Tanzanian judge, Mustafa Ismail, knows how to grab the attention of a reader. Responding to an important petition on whether the independence of the chief justice was adequately protected by the constitution, his decision began like this: ‘Paul Emmanuel Kilasa Kisabo, the petitioner herein, is a sad and disgruntled person.’
He then explained that Kisabo was concerned about provisions for the CJ’s exit from office, and added, ‘Rather than sitting idle, twiddling his fingers and let doctrine of independence of the judiciary and separation of power [be] stifled, the petitioner has chosen to live to the lyrics of the legendary Robert Nesta Marley, Bob Marley, who urged his people to do an emancipation.’
Marley’s Redemption Song aside, Kisabo’s complaint was about the mechanism for the removal of office of the CJ. He said that the constitution gave power to the president to remove the CJ, but that this was contrary to the idea that the president and the CJ were, constitutionally speaking, equals, both leading arms of the state that are independent of one another.
Interference
As Ismail put it, Kisabo was also ‘unhappy that, unlike the president and the speaker of parliament, whose removal is clearly stipulated in the law, removal of the CJ is not guided by any set of procedures.’
The president’s power to remove the CJ was an ‘interference with the independence of the judiciary’, something that was guaranteed by the constitution and by international human rights treaties to which Tanzania was a party. Explaining the case argued by Kisabo, Ismail said that the petitioner was concerned that the system also interfered with the principle of checks and balances, thus placing the president above the heads of other ‘organs’, more particularly, the judiciary.
The attorney general, however, disagreed with Kisabo, saying that ‘by the very nature of the presidential system’, the president had more constitutional and legal powers compared ‘to other heads of state organs’. These powers were exercised under sections of the constitution applicable to judges of the high court and the court of appeal, and since the CJ was also a judge of the appeal court, any dismissal of the CJ would be dealt with under these sections.
The AG further argued that the separation of powers was not absolute; the president took an oath of allegiance before the CJ, for example, and any impeachment of the president would be presided over by the speaker of the national assembly.
According to the AG, since there was an ‘elaborate procedure’ guiding the removal from office of the CJ, the independence of the judiciary would not be ‘stifled’ by removal of the CJ.
Sovereignty
The AG also submitted that since Tanzania had a presidential system, in which the head of state was an elected president, the president was ‘head of all the three organs and enjoys immense powers including those of appointing and removing the CJ.’ This is what the ‘people decided when they promulgated the constitution’. The constitutional powers given to the president to remove the CJ were thus ‘sovereign powers accorded under … the constitution. They are a reflection of the will of the people’, and the courts had no jurisdiction to ‘defer the sovereignty of the people and the supremacy of the constitution.’
Further, said the AG, if there were provisions that couldn’t be harmonised within the constitution, it was parliament, not the court, that had to deal with it, ‘unless the court is expressly empower to do so.’
Ismail said he had ‘scrupulously reviewed’ the pleadings and the written submissions, and that ‘after leafing through a litany of literature’ on the subject, was able to make his finding.
Fabulous
He said that as he began his ‘journey’ of deciding the matter, ‘I wish to express, in no mean way, my profound appreciation to both sets of learned counsel for the industry exhibited in their lengthy and fabulous submissions. Their effort in addressing the court on the pertinent issues was nothing short of splendid and I immensely commend their effort.’
Then follows a lengthy discourse on the importance of judiciary independence, in which Ismail cited US and Indian jurisprudence, among others, as well as the United Nations.
He replayed the essence of the argument on both sides and then says that the AG’s view ‘which draws convergence with mine’, is that ‘the presidential system, that our system of governance is, is tailored in the manner that project the president as head of state and vested with power to appoint and make a decision to relive his appointees from the positions they hold.’
‘The CJ would not be any different, though his manner of departure from office must conform to the constitution’.
‘This is in line with what obtains in the presidential system of governance that the people of Tanzania chose to go with. It is precisely how the will of the people has been expressed through the current constitutional dispensation.’
Logical
The judge said it was ‘logical and legally in order’ that the ‘appointing authority, who in this case is the president, should also be the authority that ultimately wields powers of ending the tenure of the CJ.’
There were constitutional provisions that provided detail of the procedure to be observed when a judge of the high court or the court of appeal was to be removed from office by the president. These were the same provisions that would be invoked if the CJ had to be removed. ‘[The] treatment of the CJ ought to be and is the same as what a justice of appeal would be accorded.’
‘It is legitimate, in my view, to conclude that removal of the CJ, akin to the removal of the Justice of Appeal, has a clear methodology that would not be subjected to any personal whims of the appointing authority, be it the president or anybody else.’
‘Lone ranger’
He could find ‘nothing to validate the petitioner’s fear’ or to warrant a ‘pronouncement’ from the court. Though the petitioner preferred the Indian, Kenyan and Ghanaian models as better safeguarded against the erosion of judicial independence, Tanzania was not ‘a lone ranger’ with a system ‘completely out of sync’ with other countries.
There was no need to legislate ‘an entirely new procedure’, as this would effectively be a ‘needless replication’ of the existing dispensation.
‘[The] position that obtains in our dispensation on appointment, and even removal of the CJ, is reflected in other countries such as Bahamas, Belize and Sri Lanka, and this is what peoples of these countries desired through their respective constitutional arrangements. It is my take that diversity of methodologies of appointment, tenure and removal of the CJ is a matter that is widely acknowledged by the comity of nations. I find no reason for any squawking. It is all in order.
‘In the upshot of the foregoing, I find this petition barren of fruits and deserving nothing less than a dismissal. … No order as to costs.’
