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Parliamentary Debate over Escrow Scam: How Far is the Judiciary

Independent in Tanzania?

Michael John Marere1

Abstract

This article questions the independence of judiciary in Tanzania with regard to the

erstwhile parliamentary debate over the illustrious Escrow scandal. As far as I can tell,

judiciary needs and is worthy of insulation from the other two organs of the State viz. the

Executive and the Parliament to ensure there is adherence of the rule of law. Nevertheless,

with due respect to the erstwhile Escrow saga in the parliamentary debate the spirit of

independence of judiciary has been to some extent vitiated as sprung the dilemma on

whether the parliament was veracious in debating on the same despite the judicial

injunction pending the determination of the main case.

It is therefore, the primary purpose of this article to examine whether the judiciary of

Tanzania is independent from the parliament considering the claimed unfettered freedom

of the parliament to debate on various issues, taking Escrow scandal as the point of

reference. The article instigates by giving the definitions and the conceptualisation of the

fundamental terms as they have been applicable in this context. Also, the Article discuss

the legal foundation for the doctrine of judicial independence in Tanzania, however, this

has been done from the Constitutional perspective whereby different provisions of the

Constitution have been visited. In addition, the Article deliberate the dilemma on the

approach of the parliament over the Escrow scam debate whereas the two schools of

thoughts i.e. the proponents and opponents have been considered with their arguments.

Moreover, this Article examine the soundness of the parliament approach to debate over

the Escrow scam and lastly the conclusion is offered.

1 Mzumbe University, Bachelor of Laws (LLB), Tutorial Assistant, Tumaini University Makumira- Southern Highlands University College [SHUCO], Mbeya. E-mail: advmarere@gmail.com Phone No;- +255717065083

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Key Words: Judicial independence, Parliamentary powers and Escrow scam

Introduction: Definition and Conceptualisation

Judicial independence is an idea that has both internal (normative) and external (or

institutional) aspects. From a normative viewpoint, judges should be autonomous moral

agents, who can be relied on to carry out their public duties independent of venal or

ideological considerations. Independence, or impartiality, in this sense is a desirable aspect

of a judge’s character.2

But judges are human, and the things they must decide can matter greatly to people.

Therefore, we are also concerned with providing institutional shields against the threats or

temptations that might come their way.3 Judicial independence, in this sense, is a feature

of the institutional setting within which judging takes place. Institutional judicial

independence is, however, a complex value in that it really cannot be seen as something

valuable in itself. Rather, it is instrumental to the pursuit of other values, such as the rule

of law or constitutional values.4

However, in this Article, the focus is given on institutional aspect of the judicial

independence vis-à-vis other organs of the State especially the Legislative organ of the

state (parliament). It has to be born in mind that the judiciary is to be rendered totally

independent, both of the people and the legislature. The judges when taking oath for the

office avow to administer justice “according to law without fear or favour, affection or ill

will” in order to perform this task a judge must be impartial. In order to be impartial a judge

must be independent; personally independent, that is free of personal pressures and

institutionally independent, and that is free of pressure from the other State organs viz.

Executive and Legislature.

2 John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, Southern California Law Review [Vol. 72:353, pg. 353 3 Ibid 4 Ibid

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Despite the fact that, the importance of judicial independence is appreciated and

acknowledged by most of the people in Tanzania, the precise nature and extent of judicial

independence remains controversial as the recent parliamentary discussion over Escrow

scandal is the mirror image of this dilemma on the extent of judicial independence vis-à-

vis other organs of the State viz. Legislature. The parliamentary discussion over the Escrow

scandal aroused the strong debate among legal scholars and politicians on whether the

parliament was correct to debate on the same notwithstanding the injunction of the High

Court of Tanzania [Dar-es-salaam Division]. It is from this backdrop whereas this Article

emanated for the intention of making an appraisal of the judicial independence in Tanzania

vis-à-vis other organs of the State viz. Legislature, taking Escrow Scam as the point of

reference.

Legal Foundation for the Doctrine of Judicial Independence in Tanzania:

Constitutional Perspective.

The doctrine of judicial independence in Tanzania is well reflected in various legal

frameworks, however, this Article discuss the legal foundation for the doctrine of judicial

Independence from the constitutional perspective. The following are some of the legal

provisions from the Constitution of the United Republic of Tanzania5 to be referred herein

as the Constitution, which set the foundation for judicial independence in Tanzania:

Preamble: Foundations of the Constitution

The Preamble has been ruled not to be part of the Constitution, however the significance

of the same remains indispensable since the same set out the foundations upon which the

Constitution is made. In the Preamble the constitution affirm the principle of judicial

independence as one of its foundations. The Preamble provides inter alia that; “…AND

WHEREAS those principles can only be realised in a democratic society in which the

Executive is accountable to a Legislature composed of elected members and representative

of the people, and also a Judiciary which is independent and dispenses justice without

5The Constitution of the United Republic of Tanzania, 1977 [As amended time to time]

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fear or favour, thereby ensuring that all human rights are preserved and protected and that

the duties of every person are faithfully discharged…” [Emphasis Mine]

From the above provision from the preamble of the Constitution it can be argued that, the

doctrine of judicial independence is the sole foundation of the Constitution as the same is

of significance in ensuring that all human rights are preserved and protected.

Article 4: Separation of Power

The doctrine of judicial independence in Tanzania can also well be founded on the

constitutional principle of separation of power. The principle of separation of power is

indirectly recognized in Article 46 which goes further and forbids interference of one

branch by the other branch of the State. Sub Article 1 provides that “All state authority in

the United Republic shall be exercised and controlled by two organs vested with executive

powers, two organs vested with judicial powers and two organs vested with legislative and

supervisory powers over the conduct of public affairs.” This provision establish the organs

of the State and vest them with traditional functions each organ has to perform without

undue interference with each other.

Sub-article 3 states and deserves to be quoted in Kiswahili for clarity: Hakuna mamlaka

itakayoingilia Mamlaka nyingine isipokuwa kama na kwa kadri ilivyoelezwa katika Katiba

hii. This provision limit the interference of the established organs of the State, save only

for the exception under the same Constitution. However, the principle of separation of

power in Tanzania has been subject to critique by various scholars, as system of

government is actually based on the colonial version of the Westminster (British) system.7

Article 107B: Independence of Judiciary

In exercising the powers of dispensing justice, all courts shall have freedom and shall be

required only to observe the provisions of the Constitution and those of the laws of the

land. This provision of the Constitution expressly emphasize on the doctrine of

6 The Constitution of the United Republic of Tanzania, 1977 [As amended time to time] 7 Issa G. Shivji, Debating Constitutional Amendments in Tanzania, Hakielimu, Working Paper 3. Pg. 1

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independence of judiciary in Tanzania as it recognise the need for freedom of the judiciary

in dispensing justice.

Article 109: Qualification and Appointment of Judges

A good place to start on institutional independence is qualification and appointment

process of judges. The qualification and the appointment process of the judges is of

paramount important in ensuring that the quality and independence of mind of those

appointed is guaranteed. It is this factor that necessitate the need for the appointments of

the judges at all heights to be made on merit, with appropriate provisions for the progressive

removal of gender imbalance and other historic factors of discrimination.

At onset, Article 109 (1) provides that ‘There shall be a Principal Judge of the High Court

(who in the following provisions of this Constitution shall be referred to as the “Principal

Judge”) and other Judges of the High Court who shall be not less than thirty who shall be

appointed by the President after consultation with the Judicial Service Commission.’

However, this system of appointment of the judges has been open to the criticism that, it

make the appointment of the judges subject to political influence, as it give the President

who is typically part and parcel of the Executive wider power in the appointment of the

judges, something which may affect their impartiality in dispensing their duties in matters

involving the government interest.

Also, Article 109 (7) provides for the special qualifications for one to be appointed the

judge. The Article states that ‘For the purposes of construing sub Articles (6), (8) and (10)

of this Article “special qualifications” means a person who holds a degree in law from a

University recognized by the accreditation authority in Tanzania, and (a) has been a

magistrate; (b) has held an office in the public service while possessing qualifications of

attorney or has been a private advocate; (c) possess qualifications for enrolment as an

advocate and, has possessed those qualifications continuously for a period of not less than

ten years.’

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However, Article 109 (8) offers an avenue for the President to scorn with the qualification

of time as it provides that ‘Where the President is satisfied that a person holding one of the

special qualifications has not held that qualification for a period of not less than ten years,

but that that person has the ability, knowledge and in every respect is suitable for

appointment as Judge of the High Court, and there are reasons which make such person

deserve to be so appointed, then the President may dispense with the requirement that such

person shall have held the special qualifications for a period of not less than ten years, and

may after consultation with the Judicial Service Commission, appoint that person Judge of

the High Court.’

Article 110: Tenure of the Office

The security of tenure of the judges is an important safeguard of judicial independence. In

Tanzania the security of tenure has been stipulated under the Constitution, Sub Article 1

state that ‘Every Judge of the High Court shall vacate his office on attaining the age of

sixty years …’ Sub Article 2 make it clear that ‘Any Judge of the High Court may retire

from office in the service of the United Republic at any time on attaining the age of fifty

five years, except where the President directs that he should not retire from office, and if

the President so directs, then the Judge to whom the directions of the President relate shall

not retire from office until the expiry of the period specified by the President for that

purpose.’

Correspondingly, sub Article 3 states that, ‘In the event that the President considers it to

be in the public interest that a Judge who has attained sixty years of age continue in office,

and the Judge agrees in writing to continue in office, then the President may direct that the

judge continue in office for any period which may be specified by the President.’ Sub

Article 4 illuminate that ‘Notwithstanding that a Judge has attained the age at which he is

required by the provisions of this Article to vacate office, a person who was holding the

office of Judge of the High Court may continue to perform the functions of that office after

attaining that age until he completes the preparation and delivery of the decision or until

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he completes any other business in connection with matters which he had started hearing

before attaining that age.’

Article 110A: Disciplinary Procedure

Judges are rightly expected to conduct court proceedings with courtesy and to do nothing

that throws doubt on their impartiality. Out of court they must be careful to do nothing that

would bring the judiciary into disrepute. So far as misconduct is concerned, it is clearly

desirable that the judiciary should be subject to disciplinary review. Institutional

independence of the judiciary is not always easy to achieve, particularly as it needs to be

combined with a proper degree of accountability. In furnishing this goal the Constitution

has set the comprehensive procedure for disciplining the judges without undue interference

with judicial independence.

Sub Article 2 states that ‘A Judge of the High Court may be removed from office only for

inability to perform the functions of his office (either due to illness or to any other reason)

or for behaviour inconsistent with the ethics of office of Judge or with the law concerning

the ethics of public leaders and he shall not be so removed except in accordance with the

provisions of sub Article (4) of this Article.’

In furtherance, sub Article 3 provides that ‘Where the President considers that the question

of the removal of a Judge from office needs to be investigated, then the procedure shall be

as follows: (a) the President shall after consultation with the Chief Justice, suspend that

Judge from office; (b) the President shall appoint a Tribunal which shall consist of a

Chairman and not less than two other members. The Chairman and with at least half of

other members of the Special Tribunal must be persons who are judges of the High Court

or Justices of Appeal in any country within the Commonwealth; (c) the Tribunal shall

investigate the matter and make a report to the President, advising on the whole matter,

and shall advise him whether or not the Judge concerned should be removed from office in

accordance with the provisions of this Article on the grounds of inability to perform his

functions due to illness or any other reason or on grounds of misbehaviour.’

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Equally, sub Article 4 augments that ‘If the Tribunal appointed in accordance with the

provisions of sub Article (3) advises the President that the Judge the subject of investigation

by the Special Tribunal be removed from office on grounds of inability to perform

functions due to illness or any other reason or on grounds of misbehaviour, then the

President shall remove the Judge from office and the employment of that Judge shall

cease.’ It is made clear under sub Article 5 that ‘If the question of removing a Judge from

office has been referred to a Tribunal for investigation pursuant to the provisions of sub

Article (3) of this Article, the President may suspend the Judge concerned from duty, and

the President may at any time rescind the decision to suspend such Judge, and in any case

such decision shall lapse if the Tribunal advises the President that the Judge be not removed

from office.’

Article 142: Remuneration

Remuneration is an important aspect in as far as institutional independence of the judiciary

is concerned. In response, the constitution has set the mode of remuneration charged from

consolidated fund to some of the public offices holders including but not limited to the

judges, in order to ensure independence in discharging their functions.

Sub Article 2 provides that ‘The moneys for the salaries and allowances payable to the

holders of offices to whom the provisions of this Article apply together with pension and

gratuity for those entitled to such payments shall be a charge on the Consolidated Fund of

the Government of the United Republic.’ Sub Article 5 identify the public officers covered

under this Article, it states inter alia that ‘The provisions of this Article shall apply to a

Justice of Appeal, a Judge of the High Court of the United Republic...’

Independence of Judiciary vis-à-vis Parliamentary Powers

It is worth quoting the words of Professor Robert Stevens, the former master of Pembroke

College at Oxford University in 1993 who once stated that; “While there is a widespread

consensus on the obvious importance of the independence of judiciary, the literature on it

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is meagre and the concept itself has never been fully unpacked.”8[Emphasis Mine]. In spite

of the time passed this statement remains substantially true as the concept of independence

of judiciary has never been fully unpacked.9

The billion worth question remains to be, independent of what and from whom? It is

therefore worth at this platform to discuss the concept of independence of judiciary in

relation to the parliamentary control. I therefore consider in this Article the independence

of judiciary from legislature interference. The time has come for highest court in our

jurisdiction to move out from the shadow of the legislature, the key objective being to

achieve a full and transparent separation between the judiciary and the legislature.

Interference by the Legislature is of a very limited nature and takes various forms. The

most common form is legislation which either limits the exercise of judicial power or

discretion, such a legislation prescribing the minimum or mandatory penalty for offences,

and legislation affecting citizens’ rights of recourse to the courts.10 These constraints on

the exercise of judicial power are generally acceptable, as they reflect policy of the State.11

I respectful discern that judges should not be too mindful of the policy of legislature. The

judges should not be deciding cases with parliamentary approval or the avoidance of

parliamentary reprobation in mind.12

However, I am mindful on the freedom of parliament in debating as vested by the

Constitution. Article 100 of the Constitution provides powers and privileges of the

parliament. Sub Article 1 states that ‘There shall be freedom of opinion, debate and in the

National Assembly, and that freedom shall not be breached or questioned by any organ in

the United Republic or in any court or elsewhere outside the National Assembly.’ This

provision of the Constitution goes in tandem with Section 313 which is to the effect that

8 The Independence of the Judiciary : The View from the Lord Chancellor’s Office, Professor Robert Stevens, 1993, pg. 3 9 L. P Thean (Rtd. Judge of Appeal, Supreme Court of Singapore), Judicial Independence and Effectiveness , pg. 30 10 Ibid , pg.32 11 Ibid 12 Ibid 13 The Parliamentary Immunities, Powers and Privileges Act [CAP 95 RE 2002]

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‘There shall be freedom of speech and debate in the Assembly and such freedom of speech

and debate shall not be liable to be questioned in any court or place outside the Assembly.’

Article 100 (2) of the Constitution make it clear that ‘Subject to this Constitution or to the

provisions of any other relevant law, a Member of Parliament shall not be prosecuted and

no civil proceedings may be instituted against him in a court in relation to anything which

he has said or done in the National Assembly or has submitted to the National Assembly

by way of a petition, bill, motion or otherwise.’

Dilemma on the Approach of the Parliament

Recently, the National Assembly demanded that findings and recommendations by two

public watchdog agencies on the Tegeta Escrow Account scandal allegations be tabled in

the House for discussion. The eagerly awaited findings and recommendations were by the

Office of the Controller and Auditor General (CAG), which the Parliamentary Public

Accounts Committee (PAC) had already scrutinized, and by the Prevention and Combating

of Corruption Bureau (PCCB).

Legislators from both the ruling CCM and opposition parties who commented on the issue

during debate in the House were unanimous in demanding that they engage in thorough

discussions on the CAG’s report. The bulky report relates to allegations that there was a

conspiracy within government circles to ensure that findings by the two watchdog agencies

were not subjected to debate in the House, apparently owing to their “sensitive” or

“delicate” nature.

On the other hand, there were also suggestions, which most MPs did not buy, that debating

the findings would be prejudicial or even illegal following a case14 filed by Pan Africa

Power Solutions (PAP) and Independent Power Tanzania Limited (IPTL) lawyers at the

High Court seeking an injunction against parliament debating the reports. The High Court

judges Lady Justice Razia Sheikh, Mr. Justice Lugano Mwandambo and Mr. Justice

14 In this case the plaintiffs were Prime Minister Mizengo Pinda, the Attorney General, Permanent Secretary Ministry of Energy and Minerals, CAG, Prevention and Combating Corruption Bureau (PCCB), the Speaker and Parliament Clerk, and PAC chairperson.

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Richard Mziray ruled in favour of Independent Power Tanzania Limited (IPTL) and Pan

Africa Power Solutions (PAP) in an application to hold off the parliament from discussing

the CAG report.15

The Ruling of the High Court in favour of PAP and IPTL for an injunction against

parliament debating the reports provoked divergent views and feelings within and outside

the parliament whereas the first school of thought was of the considered opinion that the

judiciary cannot order injunction against the parliament to debate on any matter as that

would amount to the violation of the Constitution which under Article 100 grant the

freedom of speech and immunity to the members of the parliament.

One of the advocate for the first school of thought was CHADEMA legislator Tundu Lissu,

a legal expert whose party is a member of the Coalition for People’s Constitution

(UKAWA), said the Parliamentary Standing Orders currently in use do not provide for the

Speaker of the National Assembly to receive any directives from any other arm of the State,

that is, the Executive or the Judiciary. He said that under the Article (61) (e) of the House

regulations, when such matters arise, the House is required to resolve or discuss the same

with the respective organ or official, even if that means the Chief Justice.16

On the other hand, the second school of thought was of the considered opinion that the

parliamentary debate on the report despite the High Court ruling for an injunction amount

to violation of Constitution which firmly upheld the constitutional doctrine of separation

of powers. The gist of this outlook is that parliamentary debate over the matter would

interfere with the judicial function and violate the court process, hence, affecting even the

independence of judiciary as the judges would be influenced and blinded by the findings

of parliament over that particular debate.

The parliament in harmonizing the dilemma subscribed the views of the first school as the

speaker of the parliament Ms. Anna Makinda stated in allowing the debate on the report

15 http://www.pesatimes.co.tz/news/governance/escrow--judiciary-v-parliament accessed on 12/12/2014 16http://www.m.dailynews.co.tz/index.php/local-news/38454-ukawa-ask-for-five-more-days-of-iptl-escrow-debate accessed on 12/12/2014

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that “No branch of the state has the power to stop us, the parliament has privileges and

immunity.” She insisted that after going through all pending court cases, the parliamentary

actions would not interfere with the judicial process.17 The question endured on the other

side of the coin was whether this parliamentary approach was encyclopedic.

Soundness of the Parliament Approach

To take but one issue, I believe in the freedom of the parliament in discussing and debating

various issues and its immunity thereof, but only if it is purported to make the executive

branch accountable for ensuring democratic atmosphere within the society as well as

upholding the foundations of our august Constitution, as Legislature is composed of elected

members and representative of the people. This is more likely to happen if the parliament

comprehend its role as the watchdog of the Executive and respect the judiciary as an

independent organ that should not be gratuitous inhibited by the other two organs of the

State viz. the Executive and the Legislature itself.

I have considered both the import of parliamentary freedom to debate and the independence

of judiciary from the Constitutional perspective. I am not so naïve as to think that the

parliamentary freedom to debate is insignificant in checking and balancing the movements

of Executive. Neither am I so foolish as to believe that the parliamentary freedom to debate

is bottomless in as far as Independence of Judiciary concerned. The dispensation of justice

without fear or favour remains an issue that the judiciary has an important role to play in

ensuring that all human rights are preserved and protected and that the duties of every

person are faithfully discharged.

Grounded on the above outlook, it is my considered opinion that the parliamentary freedom

to debate is restricted to the matters falling under the auspice of the judiciary. This is due

to the fact that, the discussion on the matters pending on the court for determination and/or

which the court has embargo may prejudice the rights of the parties to the dispute. The

spirit behind the vesting of freedom to debate to the parliament were good ones, however,

17 http://www.pesatimes.co.tz/news/governance/escrow--judiciary-v-parliament accessed on 12/12/2014

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they may gradually evolve to become something different if they will interfere with the

judicial powers as the Parliament may turn into adjudicative body instead of legislative

body.

Conclusion

The rule of law is the bedrock of a democratic society. It is the only basis upon which

individuals, private corporations, public bodies and the executive can order their lives and

activities. If the rule of law is to be upheld it is essential that there should be an independent

judiciary. Tanzania is one of the country that advocate democratic values, so in order for

the same to be done than said there should be an independent judiciary that reflect the real

house of justice upon which individual citizens will be confident for the safeguard of their

rights.