22 June 2007

Application No 8 of 2007; Reference No. 3 of 2007

EAST AFRICAN COURT OF JUSTICE

CHRISTOPHER MTIKILA

v.

THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA, AND

THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY

RULING

BEFORE: PRESIDENT: Moijo. M . Ole Keiwua

JUDGES: Augustino. S. L. Ramadhani Kasanga Mulwa, Mary Stella Arach-
Amoko; Harold R. Nsekela

The East African Law Society v. The Attorney General of the Republic of
Citation:
Kenya, Application No 8, Ref. No. 3, Ruling (EACJ, June. 22, 2007)
RepresentedAPPLICANT: Mr. Audax Kahendaguza Vedasto;
By: RESPONDENT 1: Mr. Matthew Mwaimu, Mr. Joseph Ndunguru, and Mr. Paul
Ngwembe;
RESPONDENT 2: Mr. Wilbert Kaahwa;
INTERVENERS: Mr. Mabere Marando
Editor's INTERVENERS: Dr. George Francis Nangale, Sylvia Kate Kamba, Dr. Waalid
Note: Aman Kabourou, Janet Deo Mmari, Abdullah A. H. Mwinyi, Dr. Gharib Said
Bilal, Dr. John Didas Masaburi, Septuu Mohamed Nassor and Fortunatus
Lwanyantika Masha

[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

MOIJO.M . OLE KEIWUA
PRESIDENT

AUGUSTINO.S .L . RAMADHANI
JUDGE

KASANGA MULWA
JUDGE
MARY STELLA ARACH-AMOKO
JUDGE

HAROLD R. NSEKELA
JUDGE