Lenana
JF-Expert Member
- Oct 10, 2010
- 421
- 79
Katika kile kinachoonekana muendelezo wa Mawakili kutetea tasnia yao ya Sheria Wakili Lau Kego Masha amemtaka Waziri wa Sheria na Mwanasheria Mkuu wa Serikali kumshauri Rais vyema kuhusu maswala mazima ya sheria na kuitaka serikali kutoingilia mchakato wa uchaguzi wa Chama Cha Wanasheria Tanganyika (TLS).
"Dear Fellow Lawyers,
When I first heard the statements attributed to our fellow learned brother and member of the TLS, the Hon. Minister for Justice and Constitutional Affairs , Dr. Harrison Mwakyembe, in connection with a meeting he had with the Secretariat of the Law society on the 15th of February 2017, my first reaction was that he must have been misquoted. I could not fathom the possibility that a learned colleague and member of our esteemed profession could possibly threaten over 6000 Tanzanian Lawyers with the disbanding of the very Professional Society of lawyers to which he belongs for the so called reason of “politicization of the society”. I was disheartened when I came to realize that the comments attributed to the Hon. Minister were truly his, and even more so by the feeble response issued by the President of the Society, Mr. John Beniel Seka , on behalf of the Governing Council earlier this evening.
On the 2nd of February 2017, I issued a statement through my Facebook page regarding the sanctity of the principle of the rule of law. This statement was issued in direct response to a statement made by H.E. Dr. John Pombe Magufuli regarding the conduct of lawyers during their defence of accused persons and the actions which he proposed should be taken by the state against lawyers who undertook the defence of “guilty” persons. My statement was not intended to be political, rather my statement was a mere restatement of the position of the law currently on the books in Tanzania which affords all Tanzanian’s whether guilty or not the right to legal representation. The fact that I was questioning a statement made by the Head of State and the additional fact that I happen to be of a different political affiliation may have been interpreted by some that my intentions may have been political, however I wish to state for the record that my statement was solely in line with my ethical and professional responsibility as a member of the Tanzanian Bar. There was nothing political intended in my statement. As a matter of fact , in drafting my response on the 2nd of February, I specifically steered away from responding to another statement made by H.E. The President that the electoral process within TLS was being politicized because I felt and still do feel that it was his statement that politicized the process and not the actions of the aspirants to office who were not known at the time of his statement. I did not feel that it was proper to request members of the TLS not to vote for candidates due to their political affiliation.
Now that my once lecturer, fellow member of TLS and current Minister for Justice and Constitutional Affairs has made the assertion that the TLS has become politicized and has gone further to threaten the disbanding of the Society , I believe that I have the duty to assist in setting the record straight.
First and foremost, I would like to take this opportunity to remind Dr. Mwakyembe what the objects of the Tanganyika Law Society are. Part 2, section 4 of the Tanganyika Law Society Act , CAP 307 lists the first five objects of the Society to be the following:-
• To maintain and improve the standards of conduct and learning of the legal profession in Tanzania
• To facilitate the acquisition of legal knowledge by members of the legal profession and others
• To assist the Government and the Courts in all matters affecting legislation, and the administration and practice of law in Tanzania
• To represent , protect and assist members of the legal profession in Tanzania as regards conditions of practice and otherwise
and,
• To protect and assist the Public in Tanzania in all matters touching , ancillary or incidental to the law
Whereas there are more objects with which the Society has been entrusted, it is the first five I have mentioned above that I find to be most pertinent to this discussion.
In today’s world there are those who believe that because they are in positions of power we must always agree with them, and that when we differ with them we are becoming political. It is with the above proposition that I wish to disagree. It is my assertion that one can respectfully disagree with persons in authority during the course of giving advice and proving a point without at all being political. As can be seen from the objectives of the society, the TLS is a professional Society and not a political one. It is a Society whose vision is to ensure that justice is upheld and whose mission is to promote and protect the rule of law, good governance and access to justice for all with sustained professional standards. The fact that at times the TLS , some of its members or all of its members might disagree with positions taken by Government does not in any way mean that the TLS has become politicized. In actuality what it means if spoken with the full force of the Law Society is that the Government should sit back and listen. The process of choosing elected leadership of any society will of course be influenced by a variety of factors based on the demographics of the society itself but subject to the regulatory framework established by the society for screening its elected officials. The political affiliation of candidates for positions within the TLS has not been and shall never be a qualification or reason for disqualification for Society leadership. The TLS is a professional Society and accordingly it is the professional qualifications of candidates that should be vetted and was vetted for the current list of candidates.
Dr. Mwakyembe in his capacity as Minister for Justice and Constitutional Affairs and as a member of TLS has a moral, ethical and professional obligation to advise the Government professionally and not politically. He is fully aware that his current remarks regarding the politicization of the society are merely a repetition of the allegations made by His Excellency the President on the 2nd of February , 2017 well before campaigning for positions had even began or candidates were even known. Sadly enough, in the statement issued by Mr. Seka esq. this evening the TLS seems to be more concerned with the threatened dissolution of TLS instead of the clear attempt by Government to interfere with TLS’s electoral process. Having been a Minister before my dear learned colleague, I would like to advise the Hon. Minister that ministerial powers are short lived, however perceptions of professional integrity or lack thereof live long after. It is his duty along with that of the Attorney general to advise Government on matters of law , constitutionality and justice, a duty which has also been given to the TLS by statute. Where communication is open and professional respect is maintained the relationship between TLS and Government can be cordial. It is where the Minister for Justice and the Attorney General fail to advise Government accordingly with respect to protection of the rule of law, good governance and access to justice for all, that the TLS will become vocal not in an attempt to become political but in the course of carrying out its statutory duties.
In conclusion, I would like to point out that in the past few months there have been a number of actions and statements by persons in leadership positions that have clearly gone contrary to the traditional notions of the rule of law. More alarming however is that after the retirement of the Hon. Othman Chande, CJ. as head of our Judiciary a substantive Chief Justice was not sworn in and rather the Hon. Ibrahim Juma was appointed Acting Chief Justice. My question is why is it that Justice Juma has not been given the substantive post of CJ and what are the conditions that must be met for him to be confirmed by the President. Can the President remove the Acting Chief Justice and if so for what cause? Under the circumstances is the Judiciary truly independent from the Executive branch or an extension thereof? I would imagine that these would be questions that should be raised by the Minister for Justice, Attorney General and TLS instead of agonizing about the political affiliations of candidates for positions within TLS. Or could it be that the threats against TLS are part of a greater goal of weakening the system of dispensation of justice in Tanzania which started with the appointment of an Acting Chief Justice.
Lawrence (Lau) Kego Masha
16th February, 2017"
"Dear Fellow Lawyers,
When I first heard the statements attributed to our fellow learned brother and member of the TLS, the Hon. Minister for Justice and Constitutional Affairs , Dr. Harrison Mwakyembe, in connection with a meeting he had with the Secretariat of the Law society on the 15th of February 2017, my first reaction was that he must have been misquoted. I could not fathom the possibility that a learned colleague and member of our esteemed profession could possibly threaten over 6000 Tanzanian Lawyers with the disbanding of the very Professional Society of lawyers to which he belongs for the so called reason of “politicization of the society”. I was disheartened when I came to realize that the comments attributed to the Hon. Minister were truly his, and even more so by the feeble response issued by the President of the Society, Mr. John Beniel Seka , on behalf of the Governing Council earlier this evening.
On the 2nd of February 2017, I issued a statement through my Facebook page regarding the sanctity of the principle of the rule of law. This statement was issued in direct response to a statement made by H.E. Dr. John Pombe Magufuli regarding the conduct of lawyers during their defence of accused persons and the actions which he proposed should be taken by the state against lawyers who undertook the defence of “guilty” persons. My statement was not intended to be political, rather my statement was a mere restatement of the position of the law currently on the books in Tanzania which affords all Tanzanian’s whether guilty or not the right to legal representation. The fact that I was questioning a statement made by the Head of State and the additional fact that I happen to be of a different political affiliation may have been interpreted by some that my intentions may have been political, however I wish to state for the record that my statement was solely in line with my ethical and professional responsibility as a member of the Tanzanian Bar. There was nothing political intended in my statement. As a matter of fact , in drafting my response on the 2nd of February, I specifically steered away from responding to another statement made by H.E. The President that the electoral process within TLS was being politicized because I felt and still do feel that it was his statement that politicized the process and not the actions of the aspirants to office who were not known at the time of his statement. I did not feel that it was proper to request members of the TLS not to vote for candidates due to their political affiliation.
Now that my once lecturer, fellow member of TLS and current Minister for Justice and Constitutional Affairs has made the assertion that the TLS has become politicized and has gone further to threaten the disbanding of the Society , I believe that I have the duty to assist in setting the record straight.
First and foremost, I would like to take this opportunity to remind Dr. Mwakyembe what the objects of the Tanganyika Law Society are. Part 2, section 4 of the Tanganyika Law Society Act , CAP 307 lists the first five objects of the Society to be the following:-
• To maintain and improve the standards of conduct and learning of the legal profession in Tanzania
• To facilitate the acquisition of legal knowledge by members of the legal profession and others
• To assist the Government and the Courts in all matters affecting legislation, and the administration and practice of law in Tanzania
• To represent , protect and assist members of the legal profession in Tanzania as regards conditions of practice and otherwise
and,
• To protect and assist the Public in Tanzania in all matters touching , ancillary or incidental to the law
Whereas there are more objects with which the Society has been entrusted, it is the first five I have mentioned above that I find to be most pertinent to this discussion.
In today’s world there are those who believe that because they are in positions of power we must always agree with them, and that when we differ with them we are becoming political. It is with the above proposition that I wish to disagree. It is my assertion that one can respectfully disagree with persons in authority during the course of giving advice and proving a point without at all being political. As can be seen from the objectives of the society, the TLS is a professional Society and not a political one. It is a Society whose vision is to ensure that justice is upheld and whose mission is to promote and protect the rule of law, good governance and access to justice for all with sustained professional standards. The fact that at times the TLS , some of its members or all of its members might disagree with positions taken by Government does not in any way mean that the TLS has become politicized. In actuality what it means if spoken with the full force of the Law Society is that the Government should sit back and listen. The process of choosing elected leadership of any society will of course be influenced by a variety of factors based on the demographics of the society itself but subject to the regulatory framework established by the society for screening its elected officials. The political affiliation of candidates for positions within the TLS has not been and shall never be a qualification or reason for disqualification for Society leadership. The TLS is a professional Society and accordingly it is the professional qualifications of candidates that should be vetted and was vetted for the current list of candidates.
Dr. Mwakyembe in his capacity as Minister for Justice and Constitutional Affairs and as a member of TLS has a moral, ethical and professional obligation to advise the Government professionally and not politically. He is fully aware that his current remarks regarding the politicization of the society are merely a repetition of the allegations made by His Excellency the President on the 2nd of February , 2017 well before campaigning for positions had even began or candidates were even known. Sadly enough, in the statement issued by Mr. Seka esq. this evening the TLS seems to be more concerned with the threatened dissolution of TLS instead of the clear attempt by Government to interfere with TLS’s electoral process. Having been a Minister before my dear learned colleague, I would like to advise the Hon. Minister that ministerial powers are short lived, however perceptions of professional integrity or lack thereof live long after. It is his duty along with that of the Attorney general to advise Government on matters of law , constitutionality and justice, a duty which has also been given to the TLS by statute. Where communication is open and professional respect is maintained the relationship between TLS and Government can be cordial. It is where the Minister for Justice and the Attorney General fail to advise Government accordingly with respect to protection of the rule of law, good governance and access to justice for all, that the TLS will become vocal not in an attempt to become political but in the course of carrying out its statutory duties.
In conclusion, I would like to point out that in the past few months there have been a number of actions and statements by persons in leadership positions that have clearly gone contrary to the traditional notions of the rule of law. More alarming however is that after the retirement of the Hon. Othman Chande, CJ. as head of our Judiciary a substantive Chief Justice was not sworn in and rather the Hon. Ibrahim Juma was appointed Acting Chief Justice. My question is why is it that Justice Juma has not been given the substantive post of CJ and what are the conditions that must be met for him to be confirmed by the President. Can the President remove the Acting Chief Justice and if so for what cause? Under the circumstances is the Judiciary truly independent from the Executive branch or an extension thereof? I would imagine that these would be questions that should be raised by the Minister for Justice, Attorney General and TLS instead of agonizing about the political affiliations of candidates for positions within TLS. Or could it be that the threats against TLS are part of a greater goal of weakening the system of dispensation of justice in Tanzania which started with the appointment of an Acting Chief Justice.
Lawrence (Lau) Kego Masha
16th February, 2017"
