Court quashes application against appointment of Appeal Court judge

THE High Court, Main Registry, has dismissed the application lodged by lawyer and Law School of Tanzania student, Alexander Barunguza, seeking to challenge the appointment of Dr Benhajj Masoud as Justice of the Court of Appeal.

Judge Mustafa Ismail ruled in favour of Justice Masoud and the Attorney General (AG), the respondents, after holding that the application for leave to seek orders of certiorari and mandamus against such appointment lacked legal merits.

“I hold that the application lacks the necessary cutting edge for its grant, it follows that the same should fall through. Accordingly, the application is hereby dismissed,” he declared in his ruling delivered recently against the lawyer, the applicant.

Certiorari is a court process to seek judicial review of a decision of a lower court or government agency, while mandamus is a judicial remedy in form of order from a court to any government, inferior court, corporation, or public authority, to do some specific act which that body is obliged under law to do.

In his application, the applicant had moved the court to grant the leave sought, alleging that there are allegations of violation of human rights and the law governing ethics of public leaders and there was a pending case against the justice over such allegations.

The applicant also claimed that the appointment of Dr. Masoud to serve as Justice of the Court of Appeal of Tanzania was not done in consultation with the Chief Justice, as required by the Constitution of the United Republic of Tanzania.

On the other hand, the respondents took the view-that allegations of violation of human rights and good governance are the subject matter of another case, which is yet to be determined, thus are unproven.

The respondents further averred that appointment of the Justice was done in accordance with the Constitution of the United Republic of Tanzania. On the right to access to justice, the respondents took the view that such right can only be exercised in accordance with the law.

In his ruling, however, Judge Ismail pointed out some conditions that are considered on granting such leave, including filing the application timeously; the applicant must demonstrate that there is an arguable case and has to show sufficient interest in the impending application for prerogative orders.

He said that though the application was filed in time, critical review of the reasons constituting the basis for the prayer of leave are not only measly as to constitute the basis for action, but also acutely blunt such that it would be considered, even remotely, to amount to a prima facie case.

“The contention of human rights abuse or indulgence in unethical conduct are nothing better than mere allegations which have not been proved. They are, at best, grievances that await a set of factual account which may not necessarily bring us to conclusion of culpability against (Justice Masoud),” he said.

So sketchy, as well, the judge noted, was the contention that the Chief Justice was not involved in the process that settled on Justice Masoud as an appointee to the position of the Justice of Appeal.

He said that evidence to that effect ought to have been sworn or affirmed depositions from either the President or the Chief Justice, or their handlers to prove that the latter’s input in the appointment was not sought.