Posts tagged as: appeal

NGOs Coalition Lobby for Increased Budget for Justice Ministry

By Innocent Habonimana

OAG, ACJB and Cordaid team up to advocate the increase of the budget allotted to the Ministry of Justice. Basing their conclusion on the analysis of the 2016 budget, the NGOs say low budget has a negative impact on the access to justice for all.

After an analysis that has shown the insufficiency of the budget of the Justice Ministry with repercussions on the access to justice for all, three NGOs advocate increasing the budget.

Michel Masabo, a consultant who carried out the analysis of the budget of 2016, says “there are some budget lines showing the government’s preoccupation of people’s needs for justice”, but “the effort remains insufficient”.

As a consequence, judges are hindered to carry out their duty as they should. Godefroid Manirambona, the Chairman of Observatory of Government’s Action (OAG) says, with the increase of the budget, “judges will have means that will allow them to adequately satisfy the needs of citizens seeking justice”.

OAG, a local NGO that sees that the government is fulfilling its promises, collaborated with the Association of Burundi Catholic Lawyers (ACJB) and Cordaid on the “Analysis of the Budget of the Ministry of Justice for 2016”.

The activity is within the framework of their programme called “Strategic Partnership in Lobbying and Advocacy for the Access to Justice for All”.

The study highlighted the lack of enough qualified judges and the slow course of justice as consequences of the low budget.

For instance, Bujumbura Court of Appeal, that has the highest average of sentence execution, treated a monthly average of 99.6 cases but executed only 10.7.

The Courts of Appeal of Bururi and Ngozi provinces treated respective monthly averages of 33.5 and 72.66 but executed none.

In some cases, the lack of means of transport hinders the execution of judgments. This may cause judges to make parties involved in legal cases pay for the transport which can result in corruption.

In regard to protecting judges from being influenced, Masabo says, “one way to prevent them from being corrupted is to raise their pay”.


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Raila’s Poll Boycott Threat a Recipe for Chaos, Warns Tuju

By Valentine Obara

Jubilee has termed the threat by opposition leader Raila Odinga to boycott the election “incitement” that could plunge the country into chaos.

Secretary-General Raphael Tuju said Mr Odinga’s ODM party, which he claimed had a resolve to sabotage the upcoming election, was responsible for the hard-line position taken by the Opposition.

The Opposition has threatened to boycott the election if the Independent Electoral and Boundaries Commission (IEBC) goes ahead with its appeal against a ruling by the High Court that presidential elections announced at the constituency level are final.

Mr Odinga said the IEBC should obey the High Court ruling and the law. It was wrong, he said, to go to the Court of Appeal to overturn the law.

He was referring to an amendment of the election law last year, requiring that announcement of presidential results be done at constituency level, which was upheld by the court. The IEBC has appealed against this.


The electoral commission chairman is the returning officer in presidential elections and IEBC thinks his constitutional role will be usurped if constituency returning officers’ announcements are final.

It has also been argued that the national office “moderates” results or audits them for irregularities.

The Opposition views this, and other such action, as rigging of elections, adding that the role of determining the integrity of results rests with the courts.

Many in the Opposition believe that results are “cooked” at the national tallying centre.

Announcement at constituency level makes it difficult for political parties — almost all of which have seen widespread fraud in their nominations — to stuff ballot boxes in areas such as Central Kenya, Rift Valley and Nyanza, where one party is dominant.


Mr Tuju claimed that ODM has a history of attempting to derail elections, citing street protests that led to the ouster of former IEBC commissioners.

Speaking at his Capitol Hill office in Nairobi, Mr Odinga said the courts — the High Court and the Supreme Court — had ruled that the final presidential results should be announced at the constituency level. He urged IEBC to withdraw the case at the Appeal Court.

“The courts have already pronounced themselves on this matter. The IEBC must respect the law as it is,” he said, adding that even the commission has no power to alter the results declared by returning officers in the constituencies.

He said the comments he made during the coalition’s public rally were not meant to undermine institutions but to identify the problem in the electoral process.

A day after being accused of undermining independent institutions, the former Prime Minister warned that the poll body’s recent actions risked driving the country to the bad old days.


“The Supreme Court has gone further and stated that even returning officers have no power to alter whatever they declare in constituencies because such alterations can only be done by the courts.”

He cited the Hassan Joho vs Suleiman Shahbal election petition case, in which the Supreme Court ruled that results announced by returning officers at the constituency level are final and that such results could only be altered through a petition in the High Court.

Speaking at Jubilee’s Pangani offices in Nairobi, Mr Tuju told Nasa to stop panicking after it announced it would get 10 million votes in the elections.


“One minute they talk about 10 million strong votes, and the next minute they want to boycott the poll, and by extension accept early defeat,” he said.

During a public rally in Nakuru on Sunday, Mr Odinga and his running mate, Mr Kalonzo Musyoka, reiterated the elections boycott threat.

Mr Odinga further said Nasa would call its supporters to the streets for mass action if the Court of Appeal upholds the application filed by the commission.

On the same day, seven Jubilee MPs weighed in and accused Mr Odinga of intimidating independent institutions through violent tactics.

-Additional reporting by Ibrahim Oruko

Electoral Commission Sets Polling Date for Kyadondo East By-Election

By Stephen Kafeero

Kampala — The Electoral Commission has set June 26 as the date for Kyadondo East by-election after Parliament wrote to the electoral body about the vacant seat.

The seat fell vacant after both the Court of Appeal and the lower High Court nullified the election of Mr Apollo Kantinti on grounds that the Electoral Commission did not comply with electoral laws.

Both courts ordered the electoral body to organise fresh elections in the constituency. Mr William Sitenda Sebalu who was the runner up in the February 18, 2016 election and lost to Mr Kantinti by a margin of 326 votes successfully petitioned in both courts.

Mr Kantinti had been announced winner of the Kyadondo East constituency with 9,005 votes while Mr Sebalu, the runner up bagged 8,679 votes.

Both Mr Katinti and Mr Sebalu have expressed interest in the seat.

Singer Kyagulanyi Ssentamu aka Bobi Wine, who is likely to stand as an independent, has already confirmed his candidature.

Nominations are slated for May 30 and 31 while campaigns start on June 2 to June 23.

Other activities

Meanwhile, the EC is has finalised the May 18 Toroma County by-election. Eight candidates were nominated to contest in the exercise.

The seat fell vacant following the death of Cyrus Amodoi Imalingat in a motor accident. The electoral body will also hold the by-election for Tororo District chairperson on June 29. Nominations will take place between May 24 and 25.


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Stop The Threats, Electoral Body Warns Opposition Alliance

Photo: Dennis Onsongo/The Nation

IEBC Chairman Wafula Chebukati addresses a press conference on election preparedness. He was speaking at the agency’s offices in Nairobi on May 10, 2017.

By Patrick Lang’at And Ibrahim Oruko

The electoral commission has defended its appeal against a ruling to have the presidential election results at the constituency deemed as final, even as it warned against what it said were threats to its independence.

The Raila Odinga-led opposition National Super Alliance on Sunday threatened to boycott the August 8 elections if the Independent Electoral and Boundaries Commission (IEBC) does not withdraw the appeal they said was a plot to introduce vote rigging.


But IEBC chairman Wafula Chebukati, in a statement on Monday, said the commission is seeking clarification on the High Court ruling that took away his powers as the presidential elections returning officer.

As the returning officer for the presidential results, the IEBC argues, Mr Chebukati should have the power to tally and announce the results.

“We want to remind all political players in the country that IEBC, just like any other Kenyan, has the right to seek the protection of the Judiciary and the courts on matters that need legal interpretation,” Mr Chebukati said.


He condemned Mr Odinga’s threat, saying the Opposition should instead seek to be enjoined in the case or await the Appeal court’s ruling.

“Coming forth to threaten IEBC that unless it withdraws the case, there would be a boycott of the elections amounts to a threat of the independence of IEBC and muffling an entity from pursuing a right that is enshrined in the Constitution of Kenya,” Mr Chebukati said.

During the rally at Afraha open grounds in Nakuru on Sunday, the Nasa team said it would boycott the elections if IEBC went ahead with the case, which they said was an attempt to interfere with results.

“We shall not accept to have the courts change the earlier decision,” Mr Odinga said.

“There will be no elections in Kenya if it is changed. That will not be our election, but theirs as it will not be under Kenyan law or Constitution.”


On Monday, some Jubilee politicians accused Mr Odinga of intimidating independent institutions ahead of elections.

The leaders warned that threats by Nasa to boycott the August 8 elections over a dispute pending before court was “uncivilised, illegal and attack” on the rule of law.

They were led by Senate Majority leader Kithure Kindiki and deputy Kipchumba Murkomen.


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Four Escape Hangman’s Noose On Appeal

By Faustine Kapama

The Court of Appeal has acquitted four people, including a member of the Tanzania People’s Defence Forces (TPDF), Damas Mponeja, who were sentenced to death by hanging for killing a houseboy, Mackdonald Wahenga, in a robbery incidence at Ukonga area.

Justices Mbarouk Mbarouk, Augustine Mwarija and Shaban Lila ruled in favour of Mponeja and his co-appellants, Joseph Mohamed, Michael Kalinga and Omari Danga, after allowing an appeal they had lodged to challenge the findings of the trial High Court. “We allow the appeal, quash the conviction (of the appellants) and set aside the sentence.

The appellants are to be set free forthwith unless held in prison for any other lawful cause,” they declared in the judgment delivered recently.

During hearing of the appeal, seasoned advocate Jerome Msemwa and Aloyce Sekule defended the appellants, while the prosecution had the services of Senior State Attorney Neema Haule, assisted by State Attorney Yusuf Aboud, who had joined the defence counsel in opposing the High Court verdict.

In challenging the findings of the High Court, the appellants had advanced 15 grounds, notably the reliance by the trial judge in convicting them basing on retracted cautioned and repudiated statement by Mohamed, who is reported to have mentioned others to have taken part in the incidence.

The appellants had further stated that the trial judge erred in law and in fact by convicting them, relied on their statements while she failed to ascertain the credibility of the exhibits during the trial as she failed to ask the appellants whether they had any objection before being produced in court.

In their judgment, however, the justices of the appeals court agreed with the submissions of Mr Msemwa that the statements incriminating his clients were recorded outside the required period, in contravention of section 50 of the Criminal Procedure Act (CPA).

As a result, they expunged such exhibits from the record. Having done so, the justices had this to say: “We are settled in our minds that there is no other cogent evidence on record on which the appellant’s conviction could be based as rightly argued by counsel for the appellants and senior state attorney.”

Facts of the case show that Rose Mnzava and Gabriel Mnzava are wife and husband, respectively, living in their own house situated At Kipunguni, Ukonga area. On February 19, 2007, at around 20.00hours, the two were watching television at the sitting room.

The couple’s daughter Joy Mnzava was in her room, while Mackdonald Wahenga, the deceased, who was their houseboy was at the gate.

All of a sudden, a person entered into the sitting room and put them under arrest. Then three other people entered and ordered the couple to lie down.

Thereafter, the thugs demanded to be given money but they managed to go away with the wife’s handbag containing several documents, mobile phones and 800 US dollars in cash.

The thugs proceeded to the bedroom, while the daughter in her room heard some noises at the verandah.

Two people got into her room, one armed with bush knife, while the other had a gun. One of the intruders slapped her down and while holding her by her shorts forced her to take them to her parent’s bedroom.

They then proceeded to the sitting room whereat, upon arrival, he father shouted for help.

The bandits ran away and while being chased by the daughter and the houseboy, who was holding a hoe, a gunshot was heard.

It was later discovered that the houseboy had died. The issue was reported at Stakishari Police Station, where investigation was launched leading to the arrest of the appellants.

Legislators Pass Judicial Law

By Nasra Bishumba

Parliament has passed the draft law determining the organisation and functioning of the Judiciary.

The new law was passed as a necessity, especially after the adoption of the country’s Constitution in 2003 and its later revision in 2015.

The Chairperson of the parliamentary Standing Committee on Political Affairs, Alfred Rwasa Kayiranga, told members that the new law will facilitate the smooth functioning of the Judiciary.

“After the adoption of Constitution of 2003 revised in 2015, it was found necessary to review some laws relating to the judiciary. In order to achieve its goal, the Judiciary has realised that the review of those laws was necessary to facilitate the smooth functioning of the organ,” Rwasa said.

“Among the laws are those relating to the organisation, jurisdiction and functioning of the judiciary that must be harmonised and compiled in one legal text.”

What is new?

The High Council of the Judiciary is the supreme organ governing the Judiciary and in charge of setting general guidelines governing the organisation of the Judiciary.

The president of Court of Appeal and the Chief Registrar of the Supreme Court are among members of High Council of Judiciary so that Office of the Registrar is also represented.

In this draft law, the judge of the Supreme Court elected by his colleagues was removed because the Supreme Court is already represented by the president and vice-president and will be composed by five judges only.

In ordinary court, a Court of Appeal was added and there will be a single judge unless the president decides otherwise something that was done to help in handling cases on time and in reducing backlog in Supreme Court.

In the intermediate court, there will be a Chamber in charge of economic crimes, while the ordinary chamber will handle minors’ cases and family matters whereas the labour chamber will be combined with both labour and administrative issues.

But MP Juvenal Nkusi expressed his worry over what he said could be a conflict of responsibilities.

“This is a law that gives way for other laws that will be established. However, I am seeing that there is an Executive Secretary and then an Executive in the Supreme Court and I suspect that there could be a clash of duties,” he said.

The Spokesperson of the Judiciary, Emmanuel Itamwa Mahame, told The New Times that the new law will make accessing information concerning the judicial operations way easier as compared to the past, where laws governing the institution were scattered.

“Previously, there was a law that governed the High Council of the Judiciary, and then there was one that governed the management of the Supreme Court and several other different laws concerning the judiciary. But the new law now means that all the laws to do with the Judiciary and its functions are going to be combined in one and this make access to information even easier,” he said.


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Jinja Returning Officer Quits Electoral Commission

By Denis Edema

Jinja — Following complaints from the electorate, the Jinja District returning officer, Mr Anthony Ambrose Mwaita, has stepped down forcing the Electoral Commission (EC) to appoint Mr Rogers Sserunjogi as his replacement.

This follows complaints by several voters in the district who described Mr Mwaita’s behaviour during the 2016 presidential and parliamentary elections as unacceptable.

With the Kagoma by-elections just days away, the new returning officer will, according to the EC, hit the ground running.

Speaking in a mid-week interview, Mr Mwaita said: “I have stepped down because of complaints from the electorate. Several people during the harmonisation meeting that was organised by Civil Society organisations believed that I was not fair in my conduct in the previous elections. So for the purpose of free and fair elections, I will step aside.”

In his remarks, Mr Sserunjogi said he will be fair to all and work within the electoral rules.

He also assured the people of Jinja that the Kagoma by-election will be free and fair. The by-election will be held on May 11.

The role of the returning officer includes taking charge as well as setting up polling places, supervising staff working at polling stations, counting the votes and declaring the results for elections.

The Kagoma parliamentary seat fell vacant after the Court of Appeal nullified the result of the election following an appeal by Mr Alex Brandon Kintu who was one of the contenders in the 2016 parliamentary race.

After losing the election to Mr Moses Walyomu, Mr Kintu filed an election petition in court detailing election fraud manifested in the form of particularly voter bribery, something he said unjustly swung the result in favour of his rival.

The Court of Appeal agreed with his argument and in early March, a verdict nullifying the election was declared, resulting into the forthcoming by-election.


Candidates vying for the Kagoma Constituency parliamentary seat include Mr Alex Brandon Kintu (Independent), Mr Moses Walyomu (NRM), Mr Muhammed Bidondole (Independent) and Mr Timothy Batuwa Lusala (FDC).


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Prosecutor to Appeal Court Order Stopping Arrest of Joho

By Philip Muyanga

The Director of Public Prosecutions has filed a Notice of Appeal against a decision by the High Court restraining him and the police from arresting, charging and prosecuting Mombasa Governor Ali Hassan Joho over forged exam results.

According to the notice filed by Senior Assistant DPP Alexander Muteti, the prosecutor’s office, Inspector-General of Police and Director of Criminal Investigation intend to challenge in the Court of Appeal last week’s ruling by Justice Eric Ogola.

The judge issued the orders pending the hearing and determination of a petition by Mr Joho against the IG, DCI, DPP and Attorney-General.

Justice Ogola also ordered the IGP to reinstate police guards assigned to Mr Joho by virtue of his position as a duly elected governor.

He directed the State agencies not to harass and intimidate the governor.

However, the court did not stop the agencies from continuing with their investigations against Mr Joho, although the judge observed that any further probe on the governor amounted to malice.

The judge said the court did not accept that utterances attributed to President Uhuru Kenyatta were meant to harass the governor, saying they were political. But he said the words may have had an effect on State actors, including the police, noting that there had been fresh investigations and withdrawal of bodyguards.

“Why the flurry of investigations and why now?” Justice Ogola asked. “The respondents misinterpreted the President’s utterances.”

He added that what the President is alleged to have uttered has not been denied and what matters is the context in which they were made.

Through Senior Counsel James Orengo and lawyers Dennis Mosota and Julie Soweto, Mr Joho said the issues against him have been investigated and decisions made in various courts.


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Govt Plans to Employ 15,000 Workers By June

The Permanent Secretary in the President’s Office (Public Service and Good Governance), Dr Laurian Ndumbaro has said on Wednesday in Dodoma that the government will employ 15,000 new workers by the end of June.

On Friday, President Magufuli fired 9,932 workers for using fake certificates to secure jobs in government.

Briefing the press, Dr Ndumbaro said that the government is aware that there are sectors that have been affected by the recent sacking of nearly 10,000 civil servants. He urged affected institutions to submit their grievances as soon as possible.

He reminded those who would like to appeal that May 15 is the deadline to do so.


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Hot Parliament Debate Over Acting Chief Justice

By Athuman Mtulya

Dodoma — The Shadow Minister of Constitutional and Legal Affairs yesterday sparked hot debate in Parliament when he raised legal concerns about having an acting chief justice in office for nearly four months.

Mr Tundu Lissu (Singida East -Chadema) questioned the constitutionality of the Judiciary not having a permanent leader since January, this year.

Following the retirement of Justice Mohammed Chande Othman on January 1, President John Magufuli appointed Court of Appeal judge Ibrahim Musa acting Chief Justice.

Mr Lissu, who is also the Opposition Chief Whip and President of the Tanganyika Law Society (TLS), made the remarks while presenting the Opposition’s alternative budget speech after Constitutional and Legal Affairs minister Palamagamba Kabudi had presented his docket’s 2017/18 budget estimates.

Mr Lissu noted that Article 118(4) of the Constitution gave powers to the President to appoint an acting chief justice only when the CJ was absent from Tanzania or unable to execute his or her duties for any reason.

“The Opposition is of the view that President Magufuli has violated the Constitution by failing to appoint a CJ for almost five months since Justice Othman’s retirement. This is because Article 118(4) does not provide for the President to appoint a person to act as CJ indefinitely,” he said.

The statement was strongly opposed by government Chief Whip and Minister of State in the Prime Minister’s Office, Ms Jenista Mhagama, who told the House that the President had not in any way violated the Constitution since Article 118(4) was not specific as to how long an acting CJ could be in office.

House chairman Andrew Chenge concurred with Ms Mhagama’s argument, and ordered Mr Lissu to retract his statement that the President had violated the Constitution and that the remark be expunged from Hansard.

Mr Lissu then told the House that a legitimate question that needed an answer was how long an acting CJ could be in office.

“That is a constitutional query that needs interpretation by a court. However, we are of the view that five months is a long time for an acting CJ to be in office. This is because since we became independent, at no time has the President failed to appoint a fully-fledged CJ.”

Mr Lissu said since the National Assembly had the Speaker and Deputy Speaker and the Executive was headed by the President assisted by the Vice President, the Judiciary should not be an exception.

“The Judiciary not having a full-time leader for almost five months creates the impression the Judiciary is inferior to other pillars of the State,” he added.

The statement was challenged by Attorney General George Masaju, who wanted the word “inferior” expunged from Hansard, but his argument was quashed by Mr Chenge, who directed that Prof Kabudi clarify the matter and other arguments raised by Mr Lissu.

But Mr Lissu was relentless in his criticism. “The situation also further creates the wrong impression that the acting CJ is not fit for the position or that there is no suitable candidate in the entire High Court and the Court of Appeal or the entire legal fraternity in the country and the entire Commonwealth to be appointed CJ,” he said.

He ended his speech by asking Prof Kabudi to advise the President to confirm Prof Juma to the position or appoint another lawyer who the Head of State deemed fit for the position.

Winding up debate on his speech, Prof Kabudi said dragging matters of the Judiciary into Parliament was an “abomination”.

He added, however, that irrespective of whether a CJ was holding the post in an acting capacity or not, the powers bestowed on the office did not change.

“That is why an acting CJ has to be sworn in… regardless of whether one holds the office in an acting capacity or not, the powers and privileges that come with the office are the same,” Prof Kabudi said.

He also dismissed Mr Lissu’s assertion that it was the first time a president had appointed an acting chief justice. “Between 1964 and 65 we had an acting CJ simply because President Nyerere no longer wanted a white person in the position. We had to wait for the first black CJ, who came from Trinidad and Tobago.”

In his budget speech earlier, Prof Kabudi made no mention of the stalled constitution review process and neither did he ask Parliament to approve funds for the revival of the process. He asked the House to approve Sh166 billion for recurrent and development expenditure.

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