Dar es Salaam. A senior Court of Appeal Justice has expressed concerns over President Samia Suluhu Hassan’s decision to extend Prof Ibrahim Hamis Juma’s tenure as Chief Justice, calling the decision “unconstitutional,” which threatens to implicate the Head of State in “a serious constitutional crisis.”
Justice Stella-Esther Mugasha expressed her concerns in an undated letter to the Chief Court Administrator, Elisante Ole Gabriel, after the latter informed the former of Samia’s decision of June 15, 2023, to extend Prof Juma’s tenure as the Chief Justice of Tanzania.
June 15 should have been the last day for Prof Juma to serve the position after turning 65, an age limit set by the constitution for anyone serving as Tanzania’s Chief Justice.
Article 118, subsection two, says that the Chief Justice shall hold the office until he attains the retirement age of the Justice of Appeal, which is 65, according to Article 120 of the constitution.
Prof Juma, born on June 15, 1958, became the sixth indigenous chief justice following his appointment in 2021 to replace Justice Mohamed Othman Chande, who retired according to the law. Before his appointment, Prof Juma served as Acting Chief Justice since 2017. He also served as Justice of the Court of Appeal.
It is not clear how long Prof Juma will serve the position after the latest extension. However, in her letter to the Chief Court Administrator, Justice Mugasha said it does not matter because the decision to extend the tenure for any length goes against the constitution and the principle of the rule of law.
“There are more questions than answers [in this whole issue],” Justice Mugasha writes in her letter circulating on social media. “What steps did Attorney General [Eliezer Feleshi], who remains the Judge of the High Court, take to advise Prof Juma and President [Samia] accordingly?”
Justice Mugasha wonders how can the AG, who is the custodian of all laws in the country, fail to understand the interests of Article 118(2) of the constitution that would allow him to advise President Samia accordingly lest she slips into “the mistake of violating the constitution she swore to protect.”
Mr Feleshi was not immediately available for comments.
Justice Mugasha tells the Chief Court Administrator, Elisante Ole Gabriel, that his announcement on extending Prof Juma’s tenure has “saddened” her, noting that the decision threatens the country’s rule of law.
“It is a huge disappointment that for the first time in our country’s history, Chief Justice violates the constitution as approved,” Mugasha, who warned that she does not have any personal interests in the matter, explained.
“This is very dangerous because it threatens a constitutional crisis because according to Article 46(A), the parliament can impeach the president for failing to uphold the constitution she swore to protect.”
Jebra Kambole, a lawyer, described Prof Juma’s extension as a “blatant violation of the constitution,” writing on Twitter that he’s planning to take action to seek remedies.
The decision to extend Prof Juma’s tenure as Chief Justice goes against the opinion of former Attorney General Johnson Mwanyika, who wrote to the Chief Court Administrator on August 6, 2007, that only High Court judges and Court of Appeal justices can have their tenures extended.
“For the Chief Justice, I consent that there should not be an extension of his service, nor do I see any need for him to remain a Court of Appeal Justice,” Mwanyika wrote then. “It doesn’t leave a good impression.”
Fulgence Massawe, a lawyer with the Legal and Human Rights Centre (LHRC), told The Chanzo on Tuesday that this is not the first time that a debate such as this one has occurred in Tanzania. He said that the same happened during the service of former Chief Justice Barnabas Samatta.
“That the same thing keeps recurring tells you a lot about how weak our constitution is,” Mr Massawe said. “For how long will we have our judges and justices appointed by the head of the executive? That’s a constitutional weakness that needs redress.”
Mr Massawe noted that Prof Juma’s extension as Chief Justice leaves doubts about the interests the Attorney General and the CJ himself are serving, pointing out that if they served public interests, they would not allow the decision to go ahead.
“You can see that personal interests are at play here,” he noted. “But it is necessary that President Samia recalls her extension and appoints another person to the position of the Chief Justice of Tanzania.”