Nshala: I don’t want to believe that our judges do take orders


What you need to know:

In this exclusive interview with The Citizen, the TLS President, in his Law Day message, urges everyone in Tanzania, among other things, to play their rightful role in ensuring that the constitution and the rule of law in the country are protected and respected by everyone.

Dar es Salaam. Tanganyika Law Society (TLS) President Rugemeleza Nshala slammed the recent amendments to the law establishing the Society as nothing but a manifestation of the government’s determination to bring each and every institution that would hold it to account under its centralised control

Dr Nshala made the remarks during an exclusive interview with The Citizen on Monday where he said that the recently-passed controversial amendments are the latest in the series of blows waged against people’s civil liberties and their constitutional right to determine how they should run their affairs.

“There has been a trend of suppressing people, to force them into silence,” said Dr Nshala during the half-an-hour interview, warning against keeping quiet on what is happening. “This is a republic and no single person owns this country. The country is being governed by the constitution and the rule of laws. And no law should be enacted that is in contravention of the constitution.”

It was just four days since Parliament, during its proceeding meetings, on January 30, approved the amendments to the Tanganyika Law Society Act of 1961 which critics have pointed out that threaten to impact the Bar Society’s independence and unity.

In a manner that signalled his disbelief of what had just happened, the renowned environmental lawyer told The Citizen on the sidelines of the TLS consultative meeting with its stakeholders at one of the city hotels that he doesn’t even believe that what is happening now in the country could have ever happened.

“I thought we had made progress. That we have become a multiparty country now which abides by the respect of the rights and duties of its citizens. That our judiciary is supposed to be strong. I don’t want to believe that our judges can take orders from anyone – the President or a minister. Our judges need to be independent,” said Dr Nshala in a calm, course voice.

The following are excerpts from the interview in which, among other things, the lawyer urges everyone to play their rightful role in ensuring that the constitution and the rule of law in the country are protected and respected by everyone.

Dr Nshala thank you for granting us this opportunity to talk to us about the fate of the TLS. First thing first, can you briefly tell us, on behalf of those who didn’t follow up the recent developments closely, what new amendments exactly have been made to the TLS Act?

Thank you. The amendments made to the law concern the interpretation of the word member, that is, who is the member of TLS. The interpretation given is that a member is anyone who has paid his/her dues to the bar and is not faced with any ethical problems.

There was, also, an amendment to establish zonal offices of the TLS, something which struck us as unique and which we never asked for. Therefore, from now on, there will be about seven zones across the country. There will be zonal General Meeting and the General Meeting of the TLS. The zonal General Meeting will be attended by leaders of the respective zone. The TLS General Meeting will be attended by the TLS Governing Council leaders, regional and zonal leaders.

Another amendment required the TLS to submit its annual financial audit reports and the minutes of its meetings to the minister in charge of law and constitution.

The other change to the law concern is the requirement to form a secretariat governed by a chief executive officer whose tenure will be five years and who can be removed only after two-thirds of the member of the General Meeting approve it.

From these amendments now, which ones do you think are of most concern to you as TLS leader?

The most concerning change to the law is the requirement that the General Meeting should be attended by zonal leaders and the regional TLS Governing Council leaders. This means that TLS members, to a great extent, will be deprived of their democratic right to take part in annual General Meetings, a right that all members have long enjoyed.

And the members always met the expenses to attend these meetings themselves. TLS did not have the burden to cater for these expenses except for the nine TLS leaders whose travel expenses were covered by the Society.

But now this will no longer be the case. TLS will have to cover the expense of all the participants of its General Meetings. This is a huge burden for the Society.

Were you involved in the preparation of these amendments?

We were involved in the preliminary stages that sought to amend the TLS Act so that the requirement to hold a biannual general meeting can be removed. It was our argument as a Society that the biannual meeting done away with.

The other change that we wanted to be made to the law is the need to do our financial audits within six months since the end of our financial year which is December 31. The law required that by February TLS should have completed its financial audits, something that was quite difficult to accomplish. On these, we were involved.

But these other changes are not ours. We never wanted them. The issue like the term limit of the TLS leadership. In April 2019, in Arusha, TLS General Meeting passed a resolution that it is important that the leadership’s tenure – from the President and his/her Governing Council – extended from one year to three.

And this resolution was passed again during the TLS biannual meeting which took place in Arusha in September 2019. So it was our suggestion that for TLS to have a leadership which can implement its agenda effectively and strengthen it as an institution it is important that its leadership does not change very often.

We sent our recommendations to the government that the term limit extended. Now the government says no, instead of extending it, we are limiting it.

But it is important to remember here that the TLS strategic plan is five years. This means that if you have a frequently changing leadership there will rise some unfamiliarity with the plan by the new leadership and thus complicate the realisation of its goals. There will be no continuity. In the end, you have the feeling that these changes have been orchestrated to weaken TLS as an institution far from improving it.

Tell us more about this suggestion that TLS will from now on have to submit its audit reports and minutes of the meetings to the Legal and Constitutional Minister. What do you make of this requirement?

TLS is being run through member contributions and not by the government’s.

And according to the law, all of the fees that lawyers and advocates pay to the Judiciary – between Sh100,000 and Sh140,000 – are supposed to be brought back to TLS.

But since 1961 when the law was first enacted, the government has not brought even a single penny to TLS. Not a single penny! Every year the government takes the advocates’ money without returning it to the Society.

Okay, so members decided to contribute to the Society so that they can run it independently.

If anyone wants to ensure financial accountability within TLS, we have the Governing Council which is the highest organ in the Society.

And TLS draws membership from a wide range of cadres. We have medical doctors, engineers, accountants to name but few. So there is no doubt that we cannot work on our financial audits. We have people who can do that.

And that’s why we formed the Finance and Auditing Committee which to a great extent is formed by people with financial expertise like accountants.

Now, suddenly, you are told that the reports be sent to a government minister. What does a government minister have anything to do with our financial dealings?

It would make much sense if it was required that the reports are posted online.

There wouldn’t be any problem. Or at least the law would require that the reports go to the Chief Justice, a person whose arm of the State TLS operates under, the Judiciary. Not a government minister. We are not under the Executive arm of the State.

It is understood that whenever changes into a particular law are made there must be some motives behind the decision. What do you think are the motives behind these amendments to the TLS Act?

On the one hand – because we have to be fair – we asked the government to amend the law on issues related to leadership tenure, the abandonment of the TLS biannual meeting and the need that our financial audits are done within a relatively longer period than it was the case then.

But it is as if it was seen that this was a right time to scheme against the lawyers. Because it is seen that lawyers are independent.

They are the people who understand the law. When you enact a law, the first person you know for sure will decipher your true intention or where you’ve gone wrong is the lawyer.

It was due to this fact that when King Henry [VI] wanted to enact his oppressive laws in England he suggested that the first thing which needed to be done then in order to quell any opposition to the step is to kill all the lawyers…

Do you want to suggest that these amendments into the TLS Act are tantamount to killing the lawyers in Tanzania?

The end goal here is to silence all the lawyers. But you cannot silence the lawyers. You cannot make the lawyers accept something that is in contravention to the constitution. You have to remember that this is a country that has the Bill of Rights enshrined in its constitution.

Also, we understand that ours is a republic. This means that everyone in this country, from an ordinary citizen direct to the Head of State, is under the law.

But there are people, and this is a very terrible thing, who think they are above the law. Someone thinks that he/she can make a statement which violates the constitution and still people will keep quiet. A lawyer will never keep quiet.

But people will ask what steps did you, as a body tasked to represent the interests of the lawyers in this country, take to make sure that these amendments are not made to the TLS Act. How strong were your protests against the move?

We did an amazing job. And we did it very carefully because we didn’t want to appear to be making noise and so we pursued a well-calculated approach.

All TLS members needed to be consulted. In December 2019, there were meetings throughout the month across the country where members were able to submit their views to the TLS Legal Committee and Governing Council.

After examination, we went to Dodoma. We gave our views before the Parliamentary Committee on Legal and Constitutional Affairs. We reached out to members of the Parliament and explain the dangers posed by the amendments if they pass them as they were. But in the end, they make the decisions. They are the lawmakers!

But when you gave your views to the parliamentary committee, what gave you hope that they’d be taken seriously, considering the fact that in the past stakeholders have decried various proposed amendments into certain laws that they thought impinge on people’s freedoms and still they were ignored?

The issue here is that you cannot start complaining while you did not take any effort to meet with anyone and tell them what you think about something. You have to follow the procedures.

What are the procedures? Follow them. Give your opinion so that in the end when you come to complain you do that against a background that you did something but was ignored.

Now the law has been passed, what next?

Well, we will see. This week we have the TLS Governing Council meeting …

When exactly will the meeting take place?

It is in this week. What is important to know is that we are meeting in this week. We will reflect on what has happened and deliberate on our next possible actions. After that, we will inform our biggest stakeholder – our members – what needs to be done. But we will never stop to stress that lawyers have the right to meet, the right to democratically elect the leaders they want to lead them and whom they can hold to account.

Our members are conversant of their basic rights and freedoms. They are not ready to be silenced. They’ll read the law, they will understand how they can manoeuvre it and make sure that they continue with their work.