High Court upholds presidential powers over public servants

DAR ES SALAAM: THE High Court has dismissed a petition filed by former Deputy General Secretary of the Tanzania Teachers’ Union, Ezekiah Oluoch, challenging the constitutional validity of the President’s powers to remove, terminate, or retire public servants in the public interest.

A three-judge panel consisting of Abdi Kagomba, Suleiman Hassan and Evaristo Longopa ruled in favour of the Attorney General, stating that Oluoch failed to prove that the contested legal provisions were unconstitutional.

“This Court is of the considered view that the petitioner has failed to prove, on the balance of probabilities, that the impugned legal provisions violate the Constitution. As a result, the petition is dismissed in its entirety for lack of merit,” the judges stated in their ruling.

In his constitutional petition, Mr Oluoch contested several legal provisions that confer powers on the President to remove or retire public servants, including, Section 24(1) and Section 25(1) of the Public Service Act.

He also contested Regulations F40(1) & (3) and Regulation 60(1) of the Standing Orders for Public Service (2022), Section 13(1) of the Teachers Service Commission Act, 2015 and Section 32A and Regulation 29(1) of the Public Service Regulations.

He argued that these laws are unconstitutional as they lack clear definitions of “public interest,” provide no adequate procedural safeguards and place undue restrictions on access to labour remedies.

He also objected to the designation of the President as the final appellate authority in public service disputes.

The Court found no constitutional violations in the provisions challenged.

It ruled that the claim of discrimination that public servants are treated differently from private-sector employees, did not meet the constitutional threshold for discrimination.

The President’s powers to appoint, remove, or discipline public servants are rooted in the Constitution, particularly Article 33(2), defines the President as Head of State and Government, Article 35(1), stipulates that executive functions are exercised on behalf of the President and Article 36(2), (3) and (4), that provide the President with authority to appoint and remove public officers and regulate discipline.

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The judges concluded that the provisions serve to ensure that public servants maintain discipline and uphold their responsibilities in government service.

Mr Oluoch was initially employed by the then Ministry of Education and Culture on July 1, 1993.

He served as Deputy General Secretary of the Tanzania Teachers’ Union from 2000 to 2020. On March 16, 2017, the Permanent Secretary in the President’s Office (Public Service Management), acting under presidential directive, removed Oluoch from public service allegedly without affording him a right to be heard.

Oluoch first challenged the dismissal via judicial review, which failed. He then appealed to the Court of Appeal, which ruled in his favour, finding that the Permanent Secretary had acted without jurisdiction and violated his right to be heard.

Following this ruling, the Teachers Service Commission (TSC) disciplinary committee of Ilala Municipal Council dismissed him from service on May 21, 2020.

He appealed unsuccessfully to the TSC and later to the President, as the final appellate authority, but again, without success.

Ultimately, Oluoch brought the constitutional petition to the High Court, challenging the legality of the very provisions that had enabled his removal—but his petition has now been dismissed.