EXTENSION OF PROF. JUMA INTO OFFICE AS CHIEF JUSTICE CONSTITUTIONAL

BY FAUSTINE KAPAMA-Judiciary

THE decision by the President Samia Suluhu Hassan to extend the tenure of Hon. 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.

This follows the decision of the High Court, Main Registry, given today dated September 22, 2023, dismissing the constitutional petition lodged by Humphrey Malenga, the petitioner, who is a normal citizen.

“The President has powers under Article 120 (3) read together with Article 118 (2) of the Constitution to extend the tenure of the Justice of Appeal to enable him to continue to discharge his duties as such. I find the petition without merit. It stands dismissed,” Judge Godfrey Isaya declared.

In his petition, the petitioner sought for orders to interpret the provision of Article 118 (2) of the Constitution in respect to 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 wanted the interpretation of such provision that is a 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 further requested for the interpretation of the powers of the President of the United Republic of Tanzania to suspend the retirement age of the Justice of Appeal or extend time to service of the Justice of Appeal for public interest pursuant to Article 120 (2) and (3) does not apply to a Justice of Appeal who is also the Chief Justice.

He further sought for a declaration that the suspension of retirement age or extension of tenure of the current Justice of Appeal who is also the Chief Justice, Prof. Ibrahim Hamis Juma pursuant to the provision of Article 120 (2) and (30 is unconstitutional.

In his judgment, the judge ruled that Article 118 of the Constitution cannot be read in isolation, but it is read together with Article 120 of the Constitution, thus the powers of the President to extend the tenure of the current Chief Justice into office was correct, hence constitutional.

“Article 120 (1) cannot be read with isolation of Articles 120 (2) (3) and (4), on that sense the who provision of Article 120 of the Constitution does apply to the Chief Justice, accurately suspension of retirement age or extension of the Justice of Appeal who is the Chief Justice pursuant to Articles 120 (2) and (3) is legitimate,” he said.

Before reaching into such findings, the judge had to consider some issues on whether the Provisions of Articles 118(2) of the 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.

The judge considered whether Article 118(2) of The Constitution is a "stand-alone" 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.

It was also considered 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) of the Constitution.

Furthermore, the judge considered 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 of The United Republic of Tanzania as amended.

In determining the said issues, the judge pointed out that 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.

He found logic in interpreting that the said provisions bind the office of Chief Justice and Justice of Appeal together and subscribed 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,” the judge said.

Judge Isaya posed a question on whether article 118 (2) of the Constitution 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 Article 120(2), (3) and (4) of the Constitution.

High Court building housing the Main Registry in Dar es Salaam.