MISC CIVIL CAUSE NO 7817 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY)

AT DODOMA (CORAM: MUGETA, MAGOIGA AND MASABO, JJJ) MISC. CIVIL CAUSE NO.7817 OF 2024

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA, 1977 AS AMENDED FROM TIME TO TIME [CAP 2 R.E.2002] AND IN THE MATTER OF THE BASIC RIGHTS AND DUTIES ENFORCEMENT ACT, [CAP 3 R.E. 2002] AND

IN THE MATTER OF PETITION TO CHALLENGE THE PROVISIONS OF SECTIONS 4(1), (4), (6), 5 AND 10 OF THE ADVOCATES ACT, [CAP 341 R.E. 2019] AS AMENDED AS BEING UNCONSTITUTIONAL

BETWEEN PETER MICHAEL MADELEKA.................................... PETITIONER AND NATIONAL ADVOCATES COMMITTEE...................................... 1stRESPONDENT THE ATTORNEY GENERAL....................................................... 2ndRESPONDENT DIRECTOR OF PUBLIC PROSECUTIONS........... 3rd RESPONDENT DEPUTY ATTORNEY GENERAL................................................. 4thRESPONDENT 1

JUDGMENT 25/06/2024 & 30/08/2024 I.C. MUGETA, J. Before us is a peculiar case where the Head of the Bar and Custodian of the Laws of Tanzania has, allegedly, breached one of the realm subject's constitutional rights. On his firm trust in the court, the petitioner, who seems to hardly settle for less, has come to the court to agitate for his rights. The case involves an advocate of the High Court and courts subordinate thereto. He is challenging the impartiality of his professional statutory disciplinary body. He is apprehensive and feels strongly that his professional statutory disciplinary body, the National Advocates Committee (hereinafter referred to as "the Committee"), will not act with impartiality and accord him a fair trial in a disciplinary complaint facing him as the Attorney-General (hereinafter "the AG) who commenced it is an indispensable member of the Committee and holds crucial roles in its operation. Besides the novelty of the cause of action, the facts of this petition, as pleaded, do not pose any difficult to narrate and they are mostly undisputed. 2 The petitioner is an advocate of the High Court and courts subordinate thereto. On 27th December, 2023, he was representing a client at the District Court of Babati at Babati in criminal case No. 179 of 2023. The Director of Public Prosecutions having entered a nolle prosequi, the learned trial magistrate

dismissed the charge and discharged the accused person one Pauline Phillipo Gekul. The discharge order displeased the petitioner. He decided to address the media on what transpired in court. It is unknown if the briefing was actuated by the displeasure or it was in the course of normal performance of his professional business. Be that as it may, at his media briefing he took the liberty to say: "sasa kilichotokea ieo kwa kweii sisi ndio tulikuwa tunakihitaji. Kilichotokea leo ni matumizi mabaya ya sheria, matumizi mabaya ya mahakama ni kuidhalllisha Mahakama. Tumeingia mahakamani baada ya kutaja coram kwa maana ya sisi mawakili tunaomuwakilisha mteja wetu na waki/i ambaye alikuwa anamwakilisha mshitakiwa Hakimu a/iinama akaandika alipomaliza akasoma uamuzi wake kwamba Mkurugenzi wa Mashitaka ameleta ombi mahakamani ia kuiondoa kesi chini ya kifungu cha tisini na moja kifungu kidogo cha kwanza cha Sheria ya Mwenendo wa Makosa ya Jinai. Tunasema hakimu amepotoka waia maamuzi yake hayastahilikuitwa nimaamuziya Mahakama" 3 The recorded video clip of his statement was uploaded on YouTube. YouTubers began to comment on the statement. One of them stated: @shamsahasan2748 Ukifanya unyama bora kuma/izana juu kwa juu tutoboane visu atakayekufa atazikwa kuliko kufuata sheria wakati hakuna kitu" The comments of the petitioner and the YouTubers came to the attention of the Attorney-General.

In the exercise of his mandate as Head of the Bar and custodian of the laws of Tanzania, he formed the opinion that the applicant had conducted himself unprofessionally. On 22/1/2024, he filed a complaint at the Committee established under section 4(1) of the Advocates Act [Cap. 341 R.E 2019] (hereinafter "the Act") beseeching it to exercise its disciplinary powers on the petitioner. The AG's rights to complain are stipulated under section 13 (1) (b) and (c) of the Act. In the complaint, which was registered as complaint No. 2 of 2024, the AG alleges that the petitioner's utterances are disrespectful to the Judiciary and in breach of the provisions of the Advocates (Professional Conducts and Etiquette) Regulations, 2018. The violated regulations listed in the complaint are regulation 4, 5(1), 6(l)(O), 92(1) and (2) (a) (b) (c) and (f), 129(1), 132 (2) (b) an (c), 134, 139(1) and 136. 4 Having responded to the complaint against him, the petitioner felt that he shall not get a fair trial so he resorted to this court for remedies complaining, among other things, that the quorum of the committee as presently constituted is biased since the 2nd, 3rd and 4th respondents who sit in the committee as indispensable members for purposes of quorum are conflicted for having direct interests in the complaint. The reasons for that argument, according to the originating summons, are: i. That,

under section 4 (1) (b), 4(3), (4) (4), 4 (5) and 4(6) of the Act the 2nd respondent plays a key and significant role in the committee's complaints hearing process. The roles include determining the dates, place and time of sittings per sections 5 and 10 of the Act while at the same time in the complaint against the petitioner doubling as the complainant. ii. That, under sections 4 (1) (b), 4 (3), 4 (4), 4 (5) and 4 (6) of the Act, the 2nd respondent can delegate his statutory powers in the committee to the 3rd respondent whose decision (the nolle prosequi) led to the utterances of the petitioner or the 4th respondent who is his immediate assistant. 5 iii. That, the foregoing notwithstanding, the 3rd and 4th respondents are potential witnesses to the complaint considering their roles and functions in their respective offices. Considering the foregoing, the originating summons accounts, the petitioner apprehends existence of a conflict of interests and real danger of bias in the mandatory quorum of the first respondent stipulated under section 4 (5) of the Act. That such quorum, in the circumstances of the complaint against him, violates his constitutional rights of equality under the law, protection against discrimination and fair hearing guaranteed by article 13 (1), (2), (3) and (6) (a) and 29 (2) of the Constitution of the United Republic of Tanzania, 1977 (hereinafter "the

Constitution"). To protect his above stated constitutional rights, the petitioner has moved this court under articles 26 (2) and 30 (3) of the Constitution to shield him by declaring the impugned provisions of the Act unconstitutional. He also prays for order forcing the AG to withdrawal the complaint and for direction the AG to consult the stakeholders to come up with the appropriate and acceptable composition and quorum of the Committee. 6 On their part, the respondents maintain that the impugned provisions are constitutional. Before the hearing commenced, the following issues for determination were framed by the court and agreed upon between the court and the parties: 1. Whether the composition of the National Advocates Committee as presently constituted under the Advocates Act, abrogates the petitioner's rights to fair trial, equality before the law and the right against discrimination, thus, unconstitutional.

2. Whether the personal attendance of the 2nd, 3d and 4 respondents during the hearing of the complaint against the petitioner before the National Advocates Committee will demonstrate apparent bias and conflict of interest in relation to the petitioner.

3. To what reliefs are the parties entitled? Arguments for the petitioner were made by Mr. John Seka, learned Advocate, while the respondents enjoyed the professional services of Mr. Edwin Joshua Webiro and Ms. Narindwa Sekimanga, learned State Attorneys. We are thankful for their well-articulated arguments which have profound bearing in this decision. 7 We shall deal with the first and second issues jointly as they are intertwined. This is because the apprehension of apparent bias alleged in the second issue, if proved, has a direct bearing on the impartiality or otherwise of the member of Committee or the Committee itself. The complaint on the composition and quorum of the Committee as submitted by Mr. Seka is that section 4(1) (b) of the Act makes the AG, the Deputy Attorney-General (hereinafter "the DAG") and the Director of Public Prosecutions (hereinafter "the DPP") mandatory and indispensable members of the Committee. On the quorum, the learned counsel submitted, section 4 (5) of the Act makes the AG or DAG and the DPP indispensable members for the purpose of the quorum. Mr. Webiro on the other hand argued that the AG, DAG and DPP are all dispensable members of the Committee for purposes of both the composition and quorum of the Committee. He submitted further that their attendance is of independent members not in the representative capacity of one another. To bolster

his arguments, he pointed to us the fact that the seemingly indispensability relied upon by Mr. Seka is founded on the provisions of section 4 (5) of the Act as per the Revised Edition 2019 which appear to have departed from the original version of the law. 8 In the Revised Edition 2019, Mr. Webiro argued, the conjunctive "and" is used instead of the disjunctive "or" appearing in the amendment made to that subsection in 1983 vide the Written Laws (Miscellaneous Amendment) (No. 3), 1983, Act No. 22 of 1983 which was, indisputably, followed by no other amendment of the said provision, hence its last amendment. The use of "and", the learned State Attorney contended, is a typing error which has influenced Mr. Seka's interpretation of section 4 (5) of the Act. We shall start with the determination of the argument whether the AG, DAG and DPP are jointly mandatory members of the Committee for the purpose of composition under section 4 (1) (b) of the Act. Section 4 in full reads: 4 -(1) There shall be established for the purposes of this Act a committee to be called the Advocates Committee consisting of— (a) a Judge of the High Court of the United Republic nominated by the ChiefJustice; (b) the Attorney-General, or the Deputy Attorney- General or Director of Public Prosecutions; (c) a practising advocate nominated by the Council of the Lav/ Society. 9 Mr. Webiro maintained that they

appear in the alternative. We agree with him. Their listing under the same subsection connected by the disjunctive "or" means that all of them are not cumulatively mandatory members in one sitting as argued by Mr. Seka. They, we hold, appear in the alternative. Therefore, the appearance of one of them displaces the rest. We also agree with Mr. Webiro that since the disjunctive "or" is used in section 4 (1) (b) their appearance is in personal capacity not in a representative capacity of one another as Mr. Seka tried to impress on us. We move to discuss the quorum and the argument by Mr. Seka that the DAG and DPP appears in the Committee as representatives of the AG starting with the argument by Mr. Seka that for the purpose of quorum, the AG, DAG and DPP are all mandatory and indispensable members. Tracing the history of the Committee, we have observed, as rightly argued by Mr. Webiro, that the Committee was founded in 1969. It was ushered into the Act by the Advocates Ordinance (Amendment) Act No. 39 of 1969 as section 4. The quorum is stated under section 4 (5). This section was amended by the Written Laws (Miscellaneous Amendments) (No. 3), Act No. 22 of 1983 by deleting it and substituting it by the following: io "Two members of the Committee, one of whom shall be the Attorney-General, or the Deputy Attorney-Genera! or Director of Public Prosecutions, shall form a

quorum" \Ne hold that the use the disjunctive "or" between the words AG, DAG and DPP in the same sentence means their appearance in the Committee is in the alternative as argued by Mr. Webiro. We have noted further that, despite the fact that no further amendment to the subsection was made thereafter, currently, the same subsection as appearing in the Advocates Act [R.E 2019] provides: "Two members of the Committee, one of whom shall be the Attorney-General or the Deputy Attorney-Genera/, and the Director of Public Prosecutions shall form a quorum" The plain meaning of this section is that the AG and DAG are alternate members of the Committee while the DPP is independent and a mandatory member. The Revised Edition 2019 traces its origin in the Revised Edition 2002 of the laws. This publication shows that section 4 (5) of the Act omitted the disjunctive "or" after the word "Deputy Attorney-General" appearing in Act No. 22 of 1983 and replaced it with a coma (,) followed by ("and"). We find that such alteration was unlawful for not being sanctioned by the Parliament and we consequently confine ourselves to the formulation ii appearing in the 1983 amendment. Based on this, we subscribe to the view that at every sitting of the Committee, the AG or DAG or DPP must attend to meet the quorum requirement. This brings about the concept of indispensability of the presence of one, not all

of them as argued by Mr. Seka. In our opinion, the law as framed requires them to appear in the alternative. Does the appearance of the DAG and DPP representatives of the AG for purpose of composition or quorum? Upon our reading of the whole of section 4 of the Act, we are satisfied that the only incident where the DAG and DPP appear as representatives of the AG is in the case where the AG is chairing the Committee in the absence of a Judge who is its designated chairman per subsection 4. For the clear demonstration of the conclusion we have made, let us trace the legislative history of this subsection starting with the original version in Act No. 39 of 1969 where it reads: "The High Court Judge shall be the chairman of the Committee and shall preside at all meetings of the Committee. In the absence from any meeting of the High Court Judge duly nominated by the Chief Justice either under subsection (1) or subsection (3), the Attorney- 12 General, the Deputy Attorney-Genera/ shall be the chairman of the meeting" In 1983 this subsection was amended by Act No. 22 of 1983 "by adding immediately after the expression "Attorney-General" the words "the Deputy Attorney-General or Director of Public Prosecutions to represent him". This amendment made the subsection to read: "The High Court Judge shall be the chairman of the Committee and shall preside at all meetings of the Committee. In

the absence from any meeting of the High Court Judge duly nominated by the Chief Justice either under subsection (1) or subsection (3), the Attorney- General, the Deputy Attorney-General or the Director of Public Prosecutions to represent him shall be the chairman of the meeting". Going by the 1983 amendment and considering the positioning of the expression to "represent him" in the sentence, the DAG and DPP can be representatives of the AG in the Committee in his capacity as chairman. The argument by Mr. Webiro that the phrase "to represent him" refers to the Judge chairman is misconceived considering the fact that the sentence that refers to the Judge as chairman is independent from that which makes the AG chairman in case of the absence of the judge. The two sentences are separated by a full stop (.). 13 It is our view that the position taken by Mr. Webiro might have been influenced by the law as it appears in the 2019 Revised Edition. The same subsection in the Revised Edition 2002 differs significantly with what is reflected in the Revised Edition 2019. The 2002 version reads: "The High Court Judge shall be the chairman of the Committee and shall preside at all meetings of the Committee. In the absence from any meeting of the High Court Judge duty nominated by the Chief Justice either under subsection (1) or subsection (3), the Attorney- General, the Deputy

Attorney-General or the Director of Public Prosecutions shall be the chairman of the meeting". The 2019 version provides: "The High Court Judge shall be the chairman of the Committee and shall preside at all meetings of the Committee, and in the absence from any meeting of the High Court Judge duly nominated by the Chief Justice either under subsection (1) or subsection (3), the Attorney- General, the Deputy Attorney-General or the Director of Public Prosecutions shall be the chairman of the meeting". In the 2002 version, the phrase "to represent him" was removed and in the 2019 publication, the full stop (.) after the word committee was removed. It was replaced with a coma (,) followed by the conjunctive "and". However, both changes which altered the original meaning of the 14 law were done outside the Parliament which is unacceptable in a jurisdiction like ours where democracy and rule of law are cherished. Going by the original version of the law, therefore, when the AG presides over the Committee as its chairman in case of absence of a Judge, the DAG and DPP can appear in the Committee to represent him (in case of his absence) in the capacity of chairman. In that case, we hold, they do not appear in their personal capacity but as representatives of the AG. In view of the discussions and findings herein above, we hold that either the AG or DAG or DPP is part of the

composition at any given time. In the same vein, one of them must sit in the Committee for quorum purpose. The two findings shall guide us in deliberating the petitioner's apprehension of the Committee's apparent bias in a complaint filed against him by the AG. The test for whether bias exists was formulated by Lord Dennin (MR) in Metropolitan Properties Co. (FGC) Ltd v. Lannon [1969] 1 QB 577 page 599. The formulation which was quoted with approval in Registered Trustees of Social Action Fund and Another v. Messrs Happy Sausages Limited and Eleven Others [2004] T.L.R 264 reads: 15 "In considering whether there was a real likelihood of bias the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in the judicial capacity. It does not look to see whether there was a real likelihood that he would or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, never the less if right-minded persons would think that, in the circumstances, there was real likelihood of bias, on his part, then he should not sit. And, if he does sit, his decision cannot stand". Mr. Seka argued that among the reasons for the AG's bias is his multiple roles in the functioning of the Committee. We, indeed, agree with

him that the AG has multiple roles including convening and assigning the time and places for the Committee's sittings. However, such roles by themselves, as submitted by Mr. Webiro, cannot cause a right-minded person to apprehend real danger of bias. In most Committees such roles can be performed by the chairperson or secretary of the committee without affecting its impartiality. Accordingly, we find that no validity in the argument of Mr. Seka. The foregoing notwithstanding, we have demonstrated, and it is undisputed, that the AG is the complainant against the petitioner at the 16 Committee. We have also shown that the AG is a member of the Committee and an indispensable quorum member of the Committee. Therefore, he cannot sit on his complaint against the petitioner as he is conflicted. In our view, the alternative member who can sit on his behalf is the DPP. However, according to the fact of this case, as herein above narrated, he also cannot sit for purposes of the quorum because the utterances of the petitioner are founded in his decision to enter a nolle prosequi in a case where the petitioner was representing a client. Indisputably, therefore, the DPP too has interest in the complaint, hence, conflicted. The remaining alternative member is the DAG. We hold that, as argued by Mr. Seka, he cannot not sit too because his functions and roles as immediate subordinate of the AG

cannot be severed from any action taken by the AG. There was an argument by Mr. Seka that, further to his interest, the DDP is conflicted as he is a direct subordinate of the AG. We do not agree with his argument as it is inconsistent with article 59B of the Constitution which establishes the DDP as an autonomous office. We, consequently, hold that the petitioner has proved bias in the Committee as far as the complaint against him is concerned. He therefore, indeed, cannot get a fair trial in a committee where the 17 indispensable quorum member of the quorum, if he sits, makes a right- minded person to think there is real danger of bias in the Committee. While the petitioner has proved bias, the claims that he would not get equal treatment and protection against discrimination were unsubstantiated. In our considered opinion, the problematic section of the Act is section 4 (5). Can we declare it or any of the impugned provisions unconstitutional for posing a danger of an apprehension of bias in the Committee considering the facts of this case? This question has seriously exercised our minds. Finally, we have decided to desist to declare the impugned provisions unconstitutional considering the well-established principles as to when the powers of this court to declare an Act of parliament unconstitutional can be invoked. Mr. Seka and Mr. Webiro are at per on the value and

application of guiding rules which we discuss hereunder albeit briefly. In Attorney-General v. W.K Butambala [1993] T.L.R 46 it was held: "We need hardly say that our Constitution is a serious solemn document. We think that invoking it and knocking down laws or portion of them should be reserved for appropriate and really momentous occasions. Things which 18 can easily be taken up by administration initiative are best pursued in that manner. In Christopher Mtikila v. Attorney-General [1995] T.L.R 31 at page 55 it was held: "The constitutionality of a statutory provision is not found in what could happen in its operation but in what it actually provides for; the mere possibility of a statutory provision being abused in actual operation will not make it invalid." In the same decision at page 34 it was stated: '!4 breach of the constitution is such a grave and serious matter that cannot be established by mere inference but by proof beyond reasonable doubt". In this case, the petitioner has proved beyond reasonable doubt that the Committee's quorum requirement of the presence of either the AG, DAG or DPP for its proper constitution impairs the Committee's impartially to hear the complaint against him. This is not a mere possibility but the actual state of things created by section 4(5) of the Act which poses a real danger of bias in the Committee. However, this state of things

arises only when, just like in the complaint No. 2 of 2024 pending before the Committee, the AG is the complainant and the DAG and the DPP are, considering the facts of the respective case, directly conflicted and the vice versa. It does not arise in other situations. We are of the strong 19 view that this anomaly can conveniently be removed by administrative measures instead of declaring the impugned provision unconstitutional. We shall clarify why we are taking this position. We are aware that, our legal regime has a two-tier system for dealing with complaints of professional misconduct levelled against advocates. The first is provided for under the Act as extensively discussed herein above. The second one is under parts III, IV and V of the Tanganyika Law Society (Ethics) Regulation, 2022, G.N. No. 602 Of 2022. Part IV and V establish Chapter Ethics Committees and National Ethics Committee respectively. In our considered opinion, the existence of the two-tier system is a panacea to the challenge of conflict of interest and apprehension of bias on part of the AG, DAG and DPP on one hand and lack of impartiality in the Committee on the other hand, in the peculiar circumstances akin to complaint No. 2 of 2024 where the AG is the complainant. The presence of the alternative mechanism under the Tanganyika Law Society (Ethics) Regulation, 2022 provides an avenue where the AG can

complain beside the Committee which, administratively, resolves the quagmire and saves the impugned provisions from being declared unconstitutional. 20 In the final analysis, we hold that the Committee cannot preside over complaint No. 2 of 2024 against the petitioner as, in respect of this complaint, the Committee is apparently biased. The AG has the option to file his complaint against the petitioner in the committees under the Tanganyika Law Society (Ethics) Regulation, 2022, G.N. No. 602 of 2022. However, if the AG is still minded to file the complaint and similar complaints in the Committee, he can move for amendment of its quorum to remove the apparent bias and conflict of interests. He may also wish to amend the composition of the Committee having regards to the practice in other Commonwealth jurisdictions where, just like in our jurisdiction, admission of advocates to the bar is under the Chief Justice. To what reliefs are the parties entitled? All said and done, the petition succeeds in the prayer that the AG should withdraw from the Committee the complaint against the petitioner and we so order. This is because the Committee, in the circumstances, cannot be duly constituted in the absence of the AG or DAG or DPP for reasons demonstrated herein above. It also succeeds in anticipatory. Should the AG take the option to amend the composition and quorum of the committee,

stakeholders should be involved to deliberate on the appropriate composition and quorum of the Committee. This relief is an 21 improved version of the prayer by the petitioner that the AG be ordered to consult the Chief Justice, Tanganyika Law Society Members and other stakeholders to consider the appropriate quorum of the Committee. Such an order is untenable in view of the fact that the AG may not wish to do so if he is satisfied with the remedies under the Tanganyika Law Society (Ethics) Regulation, 2022 where he has rights to lodge complaints similar to the one leading to this petition. The rest of the prayers are dismissed for want of merits. Before winding up, we wish to comment that, owing to what we have demonstrated, hereinabove, on the history of the composition, chairmanship and quorum of Committee under the Act, we are satisfied beyond doubt that in the course of printing the Revised Editions of the laws, the Attorney-General omits or changes or varies some provisions of the laws without a legislative process. This action, definitely, impacts the integrity of the laws or statutory provisions whose parts are omitted, added, changed or varied outside the Parliament. We urge the AG to exercise due care when printing the Revised Editions of the laws as the altering of a single word in a sentence can change the meaning intended by the legislature which is the

constitutional body with an exclusive mandate to legislate. We need not emphasize that, the 22 publication of the Revised Editions is not meant to be an opportunity for amending any legislation by altering its meaning and, consequently, changing the intention of the legislature in the respective law. We say so being alive to the powers of the AG under the Laws Revision Act [Cap. 4 R.E 2002] which, in our considered opinion, are limited to correction of typing errors not meaning of the laws. In the end, this being a public interest litigation, we order the parties to bear own costs.

JUDGE 23