Thursday, 22 October 2015

Tanzania AG for Dismissal of NEC 200 Metre Directive of results waiting.

By Faustine Kapama
The Attorney General (AG) yesterday asked the High Court to dismiss a case lodged by Amy Pascience Kibatala, challenging the National Elections Commission (NEC)'s directive, requiring the electorate not to stay even beyond 200 metres from polling stations, after casting their votes.

Deputy AG, Dr Tulia Ackson told a panel comprising judges Sakieti Kihiyo, Aloysius Mujulizi and Lugano Mwandambo that the petitioner (Ms Kibatala) failed to give sufficient particulars showing how her rights would be taken away in enforcing the directives, reiterated by President Jakaya Kikwete later on.

According to the petitioner, NEC and other authorities' directives, basing on Section 104 (1) of the National Elections Act violated herrights provided for under Articles 5(1), 18 (1) and 21 (2) of the Constitution of United Republic of Tanzania.

Dr Akson submitted that since the petition failed to give such particulars to justify her claims, the matter fell under one legal position relating to interpretation of the provision in question of the National Elections Act, a position which could not be brought under Basic Rights and Duties Enforcement Act.

"Therefore, if this court agrees with our position, the petition should have been brought under Judicature and Application Laws Act and not under Basic Rights and Duties Enforcement Act. Improper citation of enabling provisions makes the matter incompetent," the Deputy Attorney General submitted.

In the matter, the petitioner, through legal services of advocate Peter Kibatala, seeks for proper interpretation of import, meaning and effect of Section 104 (1), on the rights of voters to stay beyond a distance of 200 metres from where voting is taking place and where tallying is taking place.

Ms Kibatala is further seeking for declaration that voters or interested persons have the right to stay orderly beyond a distance of 200 metres from where voting is taking place and where tallying is taking place without breaking the law.

Section 104 (1) states, "No person shall hold a meeting on election day or within any building where voting in an election is in progress or at any place within the radius of 200 metres of such building, wear or display any card photograph, favour or other emblem indicating support for a particular candidate in the elections."

The parties locked horns on proper interpretations of the law, in particular the word 'meeting', wherein advocate Kibatala got hard time to convince the court that such word meant to be an organised gathering in furtherance of common purpose in relation to election campaign on the voting day.

However, Dr Akson had a different view and maintained that the meetings that were prohibited under the law did not relate to election campaign and that the law prohibits in absolute terms any person to hold a meeting on the day of election.

Referring to Black Law Dictionary, Forth Edition, she said meeting means, "A coming together of persons. An assembly particularly in law of a number of persons for the purpose of discussing and acting upon some matter or matters in which they have common interests.

The Deputy AG, therefore, submitted that NEC and other authorities were justified to insist that all voters should leave the polling station after voting and go home, leaving behind only the persons authorised by the law, in particular section 72 of the National Election Act. The case comes today for necessary orders

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