Tanzania’s Judiciary under scrutiny

Posted on | juli 21, 2012 | 3 Comments

Barnabas Samatta

The judiciary system in Tanzania is under the microscope after TunduLissu, Member of Parliament for Singida East (Chadema) and Shadow Minister for Justice and Constitutional Affairs, questioned the appointment of some judges and deplored the incompetence currently prevailing in the country’s judiciary system.

During his presentation in the august House in Dodoma on Saturday last week, Lissu said that some of the judges who have been named recently do not meet the standard for ‘learned judges’, and thus are incompetent to perform their judiciary duties. “When we say learned they must really be learned,” he commented.

He cited some of the problems being controversial rulings and poor command of the English language, particularly that written in certain rulings which have been given in the High Court.

“I am worried that the appointments of some judges were not based on merit but on cleptocracy, and the who knows whom syndrome,” Lissu stressed.

Commenting on this Advocate Harold Sungusia, who is the director of advocacy and reforms at the Legal and Human Rights Centre (LHRC), said that Lissu had all the constitutional rights for making such comments, but he had his reservations as well.

“I am of the opinion that it was unhealthy for Lissu to say whatever he said in the National Assembly, because apart from being an MP he is still a practising lawyer, this might have long term repercussions on his duties as an advocate,” he said.

Sungusia was worried that, while legally there was nothing wrong in what the vocal MP and fervent human rights activist had done, but psychologically some judges would feel that they were undermined in the eyes of the public by the MP.

He referred to Albert Dicey’s separation of power concept, but warned that contempt for the legislature and for the executive power has a different weight, if one was to compare them with that for the judiciary.

Sungusia said contempt for the judiciary was a sensitive matter in so many ways. He therefore called for a separate institution to conduct the vetting of judges and make comments, but such information should remain within the same profession as an internal, discrete matter.

However,Sungusia concurred with Lissu about the fact that there are a number of magistrates and judges who write their rulings in very poor English, to the extent that this could lower the respect that members of the public have towards the judiciary.

“There are some High Court rulings which have a poor logical flow and have been written in very poor language, a fact which leaves much to be desired,” he said, while showing this reporter a bunch of rulings for this particular reference.

He moreover commended Lissu for his boldness in revealing these discrepancies, which he was sure very few people are courageous enough to disclose given the nature of secrecy surrounding public institutions in Tanzania.

He attributed the mentioned weaknesses to the failure of magistrates and judges to have clear focus and concentration when writing their rulings. He cited this weakness to be a product of dependency on court clerks, without conducting a thorough proof-reading of such rulings before their tabling.

He counselled that it was proper for the magistrates and judges to use the availability of the internet facility and other means at their disposal in order to understand concepts, or indeed to seek good examples from other credible sources before writing such rulings.

The experienced legal counsel also called for thorough research on how to utilize the traditional ways of resolving some cases, in order to reduce the workload in the courts, noting that some could have been resolved through mediation.

Moreover, Sungusia mentioned that he was surprised that certain judges previously used to write very good rulings, despite the fact that they lacked the technology that current judges possess.

He praised some judges who maintain a good standard in writing judgments, for example retired Chief Justice Barnabas Samatta, Judge Dr FauzTwaib, Judge Robert Makaramba and Judge Ibrahim Juma.

For his part, retired Judge Buxton Chipeta, currently working with Hallmark Attorneys, says that one needs to look at Lissu’s statement very carefully because he has a double role, as a legal counsel and also as a politician.

He said each arena of these two has its own rules of conduct. The retired judge, who is an advocate of the High Court and courts subordinate thereto, adds that the statement uttered by Lissu was made inside the Parliament, which was the correct avenue.

He justified his stance by adding that all matters pertaining to the running of this country were being discussed or criticized within the same august House, the judiciary not being an exception.

Although he was very careful in his language, Judge Chipeta’s message was loud and clear that there were elements of truth in the statements that were made by Lissu, on two grounds.

Judge Chipeta admitted that he has never dealt a lot in Tanzanian cases because many of his cases are foreign ones, but admitted that even in those few he had managed to see, he had observed that there is a lot of reference and quotations of foreign cases, which is not healthy for Tanzania’s judiciary.

He advised that magistrates and judges should start by referring to local cases; given the fact that now the internet is at their disposal. He said after failing to get those then they should turn to the Commonwealth, namely Britain and India, thereafter they can venture elsewhere.

“During our time you had to sweat looking for cases for reference, you had to visit the archives, newspapers and many files before you got the right stuff,” he added.

Moreover he advised those who want to comment on the weaknesses in the judiciary that they must conduct thorough research before they do so, lest they face defamation charges.

Judge Chipeta, who has published a number of books which have turned out to be very helpful in the judiciary, said that one needs to analyse politics in Tanzania before coming up with a good and conclusive statement.

He added that other areas that need to be consulted prior to making any useful statement is the office of the chief justice, of the principal judge, and to know the norms and standing orders guiding the judiciary service commission of Tanzania.

Judge Chipeta said during his time and until the time of his retirement in 2002, Tanzania had 19 judges only, but currently there are more than 60 judges, in fact he sees the increase might have compromised the quality.

A distinguished professor in law and a legal counsel, Professor Abdallah Saffari, says he fully supports Tundu Lissu, and lauded the MP for delivering the message in Parliament, which was the right avenue but very belated.

“I have been saying this for quite some time, but the only problem is that I did not have the right avenue for delivering my message,” he commented.
He lauded Lissu for choosing the right place to deliver the statement because his message will now reach the right destination, taking into consideration that all eyes are on Dodoma during the budget session.

“He has spoken it loud and clear to be heard by all the parties concerned. It is one of those moments where serious minds will find ways to improve the situation in the judiciary,” he added.

He narrated how he was embarrassed when the Court of Appeal quashed an independent candidate appeal, which was a clear indication of how weak Tanzania’s judiciary could become at times.

On the other hand, he praised retired Chief Justice Barnabas Samatta, when he was delivering a speech at the Ruaha University, where he was categorical that denying people the chance to contest as independent candidates was undemocratic and contravened the Constitution of the United Republic of Tanzania.

Professor Saffari noted that Tanzania lacks the Supreme Court, which was a discrepancy in itself taking into consideration that other neighbouring countries like Kenya, Zimbabwe, and Zambia have such a court in place.

He also called upon the judiciary at all levels to improve the level of English language which is a working language, and said if one was to judge the situation as it is now he would term it the ‘English pandemonium’ in the judiciary.

He concluded by advising his colleagues in the legal sector to emulate standards that were set by former judges, the likes of late Justice Yona Mwakasendo, the late Justice Kahwa Rugakingira, the late Justice Dan Mapigano and many others of their status.

Reacting to Lissu’s speech in Parliament, the Attorney General Judge Frederick Werema called for the MP to retract some words which he said were harsh and could demean the status of the judiciary in the eyes of the general public, but Lissu declined and maintained his stance.

AUTHOR: Elias Mhegera
URL: http://mhegeraelias.blogspot.com
E-MAIL: mhegeraelias [at] yahoo.com

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Comments

3 Responses to “Tanzania’s Judiciary under scrutiny”

kachibo yusuf a.
juli 26th, 2012 @ 15:50

Thanks for the good news bring for us, especially to my self, but to keep you modern if is not a spelling era, we do not call a lawyer as in law, example professor in law ,this is wrong ,but we say professor of law, the previous have different from what you in mean to the law………thanks,by kachibo yusuf AbAs,A lawyer.
kachibo yusuf a.
juli 26th, 2012 @ 15:54

Thanks for the good news you bring for us, especially to my self, but to keep you modern if is not a spelling eror, we do not call a lawyer as in law, example professor in law ,this is wrong ,but we say professor of law, the previous have different meaning from what you mean to the law………thanks,by kachibo yusuf AbAs,A lawyer, this is amending the previous
Elias Mhegera
juli 26th, 2012 @ 20:39

noted with thanks Mr Kachibo but I will thankful if you give me the difference between a professor in la and a professor of law