THE High Court has ordered the Permanent Secretary Ministry of Home Affairs, to reinstate sacked Inspector of Police Elizabeth Ndambala.
Inspector Ndambala’s employment with the Tanzania Police Force was brought to an end in July 2019, for alleged misconduct and insubordination.
Judge Benhajj Masoud ruled in favour of Inspector Ndambala, the applicant, after granting two prerogative orders against the Police Force, Immigration Department, Prison Service Commission, the Ministry’s Permanent Secretary and the Attorney General (AG).
The first order granted included that of mandamus to compel the ministry’s PS to reinstate the applicant, as the decision for her dismissal was in total violation of the principles of natural justice and that the Commission lacked jurisdiction to terminate the police officer.
Another order granted is that of certiorari to quash the whole proceedings, judgment, findings dated July 3, 2018, for being tainted with serious illegalities, both of procedure and decision and for being very unreasonable that no logical authority could have reached into that decision.
“I would, accordingly, grant the prayer for an order of certiorari to quash the decisions affecting the applicant, including the subsequent confirmation by the first respondent of the military tribunal proceedings and the decision terminating the applicant employment,” he ruled.
The judge went on declaring, “In the final results, the applicant has made out her case. Henceforth, the said decisions are all quashed. Consequently, an order of mandamus is issued.”
According to the ruling, the decision lacked reason by both not taking into account matters which ought to have been taken.
While considering rival submissions by parties, the judge noted that the regulations which were invoked by the applicant without being disputed in any way by the counsel for the respondents were the Police Force, Immigration and Prisons Service Commission Regulations of 2015.
However, his scrutiny and inquiry led him to the Police Force Service Regulations, 1995, which was referred to in the letter informing the applicant about her termination, seemed to be more or less similar to the Police Force, Immigration and Prisons Service Commission regulations in many respects.
“It was apparent from the mentioned regulations that the accused officer is required to be given reasonable access to documents necessary for preparation of his defence. Consistent with this right, the tribunal is also required to give the opportunity to put questions on his own behalf to witnesses,” Judge Masoud said.
The judge said that it was the requirement under such regulations that no documentary evidence should be used against the accused officer, unless they said the accused officer had previously been supplied with a copy of the document or access thereof.
“I made a thorough examination of proceedings conducted against the applicant by the military tribunal. I did not see anything like the record the applicant was previously given access to the document, nor a copy thereof prior to the commencement of the proceedings, nor in the course of the proceedings,” he said.
On his part, the absence of such a record comprising the letter dated November 20, 2010 which was used by the tribunal in arriving at its decision in arriving at its decision, means the applicant was not given the opportunity to examine the document, object to the document or prepare her defence.
“My finding in this respect is that the said letter was improperly used and relied on by the military tribunal in arriving at its decision,” the judge said.
The applicant was an employee of the Tanzania Police Force from April 28, 2003 when she was employed as a Police Constable to July 6, 2019 when she was terminated from the service by the Permanent Secretary of the Ministry of Home Affairs at the rank of Inspector of Police.
She was stationed at Kinondoni Dar es Salaam at the time of her dismissal from employment services. The termination was a result of a charge consisting of two offences levelled against her before a military tribunal whose proceedings ended on July 30, 2018.
The record of proceedings leading to her termination was sent to the Inspector General of Police (IGP) to impose a punishment.
The IGP proposed to the PS that the applicants rank be reduced from Inspector of Police to Assistant Inspector of Police.
Inspector Ndambala complaint is that while the proposed punishment was in accordance with the law made to the second respondent, the permanent secretary, contrary to the requirements of the law and without jurisdiction, terminated her employment vide a letter dated July 6, 2019.
As she was aggrieved, the applicant challenged the decision by way of an appeal duly lodged to the permanent secretary of the ministry.
The appeal was grounded on a complaint that the Commission had no jurisdiction to impose the punishment as it was an appellate body.
She complained that the military tribunal misdirected itself in analysing the charge and the evidence and not finding that the evidence was in conflict with the charge and the punishment imposed was excessive.