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Court Rules Magufuli’s Dismissal of Assad as CAG ‘Unconstitutional’

It disagrees with the petitioners that the appointment of his successor was also unconstitutional.

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Dar es Salaam. The High Court on Monday ruled that the removal from office of Prof Mussa Assad as the Controller and Auditor General (CAG) was “unconstitutional.”

Prof Assad was unceremoniously removed from office as the CAG on November 3, 2019, following the appointment of Mr Charles Kichere, the current CAG, by the late president John Magufuli.

Assad’s fall from grace came against the backdrop of his findings that there was a mismatch between the collected revenue of Sh25.3 trillion and the Sh23.8 trillion released by the treasury for government expenditure, leading people to question the whereabouts of the remaining Sh1.5 trillion.

Prof Assad highlighted this in March 2018, when presenting his annual audit report for the 2016/2017 financial year.

Following much discussion around the “missing” Sh1.5 trillion, President Magufuli, during a State House function attended by Prof Assad, asked him if he had found any money that has been stolen to which Assad responded no.

But in November 2019, President Magufuli appointed Mr Kichere as the new CAG, in what many interpreted as an unconstitutional attempt to get rid of Prof Assad.

One of these people was the current leader of the opposition party ACT-Wazalendo Mr Zitto Kabwe who went as far as filing a lawsuit in January 2020 at the High Court challenging the manner in which Mr Kichere’s appointment was made.

In his submission, Mr Kabwe argued that Prof Assad’s removal from office under the pretext of the expiration of his tenure is unconstitutional as he had not reached the mandatory retirement age of 65 years as required by Section 6(2)(a) of the Public Audit Act in line with Article 144(1) of the constitution.

Mr Kabwe, who was represented by advocates Rugemeleza Nshala and Nyaronyo Kicheere in the case, also argued that the appointment of Mr Kichere as CAG is unconstitutional as Prof Assad, who was a substantive holder, had not reached the mandatory retirement age of 65 years.

In its ruling on Monday, a team of three judges agreed with the first submission but dismissed the second one.

In a statement, Mr Kabwe said that he was “delighted” by the court’s decision, thanking his lawyers as well as the Legal and Human Rights Centre (LHRC) for their support throughout the case.

“I’m very delighted that the High Court chose to stand with the constitution in this case,” Mr Kabwe said in a statement. “That it’ll never happen again that someone, even a Head of State, will decide to violate the constitution as they like.”

Monday’s ruling means that all of Tanzania’s future CAGs will be protected by the court’s decision.

On the rejection of his petition to the court to announce Mr Kichere’s appointment as “unconstitutional,” Mr Kabwe said that he’ll appeal the ruling at the Court of Appeal.

“If Prof Assad’s removal from office was unconstitutional it is very clear the appointment of another person to replace him was unconstitutional,” Mr Kabwe said in a statement. “I’ve directed my advocates to appeal the ruling.”

The issue of the “missing” Sh1.5 trillion was just one among a number of issues that have put Prof Assad at the centre of public debates in recent years.

During an interview with United Nations Radio in 2018, for example, Prof Assad irritated former Speaker of Parliament Job Ndugai following the former’s remarks that the legislative house was “weak,” leading the parliament to pass a motion that it would no longer work with him.

As recently as last year, Prof Assad was also at the centre of a huge public debate after remarking that over 60 per cent of civil servants in Tanzania are “incompetent,” leading the government to claim that sentiments that the government said were “based on emotions rather than research and facts.”

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