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Badilisha Lugha KISWAHILI

If judges` appointment remains shrouded in secrecy, Lissu will be believed

10th September 2012
MP Tundu Lissu

It has been a woeful few weeks for the Judiciary in Tanzania. Transparency International named it as the 2nd most corrupt institution in Tanzania; a member of Parliament accused it of comprising of legally and intellectually incompetent judges; Tugendhat J, a judge of the High Court of England, Queen’s Bench Division in Reginald Mengi v. Sarah Hermitage, ordered Mengi to pay into court a sum in excess of USD 3 million in order to secure Hermitage’s legal costs on the ground that the Courts in Tanzania are so riddled with corruption that he would not subject a British citizen sued in England by a Tanzanian without assets in England, to the unnecessary risk of enforcing an English judgment in courts known for their corruption.

No doubt, the rest of the commonwealth will soon be relying on the same judgment to exact exorbitant security for costs from any Tanzanian intending to make a claim in their courts against their citizens. So essentially, we will be shut out of functioning judicial systems because the international community considers our system too corrupt to wilfully expose their citizens to.

During the Parliamentary session of 13 August 2012, Tundu Lissu an Advocate and opposition MP dared to state publicly without fear that there are judges in this country who are being appointed to the bench contrary to the requirements set out in the Constitution. For his bravado, a number of MPs from the ruling party and the Attorney General accused Tundu Lissu of bringing the judiciary into disrepute, an accusation that is premised on the assumption that our judiciary is reputable. Tundu Lissu managed to wind up his colleagues in the house to such an extent that he was promptly sent by the prefect to explain himself to the Ethics Committee.

The general public waited with bated breath for Tundu Lissu’s explanation; some members of the bar happily assisted Lissu to collect information to prove his case and others dropped their foreheads into their hands and groaned in disbelief at the trap which members of the ruling party had unknowingly sprung on the Government at the expense of the Judiciary, for everyone save for the Attorney General and the MPs calling for Lissu’s blood knew giving Lissu the stage to prove his point would only end badly.

The report which Lissu presented to the Ethics Committee was naturally leaked verbatim to the press and printed in a little known Swahili weekly tabloid called Jamhuri, in its August 14-20 Edition. I am told that the newspaper was in such demand that they had to reprint to satisfy the public’s curiosity. If this were a tennis match the score at this point would be 15 Lissu : Love the Judiciary.

Being a consummate politician, Lissu made political mileage out of the report and unilaterally expanded the terms of reference by stating that he would not only provide evidence to prove that there are judges of the High Court who have been appointed unconstitutionally but in addition he would also provide evidence to prove that there are judges of the High Court who have neither the ability nor the skills necessary for such an appointment and who are not worthy to be appointed as judges of the High Court. 30 Lissu : Love the Judiciary.

The Constitution sets 60 and 65 years as the retirement age for judges of the High Court and judges of the Court of Appeal respectively. In practice, it is quite common for presidents to extend the shelf life of judicial appointments by awarding retired judges contracts to continue serving as judges for specific time periods.

These contracts have created a number of high profile debates and discussions within the legal fraternity. In his report, Lissu suggests that these contracts are by their very nature unconstitutional and he cites Mr. Luanda JA, presently serving as a judge of the Court of Appeal and the retired Ramadhani CJ, who have both publicly argued against extending judicial service beyond retirement age by way of contract, as authorities to strengthen his argument. On an artificial level Lissu’s argument appears to be very sound indeed, particularly to those who do not have access to the Constitution. However, it is incorrect and misleading.

Articles 110(3) and 112(3) of the Constitution are categorical in providing provisos to the compulsory retirement age of judges of the High Court and judges of the Court of Appeal respectively. In both cases, where the President considers it to be in the public interest that a judge who has attained his retirement age continues in office, subject to the agreement of the judge in question, may direct that he remain in office for any period, which the President may specify.

The debate concerning the contractual appointment of judges post retirement, was to my understanding, never about the Constitutionality of the act but rather about the effect that these appointments have on judicial independence, which is founded upon the doctrine of security of tenure.

Judicial independence is the cornerstone of a democratic society and in order to ensure the existence of this independence, security of tenure must be assured so that a judge’s appointment and continued employment is not subjected to the whims of a politician.

The problem with contractual extension of judicial service is that it subjects judges to presidential whims and accordingly impacts their independence. If a judge wants to remain serving in the judiciary post retirement, there is a risk that he will feel a need to serve the President rather than the Judiciary, thus compromising his independence.

The use of contracts to extend judicial appointments post retirement age is not unconstitutional as declared by Lissu. The question that we as a society have to ask and answer is whether the power that the President has been given under the Constitution to extend judicial appointments post retirement age undermines judicial independence and if so, then we must take advantage of the present constitutional reform process and do away with it. 30 Lissu : 15 the Judiciary.

Lissu’s report commences by providing evidence to prove that incompetent people have consistently been appointed to the bench. He makes his argument succinctly and very simply indeed by naming a number of judges who have failed to write judgements or have taken a considerable amount of time to write a few judgments.

Other than corruption, one of the most common complaints about the Judiciary in Tanzania is that the courts take an inordinate amount of time to dispose of cases.

Therefore, to everyone who has had contact with the Judiciary and its slow pace, Lissu’s evidence attributing the dilatory nature of the judicial process to the incompetence of judges themselves, seems perfectly reasonable. 40 Lissu : 15 the Judiciary.

The question of ethics amongst members of the judiciary is also addressed in Lissu’s report. He names 4 serving members of the bench and suggests that they have questionable professional ethics.

According to Lissu’s report only one of the named judge’s conduct has been found wanting by an independent third party; one judge was cleared of misconduct after an internal judicial investigation; and two other judges were never charged nor investigated for Lissu’s alleged acts of misconduct.

There is no doubt that we must expect high ethical standards from our judges and people of debatable moral and/or ethical standing should not be permitted to serve on the bench.

This does not mean though that we should deteriorate into a nation of witch hunters, destroying people’s reputations on the basis of unproven rumours and punishing those who have been found innocent. 40 Lissu : 30 the Judiciary

Finally, in order to support his claim that judges have been appointed unconstitutionally, Lissu makes 2 major allegations: (1) The Constitution requires that a judge should have a first degree in law and there is presently serving on the Court of Appeal bench a judge who does not have a first degree in law; and (2) The Constitution requires the President to appoint judges from those persons who have been vetted and recommended to him by the Judicial Service Commission, and there are numerous judges presently serving on the High Court bench who have not been vetted or recommended by the Judicial Service Commission.

The Judicial Service Commission is a body that has been set up by the Constitution and comprises of 6 members; the Chief Justice, the Attorney General, a Judge of the Court of Appeal, the Principal Judge of the High Court and two additional members appointed by the President.

The Constitution requires the President to appoint judges of the High Court after consultation with the Judicial Service Commission, and pursuant to the Judiciary Administration Act of 2011 one of the functions of the Judicial Service Commission is to advise the President in respect of inter alia the appointment of judges of the High Court and the Court of Appeal.

The Judiciary Administration Act of 2011 and its predecessor, the Judicial Service Act of 2005, fail to set out the criteria upon which judicial appointments are made and the process, which the Judicial Service Commission is required to apply in vetting judicial candidates.

Other than members of the Judicial Service Commission, and probably the President, we do not know when posts on the High Court bench fall open; how names for prospective judges are proposed; how they are vetted; whether prospective judges are interviewed; what criteria are used to short list names proposed to the President; any tests which prospective judges are expected to take; the names of the persons short listed for recommendation to the President; the policy which is applied when appointing judges. It is surprising in the modern era that such highly specialised, professional and important appointments are made by so few individuals and in a cloud of mystery and secrecy.

Unfortunately this lack of transparency undermines the credibility of the appointment process itself, particularly when for over a decade, the Judiciary in Tanzania has had the consistent dubious reputation of being second only to the Police in various reports on corruption. It has to be said that the manner of appointing members of the bench has a direct and inevitable impact on the quality of the bench.

Our neighbour, Kenya has recognised this fact and amended its Constitution and in so doing relegated the role of the President in appointing judges to a ceremonial one only.

The role of the Judicial Service Commission of Kenya has been enhanced and it now consists of 11 members, including one male and one female from the Kenyan bar and two members of the general public appointed by the President and approved by the National Assembly. Article 172(2)(a) of the 2010 Kenyan Constitution requires the Judicial Service Commission of Kenya to be guided by “competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary;”.

On the other hand, the Judicial Appointments Commission for England and Wales has 15 Commissioners, amongst whom 5 are members of the judiciary, 2 from either the bar or the law society, and 5 lay members. The Chairperson of the Commission must always be a lay member. 12 Commissioners including the Chairman, are appointed through open competition.

The Judicial Appointments Commission for England and Wales advertises all judicial posts including posts for judges of the High Court. Interested persons are expected to apply and those who are shortlisted proceed to undergo a vigorous interview process including interview panels, role-playing and situational questioning.

The JAC’s key statutory responsibilities are “to select candidates solely on merit; to select only people of good character; to have regard to the need to encourage diversity in the range of persons available for selection to appointments.”

The key to a successful judiciary is diversity and appointment by merit. This can only be achieved through transparency and competitiveness. Quietly spoken recommendations amongst a select few men, followed by taps on the shoulders to those lucky enough or influential enough to be considered by a few to be worthy of joining the judicial club, has resulted in a judiciary with an unenviable reputation. Gentlemen, after years implementing a weak judicial appointments policy, the chickens have come home to roost. I am afraid to say that so long as the process of appointing judges remains shrouded in secrecy, uncompetitive and jealously guarded by the few, Lissu will be believed. Game Lissu.

Ms. Karume was called to the Bar in the Middle Temple and is an advocate of the High Courts of Tanzania and Zanzibar. She is presently Litigation Partner with IMMMA Advocates in Dar es Salaam. Email: [email protected]

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