| Thursday, 13 September 2012 23:18
|By Bernard James
The Citizen Reporter
Dar es Salaam.
The dark cloud hovering over the Judiciary has taken a new twist, following a call by the lawyers’ umbrella outfit, TLS, for a presidential enquiry into allegations that some judges are professionally sub-standard and ethically unsuitable.The TLS president, Mr Francis Stolla, says the society has resolved to seek President Jakaya Kikwete’s intervention, to restore public confidence in the third pillar of the State triumvirate whose other components are the Executive and Legislature.
He was speaking to The Citizen exclusively, against the backdrop of allegations and misgivings that have been consistently gathering tempo within and outside parliament, that some individuals appointed as judges lacked the criteria for the sensitive post.
Some court of appeal judges are rated so lowly that critics charge they are unfit to serve even as resident magistrates, making the need for formation of a presidential enquiry into the issue, Mr Stolla said.
The first salvo was fired by Shadow minister for Justice and Constitutional Affairs Tundu Lissu in parliament last month, by remarking that some people who had committed serious crimes had been appointed judges.
The fiery legislator, a professional lawyer, added that some of those elevated to the positions had never gone anywhere near judges’ chambers previously, and were thus unqualified.
He reinforced his claim by citing Court of Appeal judge Mbarouk Mbarouk as an illustrative case, charging that he lacked the requisite academic qualifications spelled out in the Constitution.
Mr Lissu characterised Mbarouk’s appointment “the greatest attack on the integrity of the judiciary.”
In its first public reaction on the charges, TLS said: “We, as the people who have the duty to protect and assist the public in all matters touching on the administration of justice in Tanzania, have agreed to write to the President and Chief Justice, to notify them that the public is worried about this situation,” Mr Stolla said.
He noted that the decision was reached at a recent meeting of the governing council of the mainland’s bar associations. “We adviced the appointing authority (the president) to relieve from duty a judge who lacks qualifications if it is so proved,” he said.
The move comes amid reports that some people and organisations who had their cases presided over and for which verdicts were pronounced by Justice Mbarouk were planning to seek declarations that the verdicts were null and void.
A source has confided to The Citizen that at least seven people are consulting lawyers in a bid to have decisions in their cases presided by Justice Mbarouk declared invalid.
According to article 109 (7) of the Constitution, a person may only be appointed Judge of the High Court if he or she has “special qualifications”, including a degree in law from a university recognised by the accreditation authority in Tanzania.
TLS, according to Mr Stolla, has not conducted research to prove Lissu’s allegations on judges and said it would not be easy to give its position on the integrity and qualifications of each judge.
He remarked however: “But as a matter of principle, if it is true that Mbarouks lacks a first degree in Law, it means that he did not deserve appointment as a judge.”
It is on record that TLS had in 2008 petitioned then Chief Justice Augustino Ramadhani with a list of six concerns which they wanted him to urgently address.
One of the concerns was to remove Justice Mbarouk from office for not having academic qualifications for appointment as a judge of the High Court. TLS in its petition to former Chief Justice Ramadhani claimed that Justice Mbarouk only holds a diploma in law. Justice Mbarouk is now judge of the Court of Appeal.
It was claimed by Lissu that people who may have committed serious crimes such as bribery or forgery of personal records in order to qualify for appointment had been appointed judges.On the ethical side of the allegations, Mr Stolla feels that time has come for the President to form a special tribunal to investigate allegations of misconduct.
Under article 110A of the Constitution, the president cannot remove a judge but can appoint a special tribunal to investigate allegations of indiscipline and misconduct of judges.
Pressure for action over credibility and validity of appointment of some judges gained tempo at the recent annual conference of TLS when Mr Lissu urged lawyers to demand an independent and transparent investigation on “why things were allowed to go so horribly wrong for so long.”
Presenting a paper, the outspoken Singida East MP told the well attended conference: “Our aid to the judicature’s grave diggers’ now consists in our silence, our fear to speak out and thereby risk our petty privileges, our cowardice in the face of the flooding of our judiciary with judicial mediocrity,” he said.
The Principal Judge Fakihi Jundu was among four judges whom Lissu told Parliament was appointed and performed duties of a judge contrary to the Constitution, thus compromising the integrity of the Judiciary.
According to Lissu, the principal judge was given a contract to serve as a judge contrary to the Constitution which only provides for tenured judges.
Last week, Justice Jundu told The Citizen that Lissu was not an institution in himself but the parliament where the allegations were made. “I will never fall into the trap of arguing with an individual and I leave the matter for the parliament to act,” he said.