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Attributes of the doctrine of Independence of the Judiciary
2007-05-28 10:54:48
By Keregero Keregero
Since independence in 1961, the desire to have an independent judiciary on Tanzania Mainland has always remained a constitutional agenda, albeit, at theoretical level.
Thus, in all the constitutions enacted since independence, the preambles to the said constitutions have never fallen short of alluding to this doctrine, Dr.Cornel K. Mtaki of the Faculty of Law, University of Dar Es Salaam, so contends.
What, therefore, constitutes the doctrine of the Independence of the Judiciary, forms the essence of our continued discussion on the topic of the Independence of the Judiciary in our Legal Focus Column today.
In his article titled Independence of the Judiciary and the Legal Process, Dr.Mtaki contends that the Constitution of the United Republic of Tanzania, 1977 and the Zanzibar Constitution, 1984 both manifest traceable provisions pertaining to the democratic and liberal doctrine of the Independence of the Judiciary.
These include provisions relating to the Separation of Powers and Personnel from the Executive and Legislature.
Article 4 of the Union Constitution basically talks of separation of powers among the three organs of the state: Executive, Legislature and the Judiciary comes to the rescue of the doctrine in question.
This is underscored by Article 107B which was added by the 13th Constitutional Amendment in 2000.
Article 107B puts in black and white that the judiciary shall be the only organ charged with the administration of justice on Tanzania Mainland.
However, he argues that in terms of appointments of Judges, the role of the Executive is not excluded completely.
`For example, the President appoints Judges of the High Court after consultation with the Judicial Service Commission established by Article 112(1).The President appoints those of the Court of Appeal after consultation with the Chief Justice.
The appointment of Resident Magistrates is also supposed to be made by the President but this has been delegated to the Judicial Service Commission,` he says.
As a matter of fact it is not in contention that the judicial personnel in Tanzania is separate from either the Executive or the Legislature, so argues Dr.Nditi Nicholas N.N, a member of the Faculty of Law of the University of Dar es Salaam, in his article on The Independence of the Judiciary.
The foregoing contention is also echoed by the then Chief Justice of Tanzania, Francis Nyalali, in a public lecture on the Independence of the Judiciary in Tanzania, which he delivered on 14th October,1991at the University of Dar es Salaam, where he said inter alia: `The dimension of separation of judicial powers and personnel from the other branches of government has been developed a step further on the Mainland of Tanzania than in a number of other common law countries.
The administration of the Judicature in so far as it relates to the operation of the Courts, the appointment and supervision of supporting staff, the personnel management of judges and magistrates as well as the relevant budgeting and expenditure has for a long time been the responsibility of the Judiciary Department under the Chief Justice.`
Suffice to note that the corresponding provisions in the Zanzibar Constitution relating to the appointment of judges and magistrates are Articles 94 and 103.
Security of Tenure is another attribute. Our two Constitutions contain similar provisions on the security of tenure of judges.
Under Articles 110 and 120 of the Union Constitution a judge of the High Court vacates office upon attaining the age of 60 years while a Justice of Appeal vacates office upon attaining the age of 65 years.
In Zanzibar, judges of the High Court vacate office upon attaining the age of 65 years under the provisions of Article 95(1).
Further the office of Judge cannot be abolished while there is a person holding the office.
A Judge of the High Court both in Zanzibar and on the Mainland or a Justice of the Court of Appeal may be removed from office only upon inability to perform the functions of his office or for misbehaviour.
In either case the removal from office is conditional upon an adverse recommendation by a judicial board chaired by a judge from a Commonwealth country.
(Article 110 (5)-(8) and 120(5) of the Union Constitution, 1977 and Article 95(3)-(6) of the Zanzibar Constitution, 1984.
However, unlike judges District and Resident Magistrates hold office until promoted to a higher judicial office or until they reach the retiring age of 60 years.
Their removal from office may be on grounds similar to those upon which the Civil Service Commission removes civil servants from office.
But on the Mainland the Judicial Service Special Commission may remove primary Court magistrates from office.
The security of remuneration of judges and justices of the Court of Appeal is another attribute of the doctrine of Independence of the Judiciary.
It is provided for under Article 142(5) of the Union Constitution.
Their salaries and pensions are drawn from the Consolidated Fund and they are not dependent upon annual Parliamentary debates and appropriations.
Further, they cannot be reduced or altered to the detriment of a serving judge.
In Zanzibar Article 111(5) of the Constitution grants this security.
Magistrates both in Mainland and Zanzibar do not enjoy this security.
As contended by the former Chief Justice, security of judicial salaries and conditions of service are associated with Judges and not with magistrates through out the common law countries as enunciated by former Chief Justice Francis Nyalali in a Public Lecture on the Independence of the Judiciary in Tanzania he delivered at the University of Dar es Salaam.
Another attribute is an aspect of immunity from prosecution.
Dr.Mtaki further contends that there are no provisions on protection of judges from prosecution or litigation for acts done or words spoken in the performance of judicial duties.
However, this lacuna in the law is filled in by common law.
The magistrates are protected from litigation for anything done or said in the performance of their judicial duties only when the acts are done or words are spoken in good faith.
Judges and Magistrates are also barred from being carried away by political influence and that is why they are prohibited by law from becoming members of political parties under Articles 113 A of the Union Constitution and 97 of the Zanzibar Constitution, as that would be compromisingly suicidal to the democratic and liberal doctrine of Independence of the Judiciary.
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