Independence of judiciary

INTRODUCTION

Independence of judiciary is the principle that the judiciary should be politically insulated from the legislative and the executive power. That is court should not be subject to improper influence from the other branches of government or from private or partisan interests. The concept of the judiciary should be independent from the other branches of government, Independence of judiciary is based on the principle of the separation of power this does not mean that the judiciary has to be free from legislature and executive only but also from any political matter, this one of the fundamental constitutional principle in Tanzania. The Independence of judiciary  is said to be based on the principle of separation of power this shown under Article 107B[1] which state that "in exercising the proper of dispensing Justice all courts shall have freedom and shall be required only to observe the provisions of the constitutional and those of the law.

The judiciary is one of the three arms of the modern state, the other two are the executive and the legislature. Among the main function of the judiciary is adjudication of cases, interpreting  the law made by the legislature, and to check abuse of power by the executive. To be able to function properly and to be effective, the judiciary must be independent of the other arms of the state and especially the executive. Therefore independence of judiciary has developed into one of the most sacred principles since the rise of  bourgeoisie, this principle has evolved together with that of Rule of law and the Supremacy of the parliament.

The Independence of judiciary in Tanzania the most organ of the government should not interfere the other organ and when judiciary will not be interfered with other organ due to the maintenance of the separation of power of the government the judicial organ will be independent this because when the government will maintain the system of the separation of power that each branch to work according to the authority without interfering other organ so this the Independence of the judiciary authority will be maintained and due to that the system of the government will be maintained and work to reach the goals

Judiciary is based on the principle of the separation of powers. One organ of the state should work independently from the other. The state has three organs namely the executive, legislature and judiciary, therefore judicial independence basically means the Judiciary must be liberated from the other two organs, free from subjection or control. This does not mean that the judiciary has to be free from legislature and executive only but also from any political matters. This is one of the fundamental constitutional principles in Tanzania.

This basic principle has been explained in the case of R v. Idd Mtegule[2]  where the defendant was accused of disobeying the order contrary to Section 124[3] . He was alleged of selling maandazi contrary to Mpwapwa Area Commissioner.

Challenges which undermining Judicial Independence

Corruption. This is a big phenomenon in general. In Tanzania this kind of phenomenon also affects the judicial independence because some of the judges decide their cases not according to what the law says but the price of justice thereby distorting it. This is done by manipulating court proceedings , preparing false court records and even to the extent of destroying court files .This was emphased in one of the many speeches given by the late President of United Republic of Tanzania, Julius K Nyerere as he said;

“… I think I would be less than honest if I said that all is well, because it is not, there is corruption ….if people cannot have confidence in their government, if people can feel that justice can be bought, then what hope are you leaving with people? There is no other hope …”

Also the Magistrates’ Court Act prohibits corruption by magistrates . Hence in order to craft justice, corruption must be avoided by giving enough salaries to judicial officers.

Harassment of judicial personnel .Members of the judiciary react differently when they have been harassed, some withdraw from conducting whilst some others give in and do what they are instructed to do. This is done by executives who abuse their power to avoid justice for instance in the case of Ally Juuyawatu v Loserian Mollel[4] involving a judge of the High Court Honorable Mr. Justice Edward Mweusimo(as he then was).This was a dispute over a piece of land between an individual and a mining co-operative society. The plaintiff while soughting the eviction order, the matter came to the knowledge of the regional commissioner (also the party secretary). The regional commissioner called the Northern Zone state attorney in-charge to use good office to ensure that the case file was withdrawn from the court and transferred to discussion and determination by the Regional Security Committee. Same time later the file was called to Dar es Salaam by the Chief Justice alleged on instructions from His Excellency the Head of State (President and also the Chairman of the ruling party) and no reasons were given while some preliminary chamber applications were being considered by the court. A court messenger was sent all the way from Dar es salaam to Arusha, to go collect the file. He ransacked the chambers of the Judge like a common criminal’s house. Eventually he found the relevant file on the Judge’s table and a few days later it was returned undisturbed, in an envelope addressed to the Judge personally instead of the court. Following such harassment the Judge decided to withdraw himself from the case.

Biasness of decisions. Biasness can be caused by tribalism or religions for example in the case of Ridge vs. Baldwin[5]. In this case the Chief countable of Brington was suspended from duty due to the biasness of the committee after being arrested and charged with conspiracy to obstruct the course of justice but, he was acquitted twice by court. When the case was taken to the House of Lords it was held that the committee was bias for not a giving chance to Ridge to be heard and reason for his dismissal.

Also some editors of renowned newspapers have commented on the biasness of the Judiciary, for instance in the Daily News Online Edition OF 23 FEB 2009 ,an article which was written by Mkubwa Alli commented, in one of the Court decision in the case of the former Bank of Tanzania director Amatus Liyumba. He said;

¨I am a staunch believer in the independence of the judiciary and separation of powers between the three pillars of the state, but such independence can only be guaranteed by high degree of integrity, impartiality and fairness of the players in the judicial system. Independence of the judiciary cannot be used as an excuse to act irrationally such that even lay people fault judicial decisions. Unfortunately, however, some decisions by our honorable brothers and sisters in the judiciary have been just that—faulty.

Take the decision at the Kisutu Resident Magistrates court in Dar es Salaam last Tuesday to release former Bank of Tanzania director Amatus Liyumba on bail without satisfying the bail conditions. The same court had set the strict bail conditions for Liyumba and co-accused Deogratias Kweka: To deposit 55bn/- or title deeds for properties worth that amount each with two sureties who are employees of government or public sector and to surrender passports.

We mortals can hardly understand the formula used to determine those conditions, but the decision was upheld by the High Court, so it must be the law. What put us totally off balance is the decision by the same magistrate who set the conditions to grant bail to Liyumba after depositing only 882m/- and a passport which expired two years ago! Independence of the judiciary, indeed. Cheekily, the magistrate issued a warrant of arrest for Liyumba next day—after allowing him enough time to go into hiding (he may have fled the country for all we know.)

Unfortunately, the magistrate gave no explanation for this order. It would appear that a higher court intervened to question the controversial granting of bail. It is clear that the actions by the Kisutu court raise more questions than answers and unless plausible explanation is given, they would have unpleasant consequences on public confidence in the law courts.

Presence of incompetent judicial personnel. In order for the judiciary to be independent, the judicial officers must be competent in their profession so that justice is made and fairness maintained when deciding cases in our society. Having incompetent judiciary officers presiding over various judiciary activities can lead to other organs of the state interfering with judicial powers. In the case of Hamis Masisi and 6 Others v. Republic[6], the magistrate council cancelled his previous orders for bail in order to avoid the conflict between the executive and the judiciary then, forwarded the matter to the high court for review. It was held in the High Court when the executive presented the matter or dispute to the court, that the judicial machinery should be left freely to apply the rules applicable without being harassed. It is unjustified and illegal thus, the magistrate was wrong to succumb to the executive extraneous pressure.

Public pressure. The pressure from the public can lead to unfair justice whereby the public misdirect the court’s decision to favor either party making the decision subjective and not objective. The Independence of judiciary will not be free because is interferd with others organ of the government like executive and parliament for example the issue of the president to appoints chief justice is the way on how the other organ of the government interfere the judiciary, according to Article 118(2)[7]

Illiteracy. Majority of the Tanzanian public are ignorant to the fact of law because of lack of sufficient education with relation to their duties, rights and responsibilities. They fail to recognize when the judiciary is abusing their power and the necessary actions to take.

In Tanzania Judicial independence is not absolute, meaning other state organs still interfere with the Judiciary Organ, translating that separation of power is not absolute. For instance the legislature is still the only organ which makes, amends and delegates power to the other organs including judiciary to make laws. The president has been given power to appoint the Chief Justice and other justices of the Court of Appeal after the consultation with the Chief Justice . Lastly the director of Public Prosecution is appointed by the president, who plays great role in criminal cases.

 Inonclusion, according to the late Mwalimu Julius Kambarage Nyerere; “A true freedom is that where a citizen has confidence that his case will be impartially decided even if it is a case against the Prime Minister.”

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[1] of the Constitution of the United Republic of Tanzania

[2] (1979)High court of Dodoma

[3] Penal code cap 16 RE 2002

[4] 1979 LRT NO. 6

[5] 1964 AC 40

[6] 1978 THC

[7] ) of the Constitution of the United Republic of Tanzania.

REFFERENCES

The constitution of the united republic of Tanzania

Cases law

   R v. Idd Mtegule  High court of Dodoma 1979,

   Juuyawatu v Loserian Mollel  1979 LRT NO. 6

   Ridge vs. Baldwin 1964 AC 40

   Hamis Masisi and 6 Others v. Republic

The penal code cap 16 RE 2002