Parliamentary Debate over Escrow Scam: How Far is the Judiciary

Independent in Tanzania?
Michael John Marere1
Abstract
This article questions the independence of judiciary in Tanzania with regard to the
erstwhile parliamentary debate over the illustrious Escrow scandal. As far as I can tell,
judiciary needs and is worthy of insulation from the other two organs of the State viz. the
Executive and the Parliament to ensure there is adherence of the rule of law. Nevertheless,
with due respect to the erstwhile Escrow saga in the parliamentary debate the spirit of
independence of judiciary has been to some extent vitiated as sprung the dilemma on
whether the parliament was veracious in debating on the same despite the judicial
injunction pending the determination of the main case.
It is therefore, the primary purpose of this article to examine whether the judiciary of
Tanzania is independent from the parliament considering the claimed unfettered freedom
of the parliament to debate on various issues, taking Escrow scandal as the point of
reference. The article instigates by giving the definitions and the conceptualisation of the
fundamental terms as they have been applicable in this context. Also, the Article discuss
the legal foundation for the doctrine of judicial independence in Tanzania, however, this
has been done from the Constitutional perspective whereby different provisions of the
Constitution have been visited. In addition, the Article deliberate the dilemma on the
approach of the parliament over the Escrow scam debate whereas the two schools of
thoughts i.e. the proponents and opponents have been considered with their arguments.
Moreover, this Article examine the soundness of the parliament approach to debate over
the Escrow scam and lastly the conclusion is offered.

Mzumbe University, Bachelor of Laws (LLB), Tutorial Assistant, Tumaini University Makumira- Southern
Highlands University College [SHUCO], Mbeya.
E-mail: advmarere@gmail.com Phone No;- +255717065083

Key Words: Judicial independence, Parliamentary powers and Escrow scam

Introduction: Definition and Conceptualisation
Judicial independence is an idea that has both internal (normative) and external (or
institutional) aspects. From a normative viewpoint, judges should be autonomous moral
agents, who can be relied on to carry out their public duties independent of venal or
ideological considerations. Independence, or impartiality, in this sense is a desirable aspect
of a judges character.2
But judges are human, and the things they must decide can matter greatly to people.
Therefore, we are also concerned with providing institutional shields against the threats or
temptations that might come their way.3 Judicial independence, in this sense, is a feature
of the institutional setting within which judging takes place. Institutional judicial
independence is, however, a complex value in that it really cannot be seen as something
valuable in itself. Rather, it is instrumental to the pursuit of other values, such as the rule
of law or constitutional values.4
However, in this Article, the focus is given on institutional aspect of the judicial
independence vis--vis other organs of the State especially the Legislative organ of the
state (parliament). It has to be born in mind that the judiciary is to be rendered totally
independent, both of the people and the legislature. The judges when taking oath for the
office avow to administer justice according to law without fear or favour, affection or ill
will in order to perform this task a judge must be impartial. In order to be impartial a judge
must be independent; personally independent, that is free of personal pressures and
institutionally independent, and that is free of pressure from the other State organs viz.
Executive and Legislature.

John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, Southern
California Law Review [Vol. 72:353, pg. 353
3
Ibid
4
Ibid

Despite the fact that, the importance of judicial independence is appreciated and
acknowledged by most of the people in Tanzania, the precise nature and extent of judicial
independence remains controversial as the recent parliamentary discussion over Escrow
scandal is the mirror image of this dilemma on the extent of judicial independence vis-vis other organs of the State viz. Legislature. The parliamentary discussion over the Escrow
scandal aroused the strong debate among legal scholars and politicians on whether the
parliament was correct to debate on the same notwithstanding the injunction of the High
Court of Tanzania [Dar-es-salaam Division]. It is from this backdrop whereas this Article
emanated for the intention of making an appraisal of the judicial independence in Tanzania
vis--vis other organs of the State viz. Legislature, taking Escrow Scam as the point of
reference.
Legal Foundation for the Doctrine of Judicial Independence in Tanzania:
Constitutional Perspective.
The doctrine of judicial independence in Tanzania is well reflected in various legal
frameworks, however, this Article discuss the legal foundation for the doctrine of judicial
Independence from the constitutional perspective. The following are some of the legal
provisions from the Constitution of the United Republic of Tanzania5 to be referred herein
as the Constitution, which set the foundation for judicial independence in Tanzania:
Preamble: Foundations of the Constitution
The Preamble has been ruled not to be part of the Constitution, however the significance
of the same remains indispensable since the same set out the foundations upon which the
Constitution is made. In the Preamble the constitution affirm the principle of judicial
independence as one of its foundations. The Preamble provides inter alia that; AND
WHEREAS those principles can only be realised in a democratic society in which the
Executive is accountable to a Legislature composed of elected members and representative
of the people, and also a Judiciary which is independent and dispenses justice without

The Constitution of the United Republic of Tanzania, 1977 [As amended time to time]

fear or favour, thereby ensuring that all human rights are preserved and protected and that
the duties of every person are faithfully discharged [Emphasis Mine]
From the above provision from the preamble of the Constitution it can be argued that, the
doctrine of judicial independence is the sole foundation of the Constitution as the same is
of significance in ensuring that all human rights are preserved and protected.
Article 4: Separation of Power
The doctrine of judicial independence in Tanzania can also well be founded on the
constitutional principle of separation of power. The principle of separation of power is
indirectly recognized in Article 46 which goes further and forbids interference of one
branch by the other branch of the State. Sub Article 1 provides that All state authority in
the United Republic shall be exercised and controlled by two organs vested with executive
powers, two organs vested with judicial powers and two organs vested with legislative and
supervisory powers over the conduct of public affairs. This provision establish the organs
of the State and vest them with traditional functions each organ has to perform without
undue interference with each other.
Sub-article 3 states and deserves to be quoted in Kiswahili for clarity: Hakuna mamlaka
itakayoingilia Mamlaka nyingine isipokuwa kama na kwa kadri ilivyoelezwa katika Katiba
hii. This provision limit the interference of the established organs of the State, save only
for the exception under the same Constitution. However, the principle of separation of
power in Tanzania has been subject to critique by various scholars, as system of
government is actually based on the colonial version of the Westminster (British) system.7
Article 107B: Independence of Judiciary
In exercising the powers of dispensing justice, all courts shall have freedom and shall be
required only to observe the provisions of the Constitution and those of the laws of the
land. This provision of the Constitution expressly emphasize on the doctrine of

6
7

The Constitution of the United Republic of Tanzania, 1977 [As amended time to time]
Issa G. Shivji, Debating Constitutional Amendments in Tanzania, Hakielimu, Working Paper 3. Pg. 1

independence of judiciary in Tanzania as it recognise the need for freedom of the judiciary
in dispensing justice.
Article 109: Qualification and Appointment of Judges
A good place to start on institutional independence is qualification and appointment
process of judges. The qualification and the appointment process of the judges is of
paramount important in ensuring that the quality and independence of mind of those
appointed is guaranteed. It is this factor that necessitate the need for the appointments of
the judges at all heights to be made on merit, with appropriate provisions for the progressive
removal of gender imbalance and other historic factors of discrimination.
At onset, Article 109 (1) provides that There shall be a Principal Judge of the High Court
(who in the following provisions of this Constitution shall be referred to as the Principal
Judge) and other Judges of the High Court who shall be not less than thirty who shall be
appointed by the President after consultation with the Judicial Service Commission.
However, this system of appointment of the judges has been open to the criticism that, it
make the appointment of the judges subject to political influence, as it give the President
who is typically part and parcel of the Executive wider power in the appointment of the
judges, something which may affect their impartiality in dispensing their duties in matters
involving the government interest.
Also, Article 109 (7) provides for the special qualifications for one to be appointed the
judge. The Article states that For the purposes of construing sub Articles (6), (8) and (10)
of this Article special qualifications means a person who holds a degree in law from a
University recognized by the accreditation authority in Tanzania, and

(a) has been a

magistrate; (b) has held an office in the public service while possessing qualifications of
attorney or has been a private advocate; (c) possess qualifications for enrolment as an
advocate and, has possessed those qualifications continuously for a period of not less than
ten years.

However, Article 109 (8) offers an avenue for the President to scorn with the qualification
of time as it provides that Where the President is satisfied that a person holding one of the
special qualifications has not held that qualification for a period of not less than ten years,
but that that person has the ability, knowledge and in every respect is suitable for
appointment as Judge of the High Court, and there are reasons which make such person
deserve to be so appointed, then the President may dispense with the requirement that such
person shall have held the special qualifications for a period of not less than ten years, and
may after consultation with the Judicial Service Commission, appoint that person Judge of
the High Court.
Article 110: Tenure of the Office
The security of tenure of the judges is an important safeguard of judicial independence. In
Tanzania the security of tenure has been stipulated under the Constitution, Sub Article 1
state that Every Judge of the High Court shall vacate his office on attaining the age of
sixty years Sub Article 2 make it clear that Any Judge of the High Court may retire
from office in the service of the United Republic at any time on attaining the age of fifty
five years, except where the President directs that he should not retire from office, and if
the President so directs, then the Judge to whom the directions of the President relate shall
not retire from office until the expiry of the period specified by the President for that
purpose.
Correspondingly, sub Article 3 states that, In the event that the President considers it to
be in the public interest that a Judge who has attained sixty years of age continue in office,
and the Judge agrees in writing to continue in office, then the President may direct that the
judge continue in office for any period which may be specified by the President. Sub
Article 4 illuminate that Notwithstanding that a Judge has attained the age at which he is
required by the provisions of this Article to vacate office, a person who was holding the
office of Judge of the High Court may continue to perform the functions of that office after
attaining that age until he completes the preparation and delivery of the decision or until

he completes any other business in connection with matters which he had started hearing
before attaining that age.
Article 110A: Disciplinary Procedure
Judges are rightly expected to conduct court proceedings with courtesy and to do nothing
that throws doubt on their impartiality. Out of court they must be careful to do nothing that
would bring the judiciary into disrepute. So far as misconduct is concerned, it is clearly
desirable that the judiciary should be subject to disciplinary review. Institutional
independence of the judiciary is not always easy to achieve, particularly as it needs to be
combined with a proper degree of accountability. In furnishing this goal the Constitution
has set the comprehensive procedure for disciplining the judges without undue interference
with judicial independence.
Sub Article 2 states that A Judge of the High Court may be removed from office only for
inability to perform the functions of his office (either due to illness or to any other reason)
or for behaviour inconsistent with the ethics of office of Judge or with the law concerning
the ethics of public leaders and he shall not be so removed except in accordance with the
provisions of sub Article (4) of this Article.
In furtherance, sub Article 3 provides that Where the President considers that the question
of the removal of a Judge from office needs to be investigated, then the procedure shall be
as follows: (a) the President shall after consultation with the Chief Justice, suspend that
Judge from office; (b) the President shall appoint a Tribunal which shall consist of a
Chairman and not less than two other members. The Chairman and with at least half of
other members of the Special Tribunal must be persons who are judges of the High Court
or Justices of Appeal in any country within the Commonwealth; (c) the Tribunal shall
investigate the matter and make a report to the President, advising on the whole matter,
and shall advise him whether or not the Judge concerned should be removed from office in
accordance with the provisions of this Article on the grounds of inability to perform his
functions due to illness or any other reason or on grounds of misbehaviour.

Equally, sub Article 4 augments that If the Tribunal appointed in accordance with the
provisions of sub Article (3) advises the President that the Judge the subject of investigation
by the Special Tribunal be removed from office on grounds of inability to perform
functions due to illness or any other reason or on grounds of misbehaviour, then the
President shall remove the Judge from office and the employment of that Judge shall
cease. It is made clear under sub Article 5 that If the question of removing a Judge from
office has been referred to a Tribunal for investigation pursuant to the provisions of sub
Article (3) of this Article, the President may suspend the Judge concerned from duty, and
the President may at any time rescind the decision to suspend such Judge, and in any case
such decision shall lapse if the Tribunal advises the President that the Judge be not removed
from office.
Article 142: Remuneration
Remuneration is an important aspect in as far as institutional independence of the judiciary
is concerned. In response, the constitution has set the mode of remuneration charged from
consolidated fund to some of the public offices holders including but not limited to the
judges, in order to ensure independence in discharging their functions.
Sub Article 2 provides that The moneys for the salaries and allowances payable to the
holders of offices to whom the provisions of this Article apply together with pension and
gratuity for those entitled to such payments shall be a charge on the Consolidated Fund of
the Government of the United Republic. Sub Article 5 identify the public officers covered
under this Article, it states inter alia that The provisions of this Article shall apply to a
Justice of Appeal, a Judge of the High Court of the United Republic...
Independence of Judiciary vis--vis Parliamentary Powers
It is worth quoting the words of Professor Robert Stevens, the former master of Pembroke
College at Oxford University in 1993 who once stated that; While there is a widespread
consensus on the obvious importance of the independence of judiciary, the literature on it

is meagre and the concept itself has never been fully unpacked.8[Emphasis Mine]. In spite
of the time passed this statement remains substantially true as the concept of independence
of judiciary has never been fully unpacked.9
The billion worth question remains to be, independent of what and from whom? It is
therefore worth at this platform to discuss the concept of independence of judiciary in
relation to the parliamentary control. I therefore consider in this Article the independence
of judiciary from legislature interference. The time has come for highest court in our
jurisdiction to move out from the shadow of the legislature, the key objective being to
achieve a full and transparent separation between the judiciary and the legislature.
Interference by the Legislature is of a very limited nature and takes various forms. The
most common form is legislation which either limits the exercise of judicial power or
discretion, such a legislation prescribing the minimum or mandatory penalty for offences,
and legislation affecting citizens rights of recourse to the courts.10 These constraints on
the exercise of judicial power are generally acceptable, as they reflect policy of the State.11
I respectful discern that judges should not be too mindful of the policy of legislature. The
judges should not be deciding cases with parliamentary approval or the avoidance of
parliamentary reprobation in mind.12
However, I am mindful on the freedom of parliament in debating as vested by the
Constitution. Article 100 of the Constitution provides powers and privileges of the
parliament. Sub Article 1 states that There shall be freedom of opinion, debate and in the
National Assembly, and that freedom shall not be breached or questioned by any organ in
the United Republic or in any court or elsewhere outside the National Assembly. This
provision of the Constitution goes in tandem with Section 313 which is to the effect that
8

The Independence of the Judiciary : The View from the Lord Chancellors Office, Professor Robert Stevens,
1993, pg. 3
9
L. P Thean (Rtd. Judge of Appeal, Supreme Court of Singapore), Judicial Independence and Effectiveness ,
pg. 30
10
Ibid , pg.32
11
Ibid
12
Ibid
13
The Parliamentary Immunities, Powers and Privileges Act [CAP 95 RE 2002]

There shall be freedom of speech and debate in the Assembly and such freedom of speech
and debate shall not be liable to be questioned in any court or place outside the Assembly.
Article 100 (2) of the Constitution make it clear that Subject to this Constitution or to the
provisions of any other relevant law, a Member of Parliament shall not be prosecuted and
no civil proceedings may be instituted against him in a court in relation to anything which
he has said or done in the National Assembly or has submitted to the National Assembly
by way of a petition, bill, motion or otherwise.
Dilemma on the Approach of the Parliament
Recently, the National Assembly demanded that findings and recommendations by two
public watchdog agencies on the Tegeta Escrow Account scandal allegations be tabled in
the House for discussion. The eagerly awaited findings and recommendations were by the
Office of the Controller and Auditor General (CAG), which the Parliamentary Public
Accounts Committee (PAC) had already scrutinized, and by the Prevention and Combating
of Corruption Bureau (PCCB).
Legislators from both the ruling CCM and opposition parties who commented on the issue
during debate in the House were unanimous in demanding that they engage in thorough
discussions on the CAGs report. The bulky report relates to allegations that there was a
conspiracy within government circles to ensure that findings by the two watchdog agencies
were not subjected to debate in the House, apparently owing to their sensitive or
delicate nature.
On the other hand, there were also suggestions, which most MPs did not buy, that debating
the findings would be prejudicial or even illegal following a case14 filed by Pan Africa
Power Solutions (PAP) and Independent Power Tanzania Limited (IPTL) lawyers at the
High Court seeking an injunction against parliament debating the reports. The High Court
judges Lady Justice Razia Sheikh, Mr. Justice Lugano Mwandambo and Mr. Justice
14

In this case the plaintiffs were Prime Minister Mizengo Pinda, the Attorney General, Permanent Secretary
Ministry of Energy and Minerals, CAG, Prevention and Combating Corruption Bureau (PCCB), the Speaker
and Parliament Clerk, and PAC chairperson.

10

Richard Mziray ruled in favour of Independent Power Tanzania Limited (IPTL) and Pan
Africa Power Solutions (PAP) in an application to hold off the parliament from discussing
the CAG report.15
The Ruling of the High Court in favour of PAP and IPTL for an injunction against
parliament debating the reports provoked divergent views and feelings within and outside
the parliament whereas the first school of thought was of the considered opinion that the
judiciary cannot order injunction against the parliament to debate on any matter as that
would amount to the violation of the Constitution which under Article 100 grant the
freedom of speech and immunity to the members of the parliament.
One of the advocate for the first school of thought was CHADEMA legislator Tundu Lissu,
a legal expert whose party is a member of the Coalition for Peoples Constitution
(UKAWA), said the Parliamentary Standing Orders currently in use do not provide for the
Speaker of the National Assembly to receive any directives from any other arm of the State,
that is, the Executive or the Judiciary. He said that under the Article (61) (e) of the House
regulations, when such matters arise, the House is required to resolve or discuss the same
with the respective organ or official, even if that means the Chief Justice.16
On the other hand, the second school of thought was of the considered opinion that the
parliamentary debate on the report despite the High Court ruling for an injunction amount
to violation of Constitution which firmly upheld the constitutional doctrine of separation
of powers. The gist of this outlook is that parliamentary debate over the matter would
interfere with the judicial function and violate the court process, hence, affecting even the
independence of judiciary as the judges would be influenced and blinded by the findings
of parliament over that particular debate.
The parliament in harmonizing the dilemma subscribed the views of the first school as the
speaker of the parliament Ms. Anna Makinda stated in allowing the debate on the report

15

http://www.pesatimes.co.tz/news/governance/escrow--judiciary-v-parliament accessed on 12/12/2014

http://www.m.dailynews.co.tz/index.php/local-news/38454-ukawa-ask-for-five-more-days-of-iptlescrow-debate accessed on 12/12/2014
16

11

that No branch of the state has the power to stop us, the parliament has privileges and
immunity. She insisted that after going through all pending court cases, the parliamentary
actions would not interfere with the judicial process.17 The question endured on the other
side of the coin was whether this parliamentary approach was encyclopedic.
Soundness of the Parliament Approach
To take but one issue, I believe in the freedom of the parliament in discussing and debating
various issues and its immunity thereof, but only if it is purported to make the executive
branch accountable for ensuring democratic atmosphere within the society as well as
upholding the foundations of our august Constitution, as Legislature is composed of elected
members and representative of the people. This is more likely to happen if the parliament
comprehend its role as the watchdog of the Executive and respect the judiciary as an
independent organ that should not be gratuitous inhibited by the other two organs of the
State viz. the Executive and the Legislature itself.
I have considered both the import of parliamentary freedom to debate and the independence
of judiciary from the Constitutional perspective. I am not so nave as to think that the
parliamentary freedom to debate is insignificant in checking and balancing the movements
of Executive. Neither am I so foolish as to believe that the parliamentary freedom to debate
is bottomless in as far as Independence of Judiciary concerned. The dispensation of justice
without fear or favour remains an issue that the judiciary has an important role to play in
ensuring that all human rights are preserved and protected and that the duties of every
person are faithfully discharged.
Grounded on the above outlook, it is my considered opinion that the parliamentary freedom
to debate is restricted to the matters falling under the auspice of the judiciary. This is due
to the fact that, the discussion on the matters pending on the court for determination and/or
which the court has embargo may prejudice the rights of the parties to the dispute. The
spirit behind the vesting of freedom to debate to the parliament were good ones, however,

17

http://www.pesatimes.co.tz/news/governance/escrow--judiciary-v-parliament accessed on 12/12/2014

12

they may gradually evolve to become something different if they will interfere with the
judicial powers as the Parliament may turn into adjudicative body instead of legislative
body.
Conclusion
The rule of law is the bedrock of a democratic society. It is the only basis upon which
individuals, private corporations, public bodies and the executive can order their lives and
activities. If the rule of law is to be upheld it is essential that there should be an independent
judiciary. Tanzania is one of the country that advocate democratic values, so in order for
the same to be done than said there should be an independent judiciary that reflect the real
house of justice upon which individual citizens will be confident for the safeguard of their
rights.

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