Election Complaints Rules, 1990

Government Notice 418 of 1990

Citation
Government Notice 418 of 1990
Primary work
Elections Act, 1985
Date
31 July 2002
Language
English
Type
Legislation
Tanzania
Elections Act, 1985

Election Complaints Rules, 1990

Government Notice 418 of 1990

  • Published in Tanzania Government Gazette
  • Commenced on 1 October 1990
  • [This is the version of this document at 31 July 2002.]
  • [Note: This legislation has been thoroughly revised and consolidated under the supervision of the Attorney General's Office, in compliance with the Laws Revision Act No. 7 of 1994, the Revised Laws and Annual Revision Act (Chapter 356 (R.L.)), and the Interpretation of Laws and General Clauses Act No. 30 of 1972. This version is up-to-date as at 31st July 2002.]
[Section 117; G.N. No. 418 of 1990]

1. Citation

These Rules may be cited as the Election Complaints Rules.

2. Interpretation

In these Rules, unless the context requires otherwise—"the Act" means the Elections Act1, and includes any subsidiary legislation made under it;1Cap. 343"the Chairman" means the Chairman of the Commission;"the Commission" means the National Electoral Commission established by the Constitution2;2Cap. 2"complaint" means any complaint of irregularities during any event or process in the conduct of the registration of voters, the campaigns, the voting or counting of votes in relation to elections carried out under the Act;"complainant" means the person instituting an election complaint or his advocate or other representative;"election complaint" means a complaint launched by a complainant in accordance with these Rules, challenging the validity of an election in any constituency after the results have been declared;"election officer" means a Returning Officer, a presiding officer or any other officer upon whom any function of official nature is conferred by the Act;"the Panel" means the Election Complaints Panel referred to in section 4B(2) of the Act;"prescribed" means, in relation to forms, the forms prescribed in the Schedule to these Rules, and in relation to anything else, that thing as prescribed in the relevant provision of these Rules;"respondent" means a person against whom a complaint is made and includes any person joined as a party to the complaint;"the Secretary" means the Secretary of the Commission appointed under section 4A(4) of the Act.

3. Language of proceedings

The proceedings and processes before the Panel in relation to election complaints may be conducted in English or Kiswahili, but the record of the proceedings to be kept by the Panel shall be in English language.

4. Institution of election complaint

(1)Proceedings before the Panel shall, subject to the Act and these Rules, be instituted by a complainant presenting to the District Officer of the district in which the constituency is situated a writing in typed form, signed by himself and showing clearly—
(a)the name and address of the complainant;
(b)the name of the constituency concerned;
(c)the name and address of the respondent or, where there are two or more respondents, of each of the respondents;
(d)the grounds upon which the complainant relies for the relief sought by him;
(e)the nature of the relief or reliefs sought by the complainant.
(2)Subject to subrule (1), an election complaint my be instituted in the form of a letter or of a petition. A petition shall be typed in Form A prescribed in the First Schedule and shall be divided into paragraphs numbered consecutively, each of which shall be confined as nearly as possible to a distinct portion of the subject matter.
(3)Upon receipt of the election complaint, the District Officer in question shall forthwith cause it to be submitted by the quickest means to the Secretary.

5. Parties to an election complaint

(1)In every election complaint, other than that presented by the Attorney-General the Attorney-General shall be made a party to it as the respondent.
(2)Where an election complaint 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 election complaint in addition to the Attorney-General, except that an election officer shall not be made a party to an election complaint without the consent of the Panel.
(3)In an election complaint presented by the Attorney-General, the Attorney-General may make all such persons parties to the election complaint as respondents who are likely to be adversely affected in the event of the relief sought by the Attorney-General being granted.

6. Addition and substitution of parties

(1)Where the only person made a party to an election complaint is the Attorney-General and in the opinion of the Panel 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 election complaint, the Panel may in writing direct that the unsuccessful candidate or such other person be made a party, and upon such direction being given 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 election complaint the Attorney-General has been joined as a party with the unsuccessful candidate and the Attorney-General advises the Panel in writing that he has no interest in the election complaint, the Panel 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 election complaint shall be proceeded with between the complainant and the remaining respondent or respondents, as the case may be.

7. Grounds which may be taken at hearing

The complainant shall not urge or be heard in support of any ground the complaints in relation to which were not previously raised and submitted to the Commission along with the report of the Returning Officer for the constituency in question; but the Panel shall not, in determining an election complaint, be confined to the grounds set forth in that election complaint.

8. Presentation of election complaints

(1)An election complaint presented to the District Officer in accordance with rule 4 shall, upon payment of the prescribed fee by the complainant, be deemed to have been presented to the Commission.
(2)Subject to rule 4(1) an election complaint may be presented either by the complainant himself or by his advocate or other representative authorized by him in writing in that behalf.
(3)The complainant shall initially supply the District Officer with six copies of the election complaint and later with such additional number of copies as there may be respondents.

9. Scrutiny by Secretary

(1)The Secretary shall as soon as possible after receiving it, examine each election complaint instituted with a view to satisfying himself that—
(a)it is instituted by a rightful complainant;
(b)it is instituted in accordance with the Act.
(2)Where the Secretary is satisfied that an election complaint does not comply with the provisions of the Act he may, if the omission or other irregularity is merely procedural or otherwise curable, return the election complaint to the complainant for the purpose of being amended within the time to be fixed by the Secretary after consultation with the Chairman.
(3)Where upon scrutiny the Secretary is satisfied that the omission or other irregularity in the election complaint is illegal or otherwise decisively incurable he shall forthwith submit the election complaint together with the reasons for his opinion, to the Panel for the election complaint to be dismissed according to law.
(4)Where the Panel dismisses any election complaint, it shall record the reasons for such dismissal and shall forthwith report the dismissal to the Commission.

10. Service of election complaint

(1)Where an election complaint has been presented and has not been dismissed or returned to the complainant, the Secretary shall—
(a)send a copy of the election complaint 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 election complaint together with a copy of the notice in the prescribed Form C; and
(c)post up on the Commission notice board a certified copy of the election complaint.
(2)Service of the documents referred to in paragraph (1)(b) of this Rule shall be effected by personal service, save that where the Secretary is satisfied—
(a)that the respondent cannot be found;
(b)that personal service cannot be effected without considerable delay or expenses; or
(c)that it is otherwise desirable so to do, the Secretary may cause the documents to be served by substituted service in such manner as he may deem suitable.

11. Fixing of hearing date

(1)Upon presentation of an election complaint the Secretary shall as soon as may be practicable consult with the Chairman for the purpose of fixing a date for the hearing of the election complaint.
(2)The Secretary shall, after a hearing date has been fixed, advise the District Officer for the district in which the constituency is situated, of the date so fixed, and the District Officer shall advise all parties concerned in writing in the prescribed Form D of the date of hearing so fixed.

12. Place and time of trial

(1)The Panel shall ordinarily hold the trial of an election complaint at the headquarters of the region in which the constituency from which the election complaint originates is situate or in such other place within the region in which the constituency is situate as the Chairman may determine.
(2)The Secretary may, and shall if so directed by the Chairman or the Panel, give notice of the day, time and place of the trial to each of the parties, and publish such notice on the Commission notice board, in the Gazette and in such newspapers as he may think fit or, as the case may be, as the Chairman or the Panel may direct.

13. Lists of votes objected

(1)Where scrutiny under the provisions of paragraph (d) of section 116(1) of the Act is sought either by the complainant or a respondent, the party seeking such scrutiny shall, not less than six days before the day fixed for the hearing of the election complaint, lodge with the Secretary 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 objection not specified in the list, save with the leave of the Panel and upon such terms as the Panel may order.
(2)The party lodging a list in accordance with the provisions of subrule (1) of this Rule shall at the same time deliver to the Secretary six copies of the list and such additional number of copies as there may be parties to the election complaint.
(3)The Secretary shall cause a copy of the list to be sent to the Director of Elections and to every other party to the election complaint.

14. Abatement of election complaint

(1)An election complaint shall abate—
(a)upon the death of a sole complainant or of the sole surviving complainant;
(b)where the election complaint 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 an election complaint abates by reason of the death of the sole complainant or the sole surviving complainant, the Panel 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 Panel may deem proper; save that the amount of costs awarded to a respondent under this paragraph shall not exceed the amount of costs for which the complainant could have been justly required to pay if he would have lost the election complaint or, after hearing representations from the personal representatives of the deceased complainant, as the Penal may deem it just to order.

15. Withdrawal of election complaint

(1)The complainant may at any stage after an election complaint has been lodged and before the decision has been delivered, by notice in writing addressed to the Secretary, withdraw the election complaint subject to such terms relating to costs as the Panel may deem fit to order.
(2)Where a complainant withdraws an election complaint he shall not be entitled to file a fresh election complaint in respect of the same election.
(3)Where there are two or more complainants, the election complaint shall not be withdrawn save on application in writing by all the complainants.

16. Trial open place

Every election complaint shall be tried in a building or place which shall be open to the public.

17. Postponement of trial

(1)The Panel may, from time to time, by order made on the application of a party to an election complaint or by his representative and supported by an affidavit, and after notice to the other parties or of its own motion by notice in such form as it may direct, postpone the beginning of the trial of the election complaint to such day as the Panel may specify.
(2)A copy of the notice issued under the provisions of subrule (1) of this Rule shall be sent by the Secretary to each of the parties to the election complaint and a copy of such notice, or as the case may be, order shall be posted on the Commission's notice board.
(3)Where by reason of the absence of any member of the Panel 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 all members are available for the Panel to try the election complaint.

18. Adjournments

(1)The Panel may in its discretion adjourn the trial of an election complaint from time to time.
(2)Subject to subrule (1), the trial shall be continued until its conclusion.

19. Illness of member

(1)Where the trial of an election complaint has started and where any member of the Panel is, by reason of illness or other reasonable cause prevented from participating in the trial shall of an election complaint, the trial continue in the absence of that member if there are two members of the Panel.
(2)Notwithstanding subrule (1), the trial shall not continue if the absent member is the Chairman or the Judge of the High Court of Zanzibar.

20. Failure by complainant to appear

(1)Where a complainant fails to appear before the Panel on the day on which election complaint is to be heard, the Panel may dismiss the election complaint.
(2)Where an election complaint has been dismissed under subrule (1), the Panel may re-admit the election complaint if the complainant satisfies the Panel that his failure to appear on the day of the hearing was due to a sufficient cause.

21. Failure by respondent to appear

(1)Where the complainant appears but the respondent fails to appear on the day on which the election complaint is to be heard, the Panel may proceed to try the complaint, his absence notwithstanding, and the decision of the Panel in every such case shall be binding upon the respondent.
(2)Where the respondent appears after the delivery of an ex parte judgment under subrule (1), the Panel may, if the respondent satisfies the Panel that his failure to appear on the day of the hearing was due to sufficient cause, set aside the ex parte judgment and re-admit the election complaint for hearing afresh.

22. Appearance by advocate and costs of representation

(1)Subject to this Rule as to costs of representation, any party may be represented by an advocate.
(2)Where a party elects to be represented by an advocate he shall himself bear all the costs of such representation; but the Panel may, where it is satisfied that the justice of the case so demands, order that a complainant or the respondent pay the costs of representation of the respondent or the complainant as the case may be if he was represented by an advocate.
(3)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.

23. Principles as to admission of evidence

For the purposes of determining whether or not to hear or receive any evidence, or whether or to what extent any evidence received be relied upon in reaching its decision on any matter, the Panel shall take into account and be guided by the principles that—
(a)no person should be involved in finally determining, or be regarded as a witness whose evidence may be relied upon in finally determining, any issue where that person has personal interest in the determination;
(b)every party to the complaint shall be afforded reasonable opportunity to set out his case; and
(c)the Panel shall not do or omit to do any act or thing the doing or omission of which would impute bias against or for any side in its decision.

24. Power to receive evidence

Subject to complying with the principles set out in rule 23, and with the other provisions of these Rules, the Panel may receive any evidence as long as it is relevant to the matters involved in the election complaint, it is useful for the determination of the election complaint, and it is worthy of belief, whether or not the evidence is evidence within the meaning of the law for the time being in force in relation to the admissibility of evidence in courts of law.

25. Evidence and examination

(1)The evidence shall be given in such order as the Panel directs.
(2)Notwithstanding subrule (1)—
(a)without prejudice to the power of the Panel to recall them, the complainant and the witnesses for the complainant shall give evidence first;
(b)subject to paragraph (c), if the respondent wishes to give evidence, he shall preceed to give evidence before his witnesses;
(c)the respondent shall be afforded an opportunity of giving evidence in rebuttal of any evidence given after he himself has given evidence, by the witnesses for the complainant or witnesses called by the Panel; and
(d)where witnesses have been called by the Panel, both parties shall be afforded fair opportunity to cross-examine such witnesses.
(3)The evidence of witnesses for all parties and that of the parties themselves shall be given on oath or affirmation save in the case of a child of the apparent age of or below fourteen years who, in the opinion of the Panel, does not understand the nature of the oath or affirmation.
(4)The Panel and the respondent may put relevant questions to the witnesses for the complainant.
(5)The Panel and the complainant may put relevant questions to the witnesses of the respondent and, if he gives evidence, to the respondent.
(6)The respondent and the complainant may, with the consent of the Chairman, put questions to witnesses called by the Panel.
(7)The Chairman shall record, or cause to be recorded, the substance of the evidence of the witnesses for both parties and of the parties themselves, and after each of them has given evidence the Chairman shall affix his signature at the foot of such evidence.

26. Confessions

No confession which is tendered as evidence shall be rejected on the ground only that a promise, threat or inducement was or has been held out to the person confessing unless the Panel is of the opinion that the promise, threat or inducement, as the case may be, could have occasioned the making of an untrue admission.

27. Burden of proof

The burden of proving any fact which is alleged to exist shall be upon the person alleging the existence of the fact.

28. Election complaint not to be dismissed for reason of irregularity

(1)Save as is expressly provided to the contrary in the Act and in these Rules, no election complaint 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 Panel is of the opinion that such non-compliance or irregularity has resulted or is likely to result into 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 Panel may require the complainant to rectify the non-compliance or the irregularity in such manner as the Panel may order.
(3)Where an order has been made under subrule (2), and the complainant fails to comply with it within such time as the Panel may specify, the Panel may dismiss the election complaint.

29. Judgement

(1)After all the evidence has been heard, the Panel shall proceed to pass judgement on the election complaint.
(2)Every judgement shall contain the point or points and the reason for the decision, and shall be dated and signed by all the members of the Panel.
(3)Where, for any reason, any member dissents from the view taken by the majority, he shall put the reasons for his dissent in writing and they shall form part of the record of the Panel relating to the case concerned, and shall also be read out as part of the judgement.

30. Reports to and by the Commission

(1)Where the Panel reaches a definite conclusion on any election complaint before it, it shall report such conclusion to the Commission.
(2)The Commission shall, as soon as practicable, but not later than six months after completion of its work in relation to election complaints, submit to the Minister a report containing—
(a)a list of all election complaints received by the Commission and showing how each was dealt with;
(b)a copy of the judgement rendered in relation to each election complaint;
(c)a general report concerning any other aspect of the work of the Commission in relation to the elections.

31. Prescription of forms and fees, etc.

(1)The forms set out in the Third Schedule to these Rules are hereby prescribed, in Kiswahili, for use in the electoral process in accordance with the Act and these Rules.
(2)The fees specified in the Fourth Schedule to these Rules are hereby prescribed in relation to the matters in respect of which they shall be paid for the purposes of proceedings under the Act and these Rules.
(3)Witnesses for each party shall be paid by the Commission such allowances or such expenses as are paid to witnesses in a civil suit before the High Court.

First Schedule (Rule 4(2))

Form

[Editorial note: The form has not been reproduced.]

Second Schedule (Rule 10(1)(a))

Forms

[Editorial note: The forms have not been reproduced.]

Third Schedule (Rule 30(1))

Forms

[Editorial note: The forms have not been reproduced.]

Fourth Schedule (Rule 30(2))

Fees payable under the rules

 Shs.
1. On the filing of an election complaint2,000/00
2. On the filing of an amended election complaint or petition500/00
3. On the filing of a list under Rule 12(1)500/00
4. For any other matter in respect of which the Commission, after consultation with the Minister, determines that fees be paidThe fee determined by the Commission in respect of the matter.
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History of this document

31 July 2002 this version
Consolidation
01 October 1990
Commenced

Cited documents 2

Legislation 2
1. Katiba ya Jamhuri ya Muungano wa Tanzania, ya Mwaka 2230 citations
2. Elections Act, 1985 7 citations

Documents citing this one 0