Rule of Law vs. Rulers of Law. Justice Barnabas Albert Samatta's Road To Justice: Justice Barnabas Albert Samatta's Road To Justice

Ruling: IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM Misc. Civil Cause No. 3 of 1996

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM Misc. Civil Cause No. 3 of 1996 SAID JUMA MUSLIM SHEKIMWERI APPLICANT VERSUS ATTORNEY GENERAL RESPONDENT RULING SAmAttA, JK: This is an application by way of a chamber summons for an order of certiorari to bring up and quash a decision of the President of the United Republic of Tanzania “retiring” the Applicant, who was an Immigration Officer, in the public interest. The background to the application may, I think, be stated as shortly as is consistent with intelligibility. On June 1, 1984, the Applicant was employed by the Government of Tanzania as an Immigration Assistant. Following a promotion, on February 1, 1991, he became an Immigration Officer, Grade III. In the third paragraph of his affidavit supporting the application, the Applicant asserts that during the whole of his career in the Civil Service he was never formally warned, reprimanded or in any way penalized for anything done in connection with, or incidental to, the performance of his duties. No information is given in the counteraffidavit contradictory of this averment. In the 2nd June, 1995, issue of the Daily News, a government-owned daily newspaper, there appeared an account, among others, to the effect that the then Minister for Home Affairs had sacked 28 officials of the Immigration Department, including the Applicant, for receiving bribes. Upon making inquiries about this story with his superiors the Applicant was informed that the story was essentially false as, among other things, the Minister lacked power in 112 RULE OF LAW VERSUS RULERS OF LAW law to make the reported decision. About two months later – on August 4, 1995, to be more precise – the Applicant received a letter addressed to him by the Acting Principal Secretary (Establishments), whose body reads, in Swahili, as follows: Ninapenda kukuarifu kwamba, Mtukufu Rais, amekustaafisha kwa Manufaa ya Umma kuanzia tarehe 20 Julai, 1995. Amekustaafisha kwa mujibu wa Kifungu Na. 36(2) cha Katiba ya Jamhuri ya Muungano wa Tanzania ikisomwa pamoja na “Standing Order’ Na/ F35, 44 na 49(C), Kifungu Na. 8(f) cha Sheria ya Malipo ya Pensheni Sura (371); Kanuni za Utumishi Serikalini 1970 Kanuni Na. 29(2) na Sheria ya Utumishi Serikalini Na. 16 ya mwaka 1989 Kifungu Na. 19(3). 2. Aidha, kutokana na uamuzi huu wa kukustaafisha kwa Manufaa ya Umma, utalipwa Pensheni kwa utumishi wako Serikalini hadi tarehe 20 Julai, 1995”. Speaking through his advocate, Mr. Nassoro, the Applicant says that the President’s decision to retire him in the public interest is invalid in law and ought, therefore, to be quashed by this Court. Mr. Songoro, Senior State Attorney, opposed the application. Before dealing with counsel’s submissions, it is necessary, I think, to quote in extenso the provisions of law relied upon by the President in reaching his impugned decision. As expected, I will start with Article 36(2) of the Constitution of the United Republic (hereinafter referred to as “the Constitution”). The provision reads: (2) Subject to the provisions of this Constitution and of any relevant written law, the power to appoint persons to offices in the public services of the United Republic, and the power of promotion, termination of appointment, dismissal and disciplinary control of persons appointed to those offices shall be exercised by the President, the Service Commissions and such other authorities as may be specified in respect of any office or category of offices by this Constitution or any relevant written law. Section 8 of the Pensions Ordinance (the Ordinance), as amended by s. 6 of the Pensions Laws (Miscellaneous Amendments) Act, 1978, provides: 8. Subject to the provisions of section 9A, no pension, gratuity or other allowance shall be granted under this Ordinance to any officer except on his retirement from the public service in one of the following cases:- (a) on or after attaining the age of fifty: Provided that in respect of – RULING 113 (i) officers in the Police Force of the rank of Constable and officers [in] the Prison Officer, Grade III, this paragraph shall have the effect as if “forty years” were substituted for “fifty years”; and (ii) officers in the Police Force above the rank of Constable and of or below the rank of Sergeant and officers in the Prison Service above the rank of Prison Officer, Grade III and of or below the rank of Prison Officer, Grade I, this paragraph shall have the...