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[1] This is an application for review of the
ruling delivered by this court on 25th April, 2007 and brought by
Christopher Mtikila who had previously come to this Court under Article 30
of the Treaty for the Establishment of the East African Community (the
Treaty) and sought the enforcement and the compliance of Articles 48 (1) (a)
and50 (1) of the Treaty by the two Respondents. The Respondents were:the
Attorney General of the United Republic of Tanzania (1stRespondent), and the
Secretary General of the East African Community (2nd Respondent).
[2] The Applicant’s case is that one of the organs of the East African
Community (the Community) established under Article 9 of the Treaty is the
East African Legislative Assembly (the Legislative Assembly which comprises
twenty-seven elected Members and five ex officio Members according to
Article 48 (1) of the Treaty. Article 50 (1) of the Treaty provides that
each Partner State elects nine members to the Legislative Assembly.
[3] Sometime in 2001 the National Assembly of the United Republic of
Tanzania (hereinafter referred to as the National Assembly) elected nine
persons to the Legislative Assembly two of whom were Dr. Harrison Mwakyembe
and Mrs. Beatrice Shelukindo. In 2005 these two ran for and were elected
Members of Parliament of the National Assembly and, pursuant to Article 51
(3) (c), they were required to vacate their seats in the Legislative
Assembly. They did that.
[4] The National Assembly held by-elections, as it were, in March 2006, and
elected Dr. Norman Sigalla and Mrs. Hulda Stanley Kibacha, to fill the two
Tanzanian vacancies in the Legislative Assembly. However, in October, 2006,
the National Assembly held a General Election, so to speak, and elected nine
persons whose names have been submitted to take up the Tanzanian seats in
the second Legislative Assembly since the re-birth of the Community. Dr.
Sigalla and Mrs. Kibacha were unsuccessful contenders in that election.
[5] The Applicant argues that Article 51 (1) of the Treaty prescribes the
tenure of every Member of the Legislative Assembly to be five years. So, he
contends that the tenure of Dr. Sigalla and Mrs. Kibacha has not ended and,
therefore, in October, 2006, the National Assembly ought to have elected
only seven new Members to the Legislative Assembly. Since nine persons were
elected, the Applicant argues, the total number of Members of the
Legislative Assembly from Tanzania is eleven and that is contrary to Article
50 (1).
[6] The Applicant has two prayers, to wit:
“(a) An order that the elections of a total of 9 persons to be members of
the Assembly conducted by the National Assembly of Tanzania in October,
2006, as averred in paragraph 4 (e) hereinabove while the tenure of the 2
members elected as per paragraph 4 (c) above had not ended, was, and
is, a nullity and without validity; (b) An order prohibiting the East
African Community Assembly to administer oaths/affirmations of the 9 persons
elected by the National Assembly of Tanzania in October, 2006, as averred in
paragraph 4 (e) above.”
[7] The Respondents raised a preliminary objection and after a fullhearing
of that this Court held that it had
“… no jurisdiction to entertain this application which seeks to annul the
elections held by the National Assembly in October, 2006. We allow the
preliminary objection raised and dismiss the reference with costs for one
advocate for each Respondent.”
[8] The application for the review was premised on five grounds.
[9] The applicant, as before, had the services of Mr. Audax Vedasto, learned
advocate, while the 1st Respondent was represented by two learned Principal
State Attorneys, to wit, Mr. Matthew Mwaimu andMr. Joseph Ndunguru. The
learned Counsel to the Community, Mr. Wilbert Kaahwa, appeared for the 2nd
Respondent.
[10] Mr. Vedasto proposed to argue together grounds one, two and four.
However, for reasons which are not necessary to disclose here, he withdrew
these three grounds and, as the learned counsel for the two respondents did
not object, this Court granted that application with costs to the
respondents.
[11] The application for review has been made under Article 35 (3) which
provides as follows:
“An application for review of a judgment may be made to the Court only if it
is based upon the discovery of some fact which by its nature might have had
a decisive influence on the judgment if it had been known to the Court at
the time the judgment was given, but which fact, at that time, was unknown
to both the Court and the party making the application, and which could not,
with reasonable diligence, have been discovered by that party before the
judgment was made, or on account of some mistake, fraud or error on the face
of the record or because an injustice has been done.”
[12] This provision prescribes five grounds for review:
i. The discovery of some new fact which would have a decisive influence on
the judgment;
ii. Mistake;
iii. Fraud;
iv. Error on the face of the record; and
v. Because an injustice has been done.
[13] We must point out, however, that the fifth ground, that of in justice,
is rather novel. Ordinarily the injustice which is considered is that which
results from any of the four preceding grounds of review. But here it would
appear that injustice stands out on its own and not asan accompaniment or a
consequence of one of the four grounds for review. This provides a wider
scope for review than is normally thecase.
[14] Kenya also has a slightly wider scope in review as seen in the Court of
Appeal decision in Orero v. Seko, [1984] KLR 238:
“Under the Civil Procedure Rules order XLIV rule1(1), there are three
grounds upon which a reviewmay be sought and these are:
a) where there is new and important matter orevidence which after exercise
of due diligencewas not within the knowledge of an applicant atthe time the
decree was passed.
b) Where there is a mistake or error apparent onthe face of the record, andc)
for any other sufficient reason.”
[15] This was reiterated in Gharib v. Naaman [1999] 2 EALR 88. Thus inthe
case of Kenya there is a third ground of “any other sufficientreason”. This
is broad enough to cover the ground of injustice.
[16] Mr. Vedasto’s ground five of the review alleges injustice caused bythe
ruling of the Court:
[17] “The Court directed in the Ruling that theApplicant’s complaint, whose
ground is that theelection of the members of the Assembly by theTanzanian
National Assembly was done ininfringement of the provisions of the Treaty
byelecting 11 instead of 9 authorized members, bepetitioned in the High
Court of Tanzania under theprocedures and jurisdiction and on the grounds
fordeclaring void election of a Member of the NationalAssembly of Tanzania,
while under suchprocedures, jurisdiction and grounds in Tanzaniainfringement
of the provisions of the Treaty or evenof any law if the alleged
infringement does not affectthe result of the respective election is not
among thejusticiable grounds in such a petition.”
[18] Briefly Mr. Vedasto contended that the applicant’s complaint cannotfind
a purchase under the law and practice of election petition inTanzania as
provided in section 108 (2) of the Elections Act:
“(2) The election of a candidate as a Members ofParliament shall be declared
void only on anelection petition if the following grounds (sic) isproved to
the satisfaction of the High Court and noother ground, namely –
(a) that, during the election campaign, statementswere made by the candidate,
or on his behalfand with his knowledge and consent orapproval, with intent
to exploit tribal, racial orreligious issues or differences pertinent to
theelection or relating to any of the candidates, or,where the candidates
are not of the same sex,with intent to exploit such difference;
(b) non-compliance with the provisions of this Actrelating to election, if
it appears that theelection was not conducted in accordance withthe
principles laid down in such provisionsand that such non-compliance affected
theresult of the election; or(c) that the candidate was at the time of
hiselection, a person not qualified for election as aMember of Parliament.”
[19] Mr. Vedasto submitted that the applicant’s complaint that theNational
Assembly ought to have elected seven persons only insteadof nine to go to
the Assembly and that the National Assembly hasbreached the provisions of
the Treaty is not one of the three groundsfor avoiding an election.
Therefore, he contended, when theapplicant was told to go to the High Court
to seek redress he wassubjected to an injustice because he cannot do that.
[20] In reply Mr. Ndunguru was very brief:
“It is our submission that the argument raised bythe applicant amounts to a
ground of appeal ratherthan a ground of review. Furthermore, it is
oursubmission that the issue whether or not the HighCourt in entertaining
the applicant’s complaint, (sic)is within the domain of the High Court
itself, notthis Court. The applicant has failed to show theinjustice
occasioned to him and, therefore, we arearguing that the arguments raised by
theapplicant’s advocate do not amount to grounds ofreview as envisaged under
Article 35(3) of theTreaty.”
[21] Mr. Kaahwa observed that Mr. Vedasto’s submissions were mereassertions
that injustice has been committed but no proof wasadvanced by the applicant.
[22] On the face of it, section 108(2) of the Elections Act appears
tosupport the submission that the applicant cannot have recourse tothe High
Court of Tanzania because there is no enabling legalprovision to do so. If
that is so, it is our considered opinion that thatis injustice to the
applicant. There is no forum for the applicant toseek redress of his
grievances. The respondents, would appear,therefore, not to be right in
their contentions that there is noinjustice.
[23] However, we agree with the submissions of Mr. Ndunguru that
thedetermination of whether or not the High Court of Tanzania
hasjurisdiction to deal with the complaints has to be made by the HighCourt
of Tanzania itself and not by this Court. It might as well bethat there is
an issue of conflict of laws and the High Court ofTanzania is the proper
forum to resolve any such conflict.
[24] Rule 15 of the East African Legislative Assembly Election Rules (theTanzania
Election Rules), which the Applicant produced in his list ofauthorities in
the reference, provides:
“Pursuant to the provisions of Article 52 (1) of theTreaty, the election of
the candidate as a Member ofthe East African Legislative Assembly may
bedeclared void only on an election petition.”
[25] Then Rule 16 goes further that:
“The procedure, jurisdiction and the grounds fordeclaring void the election
of such member, shall bethe same as provided by law for election petitions
inrespect of members of the national parliament.”
[26] Now, if Rules 15 and 16 cannot be resorted to because of section108(2)
of the Elections Act, then there is a conflict of laws. Wecannot also agree
with Mr. Vedasto that we were duty bound toensure that the High Court of
Tanzania had jurisdiction over thematter before we declared that this Court
had no jurisdiction overthe application.
[27] Apart from what we have pointed out above, at the hearing theCourt
posed a question to Mr. Kaahwa who, unlike the other twoparties, is not
directly involved.
[28] Mr. Kaahwa responded:
“My Lords, in the first instance, without anticipatingwhat would happen at
the national level, I think theapplicant would have recourse at the national
levelwithin the existing law; the National (sic) ElectionAct and even the
East African Legislative AssemblyElection Rules of Tanzania. He would have
recourseto justice and he would succeed. But regardingwhat Your Lordship is
pointing out, in the eventthat there is a lacuna found, then it is the
PartnerState and the Community to address that lacuna.”
[29] We agree with Mr. Kaahwa that in case of a conflict of laws it is
forTanzania, and indeed, for the first respondent to see to it that thelegal
climate is harmonized. The High Court of Tanzania has a rolein that.
[30] Resolving a conflict of law is not a matter for review. We say
sobecause at the conclusion of a successful review the Court willrectify its
decision accordingly. In the present case that would meanto reverse our
decision and deal with the application. But we cannotclothe ourselves with
jurisdiction to deal with the matter when weare convinced that we do not
have such jurisdiction. As Mr. Kaahwarightly framed it:
“There is no way any litigant will force anhonourable court to assume
jurisdiction where itdoes not have.”
[31] That is so irrespective of whether or not there is injustice to
theapplicant.We do not think that ground three had any substance.
Wecompletely failed to understand what Mr. Vedasto wanted us to do.He
averred in ground three as follows:
“In his submission through his advocate inaffirming jurisdiction of this
Court, the Applicantsubmitted that the core and material pleading in
theReference in which it is contended that the electionsconducted by the
Tanzanian Legislative Assemblywere 11 members, hence an infringement of
theTreaty which requires a Partner State elect only 9members, like a
complaint in ProfessorAnyang’nyong’o case (Reference No. 1 of 2006)where the
Complainants had contended that Kenyagot its members without conducting an
election,hence an infringement of the Treaty which requiresa Partner State
to get its members by election, butthe Court in its Ruling distinguished
these twocases by citing and referring to the relevantparagraphs of
Professor Anyang’nyong’o case, ofwhich, paragraph 29 reads:
‘29. The whole process of nomination andelection adopted by the National
Assembly ofKenya was incurably and fatally flawed insubstance, law and
procedure andcontravenes Article 50 of the Treaty for theEstablishment of
the East AfricanCommunity in so far as no election was heldnor debate
allowed in Parliament in thematter.’without citing, referring to, showing
the differenceor even saying anything on the correspondingprovisions in the
Reference before it (Reference no. 2of 2007), of which paragraph 4 (g),
reads:
‘4(g) The National Assembly of Tanzania haselected a total of 11 members of
theAssembly, in infringement of Article 50(1) ofthe Treaty which requires
each Partner Stateto elect only 9 members of the Assembly.’
[32] Briefly Mr. Vedasto argued that this Court did not point out
thedifference between the Anyang’nyong’o Case and the Referenceforming the
subject matter of this application for review. A numberof passages from the
ruling were pointed out to him which clearlyunderscored the difference
between the two case but still Mr.Vedasto stuck to his guns that there were
no differences pointedout. However, to be fair to him at one point he
admitted thepossibility of himself being at fault when he said:
“Of course, it may be my weakness that I failed tosee the difference, that
is why I wanted thedifference to be shown, but I thought that to be
just,fair and whatever, the difference between the twocases ought to have
been shown.”
[33] We are of the well settled view that the sentence we have quotedabove
encapsulates the problem with ground three, that is, theweakness of Mr.
Vedasto which has caused him to fail to see thedistinction which the Court
very elaborately made between the twocases on a number of occasions. We,
therefore, dismiss this groundwith costs, too.
[34] It may not be out of place to observe that the application has
beenovertaken by events. Only nine persons, and not eleven, were swornas
members of the second Assembly from Tanzania.
[35] Therefore, for the above reasons, the application is dismissed
withcosts.
Dated at Arusha this day of 2007
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