A.G and 2 Others versus Dr Aman Walid Kabourou; Civil Appeal No 32 and 42 of 1994: Court of Appeal of Tanzania at DSM (Unreported).
- Administrative Law.
- Judicial review – whether illegal acts of the Electoral Commission can be protected under Article 74(12) of the Constitution of the URT1974.
- Judicial Review-extent of the supervisory jurisdiction of the High Court of Tanzania.
- Delegated legislation –the parent Act provides that regulations should be signed by Chairman or Director for Elections – the same is signed by Vice – Chairman – whether valid.
- Delegated legislation – Regulations were not published in the government gazette-whether fatal.
- Election Petitions
- Grounds –Whether grounds not specifically provided for in the Election laws are tenable.
- Presidential elections – comments on provisions that prohibit one to challenge results in court
- Corruption -whether promise to build roads amount to corruption
- Illegal practices – campaigning before time –effect.
- Campaigns – use of public property or employees by the President – whether illegal.
- Campaigns – use of TBC as campaign tool for a ruling party candidate- whether proper.
- Recounting –recounting of votes – whether allowed.
- Defamation – Defamation in elections – whether fatal
Held:-
(i) Sub –Article 12 of Article 74 of the Constitution cannot be interpreted so as to protect unconstitutional or illegal acts or deeds of the Electoral Commission from inquiry by the courts of law. This means that the protection from inquiry by the courts applies only to acts or deeds made according to the constitution or the relevant law. It follows therefore that any act or deed made contrary to the constitution or the relevant law is subject to review or inquiry by the appropriate Courts of law.
(ii) The High Court in Tanzania, like the High Court in England, has a supervisory jurisdiction to inquire into the legality of anything done or made by public authority.
(iii) Since there is no provision under the parent Act or any other relevant law authorizing the Vice – Chairman to sign regulations, the purported regulations signed by an incompetent person are invalid.
(iv) If the parent Act provides that some regulations should be published, they should be published for them to be valid, otherwise, if the Act is silent, section 27 of the Interpretation of Laws and General Clauses Act, 1972 applies to the effect that, the regulations should specify the commencement of such regulations for them to be valid.
(v) An election which is generally unfree and unfair is not an election at all as envisaged by the constitution and the Election Act, and Consequently anything which renders the elections unfree or, and unfair is in law valid ground for nullification of such purported election. Further, any law which seeks to protect unfree or, and unfair elections from nullification would be unconstitutional.
(vi) Chapter 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.
(vii) Corrupt undertaking to repair the road amounts not only to a non-compliance with the prohibition against electoral bribery but was also unfair to the political parties which were challenging CCM.
(viii) Campaigning before the period described as campaigning period amounts to illegal campaigns. If it can be proved on the basis of circumstantial evidence number of people who attended the meeting that it affected the results, the results shall be nullified.
(xi) Since fairness is one of the import ant ingredients of a democratic 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 is prohibited in accordance with the principle of fairness. If it renders elections generally unfair, it will result in nullification of election results.
(x) Broadcast in favour of the ruling party has a possibility of influencing election results in favour of the ruling party.
(xi) A returning officer is duty bound to grant a first and second request for recount.
(xii) Since defamation is an offence under the law of the land, everyone is prohibited from committing it at all times including during election campaigns. If defamation and intimidation affect results, the results shall be nullified.