CHAPTER 343
NATIONAL ELECTIONS ACT

[SUBSIDIARY LEGISLATION]

INDEX TO SUBSIDIARY LEGISLATION

   RULES

      The National Elections (Election Petitions) Rules

      The Election Complaints Rules

RULES

THE NATIONAL ELECTIONS (ELECTION PETITIONS) RULES

ARRANGEMENT OF RULES

   Rule

Title

   1.   Citation.

   2.   Interpretation.

   3.   Particulars required to be stated in petition.

   4.   Parties.

   5.   Addition and substitution of parties.

   6.   Grounds which may be taken at hearing.

   7.   Rejection or amendment of petition.

   8.   Presentation of petition.

   9.   Service of petition.

   10.   Fixing of hearing date.

   11.   Security for costs.

   12.   Lists of votes objected to.

   13.   Recriminatory case.

   14.   Abatement of petition.

   15.   Place and time of trial.

   16.   Consolidation of petitions.

   17.   Trial in open court.

   18.   Chief Justice may order petition to be tried by more than one judge.

   19.   Postponement of trial.

   20.   Adjournments.

   21.   Illness, etc. of judge.

   22.   Failure of petitioner to appear.

   23.   Failure of respondent to appear.

   24.   Appearance by advocate.

   25.   Withdrawal of petition.

   26.   Certain provisions of the Civil Procedure Code to apply.

   27.   Petition not to be dismissed for reason of irregularity.

   28.   Transitional provisions.

   29.   Fees.

SCHEDULES

THE NATIONAL ELECTIONS (ELECTION PETITIONS) RULES

(Section 117)

G.Ns. Nos.
66 of 1971
22 of 1996
277 of 1999
314 of 2002
376 of 2002

1.   Citation

   These Rules may be cited as the National Elections (Election Petitions) Rules.

2.   Interpretation

   In these Rules unless the context otherwise requires–

   "Act" means the National Elections Act *;

   "court" means the High Court, or, where the Chief Justice has made an order under section 118 of the Act, the court of the Resident Magistrate specified in that order;   

   "election officer" means a Returning Officer, a presiding officer or any other officer upon whom any function of an official nature is conferred upon by the Act;

   "prescribed" means, in relation to forms, forms prescribed in the First Schedule to these Rules, and in relation to fees, the fees prescribed in the Second Schedule to these Rules;

   "Registrar" means the Registrar of the High Court, a Deputy Registrar or a District Registrar, and includes, where an order has been made by the Chief Justice under section 118, the Resident Magistrate specified in such order.

3.   Particulars required to be stated in petition

   (1) Every petition shall carry a title in the prescribed form and shall state–

   (a)   the name and address of the petitioner;

   (b)   the name and address of the respondent or, where there are two or more respondents, of each of the respondents;

   (c)   the grounds upon which the petitioner relies for the relief sought by him; and

   (d)   the nature of the relief or reliefs sought by the petitioner.

   (2) Every petition shall be divided into paragraphs numbered consecutively, each of which shall, as nearly as may be, be confined to a distinct portion of the subject matter.

4.   Parties

   (1) In every petition, other than a petition presented by the Attorney-General, the Attorney-General shall be made a party thereto as the respondent.

   (2) Where a petition alleges any misconduct or contravention of any provisions of any written law by the successful candidate or by any person acting for or on behalf of the successful candidate, the successful candidate shall be made a party to the petition in addition to the Attorney-General:

   Provided that an election officer shall not be made a party to a petition without the consent of the court.

   (3) In a petition presented by the Attorney-General, the Attorney-General may make all such persons parties to the petition as respondents who are likely to be adversely affected in the event of the relief sought by the Attorney-General being granted.

5.   Addition and substitution of parties

   (1) Where the only person made a party to a petition is the Attorney-General and in the opinion of the court it is desirable or necessary for the purpose of determination of the issues involved that the unsuccessful candidate or any other person be made a party to the petition, the court may by order direct that the unsuccessful candidate or such other person be made a party, and upon such order being made the proceedings shall be adjourned until such time as the person who is to be made a party has been served with a copy of the petition.

   (2) Where in any petition the Attorney-General has been joined as a party with the unsuccessful candidate and the Attorney-General advises the court in writing that he has no interest in the petition, the court may, if it is satisfied that no misconduct on the part of any election officer is alleged, direct that the Attorney-General shall cease to be a party and the petition shall be proceeded with between the petitioner and the remaining respondent or respondents as the case may be.

6.   Grounds which may be taken at hearing

   The petitioner shall not, save with the leave of the court, urge or be heard in support of any ground not set forth in the petition:

   Provided that the court shall not, in determining a petition, be confined to the grounds set forth in the petition.

7.   Rejection or amendment of petition

   (1) Where a petition is not drawn up in the manner hereinbefore prescribed, it may be rejected or be returned to the petitioner for the purpose of being amended within the time to be fixed by the Registrar.

   (2) Where the court rejects any petition, it shall record the reasons for such rejection.

8.   Presentation of petition

   (1) A petition shall be presented by lodging it with the Registrar and by paying the prescribed fee.

   (2) Where the constituency to which the petition relates lies wholly within the jurisdiction of a District Registry of the High Court, the petition shall be presented to the Registrar of such District Registry.

   (3) Where an order under section 118 has been made and the petition is one to which such order applies, it shall be presented to the Resident Magistrate specified in the order.

   (4) A petition may be presented under this rule either by the petitioner himself or by his advocate.

   (5) The petitioner shall supply the Registrar with three copies of the petition and with such additional number of copies as there may be respondents.

9.   Service of petition

   (1) Where a petition has been presented and has not been rejected or returned to the Petitioner the Registrar shall–

   (a)   send a copy of the petition together with a notice in the prescribed Form B to the Director of Elections;

   (b)   cause to be served upon each of the respondents a copy of the petition together with a copy of Form C the notice in the prescribed form;

   (c)   post up on the court notice board a certified copy of the petition.

   (2) Service of the documents referred to in paragraph (1)(b) of this rule, shall be effected by personal service:

   Provided that where the court is satisfied–

   (a)   that the respondent cannot be found; or

   (b)   that the respondent has refused to accept service of the documents; or

   (c)   that personal service cannot be effected without considerable delay or expense; or

   (d)   that it is otherwise desirable so to do,

the court may direct that the documents be served by substituted service in such manner as the court may direct.

10.   Fixing of hearing date

   (1) Upon presentation of a petition the Registrar shall, as soon as may be practicable, arrange for the parties or their advocates to appear before him for the purpose of fixing a date for the hearing of the petition.

   (2) Where any party fails to appear before the Registrar upon being required by him so to do, he shall proceed to fix a hearing date in the absence of such party and shall advise the party in writing of the date of hearing so fixed.

11.   Security for costs

   (1) The Registrar shall not fix a date of the hearing of any petition unless the petitioner has paid into the court, as security for costs, a sum of five hundred shillings in respect of each respondent.

   (2) Where any person is made a respondent pursuant to an order of the court, the petitioner shall within such time as the court may direct or if the court has not given any direction in that behalf, within seven days of the date on which the order directing a person to be joined as a respondent is made, pay into the court a further sum of five hundred shillings in respect of such person.

   (3) Where on application made by the petitioner, the court is satisfied that compliance with the provisions of paragraph (1) or paragraph (2) of this rule will cause considerable hardship to the petitioner, the court may direct that–

   (a)   the petitioner give such other form of security as the court may consider fit; or

   (b)   the petitioner be exempted from payment of any form of security for costs:

   Provided that no order shall be made under this paragraph unless an opportunity had been given to the respondent, or, where there are two or more respondents, to each of the respondents, to make representations in that behalf.

   (4) No security for costs shall be payable by a petitioner who has been granted legal aid under the Legal Aid Scheme of either the Faculty of Law, University of Dar es Salaam, the Tanganyika Law Society, the Tanzania Women Lawyer's Association (TAWLA) or the Legal and Human Rights Centre.

   (5) The provisions of this rule requiring a petitioner to give security for costs shall not apply to the Attorney-General in any case in which the Attorney-General is the petitioner or one of the petitioners.

12.   Lists of votes objected to

   (1) Where scrutiny under the provisions of paragraph (d) of section 112 of the Act is sought either by the petitioner or a respondent, the party seeking such scrutiny shall, not less than six days before the day fixed for the hearing of the petition, lodge with the Registrar a list of votes intended to be objected to by him and of the objections to each vote; and no evidence shall be adduced at the trial against the validity of any vote or in support of any head of objection not specified in the list, save with the leave of the court and upon such terms as the court may order.

   (2) The party lodging a list in accordance with the provisions of paragraph (1) of this rule shall at the same time deliver to the Registrar two copies of the list and such additional number of copies as there may be parties to the petition.

   (3) The Registrar shall cause a copy of the list to be sent to the Director of Elections and to every other party to the petition.

13.   Recriminatory case

   (1) Where the respondent to a petition intends to allege that the election of any party to the petition was undue, he shall, not less than six days before the day fixed for the hearing of the petition, lodge with the Registrar a list of the objections upon which he intends to rely.

   (2) Where a respondent lodges with the Registrar a list in accordance with the provisions of paragraph (1) of this rule, he shall supply the Registrar with two copies of such list and such additional number of copies as there may be parties to the petition.

   (3) The Registrar shall cause a copy of the list to be sent to the Director of Elections and to every other party to the petition.

   (4) No respondent shall be heard in support of any ground of objection not set forth in the list required to be lodged by this rule, save by leave of the court and upon such terms as the court may order.

14.   Abatement of petition

   (1) A petition shall abate–

   (a)   upon the death of a sole petitioner or of the sole surviving petitioner;

   (b)   where the petition seeks–

      (i)   a declaration that the election is void; or

      (ii)   a declaration that the nomination of the person elected was invalid; or

      (iii)   a declaration that any candidate was duly elected,

      by the death of the successful candidate.

   (2) Where a petition abates by reason of the death of the sole petitioner or the sole surviving petitioner the court may, if it considers it equitable and just so to do, award to the respondent or, where there are two or more respondents, to each of the respondents, such costs as the court may deem proper:

   Provided that the amount of costs awarded to a respondent under this paragraph shall not exceed the amount of costs for which the petitioner had given security in respect of that respondent.

15.   Place and time of trial

   (1) Subject to the provisions of section 118 of the Act, the trial of a petition shall be held at such time and place as the Registrar may determine.

   (2) The Registrar may, and shall, if so directed by the court, give notice of the day, time and place of the trial to each of the parties, and publish such notice in the official Gazette and in such newspapers as he may think fit or, as the case may be, the court may direct.

16.   Consolidation of petitions

   Where two or more petitions are presented in relation to the same election, the court may direct that some or all of such petitions be consolidated and tried as one petition.

17.   Trial in open court

   Every petition shall be tried in open court.

18.   Chief Justice may order petition to be tried by more than one judge

   (1) Where, in the opinion of the Chief Justice, a petition is likely to raise complicated questions of law or of fact, he may direct that the petition shall be tried by three or by five judges.

   (2) Where a petition is tried by three or by five judges, the petition shall be determined in accordance with the decision of the majority of the judges.

19.   Postponement of trial

   (1) The court may, from time to time, by order made on the application of a party to a petition and supported by an affidavit, and after notice to the other parties or of its own motion by notice in such form as the court may direct, postpone the beginning of the trial of the petition to such day as the court may specify.

   (2) A copy of the notice and of the order issued under the provisions of paragraph (1) of this rule shall be sent by the Registrar to each of the parties to the petition and another copy shall be posted on the court notice board.

   (3) Where by reason of the absence of the judge or, as the case may be, the resident magistrate, the trial cannot commence on the day appointed for the trial, the trial shall stand adjourned to the following day, and so on from day to day, until a judge or a resident magistrate is available to try the petition.

20.   Adjournments

   (1) The court may in its discretion adjourn the trial of a petition from time to time.

   (2) Subject to the provisions of paragraph (1) of this rule, the trial shall be continued until its conclusion.

21.   Illness, etc. of judge

   Where the judge or a resident magistrate, who has begun the trial of a petition, is prevented by reason of illness or other reasonable cause from concluding the trial, the proceedings shall be commenced de novo before another judge or, as the case may be, another resident magistrate:

   Provided that where the judge or resident magistrate who first tried the petition concluded the hearing of the petition but was prevented from giving his decision by reason of illness or other cause, he may, and subject to such directions as the Chief Justice may give, write out his decision and it shall be lawful for another judge or, as the case may be, resident magistrate, to deliver the decision so written out.

22.   Failure of petitioner to appear

   (1) Where a petitioner fails to appear before the court on the day on which the petition is to be heard, the court may dismiss the petition.

   (2) Where a petition has been dismissed under paragraph (1) of this rule the court may re-admit the petition if the petitioner satisfies the court that his failure to appear on the day of the hearing was due to a reasonable cause.

23.   Failure of respondent to appear

   Where a respondent fails to appear on the day on which the petition is to be heard, the court may proceed to try the petition, his absence notwithstanding, and the decision of the court in every such case shall be binding upon the respondent.

24.   Appearance by advocate

   For the purposes of these Rules, where a party is represented by an advocate, appearance by the advocate shall be deemed to be appearance by the party whom he represents.

25.   Withdrawal of petition

   (1) The petitioner may at any stage after the petition has been lodged and before the decision has been delivered, by notice in writing addressed to the Registrar, withdraw the petition subject to such terms relating to costs as the court may deem fit to order.

   (2) Where a petitioner withdraws a petition he shall not be entitled to file a fresh petition in respect of the same election:

   Provided that where the court is satisfied that the petition was withdrawn for the reason that it would have been defeated on the ground of any procedural irregularity, the court may allow the petitioner to lodge a fresh petition in respect of the same election.

   (3) Where there are two or more petitioners, the petition shall not be withdrawn save on application in writing by all the petitioners.

26.   Certain provisions of the Civil Procedure Code to apply

   (1) Subject to the provisions of the Act and of these Rules, the practice and procedure in respect of a petition shall be regulated, as nearly as may be, by the rules regulating the practice and procedure in a civil suit.

   (2) Without prejudice to the generality of the provisions of paragraph (1) of this rule, the provisions of section 45 and of the First Schedule to the Civil Procedure Code *, which relate to the discovery and inspection of documents, admissions, production, impounding and returning of documents, transfer of proceedings, settlement of issues and determination of suits, summoning of witnesses, admissibility of affidavits, awarding of costs, judgements and execution of a decree, shall apply mutatis mutandis to the proceedings on a trial of a petition and to the enforcement of an order for costs made by the court:

   Provided that no order for costs made against the Attorney-General may be executed or enforced against the Attorney-General or the Government of the United Republic.

27.   Petition not to be dismissed for reason of irregularity

   (1) Save as is expressly provided for to the contrary in these Rules, no petition shall be dismissed for the reason only of non-compliance with any of the provisions of these Rules or for the reason only of any other procedural irregularity unless the court is of the opinion that such non-compliance or irregularity has resulted or is likely to result in a miscarriage of justice.

   (2) Where there has been any non-compliance with any of the provisions of these Rules or any other procedural irregularity, the court may require the petitioner, subject to such terms as to costs or otherwise as the court may direct, to rectify the non-compliance or the irregularity in such manner as the court may order.

   (3) Where an order has been made under paragraph (2) of this rule, and the petitioner fails to comply with such order within such time as the court may specify, the court may dismiss the petition.

28.   Revocation

   [Omitted.]

29.   Fees

   The fees prescribed in the Second Schedule to these Rules shall be payable in respect of the matters specified therein.

FIRST SCHEDULE

(Rule 2)

FORM A

IN THE HIGH COURT OF TANZANIA

      Registry of ..............................................
at ...........................................................

   MISCELLANEOUS CIVIL CAUSE No. ..................................... OF 20........

   In the matter of Election Petition under the National Elections Act * and the Elections (Election Petitions) Rules

........................................................................... Petitioner
(Name of Petitioner)

versus

........................................................................ Respondent
1 (Name of Respondent)

   Where the petition is filed in a court of a resident magistrate the heading should read as follows:

IN THE COURT OF THE RESIDENT MAGISTRATE.

FORM B

(Title as in Form A)

To:   The Director of Elections
The National Electoral Commission,
DAR ES SALAAM.

   Take notice that the petition, of which a copy is enclosed herewith, was lodged in the ................................................... Court at ............................................................. on the
......................... day of ......................... 20........

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.