Appointment of new Controller and Auditor General (CAG) not in infringement of any law

On November 03, 2019 in a press release issued by the directorate of communications of state house, and later, in a live broadcast the Chief Secretary announced the appointment of Mr Edward Charles Kichere (pictured) to succeed Prof Mussa Assad as the chief controller and auditor general (CAG).

Though there was a slew of appointments involving judges, regional administrative secretary, ambassador, and Commissioner for labour, what dominated the most debate in social media platforms was the appointment of the new CAG.

Members of the public and politicians had mixed reactions. Some supported the appointment and argued that the president had exercised his well deserving powers. Others, however, believed that the appointment was unconstitutional.

Zitto Kabwe, the opposition Member of Parliament on the ticket of ACT-Wazalendo political party, and who was once the chairperson of the parliamentary Public Accounts Committee called the appointment unconstitutional. Others alleged that the appointment was a deliberate move by the executive to hide possible mismanagement of public finances through dubious procurement contracts.

Mr Zitto cites the provisions of Article 144 (1) of the Constitution of the United Republic of Tanzania, Cap 2 R.E. 2002 to back his opinions. Together with other people who subscribe to his line of argument, he thinks the appointment is void ab initio for violating the basic instrument of the land that succinctly provides for procedures for removal from office of controller and auditor general.

How far is the appointment valid?

Article 144 of the constitution provides for the grounds upon which the CAG may cease to hold the office. Sub Article (1) asserts that ‘’…the CAG shall be obliged to vacate the office upon attainment of the age of 60 or any other age which shall be prescribed by law enacted by the Parliament.”

This is the first constitutional ground that may be relied upon by the appointing authority to revoke the appointment and reappoint the successor. Prof Assad was born in October, 1961.

Thus at the time of his involuntary retirement, he’s 58 years of age- two years surplus for him to be in office.

Based on this criterion, which is apparently the critics’ ground, Prof Assad is still competent and constitutionally relevant to hold the office of CAG. However, the single provision cannot be read in isolation - the law ought to be read holistically to grasp its gist. Sub Article (2) of the same Provision introduces another ground that can lead to termination of the CAG’s tenure.

It states that, “the CAG may be removed from office only for inability to perform the functions of his office (either due to illness or to any other reason…” this “any other reason’’ has not been given interpretation under the law. It’s hard to go back to the Hansards of the constituent assembly that sat in 1977 to enact this constitution to comprehend its true intent, and purposes for which this wording intended to infer.

Thus, the ground for the appointment of the new CAG might fall squarely in this unquestionable sub article of the constitution.

Further, according to section 6(1) of the Public Audit Act, 2008, the Controller and Auditor-General shall hold office for the fixed term of five years and shall be eligible for renewal for one term only. This provision is mandatory in wording and it entails that, by any means, the CAG should be in office for at least five years from the date of his appointment unless it is necessary to shorten his tenure pursuant to the provisions of Article 144 of the constitution.

The section states that, after five years, the CAG shall be eligible for renewal for one term only.

Now the question is, has this provision been complied with in appointing the new CAG? The outgoing CAG has been in office since November 5, 2015, succeeding Ludovic Uttoh who retired in September 2014.

This means, he has been in office for five years. Consequently, the appointment of new CAG is in conformity with the law. The president has rightly exercised his vested constitutional powers.

Let’s close the unhealthy debate on the legality of the appointment and give the benefit of the doubt to the well-deserved newly appointed Charles Edward Kichere.