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

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 THE CHIEF JUSTICE.- PART ONE..
    (By Rutashubanyuma Nestory – A public policy analyst based in Arusha.)

    Chief Justices come and go but rarely do we evaluate what legacy they have left behind in advancement of the rule of law. Part of the problem, the recipients of legal services trust too much politicians to get the job right for them overlooking politicians are too interested parties to sate our governance quests. In order to do a fair prognosis of the potentiality of the incumbent Chief Justice – Augustine Ramadhan - in advancing the causes of good governance we need to peek into some of the past judgments he was involved as a doyen of the Court of Appeal Bench and determine whether he has the credentials to take us to the judicial Promised Land.

    No place offers him an opportunity to garland his impartiality laurels more than whether he can respond positively if he possesses irreproachable sensitivity to the causes dear to the hearts of the poor. The choice of the poor is a logical one since no genre is likely to suffer more from the judicial gavel than this economic class. I have picked three cases to drive the point home involving two labour disputes and one about a modicum of construction materials. In the first labour dispute dwelling on Nicholas Hamis and 1013 others versus Tanzania Shoe Co. Ltd and Tanzania Leather Association Industries Civil Appeal No. 62 / 2000 (Unpublished) the judgment penned down by Justice Makame – the Court of Appeal made a terrible decision. The Appeals Court identified two claims from the employees but decided wrongly on one of them while leaving the other claim unresolved!

    The employees were seeking subsistence allowance to compensate them for unlawful repatriation and severance allowance following the termination of their services. The Court was laconic over severance allowance as it went on to determine only whether the litigants deserved the repatriation costs. In dismissing the repatriation expenses claim, the Court made a frightful mistake in interpreting the parastatal service regulations law by equating it to the employment ordinance while in the parastatal service regulations there were vital provisions to support the litigants’ prayers of repatriation! If the Court had properly directed itself to section H.2 (e) of the parastatal service regulations of (1984), the Court would have established a fact that indeed the litigants deserved repatriation costs regardless of whether they were brought to place of engagement by their employers. From this slapdash of judicial delivery, the litigants were denied their rights to repatriation expenses and at least a determination of whether they deserved severance allowance following their untimely termination. In the second case, it was Tambueni Abdallah and 89 others versus National Social Security Fund (NSSF) – Civil Appeal No. 33 / 2000 (Unpublished). While the grounds for miscarriage of justice are non-existent but the Court of Appeal created more confusion by leaving certain issues unresolved. In this case the Court was spot-on when it ruled the High Court had no original jurisdiction to hear and determine trade disputes arising from voluntary agreements since the law had solely empowered the Industrial Court of Tanzania.

    But in page 4 of the same decision, the Court made some vital observations from what the Defendants had pleaded in the Court that there are other two channels trade disputes can go to the High Court – a gratitude of either security of employment act in enforcing a labour ministerial decision or through section 132 of the Employment ordinance from a labour officer report to the magistrate court. While these were proper interpretations of the law, the Court in its compendious conclusions of the case inferred that only the Industrial Court has the jurisdiction to determine trade disputes! It is from this slipshod attitude of the Appeals Court that lower courts are now overwhelmed with needless interpretations of the Tambueni (supra) decision. Venal judges are notorious for dismissing trade disputes even if they have been brought to enforce labour Minister’s decision or the cases were filed from labour officer’s reports! In the third case of Lukio Eliphas versus Elingao Swai and others 3 - Civil Appeal No 48 of 1998- the Court was correct to uphold a primary court observation that the appellant was negligent to leave his construction materials under nobody’s custody and he could not claim damages for the lost materials. In these three cases, the Chief Justice’s record is mixed and is not easy to predict which direction he will pursue as the top Judge but laying grounds for future assessment of his performance is my next goal in the second part of this discourse.
     
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