INTEGRITY FIRST : What’s wrong with our judiciary?

In his book Law’s Empire, Prof Ronald Dworkin says: “We live in and by the law.’’ A legal system has a long history since time immemorial. God established the Jewish legal system for Israeli community on their way from Egypt to the Promised Land because he knew they couldn’t make it without any law.

Chapter 20: 1-17 of the book of Exodus, in which God for the first time introduced the Ten Commandments, is the origin of all legal systems worldwide. The Ten Commandments were then developed into 613 laws, which governed Israelites.

The 613 laws, which were coded by Prophet Moses, are available in the books of Exodus, Leviticus, Numbers and Deuteronomy in the Bible. The rule of law, which is a common phrase we hear today, is the concept derived from God’s legal history as provided in Mosaic Law.

The Jewish legal system was then developed into a common law system used today in many countries, including Tanzania. Unlike Moses’ times, a modern legal system is managed by three constitutionally established arms of state - the legislature, the executive and the judiciary. The legislature enacts statutes and the executive branch under the President enforces laws for maintenance of peace and order for our well being, while judiciary is the interpreter of laws and dispenser of justice.

The state of judiciary according to Warioba Commission’s report

Since the judiciary is the dispenser of justice, it is, therefore, responsible for making sure justice is not only done, but is also seen to be done. The judiciary must thus be a ‘holy institution’ managed by ‘holy hands’. Unfortunately, our judiciary, for a long time, has been in the spotlight of corruption - it has been ranked one of the top three corrupt public institutions. Others are the Police Force and the public health sector.

In 1996, President Benjamin Mkapa appointed a Commission of Inquiry Into Corruption, which was chaired by retired Judge Joseph Warioba (the Warioba Commission on Corruption). The aim was to inquire into the state of corruption in the country and recommend measures on how it could be curbed. The commission issued a very detailed report, which has been used by the government to formulate policies and enact laws focusing on improving integrity and thus reduce the rate of corruption in the country.

The Warioba Commission was satisfied that corruption was widespread in judiciary, in particular, in primary courts. While the commission found the apex of judiciary, which is the Court of Appeal was still clean, the rest of the judiciary wasn’t all that clean. The commission commented: “Corruption is also beginning to penetrate the levels of District and Resident Magistrates’ Courts. Indeed, High Court judges too are becoming vulnerable’’. That was more than 20 years ago. How is the state of judiciary today?

We need the judiciary, where integrity prevails

Last month, two High Court judges were reported by media outlets to have resigned. Although no reasons were given in detail, The Citizen of Wednesday 17, 2017 hinted that one of them was alleged to have benefited from the IPTL Escrow money and the other was alleged to have deeply entangled in mishandling of drug trafficking cases. Last week, another judge resigned - making the number of resigned judges to be three within one month! Why do they resign! We need an explanation if we are to trust the judiciary.

Precisely, our Constitution does not provide an option for the resignation of judges and justices of appeal except for Chief Justice, (Article 118(2)(a), thus we could anticipate that judges implicated in dubious deals are removed from office according to constitutional requirements, but not resigning. Judges and Justices of Appeal before compulsory retirement can only be removed from office according to Articles 110A & 120A(2) of the Constitution, unless if it is provided otherwise in the Judiciary Administration Act, 2011 or other law I do not know.

In 2015, two judges of the High Court were implicated in the Escrow account scandal in which they are alleged to have received a share of the escrow money from a famous businessman and one judge is one of the two. One of the resolutions of the National Assembly wanted those judges to be investigated on the ground of receiving part of the money, which was a fruit of the escrow money.

Retired President Jakaya Kikwete promised to deal with it as provided for in the Constitution of 1977 vide Article 110A. Ironically, nothing has been reported since then, until recently, when it was revealed that one of the judges of High Court, who were implicated in escrow deal, had resigned.

According to Article 113(2), control of discipline and removal of judges from office is vested in the President, while the Judicial Service Commission has an advisory role according to Article 113(1) of the Constitution of 1977 and the Judiciary Administration Act, 2011. However, with all the reforms that the judiciary and executive have been doing since 1996, we would anticipate that the rate of corruption in the judiciary would have substantially reduced if not stamped out completely.

If the resignation of these judges is due to misbehaviour, which puts us in doubt whether we are served by the judiciary, where integrity is taken as an essential element before a person is appointed as magistrate, judge or Justice of Appeal. Members of the public deserve information why certain judges resign. If judges of High Court are also vulnerable to corruption, how ordinary citizens can expect to get justice in our courts? No justice can be done and seen done without having a clean judiciary.

Why appoint Acting Chief Justice this time?

Another thing, which also drew attention of many people, in particular the legal fraternity, was the appointment of the Acting Chief Justice (Ag CJ). To some extent, the resignation of the three judges and the appointment of Ag CJ have tarnished the image of the judiciary and thus raised controversial questions on the integrity of the judiciary as the dispenser of justice.

The appointment of the Ag CJ at this time, while the judiciary is in place for many decades after independence has also raised eyebrows whether our judiciary has a well devised succession plan or not. We can logically question, why the President appointed the Ag CJ, while it was known that the incumbent CJ was to retire this very year. Retirement is not an accident; it is well known that it would certainly happen on a certain date, month and year. President Magufuli had already spent one year in office before the retirement of CJ Othman Mohamed Chande and thus both were in a position to know in advance, who would take over the post of CJ after the latter retires.

Interestingly, the judiciary is not short of well educated and experienced Justices, who qualify for the appointment of CJ. Therefore, the appointment of one of them just to act in the capacity of CJ casts doubt on the integrity of our judiciary. The current appointee in the capacity of CJ, Prof Ibrahim Juma is a highly learned person and has sufficient knowledge and experience of the judiciary for many years after serving in the judiciary as High Court Judge and later as Justice of Appeal in the Court of Appeal.

Appointing Ag CJ means that the President and the Judicial Service Commission, either were not well informed in advance that CJ Chande was to retire this year or the President still has no full confidence with all members of the judiciary, including Judges and Justices of Court of Appeal. Whichever might be the reason for the appointment of Ag CJ, the same raises doubts on the degree of integrity of our judiciary and its succession plan.

Prof Kabudi and defence of Ag CJ

In winding up of his budgetary speech in Parliament recently, the minister of Constitutional and Legal Affairs, Prof Palamagamba Kabudi, defended the appointment of the Ag CJ this time, as something acceptable and constitutional referring the appointment of Georges, who was a citizen of Trinidad and Tobago. Georges was appointed as Ag CJ in 1964.

With due respect, the defence of Prof Kabudi is inappropriate this time because Justice Georges was a foreigner and Mwalimu Nyerere had well articulated reasons to appoint him in the acting capacity first so as to test his competency and integrity in serving the country as CJ. This was done because at that particular time most of members of the judiciary were British foreigners and Mwalimu for his own reasons had no longer interest in them to continue serving in the post of CJ.

Has President Magufuli no confidence in the judiciary?

Today, our judiciary is full of highly educated Judges and Justices of Appeal, some of them with PhDs. Did President really need to appoint Ag CJ this time? All constitutional provisions, which allow the President to appoint Ag CJ are well understandable - that he may appoint Ag CJ according to Article 118(2)(a) (b) and (c). Since last CJ retired according to Article 118(2), there was no apparent reason for the appointment of Ag CJ unless President is not comfortable with the performance of the judiciary, something that makes him spare the post of CJ until he knows better, who is fit for the post.

On the other hand, no secret that President Magufuli on several occasions has been doubting the performance of the judiciary, particularly, when he learns that the state is a ‘victim’ of the judiciary because of losing cases, which he confidently hoped to win.

In principle, President Magufuli should understand that the judiciary is constitutionally independent, whose members need only to do justice for all without fear or favour. From the foregoing, if our judiciary is not clean enough, then the President must take all appropriate measures to clean it.

Because, as Mwalimu Nyerere well observed: “People must trust their judges and magistrates because they know them to be men like themselves – though with an unimpeachable degree of integrity’’. Citizens cannot feel are free, unless, as Mwalimu Nyerere maintains, are confident that their cases will be impartially judged even if it is a case against the state itself.

The author is a Dar es Salaam lawyer/journalist.