Facts
The High Court at Tabora allowed a petition by the Respondent filed under Section 108 of the Elections Act, 1985, as amended, and duly declared the results of a certain parliamentary by election null and void. The Third Appellant, Azim Suleman Premji, had as a result of the by election been declared the new M.P. for Kigoma Urban Constituency.The present appeal is a consolidation of two separate appeals begun, on the one hand, by the aggrieved Third Appellant, and on the other hand, by the First and Second Appellants jointly. The First Appellant was joined as a respondent in the High Court petition as a necessary party, pursuant to rule 4(1) of the Elections (Election Petitions) Rules, 1971. The Second Appellant, Radio Tanzania Dar es Salaam, was sued in the petition because the Respondent alleged that its broadcasts had affected the results of the by-election. On 28 December 1994, this Court dismissed the appeal with costs, including those incurred in the Court below. The Court's reasons were supplied on 31 January, 1995. The facts appear from the reasons for judgment.
Held:
(i) The High Court of this country has a supervisory jurisdiction to inquire into the legality of anything done or made by a public authority, and this jurisdiction includes the power to inquire into the legality of an official proclamation by the Electoral Commission (tamko rasmi).
(ii) The Electoral Commission is empowered in terms of the Elections Act to make only such regulations as are in furtherance of specific provisions of the Act or in furtherance of the purpose of the whole Act. This power of the Commission is, I however, to be exercised subject to the underlying constitutional principle which requires democratic elections to be free and fair, and this principle should be read into the Elections Act.
(iii) Although, in casu, the tamko rasmi was issued in the furtherance of free and fair elections, it is invalid due to the Vice-Chairman of the Electoral Commission having signed it instead of the Chairman, as is required by Section 3 of the Act.
(iv) There are grounds other than those stated in Section 108 of the Elections Act for the nullification of election results. Such other grounds include `anything which renders the elections unfree (sic) or unfair', as well as any law which seeks to protect `unfree (sic)' or unfair elections, since such would be unconstitutional.
(v) The mere removal of illegal and corrupt practices from Section 108 does not have the effect of rendering such practices permissible in terms of the Elections Act, 1985. Instead, the effect of such removal is that such practices are no longer per se sufficient grounds for the nullification of election results. Such practices are still relevant, however, in determing whether elections were conducted freely and fairly.
(vi) A `corrupt practice' for the purposes of the Elections Act is not necessarily the same as corruption under the Prevention of Corruption Act, 1972. A `corrupt practice' under the Elections Act may be construed either as being a failure to abstain from committing the offence of bribery, as defined in Section 97 of the Elections Act, or as being a misconduct which renders the election unfair.
(vii) In casu, the maintenance work of the Kigoma-Ujiji road during the election campaign constituted non-compliance with the prohibition against electoral bribery, and was
executed with the corrupt motive ofinfluencing voters to vote for the CCM candidate and accordingly affected the results of the election.
(viii) In casu, further, the political campaigning by Mrema and Kiula (both M.P.'s) prior to the permissible campaigning period having begun, was illegal and must have affected the results of the by-election.
(ix) Radio Tanzania Dar es Salaam was purely a government department, at thematerial time, with no separate legal personality enabling it to be joined as a party to the petition separately from the Attorney General (First Appellant), who represents the government.
(x) CCM was given more air-time on Radio Tanzania Dar es Salaam than were given other political parties, and its broadcasts generally were biased in favour H of the CCM candidate, such that it must have influenced the by-election results in favour of the CCM candidate.
(xi) When a candidate in an election or a counting agent expresses dissatisfaction following the counting process, Section 78 of the Act grants a recount to the dissatisfied individual as his only course of action.
(xii) The public statements made by various officials of the CCM in respect of opposition parties generally, and the Respondent's party specifically, were clearly defamatory, and such statements cannot be justified during electioneering since elections are required to be conducted not only with due observance of the Constitution and the Elections Act, but also of the general law of the land which forbids defamation.
(xiii) In deciding matters of citizenship, the law on the subject is contained in theCitizenship Act, 1961 Cap. 512, and the British Nationality Act, 1948. The three factors which determine citizenship by birth are firstly, being born in Tanganyika by 8 December 1961; secondly, being a citizen of the U.K. and Colonies or being a British protected person on 8 December 1961; and finally, having at least one parent born in Tanganyika.
(xiv) According to the law of this country, the Third Appellant at birth acquired the nationality of both his parents, which nationality continued until he was required to choose between his original Indian citizenship and Tanzanian citizenship. The Third Appellant accordingly lost any Tanzanian citizenship since he failed to renounce his Indian citizenship.
(xv) The appeal is dismissed with costs, including those incurred in the court below.
Case Information
Ordered accordingly.
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