DAR ES SALAAM: Full bench to rule on security deposit

Written by FAUSTINE KAPAMA.

CHIEF Justice Chande Othman has constituted a full court comprising five judges to determine the disturbing and highly contested issue, which requires an aggrieved party in elections to deposit security for costs in court before petitioning to challenge the results.

The matter involving deposition of security for costs has remained a stumbling block in many if not all election cases filed in various registries of the High Court in Tanzania.

According to court records, the “full court” comprising justices January Msoffe, Engela Kileo, Nathalia Kimaro, Salum Massati and William Mandia is set to determine the matter on May 14, this year, when hearing an appeal in election case involving politicians, Mr Chiriko David and Mr Kangi Lugola.

Mr David, who had contested for parliamentary seat under Chama Cha Demokrasia na Maendeleo (Chadema) for Mwibara Constituency in the 2010 general election, lost to Mr Lugola of the ruling Chama Cha Mapinduzi (CCM) after getting 8,194 votes, while the winner collected 18,223 votes.

In the case, Mr David is challenging a decision given by Judge Noel Chocha on November 21, 2011, at the High Court, Mwanza Registry at Musoma, dismissing his petition, disputing the election of Mr Lugola as MP for the Constituency.

The Chadema member is asking the justices of the country’s highest temple of justice to determine a declaration by a bench (three judges) holding that “it is mandatory all petitioners in election petitions regardless of financial ability, to apply for determination of security of costs.”

Through his advocate Herbert Nyange, the member of the country’s main opposition party is asking the justices to depart from such holding, citing objects and reasons given by the government in the National Assembly for the amendment of the Election Act, in November 2002.

According to the Attorney General (AG) speech in Parliament regarding the reasons the government desired to amend the National Elections Act, the government desired to enact pecuniary conditions which will deter busy bodies from instituting petitions.

Such enactments, the appellant alleges, was aimed at avoidance of elections on frivolous grounds by attaching the right to petition a condition to pay not less than 5m/- as security of costs. It is alleged that the government made such enactment to avoid the mistake that led to the previous amendments, which were declared unconstitutional in the case of Julius Ndyanabo in 2004 involving the same requirement.

On the other hand, it is alleged, the government sought to encourage non affluent members of the electorate with honest claims against successful candidates to apply to the High Court for determination of security for costs be it an amount less than 5m/- or any other form of security.

The decision sought to be departed was given by a bench in the case of Katani Katani against Returning Officer, Tandahimba and two others. Mr David claims that such decision has had such effected that the court did not say the decision is to be applied prospectively.

He alleges that the decision “has a retrospective effect”, meaning that it applies to and is binding on all undermined appeals on the same point, namely determination of security for costs and time when an application must be made.”

Source: Daily News (01/04/2013): http://dailynews.co.tz/index.php/local-news/16032-full-bench-to-rule-on-security-deposit