Wassira bites the dust in Bunda poll challenge

FAUSTINE KAPAMA

THE Court of Appeal yesterday confirmed Ms Ester Bulaya under Chama Cha Demokrasia na Maendeleo (Chadema) as the legitimate Member of Parliament (MP) for Bunda Urban Constituency.

Justices Mbarouk Mbarouk, Augustine Mwarija and Rehema Mkuye reached such a decision after dismissing the appeal lodged by four Chama Cha Mapinduzi (CCM) members, seeking the nullification of the 2015 election results. “We find that the appeal was brought without sufficient reasons.

We uphold the decision of the High Court and dismiss the appeal with costs,” they declared after ruling against the appellants, Magambo Masato, Matwige Matwige, James Ezekiel and Elieta Malagiki.

Bunda urban returning officer, Lucy Msofe had declared Bulaya to have won the election by 28,510 votes beating CCM candidate, former Bunda legislator and ex-Minister for Agriculture, Food Security and Cooperatives, Mr Stephen Wassira, who managed 19,126 votes in a hotly contested election.

During hearing of the appeal, the appellants had advanced 10 grounds to fault the findings of the High Court, which had ruled in favour of the opposition MP after the four CCM members failed to discharge their burden of proving their claims in the election petition beyond reasonable doubt.

Advocates Constantine Mutalemwa and Yasin Memba, for the appellants, had argued that the High Court erred in holding that discrepancies on number of registered voters was not trivial and could not affect the results though there was excess of 95,000 voters not registered, but took part in elections.

The advocates further submitted that Bulaya did not comply with the Election Expenses Act by showing her certificate regarding the election budget and that at the time of tallying votes, the candidate for CCM was not notified, in total violation of election laws.

They further complained on the High Court decision to dismiss the appeal basing on personal reasons and giving extra-judicial statements not backed up by law in that the nullification of election results had a serious impact and create burden on tax payers, considering that Bunda electorates were poor.

In their judgment, however, the justices of the appeals court found that all the grounds advanced by the appellants lacked merit.

They said that the discrepancies on the number of voters as pointed out did not affect the election results. The justices further ruled that the appellant failed to discharge their burden of proving Bulaya’s failure to exhibit the budget she had used during election campaign as required under the Election Expenses Act and that there was sufficient evidence to show that CCM was aware of the time of tallying votes.

In resisting the appeal in question, advocate Tundu Lissu, for the MP, as first respondent in the matter, had admitted that indeed there were some discrepancies on the actual number of registered voters, but was quick to point out that such defect alone was not sufficient reason to nullify the elections.

Referring to several decided cases, the advocate had told the court that not every irregularity or non- compliance to the Election Act warrant the court’s intervention on the verdict of electorates to nullify the election results. He pointed out that it was upon the petitioner to prove his case successfully.

Even if there was such irregularity, he said, the remedy available was for the excess votes, which is 95,000 to be divided equally to all candidates and not to nullify the election results.

Such position was also supported by Principal State Attorney Obadia Kameya, for the Attorney General (AG). As regard to the expenses budget for the elections, the advocate for the respondents had submitted that it was upon the appellants to prove whether Bulaya had violated the rules by failure to produce any certificate to that effect and not to shift the burden of such proof to her.

Mr Lissu went an extra mile by identifying several other persons who had the knowledge of the matter, including the Registrar of Political Parties, Secretary General and District Secretary of the participating party, Controller and Auditor General, but none of them was called to testify to the contrary.

“It is a cardinal principal of law that he who alleges must prove. In election petitions, the burden of proof is beyond reasonable doubt,” he submitted. As far as the question of poverty for Bunda electorates, the counsel for the respondents argued that such statement of the High Court judge was given by the way.

They submitted that it was an “obita dictum” and could not form part of the reasons for the High Court to dismiss the petition by the appellants.

The counsel pointed out that the dismissal of the petition was based on other factors having the trial judge evaluating the evidence tendered by the parties.