zitto zuberi kabwe vs president of the united republic of tanzania 2022 tzhc 15339 5 december 2022

zitto zuberi kabwe vs president of the united republic of tanzania 2022 tzhc 15339 5 december 2022

Section 6(1) of the Public Audit Act, by introducing a fixed term of five years (renewable once) for the Controller and Auditor General, is inconsistent with Article 144(1) of the Constitution, which guarantees tenure until the age of 65 or removal only through the constitutional process. The removal of the 4th respondent before attaining 65 years, based on the expiry of a fixed term, was unconstitutional. The appointment of the 3rd respondent, though challenged, was not declared unconstitutional as it was overtaken by events and not based on lack of qualifications.

Citation
zitto zuberi kabwe vs president of the united republic of tanzania 2022 tzhc 15339 5 december 2022
Parties
Petitioner: Zitto Zuberi Kabwe; 1st Respondent: The President of the United Republic of Tanzania; 2nd Respondent: The Hon. Attorney General; 3rd Respondent: Charles Kichere; 4th Respondent: Prof. Mussa Juma Assad
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
5 December 2022
Procedural Posture
Constitutional Petition / Judgment
Outcome
Petition allowed in part; section 6(1) of the Public Audit Act declared unconstitutional and struck out; removal of 4th respondent declared unconstitutional; appointment of 3rd respondent not declared unconstitutional; no order as to costs.
Legal Topics
Security of Tenure, Judicial Review, Removal of Public Officers, Interpretation of Statutes, Supremacy of Constitution
Source Language
English
Constitutional Law Administrative Law Public Law Security of Tenure Judicial Review Removal of Public Officers Interpretation of Statutes Supremacy of Constitution

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Parties

Zitto Zuberi Kabwe

Petitioner

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

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether section 6(1) of the Public Audit Act No. 11 of 2008 is unconstitutional for violating Article 144(1) of the Constitution
  2. 2 Whether the removal of the 4th respondent from the office of Controller and Auditor General before attaining the age of 65 years was unconstitutional
  3. 3 Whether the appointment of the 3rd respondent as Controller and Auditor General was unconstitutional

Ratio Decidendi

Section 6(1) of the Public Audit Act, by introducing a fixed term of five years (renewable once) for the Controller and Auditor General, is inconsistent with Article 144(1) of the Constitution, which guarantees tenure until the age of 65 or removal only through the constitutional process. The removal of the 4th respondent before attaining 65 years, based on the expiry of a fixed term, was unconstitutional. The appointment of the 3rd respondent, though challenged, was not declared unconstitutional as it was overtaken by events and not based on lack of qualifications.

Court Disposition

Petition allowed in part; section 6(1) of the Public Audit Act declared unconstitutional and struck out; removal of 4th respondent declared unconstitutional; appointment of 3rd respondent not declared unconstitutional; no order as to costs.

Orders

  • Section 6(1) of the Public Audit Act No. 11 of 2008 is declared null and void and struck out forthwith.
  • Removal of the 4th respondent from the office of Controller and Auditor General before attaining 65 years is declared unconstitutional.