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- Jan 13, 2010
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Kwa kuongezea hapo, Ibara ya 113(1)(b) inasema kuwa "madaraka ya kudhibiti nidhamu ya watu hao [majaji] na madaraka ya kuwaondoa kazini yatakuwa mikononi mwa Tume ya Kuajiri iliyotajwa katika ibara ya 112 ya Katiba hii." Hata kama tuki-avoid the independent of the judiciary, mapendekezo ya PAC yatabakia kuwa mapendekezo.
Nakumbuka miaka ya 1990, jaji Moses Mwakibete alifukuzwa ujaji kwa tuhuma za kuchukuwa rushwa (see Mwakibete v Principal Secretary & AG, civil Appeal No.27 of 1992). Mwakibete alishindwa kesi not on substance, but on technicalities, ie. preliminary objection kutoka kwa AG. Halafu alijifanya mjanja akaenda mahakamani kujitetea mwenyewe badala ya kuweka lawyer. The fact that you a lawyer doesn't mean that you can defend yourself in court. Angeweka laywer angeshinda kesi tena kiulani
An extract from the case with emphasis hapo kwenye red.
The appellant Moses J. Mwakibete was appointed as judge of the High Court of Tanzania in 1973pursuant to the recommendations of a Commission appointed by the president under Article 110 (5) (a) of the constitution of the United
Republic of Tanzania he was removed from the office of judge on 15th May 1991
The decision to remove the appellant from that office was communicated to him by a letter from the Principal Secretary (Establishments) in short P.S Estabs) MUF3/33/310/390 of 24th May 1991 (hereinafter referred to an An) that was made u.f.s. the chief justice (C.J) who inetinled it on 3rd June 1991 That letter in part read as follows: Nimeagizwa nikuarifu kuwa Rais chini ya Ibara 110 (5) )6) na (7) ya katibu ya Jamhuri ya Muungano wa Tanzania amekuondoa katika kazi ya Ujaji kwa kukustaafisha kwa manufaa ya umma........
Provision concerning removal from office of judge are contained in Article 110 (5) to (8) of the constitution. When the issue of removal from office of judge arises, the president appoints a commission to inquire into the matter and advise him whether the Judge ought to be removed from office. Where the Commission advises the president that a judge ought to be removed from office then the president is obliged to do so. The effective date of removal is the date when the president makes the decision to remove the judge from office.............
During the month of April 1991 the appellant appeared before the Commission appointed under Article 110 (6) of the Constitution to investigate the question of removing him from the office of judge. On the 4th June 1991 the appellant received a letter dated 24th May 1991 from P.S (Esbabs) (Annex A) informing him that the president had removed him for the office of judge by retiring him in the public interest as provided under Article 110 (5) (6) and (7) with effect from 13th May 1991. That letter (Annex A) was replaced by another letter dated 21st February 1992 from the chief secretary (Annex D) which stated that the appellant had been removed from the office of judge with effect from 13th May, 1991...........
The appellant also contended that Annex D.1 should not have been admitted because it was a manifestation of the Executive interfering with the judiciary. His he warned was an encroachment on the constitutional doctrine of the separation of powers.........
There is one other issue on which we wish to express our feelings and that is the manner I which this whole matter was handled. According to the appellant the whole matter starred with an announcement on Radio Tanzania Dar es Salaam on 13 March 1990 that president Mwinyi had suspending the appellant from his office of judge on ground of suspected corruption and that he had appointed a commission to investigate the matter. This announcement was also carried by the Daily News and Uhuru newspapers on 14th March 1990. According to the appellant the commission to investigate the allegation was not appointed until March 1991 a year later.
If this contention is true then the purported suspension was clearly unlawful. According o Article 110 (8) of the constitution a judge is only suspended from performing he functions of his office after the question of removing him from office has been referred to a commission appointed until March 1991 the March 1990 purported suspension was unlawful. It is most regrettable that such an irregularity was allowed to occur. .......
The tardiness with which the question of the appellants removal from office was dealt with after the commission's recommendation also leaves a lot to be desired. Apparently the Commission submitted its recommendation regarding the appllant's removal from office before the 13th May 1991 the appellant was informed of the decision on 24the May 1991. The appellant was informed of the decision on 24th May 1991 vide Annex A............
We feel that this matter could have been attended to in a more expeditious manner and could have been handled more carefully considering that it involved the very livelihood of a public official and a very senior official at that a judge of the High Court we can only express our hope that in future the strict letter of the constitution and the law will be followed and that matters of that sort will be handle more diligently.
That not withstanding the appeal is dismissed the preliminary objection was properly upheld and the application by the appellant was rightly struck our. Further, the cross-appeal is allowed to the `extent that the appellants is no longer a person in the RRR.. of the united Republic for 13th My 1991 but that he is to have his pension with effect from that date we make not order as to costs. It is so ordered.
Full case at http://www.mawallainitiatives.com/1.A compilation of cases on judicial review.pdf kuanzia page 357
cc Gamba la Nyoka
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