Africa-Press – Tanzania. THE High Court, Kigoma District Registry has endorsed the government’s decision to unseat Mr Ezekiel Mshingo as councillor for Kagera-Nkanda Ward in Kasuru District, Kigoma Region through CCM ticket for allegedly being a Rwandan.
Judge Athumani Matuma ruled against Mr Mshingo, the applicant, after dismissing his application for prerogative orders of certiorari (to quash a decision given by an authority) and prohibition against five respondents, including the National Election Commission (NEC).
“In that respect my previous order dated April 28, 2021 restraining the respondents from continuing with the by-election process has come to an end today and they can justifiably continue as such,” he said in his ruling dated June 28, 2021.
Other respondents in the matter were the Minister Responsible for Regional Administration and Local Government, the Permanent Secretary Ministry Responsible for Regional Administration and Local Government, the District Executive Director (DED) for Kasulu District and the Attorney General (AG).
The judge pointed out that the applicant’s citizenship was dealt with by the immigration authority which finally concluded that he was a non-citizen, a Rwandan.
“It was the immigration who inquired for the citizenship of the applicant and he himself has not disputed to have been examined on his citizenship except that he alleges to have been so inquired at the District level only,” he said.
Under the circumstances, it was the position of the court that the Permanent Secretary acted on the advice of the relevant authority responsible for citizenship affairs to direct the DED to inform the applicant of his political status and call for the NEC to fill in the vacant seat.
He said that since the immigration authority and the Ministry for Home Affairs who worked on the applicant’s nationality status and finally declared him a noncitizen are not parties to the application, their findings in relation to the citizenship status of the applicant could not be disturbed nor challenged.
According to him, the applicant was aware that his citizenship was queried and admitted so through his counsel to have been summoned by the immigration authority at the District level.
“When he was informed by DED that his councilor seat was vacant by reason of nationality, he ought to have made a follow up of the decision and challenge such nationality findings before protesting for his councillorship as nationality is the primary qualification for a political position,” the judge said.
“(This is) for obvious reason that under section 39(2) (a) of the Local Government (Elections) Act, one is not qualified for election in the local authority unless satisfies that he is a citizen of the United Republic of Tanzania,” the judge added.
He pointed out that being a councilor or having been at one time a councilor or having held any political position in the United Republic and the fact that the applicant is a holder of the certificate of birth and Citizenship National Identification Card were all irrelevant in the instant matter.
This is because, the judge said, before him there was not a citizenship or immigration dispute but an application relating to cancellation of Councillorship and an election process for fulfilling the stated vacant seat. That is why, he said, the relevant authorities relating to citizenship affairs have not been made parties to contest against the applicant’s citizenship, nor the relevant law relating to the immigration disputes were cited to that effect.
“I am therefore not better positioned to declare the applicant a citizen or national of Tanzania so that I can rule out that he is still a valid councilor. Likewise, I am not better positioned to declare him an non-citizen because the relevant parties are not before me,” the judge said.
He pointed out that the applicant’s citizen status remained as decided administratively by the relevant authorities unless properly challenged and determined and he was at liberty to challenge such decision in accordance with the law and not through the application in question.
Facts show that the applicant was a councilor elected for Kagera-Nkanda Ward within Kasuru District in Kigoma Region during the 2020 general election. He was however on April 14, 2021 informed by the DED that his councilor seat was declared vacant by reason of citizenship as declared by the Permanent Secretary after having been informed that the applicant was a non-citizen.
In that respect the NEC was also informed as such and started the election process to fill in the vacant seat, an act which aggrieved the applicant and decided to file the application in question.
