Tanzania in legal dilemma after verdict on CAG

Dar es Salaam. The 2019 decision by the late President John Magufuli to sack Controller and Auditor General Mussa Assad has plunged the country into a constitutional dilemma, according to experts’ views.

Dr Magufuli removed Prof Assad from office in November 2019 and replaced him with Mr Charles Kichere as the new head of the National Audit Office of Tanzania.

However, the High court ruled on Monday that Prof Assad’s removal from office was unconstitutional as he had not reached the mandatory retirement age of 65 as stipulated by the Constitution and sections of the law.

Sworn into office

As to whether Mr Kichere’s appointment was unconstitutional and thus null and void, the court did not side with the applicants and instead said he had already been sworn into office and served as CAG for a while now.

This, in turn, drew mixed views among analysts, with some saying Tanzania had two CAGs and others asserting that there was only one CAG.

There were also those who held that Prof Assad was still CAG, while others were adamant that Mr Kichere was the holder of the post.

Dar es Salaam-based advocate Rugemeleza Nshala said considering the facts that Prof Assad’s removal was unconstitutional and the court refused to nullify the appointment of the current CAG, the country has two CAGs.

“To avert similar confusion in the future, leaders must respect the law and not overstep their authority,” he told The Citizen.

“Monday’s ruling is a lesson that we must all respect the CAG’s tenure limit as stipulated by the law.”

Another advocate, Dr Onesmo Kyauke, said despite the fact that Prof Assad’s sacking was unconstitutional, the current CAG is in office legally.

“Position was not vacant”

“Mr Kichere’s appointment was legal, but the only difference, based on Monday’s ruling, is that when he was appointed, the position was not vacant,” he told The Citizen yesterday.

This, he said, suggested that if Prof Assad, who is now 61 years old, had not reached the retirement age of 60, the court would have reinstated him as CAG.

“If he was still below 60 he would have been reinstated as CAG. Unfortunately, his position has been overtaken by events,” Dr Kyauke said.

He was also of the view that the ruling should serve as a wake-up call to people in positions of authority to exercise their power in accordance with the law.

“What is happening now has embarrassed the government. Similar situation can be avoided by sticking to the law,” he said.

Another legal expert, Mr Fulgence Massawe, said the ruling effectively reinstated Prof Assad as CAG.

“So, does this mean Tanzania now has two CAGs?” he posed.

Mr Massawe, who was involved in the legal proceedings, said the case exposed how the Constitution was being violated with wanton abandon, adding that the objections have shaped the practice of litigation in Tanzania.

“The case has set a good precedent,” Mr Massawe said, referring to the Emergency Bill passed by Parliament in 2020 which granted immunity from lawsuits to the President, Vice President, Prime Minister, Speaker, Deputy Speaker and Chief Justice.

The Bill was rejected by a section of lawyers and 220 civil society organisations on the grounds it violated constitutional rights such as equality before the law, accountability and separation of powers.

Automatically unconstitutional

ACT-Wazalendo party leader Zitto Kabwe said if the removal of Prof Assad has been ruled unconstitutional, then the appointment of Mr Kichere as CAG was automatically unconstitutional too.

“If I were Prof Assad, I would have reported to work today (yesterday),” Mr Kabwe said during a Kumekucha social audio session on Clubhouse yesterday.

“On the legality of the appointment of Mr Kichere as CAG, a political response has been given. We are now going to appeal the decision at the Court of Appeal.”

In an application filed in 2019 by Mr Kabwe, the Section 6(1) of the Public Auditors Act, which limits CAG tenure to five years and renewal for one term only, was challenged.

Mr Kabwe also challenged the removal of Prof Assad as unconstitutional, the appointment of a new CAG, and demanded the reinstatement of Prof Assad as CAG.

A firebrand opposition politician believes that the precedent created by the High Court ruling will have a long-lasting impact on the CAG role.

“From now on, we have protected the tenure of future CAGs. CAGs will only vacate the office upon reaching the retirement age of 65 years,” said.