JK move over escrow judges defended

A retired judge and other observers have defended President Jakaya Kikwete’s decision not to initiate investigations against two judges who are accused of receiving millions of shillings withdrawn from the Tegeta escrow account, saying the Head of State was procedurally and constitutionally right.

They gave their views in reaction to comments by some respected lawyers who criticised as unconstitutional President Kikwete’s move to leave the matter in hands of the Chief Justice.

The National Assembly passed eight resolutions in December including one requiring the President to form a judicial commission of inquiry to investigate judges Eudes Ruhangisa and Aloysius Mujulizi who were paid Sh404 million and Sh40 million respectively by the owner of VIP Engineering and Marketing Limited, Mr James Rugemalira. President Kikwete has already said he has left the matter in the hands of the Chief Justice because legal and constitutional procedure requires that the process to deal with the judges must be initiated by the Judiciary.

But the move was critised by some lawyers who felt that the President was avoiding his constitutional responsibility stipulated in Article 110 A (3), requiring him to suspend a judge if there is a need to investigate him or her over allegation of unethical conduct.

It reads: “Where the President considers that the question of the removal of a judge from office needs to be investigated, then the procedure shall be as follow:

(a) The President shall after consultation with the Chief Justice suspend that judge from office;

Retired High Court judge Thomas Mihayo says the word ‘consultation’ as used in the article doesn’t mean something to be done one telephone.

“Consultation means a process which has to be initiated by the Chief Justice. For the Chief Justice to move the President to suspend a judge he must do so with evidence,” he says.

He said taking the words ‘need to be investigated’ as used in Article 110 A (30 (a) means there was always a process to start with the Chief Justice before the president can suspend a judge.

According to Judge Mihayo the CJ gets the authority to initiate investigation from section 24 (1) (b) of The Judiciary Administration Act, 2011 which reads:

“The CJ shall, for purposes of achieving better, effective and efficient performance of the functions of the office of the justices of appeal, Principal Judge and judges, supervise the disposal and management of cases.

The former judge also cited section 24 (2) (d) of the same article says: “In exercising of the powers of supervision, the CJ may recommend that any matter which is subject of complaint be referred to the Judicial Service Commission.

“Now, under our Constitution a judge enjoys security of tenure. He cannot be removed from office from a declaration or a recommendation from Dodoma.

“What happened in Dodoma can only cause the Chief Justice to initiate the investigation on the conduct of the respective judges and not the president”.

How to do it?

Judge Mihayo quotes section 37 of the Judicial Administration Act which establishes the Judges Ethics Committee comprised of a judge of the Court of Appeal as its chairman, three other judges of the court of the Court of Appeal and three others from the High Court.

One of the functions of the committee is to receive and investigate complaints against a judge of the High Court or the Court of Appeal.

“So the Judges Ethics Committee must initiate that investigation. It must retrieve evidence and complaints against a judge complained of by anybody. This committee will have to call for evidence. So the accused judges and the giver of the money must be given time to defend themselves for the committee to arrive at a just and fair position

“Now, when the committee has finalised the inquiry, it will decide, depending on the gravity of the complaints and evidence, to report its findings to the Judicial Service Commission for consideration.

According to Judge Mihayo, it is at this point the Judicial Service Commission forms an opinion on the findings of the committee and informs the President.

One of the functions of the Judicial Service Commission is to advise the President in respect of misconduct of a judge inconsistence with the ethics of his or her office or with the law concerning the ethics of public leader.

“The President did not break the Constitution or abdicate when he left the matter in the hands of the CJ for initial consideration. Think of it this way; If the President suspends the accused judges and forms a tribunal, so what will be the evidence before the tribunal?

“What was said in Dodoma is not evidence because it has not come before the Judicial Service Commission nor the tribunal for consideration. You can remove a minister by a resolution of the National Assembly in Dodoma but you cannot do so to a judge who constitutionally enjoys security of tenure,” said the judge. Also commenting on the development, a reader of The Citizen, Mr Charles Byebalilo, said the lawyers who criticised the President missed the point.

“The President practically does not appoint judges but announces the judges from the JSC.

Another reader, Mr Atugonza Kabamanya, says President Kikwete was right in leaving the matter to CJ but wondered why the Judiciary was taking too long to conduct preliminary investigations on the judges.

Kabamanya said: “The separation of powers requires that the President or any other organ of the government, at all times, avoid interfering into affairs of other arms of government. The Judicial arm is headed by the CJ and all disciplinary affairs fall under the Judicial Service Commission chaired by the CJ.”