Judge dismisses application in favour of objection

MEDDY MULISA in Bukoba

JUDGE Amaisario Munisi on Tuesday upheld an objection raised by Senior State Attorney Killey Mwitasi and dismissed an application made by the Petitioner in the Kyerwa Constituency, Benedict Mutungilehi, to tender a copy of Form No 21B for lack of merit.

Advocate Gaspar Mwanalyela, on behalf of the petitioner, had earlier called Salim Said from Mabira Ward to testify as second petitioner’s witness. However, when the affidavit was opened in court it was revealed that the recording of the Affidavit was incomplete.

Judge Munisi struck out the Affidavit and discharged the witness. Mr Mwanalyela then called another witness, Bashiru Mgurusi who was a Chadema agent at Omukakagando Ghalani No 2 Polling Station. The witness was about to tender a copy of Form No 21 B with Serial No 04339 when a legal wrangle erupted.

Senior State Attorney Killey Mwitasi: “We object the document to be tendered as exhibit.” According to Section 64 (4) and Section 83 (4) of the Evidence Act, a public document which is intended to be submitted as exhibit should be certified.

This particular document lacks merit. Mr Mwanalyela had argued that a document which is produced in uniform process is a primary document. In her ruling, Judge Munisi noted that she had gone through the Provisions of the Evidence Act. She said she was satisfied that it was a public document and as such, it required certification. She sustained the objection raised by Mr Mwitasi.

During cross-examination, the witness (Mgurusi) told the High Court that he was Chadema Agent at Omukagando Ghalani B Polling Station. Mr Mwitasi: Your Affidavit shows that you were Agent at Omukagando Ghalani No 2 Polling station. Can you elaborate on this? Witness: I don’t know how to read English. The recording was made by Advocate Aneth. She is the one who translated for me.

Mr Mwitasi: In the Affidavit you mentioned that you were appointed by the petitioner (Mr Mutungilehi). Do you mean that Mutungulehi is Chadema? Witness: I was appointed by the party (Chadema).

The petitioner, Mr Mutungilehi, who contested the October 25, 2015 general election on Chadema ticket, is asking the High Court to nullify the elections, order a recount of the votes on Form No 21B and be declared the winner.

Mutungilehi, who is former MP for Kyerwa (2000-2005), argued that the results obtained from 338 polling stations indicated that he won the elections by scooping a total of 52,023 votes against 49,236 votes of incumbent MP for Kyerwa, Mr Innocent Sebba Bilikwate (CCM), a difference of 2,787 votes.

He contends that instead, the Returning Officer announced Mr Bilikwate the winner with 46,040 votes against 43,194 votes of Mutungilehi. In the Petition Misc No 7/2015, the Member of Parliament (MP) for Kyerwa, Mr Bilikwate, is the first respondent, the Returning Officer is second respondent while the Attorney General (AG) is third respondent.

Mr Mutungilehi is being represented by advocate Gaspar Mwanalyela. The first respondent (Bilikwate) is being represented by Mr Peter Matete and Aaron Kabunga while the second and third respondents are being represented by Principal State Attorney Pendo Makondo and Senior State Attorney Killey Mwitasi