was committed in connection with the election by or with the knowledge and consent or approval of the candidate or by or with the knowledge and consent or approval of any of his agents;' I
In our considered opinion, illegal and corrupt practices are still
relevant either as non-compliances or as electoral misconduct which renders elections A unfree or, and unfair, contrary to the principles and objectives which underlie the Constitution and the Elections Act.
It is pertinent to point out for purposes of clarity that it is conceivable to have generally B free and fair elections but which are afflicted with a non-compliance of specific provisions of the Elections Act and which affects the results of the elections. In other words not every non-compliance which affects the results of an election necessarily makes an election unfree and unfair. A case in point is where a significant number of C unregistered persons are allowed to vote in an election but not for any particular candidate. Such an incident would clearly be a non-compliance with the provisions of s 61(a) and (b) concerning methods of voting. A non-compliance of this nature may affect the results but does not necessarily make the election unfree and unfair. D
The last point we need to point out, in view of the forthcoming presidential and parliamentary elections is a lacunae or gap in the Elections Act concerning presidential elections. Section 108 deals only with challenges to elections of constituency members of the Parliament of the United Republic. This is clear under s 2 which defines a E `member' as being `in relation to the National Assembly, a constituency member'. We can find no provision concerning disputed Presidential elections. We cannot understand why this lacunae was not remedied under the Elections (Amendment) (No 2) Act, 1992 F (Act 21 of 1992) which amended the provisions of the Elections Act, 1985 concerning presidential elections. The amendments therein contained went as far as the apply to presidential elections, the provisions of Chapters IV and V of the Elections Act, 1985 which deal with qualification of candidates and election procedure respectively. Chapter G VII which deals with invalidation of election results was not applied to presidential elections. The omission is puzzling, since in multi-party Presidential Elections, such lacunae is an invitation to political chaos. We hope appropriate amendments of the relevant law would be made before the forthcoming multi-party presidential elections. H
Let us now revert to our finding, concurring with Mchome J, on ground number 2 of the Attorney General's Memorandum of Appeal, which is ground number 3 of the third appellant's Memorandum of Appeal. This concerns the holding that there was a corrupt I practice and that such practice is a tenable complaint under the Elections Act. We have already disposed of the question of corrupt
practice being a tenable complaint. With regard to the existence of a corrupt practice, A the finding by Mchome J to the effect that the third appellant corruptly offered to turn his building popularly known as `Azim Magorofani' into a dispensary providing free services to the people of Kigoma Urban Constituency appears to be based mainly on the B credibility of witnesses. There were contradictions between the witnesses for either side. The learned Trial Judge was of the view that the contradictions between the witnesses for the petitioner's side concerning whether what was promised was a dispensary or a clinic were minor compared to the contradictions on the defence side on C whether the corrupt offer was greeted with cheers or silence from the public attending the election rally. Furthermore, the learned Trial Judge found one of the witnesses for the defence side to be a liar. We can find no basis for differing with the learned Trial Judge in his evaluation of the credibility of the relevant witnesses. D
Next we come to our reasons in support of our finding on ground number 3 in the Attorney-General's Memorandum of Appeal, which is number 5 in the third appellant's Memorandum of Appeal, in which we upheld the finding of the learned Trial Judge to the E effect that the road construction in Kigoma during the campaign period was executed with the corrupt motive of influencing voters to vote for the CCM candidate and that it affected the results of the election. The basis of the finding of the learned Trial Judge appears to be threefold. Firstly, he was of the view that the maintenance work of the F Kigoma-Ujiji road was undertaken by the Central Government as a reward for the people of Kigoma urban constituency agreeing to vote for the CCM candidate. Secondly, he was of the view that the undertaking by the Central Government was not made in the ordinary course of business of government. Thirdly he was also of the view that since G the undertaking was made by prominent cabinet ministers at well attended public rallies in the constituency, it must have influenced the voters to vote for the CCM candidate.
We respectfully agree with these reasons. There was credible evidence given by witnesses who attended the public rallies addressed by Augustine Lyatonga Mrema, the H then Minister of Home Affairs and Deputy Prime Minister, and by Nalaila Kiula, the Minister of Communications, Transport and Works. These witnesses include one Kanyari Donatus, the sixth witness for the petitioner (PW 6), one Ramadhani Juma Kalovya, the seventh witness for the petitioner (PW 7), one Hamisi Shabani Maranda, I the ninth witness
for the petitioner (PW 9), one Kudra Mussa, the tenth witness for the petitioner (PW.10) A who tape-recorded one of the speeches made by Hon Augustine Lyatonga Mrema, and one Mwinyi Baruti, the eleventh witness for the petitioner (PW 11). The testimony of the witnesses who attended the public rallies addressed by Hon Augustine Lyatonga B Mrema and Hon Nalaila Kiula shows clearly that the Kigoma-Ujiji road was being repaired by the central government as consideration for the people of Kigoma Urban constituency agreeing to vote for the CCM candidate. PW 6 in a part of his testimony told the trial High Court regarding Hon Mrema's speech: C
`He asked if you get a tarmac road will you have any quarrel with CCM? And the citizens said they would have none. He asked how many would vote for CCM if we gave you a tarmac road. All people raised up their arms ...' D
PW 11, in a part of his testimony concerning the speech made by Hon Nalaila Kiula, told the trial High Court:
`Then he said I have come here to remove the stigma you are putting on CCM. The tarmac you wanted will be put on the road by the Government'. E
Further on the witness said, inter alia:
`he said he was sent by the President to remove the stigma or in Kiswahili "nuksi" which was thrown at CCM'. F
No witness was produced by the other side to seriously contradict these or other witnesses who testified to the same effect. On a paper evaluation of the relevant evidence directly linking the road works with voting for CCM, no reasonable court or G tribunal can come to a conclusion other than that the maintenance work of the Kigoma-Ujiji road was valuable consideration given by the central government to the people of Kigoma Urban Constituency for agreeing to vote for the CCM candidate. H
As to the second reason, it is beyond controversy on the evidence that the Kigoma-Ujiji Town Council had failed to live up to its responsibilities of maintaining the road in question under the road maintenance programme which had been in existence for a long time. There was credible evidence given by one Ven Kayamba Ndyamkama, the I seventh witness for the Defence (RW 7) who is a road maintenance management engineer in the relevant ministry
headquarters in Dar-es-Salaam, to the effect that the responsibility of maintenance of A the country's roads is divided between the central government and the local authorities, and that local authorities can request the central Government to assist in maintenance of local authority roads, whenever the need arose. The evidence given by one Augustine Mudogo, the first witness for the defence (RW 1) who is the Director of Kigoma-Ujiji B Town Council, appears to show that the central government had assisted his council in maintenance of the road in question by providing funds amounting to Shs7,000,000/= in 1992 and Shs10,000,000/= in 1993. The evidence of this witness together with that of RW 7 however shows that at the time of the by-election, the central government decided C to take over the maintenance work of the Kigoma-Ujiji road, and Hon Augustine Lyatonga Mrema instructed RW 1 to put aside the Shs10,000,000/= which had been previously supplied and intended by the central government to assist the town council. This sudden D and total intervention by the central government, in the absence of an earthquake or similar disaster or situation affecting the Kigoma-Ujiji road is clearly way out of the ordinary course of government business.
With regard to the third reason relied upon by the learned Trial Judge concerning the E large number of people who attended the public rallies addressed, and corruptly influenced by Hon Mrema and Hon Kiula, there was evidence given by witnesses for the petitioner, which was not seriously contradicted by the defence, and which showed that large numbers of people attended these rallies. F
It was contended by counsel for the appellants to the effect that there was no one who testified about being influenced to vote for CCM by this road maintenance undertaking. However, the contention collapsed when counsel for the appellants conceded that under G the principle of secrecy of the ballot, no one could be expected to testify to that effect. In our considered opinion the fact of influence affecting the vote can be inferred from the circumstantial evidence relating to the large number of people who attended the public rallies, the pressing desire of the people of Kigoma Urban constituency to have their Hroad repaired and the respect usually given by the people of this country to ministers of their government.
For purposes of clarity we need to point out here that a corrupt practice under the Elections Act, 1985 is not necessarily the same as corruption under the Prevention of I Corruption Act, 1972. This can be seen under the provisions of s 97 of the Elections Act which states various categories of persons deemed guilty of bribery. It is
evident that such persons are not necessarily guilty under the Prevention of Corruption A Act, 1972.
We need to point out further that a corrupt practice under the Elections Act is capable of being construed, as we mentioned earlier, either as being a non-compliance in the sense of being a failure to abstain from committing the offence of bribery as defined B under s 97 of the Elections Act, or as, where it is extensively done, as a misconduct which renders the election unfair. In the present case the corrupt undertaking to repair the road amounted not only to a non-compliance with the prohibition against electoral bribery contra s 97 C of the Elections Act, but was also unfair to the political parties which were challenging CCM. Had the Tamko Rasmi been properly signed and therefore valid, the intervention by the central government would also have been a non-compliance with the directives of the Electoral Commission against the use of government property in furtherance of the campaign of one political party. D
With regard to our finding on ground number 5 in the Attorney-General's Memorandum of Appeal, which is number 7 in the third appellant's Memorandum of Appeal, in which we upheld the learned Trial Judge to the effect that the campaigns by Hon Augustine E Lyatonga Mrema, (MP) and Hon Nalaila Kiula (MP) were illegal campaigns which affected the results of the by-election; and in which we faulted the finding concerning the campaign of the CCM Chairman, Ali Hassan Mwinyi, our reasons are as follows. We are satisfied that under the Elections Act, 1985 read together with the Constitution, the F Electoral Commission is empowered to prescribe a specific period for election campaigns as it did in the present case. As we have already mentioned earlier, this power is derived under article 74(6)(b) of the Constitution read together with s 124 of the Elections Act.
Of course no where in the Elections Act, 1985 is to be found a specific provision G requiring the Electoral Commission to prescribe a period for election campaigns. We are of the view that the absence of such a requirement does not derogate from the general power of the Electoral Commission to do so. We think it is wise for the Commission to continue to do so in order to ensure the fairness of elections and to Henable to effectively supervise such elections.
In the present case, the period prescribed for campaigns was from 31 January to 12 February 1994. By campaigning before the commencement of this period, Hon Mrema (MP) and Hon Kiula (MP) did conduct illegal campaigns, which on the authority of the I case of Ndugu Basil P Mramba and the Attorney-General v Ndugu Leons S
Ngalai, (2) such illegal campaigns were non-compliance. As already mentioned earlier in A respect of another point, many people attended the campaign rallies addressed by these ministers. On the basis of the circumstantial evidence mentioned earlier, the illegal campaigns must have affected the results of the by-election.
The learned Trial Judge however erred in holding that the election campaign conducted B by CCM Chairman Ali Hassan Mwinyi was also illegal. All the evidence show that the CCM Chairman, who is also President of the United Republic, arrived in Kigoma for election campaign purposes on 10th February 1994. That was within the prescribed period. The fact that some government property was used in connection with the visit C and campaign did not turn his campaign into an illegal one. What can be said is that if the Tamko Rasmi had been valid, such use of government property might have been a violation of the prohibition contained in the Tamko Rasmi. But since the Tamko Rasmi D was invalid we do not have to go into the details of the matter except on one aspect. We must point out that in a country like ours with a constitution establishing an Executive President, who is also Commander-in-Chief, restrictions concerning his conduct during multi-party election campaigns must be such as not to endanger his personal security or E disable him from effectively discharging his constitutional responsibilities as President and Commander-in-Chief. We think that restrictions which adversely affect the President's ability to discharge his responsibilities at anytime would be unconstitutional. On the other hand, since fairness is one of the important elements in a democratic F election, the use of government property or government employees by the President during election campaigns in a manner which is not necessary for his personal security or the discharge of the responsibilities of the Office of President or Commander-in-Chief G is prohibited in accordance with the principle of fairness. We think that a violation of this prohibition, if it renders elections generally unfair, will result in nullification of elections results.
As for the reasons in support of our finding on ground number 6 of the H Attorney-General's Memorandum of Appeal, which is number 8 in the third appellant's Memorandum, in which we faulted the learned Trial Judge in holding that Radio Tanzania Dar-es-Salaam was properly joined as a party to the petition, it is obvious that the learned Trial Judge was led to his erroneous conclusion by replying entirely on Iprocedural law, where substantive law is also involved. The issue framed for decision by the High Court at the trial was,
`whether the third respondent was properly joined in this petition'. In resolving this issue A the trial court relied on the provisions of Rule 4(2) and (3) of the Election Petition Rules, 1971 as well as the case of Attorney-General v Amiri Zuberi Muya and Abdallah Zuberi Muya (3) which considered the procedural aspect of joinder of parties in election petitions. B
Unfortunately, the learned Trial Judge in the case before us failed to notice that, unlike in the Amiri Zuberi Muya case, there is a matter of substantive law involved, and that is whether Radio Tanzania Dar-es-Salaam is a legal person capable of being joined to the election petition. Learned counsel on both sides in this appeal conceded and we think C rightly so, that Radio Tanzania Dar-es-Salaam was at the material time purely a government department which is not separately established by any law as a body corporate. Learned counsel on both sides rightly concurred with us that under those circumstances Radio Tanzania Dar-es-Salaam, had no legal capacity to be joined as a D party to the petition, separately from the Attorney-General, who represents the government.
We must now turn to the reasons supporting our finding on ground number 7 of the Attorney-General's Memorandum of Appeal, which is number 9 of the third appellant's E Memorandum of Appeal, on which we confirmed the finding of the learned Trial Judge to the effect that the broadcasts of Radio Tanzania Dar-es-Salaam affected the results in favour of the CCM candidate. During the hearing of this appeal, it was argued by learned counsel for the appellants to the effect that no evidence was adduced at the trial to show F that the people in Kigoma Urban Constituency possess any radio sets or receivers and that they listened to the relevant broadcasts of Radio Tanzania Dar-es-Salaam during the material time.
With due respect to learned counsel for the appellants, we think that this is a desperate G argument. It is common knowledge in this country, and which therefore requires no evidential proof, that there is a large number of people both in the rural and urban areas of Tanzania who possess radio sets or receivers and who regularly listen to Radio Tanzania Dar-es-Salaam. On that premise, it can reasonably be inferred that a large H number of people in Kigoma Urban Constituency must have listened to the broadcasts of Radio Tanzania Dar-es-Salaam regarding the by-election in their constituency. But did these broadcasts affect the results of the by-election in favour of the CCM candidate? I
To answer this question, one must consider two aspects of the matter. The first is the air time given by Radio Tanzania Dar-es-
Salaam for the campaigns in favour of the CCM candidate compared to the campaigns A in favour of the other political parties contesting the by-election. From the evidence given by Eric Raymond Mchatta, the fifteenth witness for the petitioner (PW 15), which was not seriously challenged by the defence, it is quite clear that the CCM campaigns B were given more air time compared to the combined air time given for the campaigns of the other political parties contesting the by-election. The explanation given for this glaring inequality as per the evidence of Habib Juma Hyundo, the eighth witness for the defence (RW 8), who is the chief editor of Radio Tanzania Dar-es-Salaam, is that, apart from C CCM, the other political parties did not know how to utilize the facilities of Radio Tanzania, Dar-es-Salaam. Taking into account that Radio Tanzania, Dar-es-Salaam is government property, we are of the considered opinion that this is not a sufficient explanation. As a government radio, and in fairness to the contesting political parties, it Dwas duty bound to take the initiative to offer such political parties equal air time and let them choose to utilize the whole or part of the air time thus offered. We are satisfied that it was the absence of such a system which allowed CCM to utilize more air time than the other political parties. E
The second aspect of the matter is the nature of the contents of the relevant broadcasts by Radio Tanzania Dar-es-Salaam. It is apparent from the evidence that the broadcasts, including surprisingly those made to reflect the official position of Radio Tanzania, F Dar-es-Salaam itself, were biased in favour of the CCM candidate. The surprising example is the programme known as Mazungumzo Baada Ya Habari aired for a number of days during the period of the by-election campaigns commencing on 4 February 1994. Ostensibly what was aired in the programme was meant to congratulate CCM on G its 17 birthday the following day. But as it turned out, the programme went on for a number of days and much of its contents were clearly political campaign material in favour of the CCM candidate. We need only to reproduce a few parts of the board case to demonstrate what we mean. In one part it says in Kiswahili: H
`Na kwa bahati nzuri sana, wapiga kura wa JIMBO LA ILEJE wiki iliyopita waliitun za CCM zawadi ya kuanzia sherehe za kuzaliwa kwake kwa kumchagua kwa kura nyingi sana mgombea wake wa kiti cha Bunge Ndugu CHEYO. Hivi sasa, CCM inasubiri kwa hamu kubwa kuona kama itapata zawadi ya I kukamilisha sherehe zake hizo kutoka kwa wapiga kura wa Jimbo la KIGOMA MJINI.
A MATOKEO ya uchaguzi mdogo wa Jimbo la Ileje yanatudhihirishia mambo mengi muhimu ambayo yanapaswa kuzingatiwa na kila mwanasiasa, na hasa kila mpinzani wa CCM na kila Chama cha Siasa nchini.
UKWELI wa kwanza na wa dhahiri kabisa ni kwamba CCM bado ni chama chenye nguvu kubwa sana na chenye wapenzi wengi walio wanachama na wasio wanachama. Tunasema CCM ina wapenzi B ambao hata siyo wanachama wake kwa sababu kuna baadhi ya watu wanafanya makosa kwa kufikiria tu kuhusu namba ya wanachama wa CCM wenye kadi na kupiga hesabu zao zote za kisiasa kwa kuzingatia nambari hiyo ambayo haijafikia hata milioni tano.
KOSA JINGINE kubwa wanalofanya ni kudhani kwamba WATANZANIA wote wasio wana-CCM kwa C lazima watavipigia kura vyama vingine. HIYO siyo kweli hata kidogo'
Yet in another part it says: D
`CCM tokea awali imekuwa Chama cha Umma badala ya wateule wachache. Tena imekuwa na sera nzuri ambazo zimeitikia matakwa ya wananchi wote kwa wakati wote ambao imekuwa katika uongozi'. E
Having examined the contents of various broadcasts of Radio Tanzania Dar-es-Salaam, including the above mentioned Mazungumzo Baada Ya Habari, and bearing in mind the time tested maxim that information is power, we were bound to conclude, as the learned F Trial Judge did, to the effect that these broadcasts in favour of CCM must have influenced the by-election results in favour of the CCM candidate.
Let us now turn to our reasons supporting our finding on ground number 8 of the Attorney-General's Memorandum of Appeal, which is number 10 of the third appellant's G Memorandum of Appeal, on which we upheld the finding of the learned Trial Judge to the effect that the counting of the votes was not proper. It is apparent from the proceedings in the High Court and before this Court, that although there is great controversy on whether the process of counting the votes was completed or H prematurely stopped before the results were announced, there is common ground, that the final exercise undertaken by agreement between CCM and CHADEMA representatives and approved by the returning officer, involved going through the bundles of votes for each political party, after a representative of CHADEMA had expressed I dissatisfaction with the position reached. It is this exercise of going through the bundle of votes which was stopped after a number of CCM bundles had been gone through.
The first question that arises here is whether this exercise is permitted by law. In our A considered opinion, we are satisfied that the answer is in the negative. Under s 78 of the Elections Act, there is only one course of action open where, as was the case here, a candidate or counting agent expresses dissatisfaction, and that course of action is for the returning officer to grant a recount. On the authority of the case of The B Attorney-General v Joseph Musa Monko (4), the returning officer is duty bound to grant a first and second request for recount. This was not done in the present case. Instead, an extraneous exercise was undertaken. This was clearly not proper in law. C
A more serious impropriety however concerns the petitioner's complaint to the effect that the actu