Rutashubanyuma
JF-Expert Member
- Sep 24, 2010
- 219,470
- 911,174
Lack of House vetting process to determine mobility of members of the Bench has provided the executive with a blank cheque to stoke judicial cronyism and mediocrity. The rules and regulations of hiring and advancing judicial careers remain unwritten ones and where they are written the executive in collaboration with the judiciary service commission expediently trample them for the purposes of nurturing and defending a pervasive culture of sycophancy.
In Rev. Mtikila v. the A.G, the Court of Appeal reeling from the executive duress of ascertaining her professional boilerplate berated the A.G on page 20 of a 51 paged decision for not taking seriously the court rulings despite the Court boasting of the "best creamy minds" in the legal fraternity.
But a string of poorly decided cases even before the Rev. Mtikila howler, the Court had intermittently demonstrated ineptitude and cavalier comport when dealing with cases impacting negatively on livelihoods of the needy. In Nicholus Hamisi & 1033 Others v. Tanneries Industries & Bora Shoes Company ruling (unreported), the Court of Appeals acknowledged it was to decide upon a twin pronged issues of repatriation and severance allowance each governed by a different clause of employment law. While the Court erroneously dealt with the issue of repatriation, it demurred to determine the second issue of severance allowance!
The Appellants felt justice had tilted in favour of the "haves" knowing a snobbish Court had disingenuously equated the employment ordinance with the parastatal service regulations (1984) leading to a dismissal of repatriation claims including the lacuna of severance allowance ruling in the verdict! The factual reality of section H.2 of parastatal service regulations had ameliorated section 53 of the employment ordinance to extend repatriation expenses even to employees who were not brought to a place of work by their employers something the Appeals Court had misconstrued to extinguish those claims. The then justice Ramadhan was part of a three Bench of Appeals Court that had speciously decided that case.
However, prior to president Kikwete appointing justice Ramadhan to be Chief Justice there was no nomination process in the hands of the House where such unjustly decided cases involving justice Ramadhan could have been re-evaluated to decide whether he had the gravitas to lead the judiciary. The then justice Ramadhan would have been compelled to exculpate himself over allegations of inordinate inadvertence arising from Nicholus Hamisi (supra) among other cases before he was confirmed to be a Chief justice. Lack of such transparent, people centred process in vetting of members of judiciary has excelled in insulating the Bench against the very citizenry it purports to judiciously serve! Chief Justice Ramadhan emboldened by an archaic, cryptic ascendancy process that had yoked his judicial career to the executive manipulations circumvented a three Bench of the Appeals Court when he formed a seven justices Bench to hear and determine the Rev. Mtikila v. the A.G case on independent candidatures.
The litigants were robbed of an inherent right of seeking judicial review in case they were aggrieved by a three Bench Court of Appeal something a Full Bench of seven justices had already surreptitiously usurped! The powers of the High Court to hear and determine constitutional petitions is well enshrined in the constitutional Articles 30 (3) and 30 (5) respectively. The Court was in "all four corners" about that but illegally scampered to pronounce "caveats" of the jurisdiction of the High Court over constitutional petitions! Before even the Rev. Mtikila turbulent verdict, the Court had intoned the Kiswahili version of the constitution was the most reliable for constitutional interpretations.
A literary reading of Kiswahili constitutional Article 30 (5) had in full octane decibels empowered the High Court to determine "any law" and "any action" that offended basic rights, freedoms and duties. Such constitutional jurisdictional assertions were made five times there. The Court backpedaled on such obvious constitutional provisions banking on a solitary Indian Lordship to offend our constitution. All this is possible because the Bench is accountable to the executive but not to the citizens of this great nation. Until the citizenry upend the executive on judicial appointments we are fixed.
In Rev. Mtikila v. the A.G, the Court of Appeal reeling from the executive duress of ascertaining her professional boilerplate berated the A.G on page 20 of a 51 paged decision for not taking seriously the court rulings despite the Court boasting of the "best creamy minds" in the legal fraternity.
But a string of poorly decided cases even before the Rev. Mtikila howler, the Court had intermittently demonstrated ineptitude and cavalier comport when dealing with cases impacting negatively on livelihoods of the needy. In Nicholus Hamisi & 1033 Others v. Tanneries Industries & Bora Shoes Company ruling (unreported), the Court of Appeals acknowledged it was to decide upon a twin pronged issues of repatriation and severance allowance each governed by a different clause of employment law. While the Court erroneously dealt with the issue of repatriation, it demurred to determine the second issue of severance allowance!
The Appellants felt justice had tilted in favour of the "haves" knowing a snobbish Court had disingenuously equated the employment ordinance with the parastatal service regulations (1984) leading to a dismissal of repatriation claims including the lacuna of severance allowance ruling in the verdict! The factual reality of section H.2 of parastatal service regulations had ameliorated section 53 of the employment ordinance to extend repatriation expenses even to employees who were not brought to a place of work by their employers something the Appeals Court had misconstrued to extinguish those claims. The then justice Ramadhan was part of a three Bench of Appeals Court that had speciously decided that case.
However, prior to president Kikwete appointing justice Ramadhan to be Chief Justice there was no nomination process in the hands of the House where such unjustly decided cases involving justice Ramadhan could have been re-evaluated to decide whether he had the gravitas to lead the judiciary. The then justice Ramadhan would have been compelled to exculpate himself over allegations of inordinate inadvertence arising from Nicholus Hamisi (supra) among other cases before he was confirmed to be a Chief justice. Lack of such transparent, people centred process in vetting of members of judiciary has excelled in insulating the Bench against the very citizenry it purports to judiciously serve! Chief Justice Ramadhan emboldened by an archaic, cryptic ascendancy process that had yoked his judicial career to the executive manipulations circumvented a three Bench of the Appeals Court when he formed a seven justices Bench to hear and determine the Rev. Mtikila v. the A.G case on independent candidatures.
The litigants were robbed of an inherent right of seeking judicial review in case they were aggrieved by a three Bench Court of Appeal something a Full Bench of seven justices had already surreptitiously usurped! The powers of the High Court to hear and determine constitutional petitions is well enshrined in the constitutional Articles 30 (3) and 30 (5) respectively. The Court was in "all four corners" about that but illegally scampered to pronounce "caveats" of the jurisdiction of the High Court over constitutional petitions! Before even the Rev. Mtikila turbulent verdict, the Court had intoned the Kiswahili version of the constitution was the most reliable for constitutional interpretations.
A literary reading of Kiswahili constitutional Article 30 (5) had in full octane decibels empowered the High Court to determine "any law" and "any action" that offended basic rights, freedoms and duties. Such constitutional jurisdictional assertions were made five times there. The Court backpedaled on such obvious constitutional provisions banking on a solitary Indian Lordship to offend our constitution. All this is possible because the Bench is accountable to the executive but not to the citizens of this great nation. Until the citizenry upend the executive on judicial appointments we are fixed.
