Wednesday, February 21, 2018

The question about judges’ freedom of movement


By Fatma Karume

I am old enough to remember the time when Law Day belonged to the Chief Justice of the United Republic of Tanzania. It was a day when he articulated his vision, his hopes, aims for the coming year, and his achievements for the previous year. It was the one day of the year when the Chief Justice talked to the general public about the judiciary and in turn the President of the Law Society addressed our visions and hopes as officers of the Court. The last such Law Day was under Barnabas Samatta, CJ.

Since the very first invitation of a President (I am old enough to recall this too) to the annual opening of the court year, known as Law Day, the sobriety which used to accompany this event has ceased. The cacophony of voices in the new politicised version of Law Day has buried once and for all whatever message the Chief Justice has to give. There is so much noise now that only those who like to clap; those who are obliged; and the truly brave attend. The rest of us wait to hear what the media, both official and social has identified as the “theme” for Law Day.

The Law Day 2018 “Theme” was judicial travel during hard-earned vacations. Apparently, as with members of the civil service, judges are also expected to seek permission from the President to travel outside the country even when travelling during their vacations and on their expense. To add injury to the insult, those judges who have acquiesced and dutifully sought permission to travel were cross-examined publicly on their means.

Apparently, based on their salaries, they ought not to have the means to travel abroad. At this conclusion, there was a large cheer from the clapping crowd and lots of appreciative chuckles from those who begrudge the judiciary their Constitutional and personal independence.

I am not one of those who chuckled. Judges in this country have a right to 28 days leave in every year of service. Judges and their spouses have a right by law to a diplomatic passport and not a civil service passport. When they travel on leave, if they are travelling by air, judges have a right by law to a business class ticket with their spouses and children. So that we are clear, the law does not limit this right to travel within the country.

The government is bound by law to pay for a judge’s ticket during vacation, even if he wishes to travel to the North Pole and if he wishes to take his spouse and children to cooler climes, then that is by law the judge’s prerogative and the government has a duty to pay for business class tickets. That is what the Judges (Remuneration and Terminal Benefits) Act No. 16 of 2007 proclaims until such time as it is amended.

I want to know why a judge of the High Court going on vacation abroad had to pay for his ticket and his wife’s ticket and his children’s tickets out of his own pockets. The law of this country requires the government to pay for these tickets. I have one simple question, which no doubt will be met with silence: Why did the government not abide by the law?

If as erroneously intimated, judges who travel abroad cannot afford to do so on their salaries, and are accordingly corrupt then government should pay for their tickets as required by law. At least that would close one door to corruption. There was a lot said in the judges’ defence and the purpose of this article is not to repeat it all but to add an argument that with some concern, I have not read anywhere else.

I was personally perturbed to learn that members of the Judiciary have been reduced to seeking permission from the Executive to travel outside the country during their vacations even when paying their own way. When you seek permission from another person to travel, it necessarily means that the person from whom you are seeking permission has the right to grant or refuse you the permission.

When did the Judiciary become so beholden to the Executive that the manner in which an individual judge chooses to spend his free time must first be approved or denied by the Executive? This state of affairs is worrisome.

When the guardians of our Bill of Rights, believe that they have to seek permission from the Executive to exercise their right to freedom of movement, we are truly sailing in troubled waters indeed. I do not even want to imagine a judge of the High Court sitting down and penning a letter to seek permission to exercise his legal and constitutional right to travel during a vacation paid for by himself. The thought alone sends me into a tailspin.

For those of us who have forgotten, be it conveniently or otherwise, article 17(1) of the Constitution of the United Republic of Tanzania guarantees our right to freedom of movement inside and outside Tanzania, save in limited circumstances. The said article provides:

(1) “Every citizen of the United Republic has the right to freedom of movement in the United Republic and the right to live in any part of the United Republic, to leave and enter the country and the right not to be forced to leave or be expelled from the United Republic.

I have no doubt that my article will prompt some people, who shall remain nameless, to use their expertise to interpret article 17 in all manner of interesting ways, so as to justify presidential powers over an individual judge’s right to freely leave and enter the country when on vacation.

My argument is a simple one with neither genius nor disingenuousness. Article 17(2) of the Constitution sets out the exception to our inalienable right to freedom of movement and that exception must be made under a law or a lawful act. A lawful act, means an act that is premised on a law.

To those geniuses amongst us, if the President’s requirement that judges seek his leave before travelling abroad is a lawful act, I ask only that you name the law that empowers him because I will challenge it as unconstitutional and then we shall see the interpretation of article 17 of the Constitution, which the judiciary will favour, mine or yours. I am waiting patiently. If such a law does not exist, then there is only one thing to do. For the sake of our civil liberties, it is high time that we all start distinguishing between our rights and obligations under the law and our rights and obligations under the will of an individual. In my view, in the latter case, we have no obligations, but only our rights to protect.

I hope when my grandchildren read this article they will be confident of their rights and they will appreciate that their civil liberties were not gifted but were hard fought.

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 Senior Litigation Partner with IMMMA Advocates in Dar es Salaam.