5 December 2012

Tanzania: Repeal Judgement Against LEMA, LISU Tells Court

COUNSEL of Godbless Lema has requested the Court of Appeal to quash High Court judgment, and set aside its decree that nullified the election results of their client as Member of Parliament for Arusha Urban Constituency.

On 5th April this year, High Court Judge, Gabriel Rwakibalila unseated Lema after holding that the former MP had committed illegal practices, including use of abusive language against Chama Cha Mapinduzi (CCM) candidate Dr Batilda Burian during election campaign in 2010.

Lema's counsel, Tundu Lisu faulted the findings when addressing judges of the Court of Appeal. He claimed that CCM members who had petitioned to challenge the election results of which Judge Rwakibalila relied in their evidence to give his judgment had no mandate to do so.

"The only proper person to substantiate such as defamatory is Dr Batilda Buriani and not the three petitioners as they were not the ones defamed," he told a panel comprised of Justices Salum Massati, Natalia Kimaro and Justice Bernard Luanda.

Supporting argument by Advocate Lisu, State Attorney Timoth Vitalis who appeared in court on behalf of Attorney General told the judges that defamation is a total of person nature, and the one who was defamed was required to appear in court but surprising enough she did not.

In addition to that, he said that among issues which were raised in the High Court against Lema includes resident discrimination in which he was accused of speaking abusive words against CCM candidate, noting that such kind of prejudice is not recognized by the law.

"There are four types of discrimination, according to the law, which are Gender discrimination, Racial discrimination, Religious discrimination and Racial discrimination, those others are not recognized by the law," he said.

However, the lawyer for three CCM members, Advocate Alute Mughwai, requested the court to dismiss with cost the appeal by the reason that grounds of appeal raised lacked facts and they have no power to challenge the judgement of High Court.

The decision which is the subject matter in the appeal was given on April 5, 2012 by High Court Judge Gabriel Rwakibalira, declaring Lema's election in the 2010 General Election null and void.

In that election, Lema had got 56,561 votes while Dr Burian, his closest challenger and a CCM candidate, finished second with 37,460 votes. Dr Burian, a former Cabinet minister, is now Tanzania's High Commissioner to Kenya.

Lema's victory was nullified after the court said it had been proven beyond reasonable doubt that the then Chadema candidate uttered defamatory remarks and used abusive language against his CCM rival, Dr Burian.

But later CHADEMA appealed against the ruling, claiming it was a "travesty of justice," citing that the alleged defamatory and abusive language said to have been used by Lema against the CCM candidate, in the preceding campaigns had not been proven.

The opposition party claimed that such claims were not substantiated because the victim, Dr Buriani, who contested with Lema, did not appear before the court to corroborate them.

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