‘No constitution breach for extending CJ terms in office’

PRESIDENT Samia Suluhu Hassan has not violated the country’s Constitution by extending the term in office of the Chief Justice of Tanzania, Prof Ibrahim Juma after turning 65 years old.

The position was taken on Monday by two prominent Advocates — Alex Mgongolwa and Francis Stolla, during a discussion held at the Tanganyika Law Society (TLS) hall in Dar es Salaam.

“There are no words in the Constitution that state that if the Chief Justice reaches the age of 65, his term cannot be extended.

Keeping the Chief Justice tenure, or making him continue to sit in his office is not against the Constitution, but is in accordance with the same Constitution,” remarked Advocate Stolla.

The position by the two lawyers comes a few days following a statement which went viral on the social network that Dr Samia has violated the Constitution by extending the tenure of the Chief Justice of Tanzania after reaching the age of 65.

They said that there is no Article, or any wording in the Constitution that says that the retirement age of the Chief Justice, going by the reading of the Article about the retirement age of the Court of Appeal Justice relate to retaining such justice will not apply to the Chief Justice.

“Otherwise, the writers of the Constitution would have intended that they would have said the retirement age of the Chief Justice is the same as that of a Justice of the Court of Appeal, except that continuing to sit in the office will not apply to the Chief Justice,” Advocate Stolla said.

The lawyers disclosed that Article 118 (2) does not state the retirement age of the Chief Justice or the Judge of the Court of Appeal, but the retirement age of those leaders is found in Article 120 of the Constitution.

“In order to know the retirement age of the Justice of the Court of Appeal, you must go to Article 120 (1) which states 65 years, so the retirement age of the Chief Justice is 65 years as is the case with other Justices of the Court of Appeal,” pointed out Advocates Mgongolwa.

However, the lawyers said that Article 120 of the Constitution should be read in combination with its all sub-Articles.

They said that Sub-Article (2) says that any Justice of Appeal may vacate office in the service of the Untied Republic at any time on attaining the age of 65 years except, where the president directs that he/she should not vacate office. And, if the president so directs, then the Justice to whom the directions of the president relate shall not vacate office until the expiry of the period specified by the president for that purpose.

While Sub-Article (3) says that in the event that the president considers it to be in the public interest that a Justice of Appeal who has attained 65 years of age continues in office, and the Justice of Appeal agrees in writing to continue in office, then the president may direct that the Justice of Appeal continues in office for any period which may be specified by the president.

“Thus, the Chief Justice’s retirement age will be found in Article 120 by reading all its sub-clauses. Therefore, there is a possibility for the Chief Justice to be in office when he is over 65 years of age. There is no such prohibition in the Constitution,” Advocate Stolla emphasised.

The lawyers said that if the President of the United Republic of Tanzania can decide, if it fits that the Chief Justice, whose retirement age is the same as that of the Justice of the Court of Appeal, he/she should not leave office in accordance with Article 120 (2) or should continue to be there for the public interest in according to sub-Article (3).

They have cited an example of the year 2005, where the Third Phase President, the late Benjamin Mkapa extended the tenure of the Chief Justice of Tanzania at that time, Mr Barnabas Samatta, to remain in the post for a period of two years.

There has been another argument about the Attorney General not giving advice to the president regarding the issue. However, the lawyers said that according to Article 37 (1) of the Constitution, the president is not obliged to take advice given to her by any person, the Attorney General is inclusive.

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