The Value of Judicial Experience: A Question for Tanzania’s Judiciary

[Respicius Mwijage]

Is Tanzania giving sufficient weight to judicial experience when appointing judges to the High Court and Court of Appeal?​

This is a question worth discussing.

It is not an argument against judges who come from private legal practice, prosecution, academia, government service or other areas of the legal profession. Nor is it a suggestion that only career judicial officers should be appointed to the Bench.

The issue is much narrower:

Should long, tested and distinguished experience in actually performing judicial functions be given greater weight when appointments are made to the higher courts?

That is the central question raised in the full article attached below.

Knowing the law and judging are not the same thing​

A lawyer may spend decades practising law, representing clients, prosecuting cases, teaching, advising government or specialising in a particular area of law.

All of that experience can be valuable to the Judiciary.

But the judicial function is different.

A judge or magistrate must determine disputed facts, assess evidence, manage proceedings, listen to competing arguments and make impartial decisions that affect the rights and obligations of others.

That requires more than knowledge of the law.

It requires judgment, restraint, patience, impartiality and the ability to manage the realities of adjudication.

Those qualities are developed through actually performing judicial functions over time. The full article describes this development as the formation of a “judicial mind.”

The Judiciary needs experienced judicial officers at its highest levels​

The article makes a cautious comparison with other professional institutions.

The point is not that the Judiciary and the military are the same. They clearly are not.

The point is that professional institutions often benefit when senior leadership includes people who have accumulated substantial experience within the profession itself.

The Judiciary is no different in that respect.

A Magistrate or Judge who has spent many years hearing cases, writing decisions, managing proceedings and dealing with judicial ethics accumulates institutional knowledge that is directly connected to the work of judging.

This does not make such a person automatically better than an experienced advocate, prosecutor or academic.

It means that judicial experience is itself a distinct professional qualification.

This is not about challenging constitutional powers​

The discussion should also be approached carefully.

The issue is not whether the constitutionally authorised appointing authority has the power to appoint judges.

The issue is not whether appointments from outside the Judiciary are lawful.

The issue is one of institutional development:

When qualified candidates are being considered for senior judicial office, how much weight should be given to long and demonstrated experience in actually performing judicial functions?

What can Tanzania learn from the United Kingdom?​

The United Kingdom offers an interesting comparative example.

Its Judiciary is not composed exclusively of career judicial officers. Lawyers from different professional backgrounds can enter judicial office.

At the same time, previous judicial experience is recognised as an important qualification for many senior judicial appointments.

The lesson is not that Tanzania should copy the UK.

It is that professional diversity and judicial experience can coexist.

A Judiciary can remain open to outstanding lawyers from different professional backgrounds while also recognising the particular value of tested judicial experience when responsibility increases.

The Tanzanian question​

The full article presents figures that provide a basis for reflection.

Of the 45 serving Justices of Appeal, 9 previously served as Magistrates and High Court Judges, representing approximately 20%. At the High Court, out of 95 serving Judges, 40 had substantial prior experience as Magistrates, representing approximately 42.1%. These figures, by themselves, do not establish that judges appointed from other professional backgrounds lack competence. That is not the argument. The question is institutional; Is long and practical judicial experience sufficiently represented at the highest levels of Tanzania's Judiciary?

What message are we sending to Magistrates?​

Consider a Magistrate who spends 10, 15 or 20 years hearing cases, writing decisions, managing proceedings and developing judicial skills.

Should that accumulated experience count significantly when opportunities for advancement to higher judicial office arise? There is a broader institutional issue here; Today's Magistrates are potentially tomorrow's High Court Judges; and Today's High Court Judges may become tomorrow's appellate judges.

A Judiciary needs a credible professional progression system in which competence, integrity, experience and demonstrated judicial ability can contribute to advancement. Otherwise, there is a risk that valuable institutional knowledge and professional motivation are not fully utilised.

But professional diversity matters too​

There is another side to this discussion.

Tanzania should not create a Judiciary that is closed to experienced advocates, prosecutors, academics, government lawyers and other legal professionals. They can bring different perspectives, specialised knowledge and professional experiences that can enrich judicial reasoning and jurisprudence. The objective, therefore, should not be to create a Judiciary composed exclusively of career judicial officers. It should be to find an appropriate balance. Professional diversity matters. Judicial experience matters too.

Perhaps the principle should be this​

The higher the judicial responsibility, the greater the importance of tested judicial experience. That does not mean that exceptional candidates from other legal backgrounds should be excluded. It simply recognises that extensive experience at the Bar and extensive experience on the Bench are different forms of professional experience. Both have value. They are not, however, the same experience.

The question for discussion​

So, rather than making this personal, perhaps the better discussion is institutional. Should Tanzania give greater weight to judicial experience when appointing judges to the High Court and Court of Appeal?

And a few related questions:

1. Should long and distinguished service as a Magistrate be an important consideration for appointment to the High Court?
2. Should substantial prior judicial experience carry even greater weight when appointing judges to the Court of Appeal?
3. Should Tanzania strengthen a clear career pathway from Magistrate to High Court Judge and eventually to the Court of Appeal?
4. How should professional diversity be balanced with the value of career judicial experience?
5. When selecting a senior judge, how important should it be that the candidate has spent substantial time actually performing the judicial function?

These are not questions about whether particular judges are good or bad. They are questions about how Tanzania wants to build and develop its Judiciary over the long term.

The full article is attached below for those who wish to read the complete analysis, including the discussion of judicial experience, career progression, professional diversity, the United Kingdom comparison and the composition of Tanzania's superior courts.

I welcome informed views, criticism and alternative perspectives on the issue.

Full Article: The Value of Judicial Experience — attached as PDF.