YEAR ENDER. 2023: How court quashed case over CJ tenure extension

TANZANIA: THE case challenging the extension of tenure for Prof Ibrahim Juma as Chief Justice of Tanzania was one of the major cases that attracted public attention in 2023.

The case filed by Humphrey Malenga, a normal citizen and petitioner, challenging the constitutionality of the extension, was determined by the Main Registry of the High Court of Tanzania in Dar es Salaam.

In its judgment, the court held that the decision by President Samia Suluhu Hassan to extend the tenure of Prof Ibrahim Hamis Juma as Chief Justice of Tanzania does not breach the Constitution of the United Republic of Tanzania, as amended from time to time.

Humphrey Malenga, the Petitioner in the case, is a person of no levity and never sleeps in the subtle of thoughtlessness and frivolous character.

He took his case to the High Court of Tanzania, basically beseeching for its constitutional duty of interpreting the provisions of Article 118(2) and Article 120(1), (2), and (3) of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time.

This trailed the unquestionable retirement from office of the Chief Justice of Tanzania, Professor Ibrahim on June 15, 2023 and the momentous extension of his tenure by the President. He felt uneasy and malcontent because, having clocked 65 years as the maximum retirement age for the Chief Justice of the United Republic of Tanzania, Professor Ibrahimu Juma had to vacate office as provided in the Constitution.

But to Malenga’s dismay, the Chief Justice is still holding the office by virtue of the powers and order of the President acting on the same Constitution. In the petitioner’s view, the constitutional provisions were misinterpreted or misconceived in extending the tenure of the Chief Justice to remain in office and the same is unconstitutional.

Eventually, Malenga sought Judgment and Decree against the Attorney General, the Respondent in the matter, for the Court to interpret the Provisions of Articles 118(2) of the Constitution in respect of the age of retirement of the Chief Justice to be 65 years old and not the age of retirement of the Justice of Appeal.

He also applied for the court to interpret that Article 118(2) of the Constitution is “stand-alone” Article, it precludes provisions of Article 120 (1), (2), (3) and (4) of the Constitution when determining the tenure or age of retirement of the Chief Justice.

The Petitioner applied for the interpretation that the powers of the President of the United Republic of Tanzania to suspend the retirement age of the Justice of Appeal or extend time of service of the Justice of Appeal for public interests pursuant to provisions of Article 120 (2) and (3) of the Constitution does not apply to a Justice of Appeal who is also the Chief Justice.

He wanted the Court to declare that the suspension of retirement age and, or extension of tenure of the current Justice of Appeal, who is also the Chief Justice of Tanzania, Prof Juma pursuant to the provision of Articles 120(2) and, or 120(3) of the Constitution is unconstitutional.

The respondent was not ready to let the Petition go unchallenged, as expected she opposed the petition and the orders sought therein through the counter affidavit sworn by State Attorney, Ms Frida Mwera.

In her unwavering opinion, she pointed out that Article 120 (1) must be read together with Article 120 (2) and (3) to get the retirement age of the Justice of Appeal which is 65 years. Article 120(2) and (3) extend to the Chief Justice by virtue of Article 118(2) which stipulates that the Chief Justice has to retire upon reaching the age of retirement of the Justice of Appeal.

The State Attorney further averred that Article 118(2) and Article 120(2) and (3) must be read as a whole and not in isolation to get the retirement age of the Chief Justice, and that the provisions of Articles 118(2), 120(1), (2) and (3) of the Constitution are in harmony.

Such constitutional petition was heard by Judge Godfrey Isaya. In the whole course of hearing of the matter, the petitioner enjoyed the service of Advocates Ipilinga Panya, Aliko Mwamanenge, Joyce Brown, Matinde Mwaisaka and Joyce Mwakapila.

On the other side, the respondent was represented by Solicitor General, Dr Boniphace Luhende, Senior State Attorney Alice Mtulo and State Attorneys Bavoo Junus and Vivian Method.

In resolving the matter, the judge had to determine some issues, including whether the provision of Article 118(2) of Constitution provides for the age of retirement of the Chief Justice to be 65 years old or that of the age of retirement of the Justice of Appeal.

He had to determine whether Article 118(2) of the Constitution is a “standalone” Article when determining the retirement age of the Chief Justice of Tanzania.

Or in alternative, whether in determining the retirement age of the Chief Justice of Tanzania as provided for under Article 118(2) of the Constitution reference is only made to Article 120(1) and precludes provisions of Article 120(2), (3) and (4) of the Constitution.

Judge Isaya determined whether powers of the President of the United Republic of Tanzania to suspend the retirement age of the Justice of Appeal or extend the time of service of the Justice of Appeal for public interests pursuant to provisions of Article 120 (2) and (3), respectively of the Constitution do apply to the Justice of Appeal who is also a Chief Justice.

He further determined whether suspension of retirement age and, or extension of tenure of the Justice of Appeal who is a Chief Justice pursuant to the provision of Articles 120(2) and/or 120(3) of the Constitution is constitutional.

In his decision, the judge noted that both parties conceded that the retirement age of the Chief Justice under Article 118(2) of the Constitution is the same as the retirement age of the Justice of Appeal.

There is no dispute that the retirement age of the Justice of Appeal is provided under Article 120 (1) of the Constitution which is 65 years.

The petitioner takes a view that the current Chief Justice having clocked 65 years ought to have vacated the office of the Chief Justice of Tanzania with effect from June 15, 2023 since the Constitution did not intend the exceptions provided for under Article 120 (2), (3) and (4) of the Constitution to be applied to a person who holds the office of the Chief justice.

He had a further view that if the said exceptions would apply to the Chief Justice, it would be a great danger and breach of the Constitution to have a Chief Justice who is not a Justice of Appeal.

But the judge noted after a careful study of Article 118 (2) which revealed that the Chief Justice is appointed from among the persons who possess the qualifications to be appointed as a Justice of Appeal and the same shall be head of the Court of Appeal.

“I think the view that has been taken by the Respondent that the Chief Justice is part and parcel of the Justice of Appeal team makes sense because the provision clearly signifies that the Chief Justice is part and parcel of the Court of Appeal. He is both the Justice of Appeal and the Chief Justice,” he said.

It is true the wording of Article 118(2) is crafted in a manner that obligates a holder of the office of Chief Justice to undertake both administrative and judicial functions. Thus, the judge found logic in interpreting that the said provisions bind the office of Chief Justice and Justice of Appeal together.

“I subscribe to the view that a bearer of the office of Chief Justice is also a Justice of Appeal. I am really not inclined to agree with the Petitioner’s view that there is a great danger and breach of the Constitution to have a Chief Justice who is not a Justice of Appeal… “…This does not apply to our present scenario owing to the fact that before his appointment to the office of Chief Justice, the incumbent Chief Justice was a Justice of Appeal,” Judge Isaya said.

Judge Isaya posed a question on whether article 118 (2) of the Constitution is self-contained within the Constitution, He said that the answer to the question was in the negative because both parties agree that the envisaged age of retirement of a Justice of Appeal is only provided for under Article 120(1) of the Constitution.

“This means that in order to get the age of retirement of the Chief Justice one has to make a cross-reference to Article 120(1) of the Constitution. This reason alone disqualifies Article 118(2) of the Constitution to be a standalone or self-contained provision,” he said.

There was a question on whether in determining the retirement age of the Chief Justice of Tanzania as provided for under Article 118(2) of the Constitution reference is only made to Article 120(1) and precludes provisions of Article 120(2), (3) and (4) of the Constitution.

The judge agreed with the petitioner and the Attorney General, the respondent, that the interpretation process should give meaning and entails reading the entire constitution as an integrated whole without letting one provision destroy the other.

“I am convinced that Article 120 (1) is related and works in harmony with the subsequent provisions of the Article. Indeed, there is no such prohibition for the president whenever she considers it to be in the public interest that a Justice of Appeal should continue to be in office after attaining 65 years of age under Article 120 (3) of the Constitution. Being an integral part of the Justice of Appeal, the Chief Justice is no exception,” he said.

The judge concluded, therefore, that Article 118 (2) is never a stand-alone provision in the Constitution, and when determining the retirement age of the Chief Justice of Tanzania as provided in Article 118(2) of the Constitution, reference should be made not only to Article 120(1) but also to Articles 120(2), (3) and (4) of the Constitution.