Hot Bunge debate over acting CJ

Dodoma. The Shadow Minister of Constitutional and Legal Affairs yesterday sparked hot debate in Parliament when he raised legal concerns about having an acting chief justice in office for nearly four months.

Mr Tundu Lissu (Singida East -Chadema) questioned the constitutionality of the Judiciary not having a permanent leader since January, this year.

Following the retirement of Justice Mohammed Chande Othman on January 1, President John Magufuli appointed Court of Appeal judge Ibrahim Musa acting Chief Justice.

Mr Lissu, who is also the Opposition Chief Whip and President of the Tanganyika Law Society (TLS), made the remarks while presenting the Opposition’s alternative budget speech after Constitutional and Legal Affairs minister Palamagamba Kabudi had presented his docket’s 2017/18 budget estimates.

Mr Lissu noted that Article 118(4) of the Constitution gave powers to the President to appoint an acting chief justice only when the CJ was absent from Tanzania or unable to execute his or her duties for any reason.

“The Opposition is of the view that President Magufuli has violated the Constitution by failing to appoint a CJ for almost five months since Justice Othman’s retirement. This is because Article 118(4) does not provide for the President to appoint a person to act as CJ indefinitely,” he said.

The statement was strongly opposed by government Chief Whip and Minister of State in the Prime Minister’s Office, Ms Jenista Mhagama, who told the House that the President had not in any way violated the Constitution since Article 118(4) was not specific as to how long an acting CJ could be in office.

House chairman Andrew Chenge concurred with Ms Mhagama’s argument, and ordered Mr Lissu to retract his statement that the President had violated the Constitution and that the remark be expunged from Hansard.

Mr Lissu then told the House that a legitimate question that needed an answer was how long an acting CJ could be in office.

“That is a constitutional query that needs interpretation by a court. However, we are of the view that five months is a long time for an acting CJ to be in office. This is because since we became independent, at no time has the President failed to appoint a fully-fledged CJ.”

Mr Lissu said since the National Assembly had the Speaker and Deputy Speaker and the Executive was headed by the President assisted by the Vice President, the Judiciary should not be an exception.

“The Judiciary not having a full-time leader for almost five months creates the impression the Judiciary is inferior to other pillars of the State,” he added.

The statement was challenged by Attorney General George Masaju, who wanted the word “inferior” expunged from Hansard, but his argument was quashed by Mr Chenge, who directed that Prof Kabudi clarify the matter and other arguments raised by Mr Lissu.

But Mr Lissu was relentless in his criticism. “The situation also further creates the wrong impression that the acting CJ is not fit for the position or that there is no suitable candidate in the entire High Court and the Court of Appeal or the entire legal fraternity in the country and the entire Commonwealth to be appointed CJ,” he said.

He ended his speech by asking Prof Kabudi to advise the President to confirm Prof Juma to the position or appoint another lawyer who the Head of State deemed fit for the position.

Winding up debate on his speech, Prof Kabudi said dragging matters of the Judiciary into Parliament was an “abomination”.

He added, however, that irrespective of whether a CJ was holding the post in an acting capacity or not, the powers bestowed on the office did not change.

“That is why an acting CJ has to be sworn in…regardless of whether one holds the office in an acting capacity or not, the powers and privileges that come with the office are the same,” Prof Kabudi said.

He also dismissed Mr Lissu’s assertion that it was the first time a president had appointed an acting chief justice. “Between 1964 and 65 we had an acting CJ simply because President Nyerere no longer wanted a white person in the position. We had to wait for the first black CJ, who came from Trinidad and Tobago.”

In his budget speech earlier, Prof Kabudi made no mention of the stalled constitution review process and neither did he ask Parliament to approve funds for the revival of the process. He asked the House to approve Sh166 billion for recurrent and development expenditure.