Zitto Kabwe wins legal respite in stand-off with CHADEMA

THE High Court in Dar es Salaam temporarily restrained the Central Committee (CC) of Chama cha Demokrasia na Maendeleo (Chadema) from deliberating the fate of party membership for Zitto Kabwe in its meeting scheduled for today.

Mr Zitto is the opposition party’s MP for Kigoma North and former Deputy Secretary General of the party.

Judge John Utamwa ruled in favour of Mr Zitto, who was Chadema’s Deputy Secretary General, after dismissing three grounds of objection raised by counsel for the opposition party, Mr Tundu Lissu and Mr Peter Kibatala, against the hearing of the application in question.

The judge issued such order pending hearing of the main application involving the matter. The hearing of the main application would be held today after advocates for Chadema have filed a counter affidavit in response to that of Mr Zitto.

In his application, Mr Zitto is asking the court to restrain the CC from discussing, deliberating or determining the issue of his membership with the party until the main suit involving the matter is determined.

Mr Zitto is asking the court in the main suit that the Chadema CC and any other subordinate party organ should not deliberate, discuss and or determine the issue of membership until his appeal has been determined by the party’s governing council.

He also requests the court that the Secretary General should be ordered to furnish him with the copy of proceedings and information as to the reasons for the decision by the CC so that he could lodge his appeal to the party’s governing council.

The application, the first to be registered in the High Court’s Registry in 2014 yesterday, faced objections from the opposition party’s advocates who alleged that the court has not been properly moved to hear the same and that the affidavit filed to support it ‘’was fatally defective.’’

Respondents in the matter are the party’s registered trustees and the party’s Secretary General. Mr Zitto filed the application under legal services of Moshi-based advocate and the party’s counsellor, Mr Albert Msando.

Advancing reasons to support the grounds of objections, Mr Kibatala (advocate), who is also the party’s Director of Constitutional, Legal and Human Rights Affairs, told the court that the applicant has cited wrong provisions to move the court to adjudicate his application.

He submitted that Section 2 (2) of Judicature and Application of Laws Act (JALA) and Section 95 of the Civil Procedure Act were not enabling provisions to invite the court to hear the matter.

The relevant provisions, according to him, would have been Section 68 © and (e) and Order 37 Rule 2 (1) of the Civil Procedure Code.

Mr Kibatala submitted that Section 2 (2) of JALA does not in any way relate to injunctive orders sought and that Section 95 of the Civil Procedure Code was a provision of general applications that come to effect only where there are no specific laws for invoking court’s jurisdiction.

“The legal effect of wrong citation the application must be struck out. We pray that the application should be struck out with costs. Since the objection goes to the jurisdiction of the court, it can not issue any interim orders,” he submitted.

On the question of affidavit, Mr Kibatala told the court that the same was defective because it contains some arguments, prayers and opinions. Such defects, he said, was against the law, which governs the filing of affidavits in court.

Mr Lissu, the party’s Chief Whip in Parliament, added more points to the effect that the application by Mr Zitto should not be entertained because the party’s Constitution bars its members from taking to court issues relating to disciplinary actions.

He submitted that what the applicant was doing was just a forum shopping because he was seeking court’s intervention on the matter, while at the same time taking the same issue for appeals before other relevant organs of the party, in particular, the governing council.

In his submissions to counter the arguments presented by the two advocates, Counsel Msando told the court that the question pertaining to a member being barred from seeking judicial redress on disciplinary matters in a political party was not a pure point of law and needed evidence to be resolved.

He told the court that the affidavit his client submitted to support the application in question was proper and do not contain any arguments, prayers and opinions as propagated by advocates for Chadema.

The advocate further submitted that the provisions he has cited to move the court to adjudicate the matter were proper, as they give the court jurisdiction to determine any civil or criminal matter.

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