13 December 2012

Tanzania: Court of Appeal Throws Out Kiwia Case Petition

THE Court of Appeal rejected an appeal filed to oppose a decision of the High Court, which had declared Highness Kiwia as lawfully elected Member of Parliament for Ilemela Constituency in Mwanza under Chama Cha Democrasia na Maendeleo (Chadema).

A panel comprising Justices January Msoffe, Bernard Luanda and Salum Massati reached such a decision after upholding a preliminary objection raised by Principal State Attorney Gabriel Malata, who represented the Attorney General (AG) in the matter and Kiwia's lawyer, Tundu Lissu.

The justices ruled that the Appeal in question lacked essential legal documents. The appeal had been lodged by three members of Chama Cha Mapinduzi (CCM), Yusuph Lupilya, Nuru Nsubuga and Beatus Madenge, to challenge a judgment by the High Court, Mwanza Registry.

In their notice of objection, counsel for the respondents (AG and Kiwia) stated that the appellants (the three members of the ruling party) had lodged their appeal in contravention of the Court of Appeal Rules.

Mr Malata had claimed that the appellants did not present documents for claims lodged before the High Court to ascertain costs of the petition and other essential documents that were admitted at the trial level.

Advocate Lissu had sought for the case to be dismissed because the lacking documents were necessary to enable the Court to ascertain whether the case had been properly filed before the High Court and was lodged within 30 days after announcement of the election results as the law requires.

Furthermore, by having such documents the Court would have known whether the order for filing application for assessment of costs to be deposited as security bond were presented within 14 days, while he knew that such ruling was given after 100 days, which was contrary to the law.

On the other hand, advocates for the appellants, Muhigo Andrew and Maduhu Ngassa had admitted to the mistake that such documents were not included in the records of appeal and requested the court to make some amendments taking into account that the matter had public interests.

However, the judges of the Court rejected the request, saying they could not allow the amendments on documents which were not in court and could not do so, to go against the law, on purported public interest plea.

Before the High Court, the appellants had sought for nullification of election results for Kiwia, claiming that about 114,085 voters, including CCM members were denied to exercise their constitutional right of voting by Chadema members, resulting the former MP for the constituency, Anthony Mwandu Diallo to be defeated in the 2010 general election.

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