Now Ikulu challenges law society on judges

By Mkinga Mkinga, The Citizen Reporter

Dar es Salaam. 

President Jakaya Kikwete will not set in motion a process to remove judges accused of being unfit for office unless there is enough evidence to support the case, State House said yesterday.

Rushing into forming a tribunal to investigate the judges accused of being professionally and ethically unfit would be tantamount to interfering with the independence of the Judiciary, a statement from the president’s office said.

Chief Secretary Ombeni Sefue and the minister for Justice and Constitutional Affairs, Mr Mathias Chikawe, said all constitutional requirements were followed in making the appointments and no judge would be removed unless new tangible evidence reaches the head of state.

This is State House’s first reaction to claims in the august House that the courts are flooded with professional and ethically unfit judges.

The remarks come just a day after the Tanganyika Law Society (TLS) called for a presidential enquiry into the allegations to save the judiciary from loss of public confidence.

Yesterday, Mr Sefue said State House had yet to receive an official request to investigate the claims and there were no solid reasons to do so at the moment. "Rushing into forming a tribunal to look into allegations against judges is, to my knowledge, to interfere with the independence of the judiciary...this is going to have serious implications on the relationship between these two pillars of the state. It will turn to be the battle between Judiciary and the executive."

Under article 110A of the Constitution, the president cannot remove a judge but can appoint a special tribunal to investigate allegations of indiscipline and misconduct.

TLS President Francis Stolla told The Citizen this week that the society had resolved to seek President Kikwete’s intervention in order to restore public confidence in the judiciary.

He was speaking against a backdrop of allegations that have been gathering tempo within and outside parliament that some judges lack the credentials for holding such sensitive posts.

Shadow minister for Justice and Constitutional Affairs Tundu Lissu told parliament last month that some people who had committed serious crimes had been appointed judges. Some Court of Appeal judges, he added, are rated so low that they are unfit to serve even as resident magistrates.

The firebrand Singida East MP cited Court of Appeal judge Mbarouk Mbarouk as one of those lacking the academic qualifications spelled out in the Constitution.

Mr Lissu described Judge Mbarouk’s appointment as the “greatest attack on the integrity of the judiciary”.

But Minister Chikawe brushed off the claims yesterday and backed Mr Mbarouk’s appointment, saying he was a judge of the High Court of Zanzibar years before President Kikwete elevated him to his current position.

Under the Union constitution, any person who qualifies for an appointment as High Court judge in Zanzibar qualifies for the same position on the mainland. And any judge of the high court can qualify to be judge of the court of appeal.

Mr Chikawe said in a phone interview yesterday: "We believe that his (Mbarouk’s) appointment as judge of the High Court of Zanzibar met all criteria stipulated in the constitution. Appointment in the High Court means he qualifies for the same in the Court of Appeal. Whoever is challenging his appointment should satisfy us that the constitution was breached."

He added: "If there any doubts about his qualifications or competence, then the Zanzibar authorities should be asked about it and not President Kikwete, who appointed him with all due respect to constitutional requirements.

“Even if TLS wants to petition the president to act on the allegation,” he added, “they should be specific on the constitutional provisions breached in the appointments," he said.

The TLS Governing Council resolved recently to write to the president and Chief Justice Mohamed Othman Chande to intervene in the saga and clear the “dark cloud” hovering over the judiciary.

The first salvo was fired by Mr Lissu,  a  professional lawyer, who argued that  some of those elevated to the positions had never gone anywhere near judges’ chambers. “We advised the appointing authority (the president) to relieve from duty a judge who lacks qualifications if it is so proved,” he said.

These developments come amid reports that some people and organisations who had their cases presided over by Justice Mbarouk were planning to seek a declaration that the verdicts were null and void.

He said TLS has not conducted research to establish Justice Mbarouk’s academic qualifications for the post, but remarked: “If it is true that Mbarouk lacks a first degree in law, it means that he did not deserve appointment as a judge.”

In 2008, TLS petitioned then Chief Justice Augustino Ramadhani to urgently address six concerns.  One of them was to remove Justice Mbarouk from office for allegedly not having academic qualifications for appointment as a judge of the High Court.

Pressure over the credibility and validity of some judicial appointments gained momentum at the recent TLS annual conference when Mr Lissu urged lawyers to demand an independent and transparent investigation on “why things were allowed to go so horribly wrong for so long”.

The MP alleged at the meeting that people who may have committed serious crimes such as bribery or forgery of personal records in order to qualify for appointment had been appointed judges.

Source: The Citizen (15/09/2012): http://www.thecitizen.co.tz/component/content/article/37-tanzania-top-news-story/25697-now-ikulu-challenges-law-society-on-judges.html