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How to meter the performance of chief justice. - part two.

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by Rutashubanyuma, Sep 27, 2010.

  1. Rutashubanyuma

    Rutashubanyuma JF-Expert Member

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    Sep 27, 2010
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    HOW TO METER THE PERFORMANCE OF CHIEF JUSTICE. - PART TWO.
    (By Rutashubanyuma Nestory – A public policy analyst based in Arusha.)

    On the first part of this discourse we have tacked together selected cases the incumbent Chief Justice was physically involved in meting out justice to the truly poor and his record is mixed between fairness and reproachable decisions. But one thing is crystal clear, in all the decisions he was involved in the denial of rights of way to the poor, it is not easy to discern his personal views beyond one Justice penning down views on behalf of the others!

    This is weird. In most advanced nations, decisions of the Bench are an amalgamation of individual judges’ opinions. Only in such a format, one can carry out a painstaking task of assessing in what state of mind the individual judge was and how relevant his views were in the determination of a legal dispute. Tanzanian judgments are infamous for circumventing individual opinions of the judges and through this esoteric approach, vital opinions of the judges are muzzled denying dissatisfied litigants to deploy those muted opinions as grounds for further review or even advancing the understanding of various interpretations of the law. In our cases, dissenting opinion is suppressed! The first area to gauge Chief Justice’s performance will be whether under his watch he has spurred written dissenting opinions in judgments involving more than one judge. The second sward requiring his immediate intervention is whether he can institutionalize response mechanisms to address complaints.

    Members of general public miffed by judicial misconduct should be granted legal avenues to get their grievances heard and expeditiously determined. The third turf calling for his esteemed attention is in ensuring judicial appointments and ascendancy are a matter of public scrutiny via the national Bars’ association oversight and legislative confirmatory hearings where the general public will get an opportunity to shed their tumultuous experiences about the clenched fists of those judicial nominees. The fourth sod in need of his intervention is the on-going review of the Court of Appeals rules to ensure the concomitant trend of subduing substantial justice under the precarious sword of procedural justice is hastily taken care of.

    We still remember Dr. Lamwai Masumbuko versus Venance Ngula and Another where the Court of Appeal in Civil Reference No. 15 of (1998) had struck out the application based on procedural justice without determining the substantial merits of the case. The Court was persuaded to do so on the grounds that supplementary record of appeal did not cure the improprieties of defective appeal. This was a case touching on the constitutional rights of the voters and that decision did not discern the intents of the voters. It is curious that the beneficiary of that terrible decision were no other but the strength of CCM in the Augusta House! The fifth arena in real need of restoration is giving legal teeth to the constitutional doctrine of separation of powers among three arms of the government – namely, the judiciary, the Augusta House and the executive. We are nettled every time we hear an active member of the Bench has received a presidential appointment to sit in an executive commission!

    As an anecdote, the executive appointed Judge Musa Kipenka to shepherd the Zombe murder probe team. This was purely a police criminal investigative work as far as the penal code is concerned. No sooner Judge Kipenka had handed over his controversial tome he was hastily transferred to Kagera where a first case he was assigned was the Biharamulo parliamentary election dispute pitting TLP MP against a CCM parliamentary election loser. The good judge went on to revoke the will of voters under very strenuous circumstances alleging the use of foul language during campaigning period! Such a decision was a slap in the face of Uganda Supreme Court decision which had laid down the checklist behind unseating a democratically elected leader. That, the golden rule in election disputes is for the courts to determine from the facts of the case whether the alleged improprieties were sufficient enough to disrupt the will of voters. In the judge Kipenka’s ruling there is nothing to suggest such a criterion was deployed before the will of voters was quashed in favour of his previous CCM employers in the Zombe’s probe! The impartiality of judiciary is always on the precipice when the Bench is complaisant enough to nuzzle the executive. Similarly, members of the Bar plying their trade while draped with political posts should be legally debarred from such professional malpractice. This expectation is minimal and the appraisal has only begun, in earnest!
     
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