attorney general vs fatuma amani karume 2020 tzhcld 1819 23 september 2020

BEFORE THE ADVOCATES COMMITTEE AT DAR ES SALAAM IN THE MATTER OF THE ADVOCATES ACT (CAP 341 R.E. 2019) APPLICATION NO. 29 OF 2019 THE HONOURABLE ATTORNEY GENERAL............................... APPLICANT VER SU S FATUMA AMANI KARUME................................................. RESPONDENT RULING Date o f last order: 2&h June 2020 Date o f the ruling: 2 J dSeptember 2020 K H ekam ajen ga, J . -C h a irp e rso n In 2018, Mr. Ado Shaibu filed a petition vide Misc. Civil Cause No. 29 of 2018 against the Honourable John Pombe Joseph Magufuli (The President of the United Republic of Tanzania), Adelardus Lubango Kilangi and the Hon. Attorney General. The petition was filed before the High Court of United Republic of Tanzania at Dar es salaam (Main Registry) under the Basic Rights and Duties Enforcement Act, Cap. 3 RE 2002 and Articles 26(2) and 30(3) of the Constitution of the United Republic of Tanzania, 1977. The petitioner sought an order of the Court to declare that His Excellency, the President of the United Republic of Tanzania violated the Constitution by appointing Prof. Adelardus Lubango Kilangi to be the Attorney General of the United Republic of Tanzania. The respondents to the petition filed points of preliminary objection challenging the same. The petitioner, Mr. Ado Shaibu, was represented by the learned advocate, Ms. Fatma Amani Karume who is the respondent in this application. In the petition, the Court ordered the points of preliminary objection to be disposed of by way of written submission. In the reply written submission, the learned advocate, Ms. Fatma Amani Karume wrote, inter alia, the following statements: This Attorney General is far too junior to garner that kind o f respect from the B a r . 'Given his lack o f experience and junior position, Ade/ardus KHangi has been a woefully disappointing as legal advisor to the Government\ at a cost to our constitutional o r d e r . 'In this Adeiardus KHangi has failed. A matter that is not surprising given his experience.'... 'So mark my words, in the event this case fails on a Prelim inary Point\ it is not over. I f the President's unconstitutional conduct is protected by the Court on the ground that he is the President, we shall test it again once he leaves office, be it in 2020 or 2025 and in the latter case, the bench w ill also be a different one. That is the beauty o f tim e.' See, Annexture ALK-F3. Upon noticing the above statements, the respondents in the petition, complained that the learned advocate Ms. Fatma Amani Karume acted unprofessionally and disrespectfully by personally attacking the Attorney General, Prof. Adeiardus Kilangi, contrary to the advocates' professional conduct and etiquette. The presiding judge, the Hon. Principal Judge, regarded the above words as contrary to the advocates' professional conduct. Consequently, the Hon. Principal Judge acted under section 22(2)(b) of the Advocates Act and 2 suspended the. learned advocate, Ms. Fatma Amani Karume from practice pending reference of the professional misconduct to this Committee. Immediately thereafter, the Attorney General (applicant) filed the instant application before this Committee against the learned advocate, Ms. Fatma Amani Karume Roll No. 848, seeking the following orders: 1. A declaration that the respondent has committed gross professional misconduct; 2. An order o f removal o f the respondent's name from theRoil o f Advocates; 3. The cost to be borne by the respondent; 4. Any other relief(s) the Hon. Committee may deem fit and ju st to grant in favour o f the applicant. In response, the respondent, Ms. Fatma Amani Karume, filed a counter affidavit resisting the application and raised three points of preliminary objection. The committee determined and finally overruled the objection allowing the application to be heard on merit. The application was finally fixed for hearing; the applicant appeared in person while enjoying the legal services of the learned State Attorneys namely, Dr. Clement Mashamba (Solicitor General), Mr. Gabriel Malata (Deputy Solicitor General), Mr. George Mandepo (Principal State Attorney), and Mr. Erigh Rumisha (State Attorney). On the other hand, the respondent appeared in person under the legal representation of the learned advocate, Mr. Peter Kibatala. In proving 3 the allegations against the respondent, the applicant summoned four witnesses whereas the respondent willfully declined to defend her innocence and did not bring any witness. In his oral testimony, Professor Adelardus Kilangi (PW1) prayed to adopt his affidavit and testified that he is an Associate Professor of Law. After completing his Advanced Level Certificate Studies, he did a Diploma in Philosophy at Saint Mary's Senior Seminary at Kibosho. He also did a Diploma in Theology at Saint Paul's Senior Seminary at Kipalapala. He did his Bachelor of Laws at the University of Dar es salaam and graduated in 2000. He thereafter did a Master of Law at the University of Dar es salaam and graduated in November 2003. He did a PhD in law at the University of Dar es salaam and graduated in November 2013. He thereafter authored several books and qualified to be the Associate Professor in December 2018. Apart from his academic qualifications, he worked in different organizations. For instance, in 2000-2001, he worked as a Legal Aid Officer of a Non-Governmental Organization called Envirocare. In 2001-2004, he was employed by the Danish Embassy as a Programme Officer and Legal Advisor. In 2005, he was employed as a lecturer at Ruaha University College and later shifted to Saint Augustine University in Mwanza. In 2009, he was appointed the representative of the African Union on International Law. In 2012, he was 4 appointed the President of the Union. In 2013-2018, he became the Senior Mineral Law Advisor of the United Nations Economic Commission for Africa. In 2013-2015, he became the Advisory Committee Member on Mineral Laws in Tanzania. He was finally appointed the Attorney General on 1st February 2018. He averred that, the respondent's claim against his appointment as the Attorney General were maliciously motivated and intended to mislead the public on his requisite qualifications. He further testified that, as the Attorney General, his duties are stated under Article 59 of the Constitution of the United Republic of Tanzania. Also, under sections 10, 11 and 13 of the Advocates Act, the Attorney General has several responsibilities which include taking the leading precedence in the Roll of Advocates and also ensuring that advocates conduct themselves according to the law and regulations. Therefore, the respondent, being a registered advocate and her name being in the Roll of Advocates, is bound to comply with the Advocates Act and the Advocates (Professional Conduct and Etiquette) Regulations of 2018. PW1 further reminded the Committee that in 2018, the respondent represented Ado Shaibu before the High Court. The Court ordered the matter to be disposed of by way of written submission. In the reply written submission, the respondent used unprofessional and inappropriate words contrary to the advocates' ethics. Such words intended to ridicule him (the applicant) something 5 which is contrary to the law and professional ethics. The presiding judge, the Hon. Principal Judge, noted such unprofessional words and suspended the respondent from practice. The judge further instructed the Registrar of the High Court to take the matter to this Committee. PW1 further testified that, after the suspension, the respondent, Ms. Fatma Amani Karume, continued to post false accusations and disparaging remarks against the applicant, the Hon. Chief Justice, the Hon. Principal Judge, other members of the Bench, Public Officers and the judiciary. To fortify his testimony, he cited few messages from the respondent's twitter account posted on divers dates. According to PWl's testimony, the following statements were posted by the respondent on twitter: 1When you have the "power" to tell the DPP who he SHOULD prosecute then you sure as hell have the 'power' to tell him with whom he should enter a plea bargain and when you expect the plea bargains to be concluded.' \Naona sasa kazi ya Ja ji Mkuu ni kuwashauri Mabalozi wakishaapishwa.' (posted on 22nd September 2019). ’Nimemalizika kwa kunifungia uwakili? Nyinyi mnaendeshwa kwa njaa ya matumbo yenu na s i njaa ya HAKI! Mwambieni @ MagufuliJP niko tayari KUFA kwa Demokrasia na Utawala wa Sheria. Wasiojulikana wanajua nakaa wapi waje tu S tu p id !' (Posted on 21st September 2019). 'Nataka muelewe. M ahakam a y a F e le s h i ndio inasikiliza kesi ya kupinga UKOMO wa kuwa Rais kwenye Katiba. Msijekushangaa mkiambiwa na Mahakama Katiba imekosea kuweka UKOMO. Maana wanajua waZNZ Bungeni hawatakubaii. S a sa w an am tafu ta F e le s h i aam u e M a h a k a m a n i/{ Posted on 21st September 2019). 'Hawa watu n i wajinga sana. CUF waiivyooshusha tanga wakapandisha tanga baada M ahakam a M vy o tu m iw a hawajajifunza kwamba hata Mwanasheria anaweza kushusha tanga na kupandisha tanga. Wacha ni enjoy weekend yangu. Monday is another day. F e le s h i it 's n o t o v e r V (Posted on 20 September 2019). 1Waiimpiga risasi Tundu Hi TZ nzima ikose BRAIN kama TL. Can you imagine? (Posted on 20th September 2019). 'H uyu n d iy e F e le s h i a lik u w a D P P ! Case dosed! (Posted on 20th September 2019). ’Kutojua kitu sio UJINGA. Lakini kutokujua haiafu kujifanya unajua ni UJINGA. Mtizameni Yule mama kuie nyuma. Anajichekeya tu! Ndio TZ yetu. Wasiojua wanajifanya m aProf wa kiia kitu na w ana m idom o m ire fu kam a jo g o o . Wanaojua wanakaa nyuma wanawacheka wajuaji tu!' (Posted on 17th September 2019). K w a k w e li n a s ik itik a sa n a n ik io n a m a J a ji w etu w an ash in d w a k u to fa u tis h a b a in a T A R A T IB U ZA K IS H E R IA na TATIZO LA 7 K IS H E R IA . NON BAILABLE OFFENCES NI KATAZO ZA KISHERIA kupata Bail. Sio TARATIBU (procedures). Mnanihuzunisha sana.' (Posted on 17th September 2019). 'Kwa miaka 4 nyinyi ndio mlikuwa KERO KUBWA la wananchi lakini hamjataka kusikia. Bunge mmeliziba mdomo; vyama vya siasa vyote mmeviziba midomo mnabwabwaja nyinyi\ Polepole na Musiba tu. Na kila mkisema ni: MAGUFULIOYEE! Sasa jua Unazama mnataka kujua kero za wananchi?' (Posted on 15th September 2019). 'Nao umesema nini hapo? This is exactly what I mean: NO BRAINS. Halafu eti mnatuwakilisha. Hata ku make an argument mnashindwa. Mnabaki kupiga watu risasi na kuteka na kuuawa watu. UPUMBAVU ni MATESO KWA JAM II NZIMA! Good night/ (Posted on 12th September 2019). 'T IS S n i W a te ka ji, W a te sa ji n a W a u a ji! Wasijadiliwe na Bunge bali Wachunguzwe, Wafumuliwel' (Posted on 12th September 2019). S iju i anajuta kutokuwatambua watu wasiojulikana. M aana w a liw a u a w a tu w e n g i K A S K A Z IN I. H u su sa n i w aislam . N a s ik ia w a liin g ia m p aka m s ik itin i. (Posted on 12th September 2019). Then y o u a re S T U P ID A S H E LL! Cheo cha po/isi n i MCHAKATO sio AGIZO! Na wakuwa mtumwa maisha yako. @ MagufuliJP kaweka kumtathimini huyu WPC kwa UJUMLA. Mnaua PROFESSIONALISM na MERITOCRACY zinazopimwa kwa SYSTEMS. M w ish o m tasem a M ag u 8 an a w e za k u m p a tia m w a n a fu n zi D IS T IN C T IO N / (Posted on 12th September 2019). 1Hakuna kitu kigumu kama kugombania utawa/a wa sheria na HAKI. K u n a w a tu W A PU M ABVU sa n a na hawaelewi umuhimu wa UTAWALA WA SHERIA mpaka pale wao au jam aa zao yanawafikia. W aTZ w e n g i sa n a in c lu d in g m a ja ji fin d C o n ce p tu a l T h in kin g v e ry d iffic u lt m paka u w ap e CO N CR ETE AN ECD O TES. Why? (Posted on 12th September 2019). It is so sad that so fe w T Z n ian s even u n d e rsta n d th e le g a l n a tu re o f th e U n io n b e tw e en Z N Z a n d TNG in c lu d in g b y th e w ay th e A G o f TZ. Yeye n d io h a ta h a e ie w i kw am b a s io w a TN G !.' (Posted on 24th June 2019) 'Mmmh Jam ani... K w a n i m iik u w a h a m ju i M atu p a J. k a to le w a IK U L U a k a fa n y w a J A J I? Tuulizeni sisi tunaopiga Ke/e/e kila siku kwamba uteuzi wa M ajaji lazima ufanywe kwa uwazi na kwa kushirikisha Vyama vya Siasa na wananchi. KW A M FU M O H U U IM A N IH A IT O K U W E P O !' (Posted on 11th September 2019). 'Wenzetu wakichaguiiwa m ajaji lazima kuwe na Public hearing na wau/izwe maswali kuona kama wanafaa na wako independent. Kwetu process nzima iko GIZANI! Kwanini? Wanaficha nini? Na kwa nini ma Ja ji wanachaguliwa na Raisi? Yeye anawajuaje?' (Posted on 10th September 2019). 9 !J a ji M a tu p a a n a k a ta a k u to a IN JU N C T IO N k u sto p th e ille g a lly a p p o in te d M P k u a p ish w a h a la fu an asem a h a w e zi ku m ten d ea h a k i L is s u k w a sa b a b u k u n a M bu n ge S in g id a M a sh a rik i. A n g e b a k i IK U L U TU a lip o k u w a m aana h a e le w i p o in t ya in ju n c tio n .' (Posted on 10th September 2019). 'Oh by the way: Sasa itakuwa business yangu kutizama kiia siku n i matangazo mangapi Serikaii ya Magufuii inaweka kwenye Magazeti UCHWARA ya Musiba. Hi niweke record ya heia anazopewa za waiipa kodi. M n a jifa n y a w a ja n ja ku m be y o u a re S T U P ID A S H E L L !' See, Annexture ALK-F6. PW1 further insisted that the disparaging remarks by the respondent were given through the respondents7 twitter account and published in other media platforms such as the Citizen Newspaper on 22nd September 2019 and on Youtube. For instance, in the Newspaper, the respondent challenged the dismissal order and was quoted to have said: After a ii in Africa no court has ever brought change. It is politics that has brought change.' See, Annexture ALK-F7. During cross examination PW1 insisted that he is an advocate number one in the Roll of Advocates. The respondent's disparaging remarks intended to 10 mislead the community/public about the applicant's appointment as the Attorney General. The respondent's remarks intended to make people believe that the applicant was incompetent and that some of the statements in respondent's reply written submission amounted to professional misconduct. The second witness (PW2) was Aziz Makaburi, an ICT officer from the office of the Solicitor General. He admitted to issue a certificate of authenticity of documents in connection with the tweets from the respondent's twitter account. He printed the messages from the respondent's twitter account in October 2019. He made printouts of the said messages from the office of the Solicitor General. He testified further that he never changed anything on the messages before handing them over to the Solicitor General. He retrieved the messages from the twitter account of 'Fatuma Karume aka Shangazi @ fatuma_karume.' The printer used to print the messages was Laser- Jet Enterprise M605. He finally prayed for the certificate of authenticity and print out of tweet messages to be received as an exhibit(s). The counsel for the respondent objected the admission of the print out of the messages because they were filed at different times from the certificate of authenticity. The Committee overruled the objection on the reason that such printouts were adopted and formed part of PWl's evidence and it was irrelevant to reject them at that stage. During his testimony, PW2 admitted that there was 11 an error on the respondent's twitter account. The respondent's twitter account was supposed to read ''@fatma_karume' instead of'@fatma_karumee.' Upon cross-examination, PW2 insisted that he printed the messages and handled them to the Solicitor General. The third witness (PW3) was Assistant Inspector of Police, Mr. Innocent Ndowo who tendered a witness statement before oral testimony. Before cross examination, he prayed to adopt the witness statement which was adopted accordingly. In the witness statement, PW3 stated that he was assigned to investigate criminal allegation involving the use of social media by Ms. Fatma Karume. He was later instructed to provide the statement on the ownership of the twitter account '@fatma_karume.' He was required to verify scientifically about the ownership of the account. He stated further that according to twitter platform, to open an account, the user must have an account name, email address, mobile phone number and a password. The email address and phone number are used to verify in case the user forgets the password. A tool called password reset is used to allow access back and use the account. Using the password reset tool, PW3 was able to confirm the existence of twitter account '@fatma_karume.' He discovered that the said twitter account was created on January 2018 and it is associated with email address 'ka****@i****.**.**.' During his in vestigation, he discovered a public website 12 with a link http://www.immma.co.tz/people/karume/index.php which has nexus to the said twitter account. On the website link, he found details concerning the respondent. Part of the information of the respondent reads: Full name: Ms Fatma A Karume Company: IMMMA Advocates Job title: Senior Partner Email: karume(a)immma. co. tz Mobile:+255784783300 He also discovered that the twitter account '@fatma_karume' was associated with email address karume(g)immma.co.tz and mobile number +255784783300. The same details are found at the above website link. He was therefore certain that the twitter account '@fatma_karume' was registered on twitter using the email 'karumetftimmma.co.tz' and mobile phone number +255784783300 which all belonged to Ms. Fatma A Karume. PW3 further testified that the resume of advocate Ms. Fatma A Karume was also found at the above website link. During cross-examination, he informed the Committee that the blue tick services on twitter accounts is currently not provided. It was normally used by famous or important persons' accounts although ordinary people could use it as well. He told the Committee that the twitter account of '@fatma_karume' was registered by twitter in January 2018. He insisted that the twitter account was 13 associated with email address karume(g)immma.co.tz which is owned by advocate Ms. Fatma Karume. Later, the Committee wanted PW3 to demonstrate, scientifically, how the twitter platform works and whether the alleged messages were printed from the twitter account of '@fatma_karume.' After the demonstration, the Committee was satisfied that the alleged messages were posted through twitter account '@fatma_karume.' The fourth witness (PW4) was Assistant Inspector of Police, Mr. Aristides Kasigwa Eustadius. Because he submitted a witness statement, he prayed for his statement, affidavit, CV, the report on the videos from Youtube and the flash disc to be received and be adopted to form part of his testimony. In his witness statement, he stated that he was requested by the Commanding Officer of Photo Analysis Unit (Forensic Bureau) to provide a witness statement to the Solicitor General concerning the Youtube videos and audio alleged to contain particulars and statement of the learned advocate Ms. Fatma Karume. The details of his analysis are contained in the report FK-1 and Youtube videos/audio recordings contained in a flash disk FK-2. In the certificate of authenticity which accompanied the witness statement, he listed all the online links from where he downloaded the videos. 14 The Committee ordered the witness to display the videos contained in the flash. The Committee viewed all the videos in the presence of the counsels for the applicant and respondent except the applicant and respondent who were absent. The counsels for the applicant finally prayed to close the case after the evidence of PW4. Thereafter, the respondent was invited for the defence; Mr. Kibatala informed the Committee that he received specific instructions that the respondent had no trust on the impartiality of the Committee. The respondent believed that she was condemned before determination of the application. The respondent advanced three reasons for declining from defending the application. First, the composition of the Committee, especially the presence of the DPP did not give her sense in law and logic. In her view, the office of the DPP is closely linked to the office of the Attorney General and that of the Solicitor General. Second, the tweet messages submitted in Court also points towards the DPP. Third, the respondent envisages the possibilities of double punishment because the respondent was suspended without being given the right to be heard and the Committee failed to dismiss the suspension order before hearing the instant application. Based on the above reasons, the respondent believed that her defence could not change the decision of the Committee hence she declined to appear for the defence. 15 The Committee was of the view that the reasons for declining to make her defence were addressed and decided in the ruling when the respondent raised points of preliminary objection. However, Mr. Kibatala urged the Committee to allow him to file final submission concerning the application. The prayer was granted; therefore both the counsels for the applicant and respondent filed final submissions. Although the respondent willfully declined to appear for the defence, the Committee considered her counter affidavit. In the counter affidavit, despite objecting some paragraphs of the application, she reiterated some of the statements used in the reply written submission in Misc. Civil Cause No. 29 of 2018. For instance, on the third paragraph of the counter affidavit, the respondent stated that: 'That■ it was my expectation that somebody who has somehow acquired such a lofty office as that o f the Attorney General o f the United Republic o f Tanzania, so much that they refer themselves as T h e H o n o u ra b le Attorney General' would immediately grasp such as obvious matter o f fact and law. The fact that the said Attorney Genera! has missed such an obvious matter is to me justification for my professional opinion that Mr. Adeiardus Lubango KHangi is unqualified to hold an office previously exalted\ respected and looked up to, as that o f the Attorney General o f the United Republic o f Tanzania.' 16 In addition, when replying to the tenth paragraph of the application, the respondent stated that: 'It is true that Mr. Adelardus Lubango KHangi is a Junior Member o f the Bar, his Roii Number is 2022, while Mine is 848. Mr. Adelardus Lubango KHangi has many Advocates ahead o f him, some admitted as recently as 2010. I have personally spoken to many Advocates who have told me that Mr. Adelardus Lubango KHangi, unlike a ll previous Holders o f the Office, has miserably failed in advising the Government in many pertinent issues.' However, she denied owning the twitter account that possessed the alleged unprofessional and disrespectful messages and required the applicant to prove the same. In her submission, she alleged that the twitter account '@fatma_karume' is unverified. Now, having considered the evidence from the applicant and counter affidavit, there are three issues to determine in this application thus: 1. Whether the alleged statements against the Attorney General (applicant), members o f the Bench and the Judiciary were given by the respondent, Ms. Fatma Amani Karume; 2. I f the first issue is in affirmative, whether the respondent committed professional misconduct by uttering or posting such statements; 3. I f the second issue is in affirmative, to what relief or remedy is the respondent entitled to. 17 In this application, and also according to the evidence adduced by the applicant, there are four sets of information which were given or adduced by the respondent against the applicant, public officers, the Bench and the judiciary. The first set of information comprises the statements which were adduced by the respondent in the petitioner's reply written submission in the Misc. Civil Cause No. 29 of 2018. There is no dispute that the reply submission was written by the respondent and filed before the High Court of Tanzania. Though the respondent did not defend the application, she filed the counter affidavit in which she did not deny the said reply written submission. In response to the application, the respondent simply noted the allegation that she committed professional misconduct when she personally attacked the Attorney General and the judiciary. Generally, the respondent did not object the fact that the information contained in the reply submission was adduced by her. It is therefore evident, without a shred of doubt that the first set of information contained in the reply written submission, were given by the respondent. The second set of information alleged to have been given by the respondent were retrieved from the respondent's twitter account named '@fatma_karume.' The applicant alleged that such statements were posted by 18 the respondent through twitter platform on divers dates especially after the suspension. According to the evidence adduced by the applicant, such statements ridiculed the applicant, the Hon. Principal Judge, the Bench, the judiciary and other public officers. On the other hand, the respondent, through her counter affidavit, alleged that such statements were retrieved from an unverified twitter account because there are other twitter accounts with user name 'Fatma Karume aka Shangazi'. She generally denied owning the messages contained in the twitter account named '@fatma_karume.' However, PW3 scientifically demonstrated before this Committee on the ownership of the said twitter account. He informed the Committee that it is easy to use somebody's name such as 'Fatma Karume aka Shangazi'. That is the reason why there may be other similar names on twitter. But, it is impossible to have two accounts with the same name. PW3 demonstrated clearly that there is only one twitter account that reads '@fatma_karume.' During his investigation, PW3 discovered that the twitter account '@fatma_karume' is associated with an email address of 'karume@immma.co.tz and mobile phone number +255784783300 and website link http://www.immma.co.tz/people/karume/index.php. During the demonstration before the Committee, the Committee was able to see some of the posts through the same twitter account which the applicant 19 complained about. PW3 specifically indicated that the user name alleged to post the above messages was 'fatma karume aka Shangazi' and the twitter account to that user name was '@fatma_karume.' He insisted that it may be easy to fake the user name but not the account name. The attachment to the PW3's witness statement clearly demonstrated how he was able to verify that the twitter account '@fatma_karume' belonged to the respondent. Based on the evidence, the Committee was convinced beyond reasonable doubt that the twitter account contained messages, that attacked the Hon. Chief Justice, Hon. Principal Judge, the Bench, the judiciary, the applicant and other public officers, belonged to the respondent. The third set of information alleged to contravene the respondent's professional conduct was posted on YouTube on divers dates. During the hearing of the application, PW4 scientifically demonstrated how he downloaded the videos from different Youtube web links. He further displayed the videos before the Committee. During the hearing, most of the alleged videos were still on Youtube and could easily be viewed and downloaded. The Committee had no reason to doubt whether the same videos were edited to contain contents not given by the respondent. The video clips show the respondent speaking; her identity and voice was visible and audible. We do not doubt whether the contents of information on the videos were fabricated. We therefore conclude 20 that the video clips were of the respondent. Despite the fact that PW4 provided links where the videos were available, he also tendered a flash disk containing both the audio and video recordings of the respondent. The flash disk is among the list of document/information listed by the applicant in the application. The fourth set of information alleged to have been adduced by the respondent which unprofessionally attacked the applicant, the Bench and the judiciary is contained in the Citizen News Paper published on 22nd September 2019. After the suspension of the respondent from practice, she was interviewed by the News Paper reporter and was recorded to have uttered statements that contravened the profession conduct. When responding to the allegation that it was against her professional conduct to issue such statements, the respondent, on the 16th paragraph of the counter affidavit, stated that, being the advocate of the High Court of Tanzania, she was constitutionally entitled to her personal views in her personal life and to express them freely. She generally never denied adducing the statement. Therefore, it was evident and without any doubt that the statements, reported in the Citizen New Paper published on 22nd September 2019, were issued by the respondent. Based on the analysis above, we are confident that the four sets of information alleged to contravene the respondent's professional conduct were 21 issued, on divers dates, by the respondent. The first issue in this application is therefore answered in affirmative. The next issue is whether the respondent committed professional misconduct by uttering, writing and postings such statements on different media platforms. Before answering the issue, it is pertinent to define the term misconduct. It is unfortunate that the Advocates (Professional Conduct and Etiquette) Regulations of 2018 do not define the term misconduct. Elbepeter when writing on Professional Misconduct of Lawyers in India defined misconduct in the following words: 'Advocacy is a noble profession and an advocate is the most accountable, privileged and erudite person o f the society and his act are role model for the society, which are necessary to be regulated. P ro fe s s io n a l m isco n d u ct is th e b e h a v io r o u tsid e th e b o n d s o f w h a t is co n sid e re d a cce p ta b le o r w o rth y o f it s m em b ersh ip b y th e g o v e rn in g b o d y o f a p ro fe ssio n . P ro fe s s io n a l m isco n d u ct re fe rs to d is g ra c e fu l o r d ish o n o u ra b le co n d u ct n o t b e fittin g an a d v o ca te .' (Emphasis added). See, http://www.leqalservicesindia.com/article/1665/Professional-misconduct-of- lawyers-in- india.html#:~:text=Professional%20misconduct%20is%20the%20behaviour.con duct%20not%20befittinq%20an%20advocat last accessed on 22 September 2020 . 22 We also subscribe to the case of State of Punjab v. Ram Singh AIR L992 SC 2188 which was supplied by the counsel for the applicant which defines the word misconduct as follows: 'M isc o n d u c t im p iie s a w ro n g fu l in te n tio n , a n d n o t m ere e rro r o f ju d g m e n t. M isco n d u ct lite r a lly m ean s w ron g co n d u ct o r im p ro p e r co n d u ct ... M isco n d u ct is a v io la tio n o f d e fin ite la w ; carelessness or abuse o f discretion under and indefinite law. M isco n d u ct is a fo rb id d e n a ct; carelessness, a fo rb id d e n q u a lity o f an act... '(Emphasis added).' It is therefore apposite at this stage to understand whether the respondent is governed by any code of conduct. For the purposes of further discussion, analysis and quick reference, we wish to reproduce some of the relevant provisions of the law governing the conduct of advocates. It must be understood that under section 66 of the Advocates Act, Cap. 341 RE 2019, every registered advocate is an officer of the High Court and he/she is subject to its jurisdiction. Being the officer of the Court, an advocate must be a person of high integrity. Regulation 4 of the Advocates (Professional Conduct and Etiquette) Regulations provides that: 'For the purposes of meeting the fundamental quality of an advocate, every advocate shall be a person of high integrity/ 23 Regulation 5(l)(a)(b)(c)(d)(e) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018, the law further insists that: 'E very advocate s h a ll d isch a rg e h is d u tie s w ith in te g rity towards (a) the court and the administration o f justice; (b)the client; (c)the public; (d)another advocate; and (e)the p ro fe s sio n . ' Regulation 3 of the same Regulations defines integrity to include: !s o u n d n e ss o f m o ra l p rin c ip le , th e ch a ra c te r o f u n co rru p te d v irtu e , especially is relation to truth and fair dealing , uprightness, honesty, sincerity, and trustworthiness and also extends to the preservation o f confidences, the display o f impartiality, the taking o f full responsibility and the advocate's competence (emphasis added).' Regulation 6(l)(b)(m)(n)(o) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018 provides that: The following acts shall constitute lack o f integrity by an advocate: (b) co m m ittin g a n y d is g ra c e fu l o r m o ra lly re p re h e n sib le a c t th a t a ffe c ts th e a d v o ca te 's in te g rity ; (m) u sin g a b u siv e and or in a p p ro p ria te lan g u a g e in court or a n y p u b lic s e ttin g ; 24 (n) a n y co n d u ct in an advocate's private life w h ich b rin g s th e a d v o ca te 's in te g rity in to q u e stio n a n d th e re b y b rin g in g d isre p u te upon th e p ro fe ssio n ; (o) knowingly, or with reckless disregard for the truth, m akes a n y fa ls e o r d isp a ra g in g o r m isle a d in g sta te m e n t a g a in s t a n y ju d ic ia l o ffic e r • fe llo w ad vo cates, p u b lic le a d e rs or a n y o th e r m em b er o f th e p u b lic .' Furthermore, an advocate has a duty to treat other advocates with courtesy; it is against the Advocate's Code of Conduct for any advocate to make disparaging remarks to any other advocate be him/her junior or senior in the Roll of Advocates. See, Regulations 82(1) and 83(2) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. As stated earlier, an advocate is an officer of the court and he/she is therefore obliged to treat the court with candour, respect, courtesy and with good faith. See, Regulation 92 of the Advocates (Professional Conduct and Etiquette) Regulations of 2018 and Section 66 of the Advocates Act, Cap. 341 RE 2019. An advocate has the duty to uphold and promote professionalism whether he/she is in the office, courtroom or in public. See, Regulation 113 of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. The above duty binds an advocate to maintain public confidence in the legal profession. He/she is bound to respect and zealously guard and promote respected values, 25 principles, modes of conduct and behavior according to the profession's code of conduct. See, Regulations 114 of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. An advocate who wishes to make public appearance or make statement to the public must comply with the advocate's ethical behavior and professional conduct. He/she must behave in the same way as he/she is in the office or courtroom. See, Regulations 131 (1) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. In case an advocate is obliged to appear or assist the media to issue a statement; he/she shall be bound to convey accurate information without offending the duty he/she owes to the client, profession, the court and the administration of justice as a whole. An advocate is expected to give statements which are bona fide, true, honesty and not misleading the public or damaging the profession. The advocate's statement should not contain any element of malice or ulterior motive. See, Regulation 134(a) (b) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. When commenting on a case, an advocate shall not do so unless the case is finally determined and the same is a matter of public consumption and his/her comments shall not malign the court or any officer of the court. See, Regulation 136 of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. 26 In addition, the law requires an advocate to treat other advocates and the court with respect and courtesy while upholding and encouraging public respect for the law and administration of justice. See, Regulation 132 (2) (b) (c) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. There is no time when an advocate is not bound to professional conduct and ethics. His/her conduct must reflect respect to the profession. Generally, an advocate must strive to inspire the confidence of the clients and the public at large. See, Regulation 139(1) (2) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. On whether the respondent violated the above provisions of the Regulation, we wish to revisit again the messages adduced and posted by the respondent on divers dates. As already stated, in the reply written submission, the respondent submitted that the Attorney General was 'too junior to garner the respect of being the Attorney General'. The respondent insisted that the applicant was not qualified to be the Attorney General of Tanzania. She believed that the Attorney General was supposed to be registered as an advocate fifteen years before his appointment. However, we are a bit hesitant to address this point because, in one way or the other, may interfere with the respondent's appeal, concerning the said petition, which is pending before the Court of Appeal of Tanzania. However, in 27 addressing this issue, at least briefly, we wish to consider Article 59(2) of the Constitution on the qualifications of the Attorney General. The Article reads: The Attorney General shall be appointed from amongst public officers qualified to perform functions o f advocate or, persons who are qualified to be registered as advocates and, has continuously held those qualifications for a period o f not less than fifteen years.' The above Article does not need too many words for interpretation. First, any public officer who is qualified to perform the functions of an advocate may be appointed the Attorney General of Tanzania. Second, any person qualified to be registered as an advocate may be appointed the Attorney General. The law does not even require a person to be registered as an advocate for him to hold the office of the Attorney General. However, he/she should continually hold such qualifications for a period of not less than fifteen years. On the other hand, the qualifications for admission as an advocate are stated under section 8(1) (a) of the Advocates Act, Cap. 341 RE 2002 thus: 8(1) A person may apply to the Chief Justice to be admitted as an advocate:- (a)if he holds one o f the following professional qualifications, that is to say:- (i) i f he is th e h o ld e r o f a d e g re e in la w g ra n te d a fte r e x a m in a tio n b y the University o f East Africa or th e U n iv e rs ity o f 28 D a r e s sa la a m by such other university or other institution as may be recognized by the council for the purposes o f this section; (ii) if he is a legal practitioner (by whatever name called) and thereby has a right o f audience before any court having unlimited jurisdiction in civil and crim inal matters in any Commonwealth country or in any other country designated by the Minister for the purposes o f this section; (iii) if he is a Solicitor o f the Supreme Court in England, Northern Ireland or the Republic o f Ireland, a Writer to the Signet■ a Solicitor in the Supreme Court o f Scotland, or a person admitted or deemed to have been admitted as a solicitor under the Solicitors (Scotland) Act, 1933, o f the United Kingdom, or if he is the holder o f any sim ilar qualification which is accepted by the Council as a professional qualification for the purposes o f this paragraph; and (b) subject to the provisions o f subsection (2), if either:- (i) he has complied with such requirements (whether relating to instruction or examination or otherwise) as to the acquisition o f professional experience as may be specified in regulations made hereunder by the Council; or (ii) he has been in continuous practice as an advocate in Kenya, Uganda or Zanzibar during the five years immediately preceding his application. Based on the above provisions of the law and the evidence at hand, the applicant held the qualifications of being registered as an advocate for almost seventeen (17) years before he was appointed the Attorney General. We 29 understand that in the petition, the respondent was defending her client. However, she was supposed to maintain her integrity and promote professionalism by not attacking the applicant. The respondent, being a registered advocate, was not justified to raise such false allegations. Even if the applicant lacked such requisite qualifications as argued by the respondent, the words she used were improper, unprofessional and amounted to professional misconduct. On this point, we wish to consider the case of PD Khandekar vs Bar Council of Maharashtra 1984 SCR (1) 414, where it was stated that: It is professionally improper for a member o f the bar to prepare false documents, or to draw pleadings knowing that the allegations made are untrue to his knowledge. Thus, giving o f improper legal advice may amount to professional misconduct...' The applicant, being the Attorney General, under the law, he is an advocate number one in the Roll of Advocates regardless whether the respondent was admitted first before the applicant. In our view, the statement adduced by the respondent in the reply submission could not, reasonably be given by an advocate. By so doing, the respondent, being an officer of the Court, failed to uphold her integrity and professionalism. The respondent used words 30 which were disrespectful and unprofessional something which is contrary to the Advocates (Professional Conduct and Etiquette) Regulations of 2018. Furthermore, after the suspension, the respondent disrespectfully and unprofessionally attacked the Hon. Chief Justice, Hon. Principal Judge, members of the Bench, the judiciary and other public officers. The Committee was saddened by the statements posted by the respondent on different media platforms such as twitter account '@fatma_karume' and on Youtube. The respondent used words which could not be expected to come from a member of the legal profession. As if that is not enough, she used such words towards the Hon. Chief Justice, the Hon. Principal Judge, Members of the Bench, Public Officers and the judiciary. For instance, she posted the following statements: This Attorney General is far too junior to garner that kind o f respect from the Bar' 'Naona sasa kaziya Ja ji Mkuu n i kuwashauri Mabatozi wakishaapishwa' Wasiojulikana wanajua nakaa wapi waje tu Stupid!' 1Hawa watu n i wajinga sana' 'Upumbavu ni mateso kwa jam ii nzim a' Then you are stupid as h e ll' 'Mnajifanya wajanja kumbe you are stupid as h e ll' 31 Furthermore, the respondent used inappropriate and unprofessional words such as 'stupid', 'they are stupid as hell' and 'ivan a m idom o m ire fu kam a jo g o o / She twittered unfounded allegations such as the 'Tanzania Intelligence and Security Service officers are 'hijackers and murderers' ( TISS n i watekaji, watesaji na wauaji). She alleged that Hon. Matupa J. was taken from the State House and 'made a judge7 and unprofessionally alleged that 'the same judge does not know the point of injunction'. She further alleged that Hon. Matupa J. 'refused to do justice to Lissu.' (...Jaji Matupa...anasema hawezi kumtendea Lissu haki kwa sababu kuna Mbunge Singida Mashariki. Angebaki IKULU TU alipokuwa maana haelewi point ya injunction). She disrespectfully referred to the High Court of the United Republic of Tanzania as the Court of Feleshi ( M ahakam a ya F e le sh i). She referred to the Hon. Principal Judge in the disrespectful and unprofessional manner such as ' H u yu n d iye F e le s h i a lik u w a D PP.1 She also disrespectfully and unprofessionally alleged that most Tanzanians including judges 'lack conceptual thinking!7 ( WaTZ wengi sana inciuding Majaji find conceptual thinking very difficult mpaka uwape concrete anecdotes). It is very unfortunate that such words were published by the member of the legal profession, as senior advocate as the respondent. Her statements were disrespectful, unprofessional, and unfounded. The statements were meant to mislead the public, malign the judiciary, members of the Bench and other public 32 officers contrary to the advocates professional conduct and etiquette. The respondent who is a member of legal professional having practiced for many years is aware that this profession requires high moral standards. In A P P LIC A TIO N N O 1 3 O F 2 0 1 2 A L I A B D U L M U FU R U K I VER SU S K A R O L I TAR IM O (A D V O C A TE) this committee held and we reiterate that; '...the legal profession is a stainless profession whose banner and flag is colored with honesty, sin ce ritye th ics, trustworthiness, m oral principles and most o f a ll professional integrity. Therefore, in order to maintain the kind o f professional and social life that an advocate in this society is to live, an advocate must seriously observe and emulate higher morals and ethical standards more than any ordinary person. This is because the legal profession calls for more duties from her stakeholders. We stated earlier that an advocate has a duty to the Court and the law, to his clients, to the Public and to his fellow lawyers. That is why a ll serious governments, businesses, individuals, charities and a ll institutions have trust in attorneys or advocates and follow their advice and guidance. This tells why strictly abiding to the above prime standards o f m orality and professional integrity, public confidence in the legal profession in our country is governed by the law so as to disallow the defaulters to m elt them down. That is the reason why whoever goes into that profession must understand this reality and assume a life that it reflects. ' 33 Not only that but also, this Committee, in Application No. 10 of 2014 between VALERIAN CRISPIN MLAY (applicant) and NATHAN ALEX, ADVOCATE (respondent) associate itself with the decision taken by the Supreme Court of South Africa in the case of V assen v. L a w S o c ie ty o f th e Cape o f G o o d H ope 1998 (4) SA 532 SCA at 538 that:- ”..Jn this regard it must be born in mind that the profession o f an attorney; as o f any other officer o f the court\ is an honourable one and as such demands complete honesty, reliability and integrity from its members; and it is the duty o f the respondent Society to ensure, as far as it is able, that its members measure up to high standards demanded o f them. A client who entrusts his affairs to an attorney must be able to rest assured that that attorney is an honourable man who can be trusted to manage his affairs meticulously and honestly. When money is entrusted to an attorney or when money comes to an attorney to be held in trust, the general public is entitled to expect that that money w ill not be used for any other purpose than that for which it is being held, and that it w ill be available to be paid to the persons on whose behalf it is held whenever it is required. Here once again the respondent Society has been created to ensure that the reputation o f his honourable profession is upheld by a ll its members so that a ll members o f the public may continue to have every confidence and trust in the profession as a whole. " In Valerian's case (supra) this Committee cited also a decision of the South African court in the case of K e kan a v. S o c ie ty o f A d v o ca te s o f S o u th A fric a 1998 (4) SA 649 (SCA) 551-656 where it held that:- 34 ...that an advocate, whose calling is one which is praiseworthy and necessary to human life', should 'always ding to the famous principle that the true ju rist is an honest man. These qualities o f honesty and integrity must continue to be displayed throughout a legal practitioner's career...' We wish also to consider the case of J.S. Jadhav v. Mustafa Haji Mohamed Yusuf and another, AIR 1993 1535, 1993 SCR (2) 1006 which was supplied by the applicant which held that: L e g a l p ro fe s sio n is m o n o p o lis tic in c h a ra c te r a n d th is m o n o p o ly it s e lf in h e re s c e rta in h ig h tra d itio n s w h ich it s m em bers a re e x p e cte d to u p ke ep a n d uphold. Members o f the profession claimed that they are the leaders o f thought and society....th e b a r is n o t a p riv a te g u ild \ lik e th a t o f 'b arb e rs, b u tch e rs a n d c a n d le stic k m a k e rs ' b u t b y b o ld co n tra st, a p u b lic in s titu tio n co m m itte d to p u b lic ju s tic e a n d p ro b o n o p u b lic se rv ice . The grant o f a monopoly license to practice law is based on three assumptions: (1) there is a socially useful function for the lawyer to perform (2) the lawyer is a professional person who w ill perform that function, and (3) his performance, a professional person is regulated by him self and more formally, by the profession as a whole. The central function that the legal profession must perform is nothing than the administration o f justice.' Apart from the above misconduct, we also wish to point out the misconduct demonstrated by the respondent before this Committee. At the 35 commencement of hearing of this application (on 22nd June 2020), the applicant, respondent and their counsels were present The Committee warned the parties that the proceedings are held in Camera and it was therefore forbidden for the parties to discuss any matter concerning the proceedings out of the Committee as per Rule 23 of the Advocates (Disciplinary and other Proceedings) Rules of 2018. The Committee was saddened by the misconduct demonstrated by the respondent during the hearing of the application. For instance, when she entered into the room, she was invited by the Secretary who called her Fatma7, she harshly responded 'don't call me Fatma, call me 'Fatma Karume/ When the hearing commenced; she frequently intervened by standing-up and shouting to her counsel and the Committee and even boldly threatened to fire her counsel who was trying to calm her. Finally, she disorderly and disrespectfully left the room and banged the door. All these disrespectful behavior were committed in our presence, the parties and their counsels. Few minutes after she left the room, the following messages were posted through twitter account '@fatma_karume/ At 11:55 am on 22nd June 2020, the following message was posted: 1Leo nimeitwa kwenye Kamati ya Maadili. Adelardus kasema nimemkejeli. Ja ji anaandika RECORDS kwa English. Sasa ninaomba kuelewa hifo neno kalitafsiri vipi\ jib u lake \kwani wewe si MTZ? Nimewaacha waendelee tu. Maana Ja ji anashindwa kusema KEJELI kalitafsiri vipi?' 36 At 2:22pm on 22nd June 2020 another message was posted: !Sijapata kuona watu waliokuwa hawaelewi wanachokifanya kama Mahakama ya TZ. Unamsuspend wakili, haiafu eti unamshitaki kama wakili kwenye KAMATI ya MAADILI? They are not serious. Mtanisuspend mara ngapi? Siendi tena. Wafanye watakaio.' At 3:03pm on 22nd June 2020, another message was posted: 7 know that they want to INTIMIDATE me. They failed to think. Intimidation only works when you have something to lose. They took my practicing licence illegally and they want to INTIMIDATE me? They can keep it for a ll I care! I left the building a long time ago @judiciarytz.' The committee was informed by the counsel for the applicant about the tweets and discussions on twitter. We took note of the messages and proceeded for the hearing. In our view, this was another proof of the respondent's gross professional misconduct. There is no doubt, the respondent committed professional misconduct and her misconduct attracts the intervention of this Committee otherwise the profession may turn into a club of unregulated professionals. On the third issue on what remedies the respondent deserves. We wish to insist that the applicant proved without a shred of doubt that the respondent acted unprofessionally, disrespectfully and have in different occasions ridiculed 37 the members of the Bench, the Judiciary and public officers contrary to the Advocates (Professional Conduct and Etiquette) Regulations of 2018. Also, the respondent acted in unprofessional and disrespectful manner towards the Committee. This was a disrespectful and unprofessional conduct to be demonstrated by such a senior advocate to the Committee. We understand that the applicant prayed for the removal of the respondent's name from the Roll of Advocates, such an order has a life time impact on the respondent's livelihood. However, we have considered the following facts: first, the respondent breached professional code of conduct and was suspended from practice. Second, after the suspension, she continued to post comments which amounted to professional misconduct. Third, the respondent grossly misbehaved before this Committee during the hearing of the application. Based on the gravity of the misconduct, we are of the view that the professional ethics and etiquette must be observed to build trust and respect from the public otherwise the profession is being put into great disrepute. We are worried, if stern measures are not taken, advocates of this caliber may taint the legal profession. Finally, being aware that, this Committee has been created to ensure that the reputation of this honourable profession is upheld by all its members so that all members of the public may continue to have every confidence and trust in the 38 profession as a whole, finds that the respondent, Ms. Fatma Amani Karume, committed gross professional misconduct and she is hereby convicted accordingly. Having considered the gravity of the matter and the impact of such misconduct and breach of the Advocates Professional Conduct and Etiquette, the Committee orders that the Respondent, one Ms. Fatma Amani Karume, Advocate with Roll No. 848, be permanently removed from the Roll of Advocates as per the provisions of section 24 of the Advocates Act, Cap. 341 R.E. 2019. It is so ordered. Dated and delivered at Dar es salaam this 23rd September 2020. (Chairperson) BEFORE THE ADVOCATES 23rd September 2020 COMMITTEE AT DAR ES SALAAM I Certify that this is a true and Certified Copy of the I Ruling /T ) Secretary to the Advocates Committee Advocate (Member) 23rd September 2020 Biswalo E.K.Mganga Director of Public Prosecutions (Member) 23rd September 2020 39 COMMITTEE: The ruling is delivered today on 23rd September 2020 in the presence of the counsel for the applicant and respondent, and in absence of the applicant and respondent. The right of appeal is fully explained. Ntemi N. KileWamaj& Judge (Chairperson) 23rd September 2020 Genoveva Kato Advocate (Member) 23rd September 2020 Mr. Biswalo Mganga, Director of Public Prosecutions (Member) 23rd September 2020 ADVOCATES C0%7Za^ S e c r e la ^ t S ^ S 'S - - - - 40