Roles and functions of Judiciary
According to Oxford dictionary Judiciary is the judicial
authorities of a country, judges collectively[1].
Judiciary is the among of three organs of the state which are executive,
legislature and judiciary itself. In the modern constitutional, the principle of
independence of judiciary has its origin in the separation of powers, where by
the executive, legislative and judiciary form three separate branches of Government
which in particular constitute a system of mutual checks and balances aiming at
preventing abuse of power to a detriment of a free society. This independence
means that both the Judiciary as an institution and also the individual Judges
deciding particular cases must be able to exercise their professional
responsibility without being influenced by the executive, the legislative or
any other inappropriate sources.
The constitution of United Republic of Tanzania,
1977 vest the authority and responsibility to administer in the judiciary of
Tanzania. The judiciary has its foundation on article 107A (1)[2]
and 107B of the constitution and states clearly about the independence of
judiciary in the United Republic of Tanzania. Now the strategic plan for judicial
independence is focused in both form and content. Mandate of judiciary, the
mandate of judiciary to perform its functions is to obtain from the constitution
of the United Republic of Tanzania vide article 107[3]
and its primary function is to dispense Justice which equity and compassion
according to laws of Tanzania.
Roles
and functions of Judiciary
With above mandate the roles and functions of the
Judiciary include ,interpreting diverse Laws and executive administrative
decisions ,Hearing and deciding cases filed before the courts of law ,Educating
members of the public of their rights and obligations under the law of Tanzania
,Facilitating maintenances of peace and order through good governance and the rule
of law.
Only an independent Judiciary is able to render Justice
impartially on the basis of law, thereby also protecting the human rights and fundamental
freedoms of the individual. For this essential task to be fulfilled efficiently,
the public must have full confidence in the ability of the Judiciary to carry
out its functions in this independent and impartial manner. Whenever this
confidence begins to be eroded, neither the Judiciary as an institution nor
individual Judges will be able fully to perform this important task.
The principle of independence of Judiciary was not invented
for the personal benefit of the Judges themselves, but was created to protect
human beings against abuse of power. It follows that Judges cannot act arbitrary
in any way by deciding cases according to their own personal preferences, but
that their duty is and remains to apply the law. In the field of protecting the
individual, this also means that Judges have a responsibility to apply,
whenever relevant, domestic and international human rights law.
In the constitution of the United Republic of Tanzania,
1977 under chapter five (5)[4]
has established basic principles concerning the independence of Judiciary.
These principles established in order to make sure that the independence of Judiciary
is protected from the executive, legislative and any other related sources as
follows
Independence of judiciary
Article 107B[5]
of the constitution of the United Republic of Tanzania recognize the
independence of Judiciary from other state organs ,under this article Judges
have the power to dispense Justice without being interfered by anyone in the state.
The independence of Judiciary is guaranteed by the state and enshrined in the
constitution and the law of the country. It is the duty of the Government and other
institutions to respect and observe the independence of Judiciary. The
Judiciary shall decide matters before them impartially on the basis of facts and
in accordance with law without any restrictions, improper influence, inducements,
pressure, threats or interferences, direct or in directs from any reason. The
Judiciary have jurisdiction over all issues of the judicial nature and have
exclusive authority to decide whether an issue submitted for its decision is within
competence as defined by law. There shall not be any inappropriate or unwarranted
interference with the judicially process, no shall judicial decisions by the
court be subject to revision. This principle is without prejudice to judicial
review or to mitigation or communication by competent authorities of sentences
imposed by the judiciary, in accordance with the law. Everyone shall have a right
to be tried by ordinary courts or tribunals using established legal procedures.
Tribunals that do not use the duly established procedures of the legal process shall
not be created to displace the jurisdiction belonging to the ordinary courts or
judicial tribunals. The principle of independence of judiciary entitles and
requires the judiciary proceedings are conducted fairly and that the rights of
the parties are respected. It’s the duty of the state to provide adequate
resources to enable the Judiciary to properly perform its functions. This basic
principle has been explained in the case of R v IDD MTEGULE (1979) High court
of Dodoma, where the defendant was accused of disobeying the order contrary to
section 124. He was alleged of selling Mandazi contrary to Mpwapwa area commissioner.
The list contained prohibited articles but Maandazi were not there. The issue in
the court was that should the defendant be discharged for selling an unlisted article.
It was held that the accused was discharged of the offence. The area commissioner
became furious and emotional over the decision of the court. He then wrote the
trial magistrate accusing him for being biased and hindrance to the effort of
the authorities to stop the spreading of the disease. On the revision of the High
court, it was held that the court was justified in discharging the accused on
the grounds that Maandazi were not listed in the Area commissioner's order thus
revising the decision of the district magistrate.
Condition of service and tenure
The term of office of Judges their independence, security,
adequate remuneration, condition of the service, pension and the age of
retirement is secured by the constitution of United Republic of Tanzania.
Judges whether appointed or elected have guaranteed tenure until a mandatory
retirement age or the expiry of their term of office, where such exist, For
example under the constitution of the United Republic of Tanzania article 110[6]
explain on the tenure of office of Judges of the High court and article 120[7]
explain on the tenure of office of Justices of Appeal. The assignment of cases
to Judges within the court to which they belong is an international matter of judicial
administration. Promotion of judges wherever such a system exists should be based
on objective factors, in particular ability, integrity and experience. This can
be seen at the time of Lyatonga Augustine Mrema who was the minister of home
affairs. He wanted to dismiss a Magistrate in Rukwa.The Registrar of the court
of Appeal held that there should be an investigation first before the removal
of that magistrate from the office.
Discipline, suspension and removal
A charge or complaint made against a Judge in his/her
judicial and professional capability shall be processed expeditiously and
fairly under an appropriate procedure ,For example article 110A [8]of
the constitution explain on the procedures relating to discipline of Judges of High
court and article 120A[9]
explain on the procedures relating to discipline of Justice of Appeal. The
Judge shall have a right to fair hearing. The examination of the matter at its
initial stage shall be kept confidential, unless otherwise requested by the
Judge. Judges shall be subject to suspension or removal only for reason of incapability
or behavior that renders them unfit to discharge their duties. All disciplinary,
suspension or removal proceedings shall be determined in accordance with established
standards of Judicial conduct. Decisions in disciplinary, suspension or removal
proceedings should be subject to an independent review. This principle may not
apply to the decisions of the High courts and those of the legislative in impeachment
or similar proceedings.
Qualifications, training and selection
In Tanzania persons selected for judicial office
shall be individuals of integrity and ability with appropriate training or
qualifications in law. Any method of judicial selection shall safeguard against
judicial appointments for improper motives
,For example the constitution of the United Republic of Tanzania article
109 [10]explain
on Judges of the High court and their appointments and article 118 explain on
chief justice and Justices of Appeal and their appointments. In selection of
Judges ,there shall be no discrimination against a person on the grounds of race
,color ,sex ,religion ,political or other opinion ,national or social origin
,birth or status ,except that a requirement ,that a candidate for judicial
office must be a citizen of Tanzania ,shall not be considered discriminatory.
Professional secrecy and immunity
In Tanzania Judiciary is bound by professional secrecy
with regard to their deliberations and to confidential information’s acquired in
the course of their duties other than in public proceedings and shall not be compelled
to testify on such matters. In Tanzania Judges without prejudice to any disciplinary
procedure or to any right of Appeal or to compensation from the state in
accordance with national law should enjoy personal immunity from civil suit for
monetary damages for improper acts or commissions in the exercise of their
judicial function ,this has established under section 66 [11]of
Magistrate Court Act.
Freedom of expression and
association
In accord dance with the Universal Declaration of
Human Rights, members of the judiciary are like other citizens entitled to freedom
of expression, belief, association and assembly as provided under article18[12]
and article 20[13]
of the constitution of the United Republic of Tanzania. However, that in
exercising such rights, Judges shall always conduct themselves in such a manner
as to preserve the dignity of their office and the impartiality and the
independence of Judiciary. Judges shall be free to form and join associations
of Judges or other organizations to represents, to promote their professional
training and to protect their judicial independence.
Factors 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, and then what
hope are you leaving with people? There is no other hope …”
Also the Magistrates’ Court Act[14]
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 Mollel1979 LRT NO. 6 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 soughing
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. 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.
Meanwhile, we can hardly fault Liyumba for enjoying his
freedom from remand prison to the fullest. He is out legally and, according to me,
the arrest warrant can only count when the law enforcers catch up with him. Let’s
cross our fingers and hope that he will appear in court tomorrow, which was the
date he was given on his release. For, if he doesn’t, the Kisutu magistrate will
be IN TROUBLE¨
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. R., 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.
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.
But it will be unfair not mentioning some criticism brought
forward by famous politicians. The former president of U.S.A., George W. Bush during
his campaign for presidency gave out serious comments that;
“…separation of powers means that no one branch may act
unilaterally, but power is divided between the Legislative, Judicial, and Executive
Branches. That is, ‘checks and balances’ should also apply to the Judicial Branch.”
He meant that the check and balance which actually happens
in other organs, is not seen to be applied in the judiciary organ for its decision
is not questioned by any other organs as the judiciary itself does to others. Its
decisions appear to be final and checks itself instead of other organs.
In conclusion, 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 .Now it is
a time for Tanzania leaders to change their mind in the fact that most of Tanzanian
leaders think that they are above the law while not ,it is in my view that it is
the responsibility of the state and government leaders to protect ,respect and to
provide conducive environment for the independence of Judiciary so as to build the
national with peace ,love ,respect ,harmony and unity among the Tanzanians.
[1] Oxford
dictionary
[2] The
Constitution of united republic of Tanzania
[3] ibid
[5]
ibid
[6]The
constitution of United Republic of Tanzania 1977
[7] ibid
[8] The
constitution of the United Republic of Tanzania1977
[9] ibid
[10] ibid
[12] The
constitution of United Republic of Tanzania
[13] ibid
[14] Magistrate
court Act
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