Tanzania Daily News (Dar es Salaam)

23 January 2013

Tanzania: Kafumu Challenges High Court Ruling

FORMER Igunga MP under the ruling Chama Cha Mapinduzi (CCM) ticket, Dr Dalaly Peter Kafumu has lodged an appeal to challenge High Court decision, which nullified results for his election in 2011.

In the application filed before the Court of Appeal through Advocates Masumbuko Lamwai and Kamaliza Kayaga, Dr Kafumu has advanced 14 grounds to fault the decision dated August 21, 2012, which were given by Judge Mary Shangali of the High Court, Tabora Registry.

"The appellant humbly prays that judges of appeal make the following orders; the orders of the High Court that declared the by-election results of October 2011 in Igunga Constituency be set aside. The appellant be reinstated as Member of Parliament for the Constituency," records of appeal read in part.

Respondents in the matter are Joseph Mwandu Kashindye, who had contested for the same post under the Chama cha Demokrasia na Maendeleo (Chadema) and lost the elections, Attorney General, and the Retuning officer in that election.

In the memorandum of appeal, Dr Kafumu, a former Commissioner for Minerals, claims that the trial judge erred in law and facts in proceeding with the hearing of the election petition, claiming Mr Kashindye had not provided the security for costs he had been ordered to present.

"Having found as a fact that the construction of the Mbutu bridge had been budgeted for by the government, the judge erred in law and fact in holding that (Dr John Pombe) Magufuli gave an election promise as to its construction," reads one of memorandum of appeal.

Dr Magufuli is currently the Minister for Works. During the campaign, Dr Magufuli pledged that he would make sure that Mbutu Bridge, which had been in a dilapidated state for many years, would be repaired, to enable Igunga residents elect CCM candidate.

The judge, the appellant explains, erred in holding that making a statement on what was already contained in a party's election manifesto during an election campaign was wrong and the trial judge was incorrect in deciding on matters which were not pleaded.

According to the appellant, the judge misdirected herself in law and in fact in drawing adverse inference against him when Dr Magufuli failed to appear in court to testify on his role in the election campaign and further erred in shifting the burden of proof to the appellant.

"The judge erred in law and in fact by engaging herself in conjecture while answering the question whether Aden Rage's conduct influenced voters and militated against free and fair elections," the appellant stated. In her judgment, Judge Shangali said remarks about the Chadema candidate by Rage, the Tabora Urban MP, were deemed to be offensive.

The court accepted testimony that Kashindye did not get votes in some areas because Rage had circulated information that he (Mr Kashindye) had pulled out of the race. Dr Kafumu also stated that the trial judge erred in holding that he used religion to influence voters without making a finding as to whether the one who uttered the words complained of his agent or acted with the consent.

Judge Shangali had taken exception to a statement made by Imam Swalekh Mohamed of Igunga Masjid, appealing to Muslims not to vote for Mr Kashindye because some Chadema leaders had abused the Igunga District Commissioner, Ms Fatuma Kimario, who is a Muslim.

The judge said such statement was unacceptable as it could propagate religious fanaticism. Furthermore, the appellant stated, the trial judge erred in holding that Mr Wilson Mukama, the then CCM Secretary General interfered with the smooth running of the election campaign process, tarnishing the image and reputation of Chadema and he also scared voters.

The judge had ruled that Mr Mukama contributed to the chain of statements that the court referred to in overturning the results. Mr Mukama had declared at a rally that Chadema had sent commandos to disrupt his election campaigns.

During the elections, Dr Kafumu won by scoping 26,488 votes, followed by Mr Kashindye, who got 23,260 in the polls characterized by poor voters' turnout, where 53,672 out of 171,077, who were registered cast their votes.

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