MAHAKAMA KUU YA TANZANIA - RAIS AMEVUNJA KATIBA
TAMATI YA NUKUU YA HUKUMU KUHUSU CAG ALIYE OFISINI SASA NA ALIYENGOLEWA. RAIS ALIVUNJA KATIBA.
IN THE COURT OF THE UNITED REPUBLIC (MAIN REGISTRY) AT DAR ES SALAAM (CORAM: MASOUD, KAKOLAKI, And MASABO, JJJ.)
MISCELLANEOUS CIVIL CAUSE NO. 8 OF 2022 IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977 AS AMENDEDAND IN THE MATTER OF THE PUBLIC AUDIT ACT No. 11 OF 2018 AND IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT, CAP. 3R.E 2002 AND IN THE MATTER OF A PETITION TO CHALLENGE THE PROVISIONS OF SECTION6(1) OF THE PUBLIC AUDIT ACT No. 11 of 2018 AS BEING UNCONSTITUTIONAL AND IN THE MATTER OF A PETITION TO CHALLENGE THE ACT OF THE 1st RESPONDENT TO REMOVE THE 4th RESPONDENT FROM THE POSITION OF THE CONTROLLER AND AUDITOR GENERAL AND REPLACE HIM WITH THE 3rd RESPONDENT EVEN THOUGH THE 4th RESPONDENT HAD NEITHER REACHED 60YEARS OF AGE NOR 65 YEARS OF AGE AS BEING UNCONSTITUTIONAL BETWEEN
ZITTO ZUBERI KABWE.....................................PETITIONER
VERSUS
THE PRESIDENT OF THE UNITED REPUBLIC OF TANZANIA..................... 1st RESPONDENT
THE HON. ATTORNEY GENERAL ......... 2nd RESPONDENT
CHARLES KICHERE ........... 3rd RESPONDENT
PROF. MUSSA JUMA ASSAD .......4th RESPONDENT
.... We were not told a legitimate purpose that the provision and the removal of the fourth respondent from the office save.
We were similarly not told how article 30(2) would save the impugned provision and the removal of the fourth respondent from the office which are violative of article 144(1) of the Constitution. We nonetheless do not see any lawful object which was intended to be achieved by the provision, other than introducing a criterion of ensuring removal of the CAG from the office on expiry of the fixed term of five years contrary to the provision of article 144 and the security of tenure of the CAG guaranteed under the Constitution.
In the light of what we have discussed with regard to the saving provision of article 30(2) of the Constitution, we are satisfied and we so hold that neither section 6(1) of the Public Audit Act nor the act of the removal of the fourth respondent from the office is saved by and falls within the purview of article 30(2) of the Constitution.
When all is said and done, we considered the reliefs sought by the petitioner in the light of the foregoing findings and conclusions.
Since we have found section 6(1) of the Public Audit Act and the removal of the fourth respondent from the office by the first respondent to be unconstitutional for violating article 144 (1) of the Constitution, we are inclined to make appropriate declarations to that effect.
As to the appointment of the third respondent into the office, we are satisfied that we cannot in the circumstances hold that the appointment was unconstitutional for reasons very well stated herein above, which would also cater for our resolve to decline to hold that the fourth respondent is the substantive holder of the office of the CAG.
In the upshot of the foregoing reasons and findings, the petition fails in the issue of the appointment of the third respondent in which case we decline to hold
the appointment of the third respondent is unconstitutional, and we in the same way decline to hold that the fourth respondent is a substantive holder of the office of the CAG.
It also fails in other issues implied from the reliefs which we did not expressly mention here.
However, the petition is allowed in respect of unconstitutionality of the provision of section 6(1) of the Public Audit Act and the unconstitutionality of the removal of the fourth respondent from the office of the CAG pursuant to section 6(1) of the Public Audit Act before attaining the age of sixty five years.
We so hold because the provision of section 6(1) and the removal of the fourth respondent from the office are all violative of article 144 (1)of the Constitution.
Consequently, the provision of section 6(1) of the Public Audit Act, No. 11 of 2008 is in terms of article 64(5) of the Constitution herein declared null and void and is hereby struck out forthwith from the Public Audit Act, No. 11 of 2008.
We make no order as to costs as the petition was conducted as a public interest litigation.It is so ordered.DATED and DELIVERED at Dar es Salaam this 5th day of December, 2022
Signed : B.S Masoud
Judge
Signed : J.L Masabo
Judge
Signed : E.E Kakolaki
Judge
Source :
Zitto Zuberi Kabwe vs the President of the United Republic of Tanzania & Others (Misc. Cause 8 of 2022) [2022] TZHC 14947 (05 December 2022); | Tanzlii