Court: Magufuli’s sacking of CAG was unconstitutional

Prof Mussa Assad

Summary

  • Mr Kabwe’s counsels argued that the removal of Prof Assad after the expiry of first term of five years before attaining the compulsory retirement age of 65 years was unconstitutional

Dar es Salaam. The removal of former Controller and Auditor General (CAG), Prof Mussa Assad, was unconstitutional, the High Court declared yesterday.

Three judges have granted an application filed in 2019 by opposition politician Zitto Kabwe and declared that section 6 (1) of the Public Audit Act No 11 of 2008 was unconstitutional for offending Articles 26 (1) and 144 (1) of the constitution.

Mr Kabwe claimed that the removal of the former CAG violated the constitution as he was removed from office before expiration of his constitutional term.

His main argument was that section 6 (1) of the Public Audit Office offended articles 26 (1) and 144 (1) of the constitution for being incompatible with section 6 (2) (a) of the Public Audit Office that extended the tenure of the office of the CAG from 60 to 65 years in line with permission given by article 144 (1) of the constitution.

The judges agreed with Mr Kabwe the sections in the Public Audit Office set office tenure for the CAG in violation of the constitution.

Mr Kabwe’s counsels argued that the removal of Prof Assad after the expiry of first term of five years when he was only 58 years old and before attaining the compulsory retirement age of 65 years was offensive to the constitution.

“On our part, we have no doubt that the above statement of principle is still valid today as was before, and perhaps, very relevant in the prevailing circumstances than it was then.

“The first respondent (The President of the United Republic of Tanzania) was constitutionally bound to ensure that the fourth respondent remains in the office until he attains the age of sixty five years unless he is found guilty of committing acts not compatible with the office, dies or resigns.

The judges further sided with Mr Kabwe that the constitution affords only two avenues which the CAG may leave office; the first being when the CAG attains the age of 60 years or any other age that may be prescribed by the law.

They said the second avenue was through removal of the CAG from the office by the president on the grounds of inability to perform his functions due to illness or any other reasons or on ground of misbehavior and only upon advice of a properly constituted special tribunal to the first respondent.

“In our considered view the framework of the above provision does not envisage any other avenue through which the CAG may either vacate his office or be removed from the office,” said judges Benhaj Masoud, Juliana Masabo and Edwin Kakolaki.

However, the court yesterday declined to grant a prayer by Mr Kabwe who had sought a declaration that the appointment of the new CAG Charles Kichere was unconstitutional, saying the issue had already been overtaken by events.

It was Mr Kabwe’s contention that the termination of Prof Assad’s tenure and the subsequent appointment of the third respondent (Mr Kichere) were both violative of the Constitution as Prof Assad was still the holder of the office of the CAG.

“Considering what has already happened, regarding the appointment of the third respondent (Kichere), the swearing in, the handover, and the duties and responsibilities that have since been discharged under article 143 of the Constitution, we hasten to say that the issue whether the appointment of the third respondent is unconstitutional has already been overtaken by event.

One of the lawyers who represented Mr Kabwe in the petition, Rugemeleza Nshalla said the decision was partly pleasing and partly wanting, saying the judges’ refusal to declare the appointment of the new CAG unconstitutional was displeasing.

“We are happy that the court has finally declared that remove of the former CAG was unconstitutional but it is unfortunate they declined to declare that the appointment of the new CAG was also unconstitutional too,” said Mr Nshalla.

Prof Assad’s sour relationship with the government started when he gave comments that sparked huge criticism from top government officials and the National Assembly.

During a radio interview while on a working trip to the US last December, Prof Assad described the Tanzanian parliament as “too weak” to hold the government accountable for frequent expenditure discrepancies exposed in past CAG annual audit reports.

He was summoned before a parliamentary sub-committee in January to explain the remarks and the committee concluded that his apology was not sufficient and subsequently recommended his ostracising by the entire parliament.

On Tuesday April 2, the House through a parliamentary resolution, refused to work with Prof Assad any more.

Mr Kabwe is on record as saying there had been a plan for a while to remove Prof Assad from the CAG position because he was resolute, takes bold positions and does not obey orders from above. Constitutionally, they have failed.

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