Judicial Review Final

Page 1 of 23

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY

AT GEITA MISCELLANEOUS CAUSE NO. 22372 OF 2024

IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF CERTIORARI AND MANDAMUS: IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT, [CAP. 310 R.E 2019]; IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISION) (JUDICIAL REVIEW PROCEDURE AND FEES) RULES GN. NO 324 OF 2014; IN THE MATTER OF DISMISSAL FROM EMPLOYMENT OF WP 7333 CPL.

REBECCA EMMANUEL

BETWEEN WP 7333 CPL REBECCA EMMANUEL……………………….………………APPLICANT AND INSPECTOR GENERAL OF POLICE...........................................1ST RESPONDENT THE ATTORNEY GENERAL………………………………..…….…….2ND RESPONDENT

RULING Date of last Order:24/10/2024 Date Ruling: 07/11/2024 MWAKAPEJE, J.: The Applicant herein, after being granted leave by this Court on 27/08/2024 in Miscellaneous Cause No. 17756 of 2024, has filed this Page 2 of 23 application under the provisions of Rule 8 (1) (a), (b), (2), (3) and Rule 15(a)&(b) of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, GN. No. 324 of 2014 and Section 17 (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (Cap. 310, R.E 2019), seeking a judicial review against the decision of the 1st respondent terminating her employment. The application is accompanied by the applicant’s affidavit and the statement. The brief facts giving rise to this application are that the applicant, EX- WP.7333 CPL REBECCA EMANUEL WAMBURA, prior to termination, was a police officer with the Tanzanian Police Force stationed in the Geita Region at the Central Police Station. On 08/11/2022, she was interrogated by the Lake Zone Task Force at the Katoro Police Station regarding a criminal plan to rob gold from a small gold mine in the town of Geita Katoro Nyamahuna. Charges were brought against her and two other police officers. Following the hearing of the charges, a dismissal letter was read and handled to her by the Officer Commanding District (OCD) of Geita on 22/06/2023, which indicated that

she was terminated by the Geita Regional Police Commander (RPC) from 08/05/2023 as per the letter of the latter with Ref. No. GER/AD.24/VOL.II/325 dated 20/05/2023. Page 3 of 23 Upon her termination, she made an unsuccessful appeal to the Inspector General of Police (IGP), who, on 01/03/2024, upheld the decision of the Geita RPC. Subsequent to exhausting administrative avenues, she has now filed this application, alleging in the affidavit that the trial tribunal neglected to apprise her of the charges, thereby impeding her ability to prepare a defence and that she was deprived of a formal charge sheet. Additionally, she contends that despite her availability to cross-examine witnesses during a hearing, she was not formally summoned to the disciplinary proceedings, which was a mandatory stipulation under Regulations. Hence, she seeks the issuance by this court of writs of certiorari and mandamus based on the grounds outlined in her statement that: 1. The decision to terminate her employment made by the Regional Police Commander-Geita on 20/05/2023 and subsequently confirmed by the Inspector General of Police (IGP) of Tanzania on 01/03/2024, was made in contravention of the principles of natural justice, i.e. the right to be heard.

2. She was informally charged contrary to Police Regulations without being supplied with a copy of the Charge Sheet. Page 4 of 23 3. The decision to terminate the Applicant, made by the Regional Police Commander-Geita on 20/05/2023, was irrational, unprocedural and without being supported by the relevant evidence in the disciplinary meetings. On the other hand, the respondents, in the joint counter-affidavit and statement, refuted the applicant’s claim and further stated that the applicant was afforded the opportunity to be heard. The respondents averred that the applicant was heard from the beginning of the hearing of the charge, but during the mid-hearing, she failed to appear before the tribunal without any notice, and the hearing proceeded in her absence from 11/01/2023 until the decision was made. On 17/10/2024, when the application was scheduled for the hearing, this court ordered the respondent to file in court and serve the applicant with the charge sheet and proceedings to go through in seven days, and if she so wished to file a supplementary affidavit according to the scheduling order. However, the applicant wished to proceed without filing a supplementary affidavit. Page 5 of 23 This application was argued orally. On the material date, i.e. 25/10/2024, Mr Kulwa Samson, the learned advocate, was in court for the applicant, while the Respondents, namely, the Inspector

General of Police and the Attorney General, were represented by Messrs. Felician Daniel and Dustan Mkisa, both learned State Attorneys. In his submission, Mr Samson, adopting the applicant’s affidavit and statement, argued three grounds of the applicant’s application being a failure by the 1st respondent to follow statutory procedures, violation of the right to be heard, and that the decision was irrational and unreasonable. On the first ground, he argued that in disciplinary proceedings, it was imperative to consider the rank of the defaulter as a fundamental aspect in determining the procedures to be followed. Referring to the Police Force Regulations GN No. 161 of 1995 and the case of F.3329 CPL Buberwa Leonard Magayane & Another vs Minister for Home Affairs & Others (Civil Appeal No.119 of 2020) [2023] TZCA 17399 (10 July 2023), he highlighted the importance of adhering to these procedures. Given the similarity in rank between the applicant and those in the case referenced, he argued that the provisions had to be followed. Page 6 of 23 He further pointed out that an additional procedure outlined in PGO 2021 had also been disregarded, citing the applicant’s affidavit, particularly paragraph 12, which detailed the issues the Respondent failed to address. He emphasised that the preliminary investigation, a prerequisite before formulating charges, had not been conducted as per

PGO 106(4). Moreover, he stressed that records, as required by PGO 106(5), were absent, demonstrating non-compliance. Other procedures, such as the Officer Commanding Station (OCS) verifying the allegations and the Officer Commanding Division (OCD) conducting the preliminary investigation according to PGO 106(12) and (13), were also overlooked. Additionally, Mr Samson argued that the procedures outlined in Police Force Regulations GN. No. 161 of 1995 was not followed, explicitly highlighting the absence of a charge sheet preparation according to Regulation C.7(3) and (4) and the opportunity for the defaulter to be heard (Regulation C.7(5)). He contested the claim of compliance with procedures in the counter-affidavit, citing the case of E.933 CPL Philimatus Fredrick vs Inspector General of Police and Another (Misc. Cause 3 of 2019) [2020] TZHC 743 (25 May 2020) to underscore his argument. He argued that Page 7 of 23 the absence of evidence supporting compliance raised scepticism about the Respondent's position. On the second ground, Mr Samson contended that the right to be heard was violated. He noted that the failure to serve the defaulter with the charge sheet, as required by Regulation C.7(3), deprived the applicant of the opportunity to defend her rights during the hearing. Additionally, he pointed out that the applicant had been excluded from any preliminary

investigation and was not given a chance to show cause against the punishment outlined in the RPC’s decision issued on 08/05/2023, although it was only communicated to the defaulting party on 22/06/2023. Citing the E.933 CPL Philimatus Fredrick vs Inspector General of Police and Another case (supra), he reiterated the importance of the audi alteram partem principle, which had been violated. Moving to the third ground, Mr. Samson argued that the decision was irrational and unreasonable. He stated that the RPC's decision lacked a rational basis, as it did not specify any offence, merely stating that the applicant had been terminated in disgrace. Further, he emphasised that both parties were bound by their pleadings and referred to the case of Yara Tanzania Limited vs Charles Aloyce Msemwa and Others (Commercial Page 8 of 23 Case 5 of 2013) 2016 TZHCComD 2022 (19 February 2016) to reinforce his argument that the respondents failed to demonstrate compliance with the prescribed procedures as provided. He concluded by praying that the court grants the prayers sought in their chamber summons as they align with the case of Sarai Mrumbe and Another vs Muhere Chacha [1990] TLR 54, including the reinstatement of the Applicant. In reply, Mr Mkisa adopted their counter-affidavit and statement in his submission and explained that the applicant, a former Police officer holding the rank of CPL

(Noncommissioned Officer- NCO), had been accused of a disciplinary offence requiring a preliminary investigation, which led to a formal inquiry as per PGO 106(3) and section 7(6) of the Police Force and Prisons Service Commission Act, Cap 241. He detailed the timeline of events, stating that on the evening of 19/12/2022 at 1945hrs, the applicant and her colleagues appeared before the inquiry Committee, where charges were read, and they all pleaded not guilty. The Inquiry Tribunal, as stipulated in Rule C. 7(1), (2)(b),(c) and (3), read together with PGO 106 (22), read the charges as outlined in PF32. He argued that procedural rights were duly observed, and when the applicant failed to attend on 12/01/2023, she forfeited her rights, as had Page 9 of 23 been established in the case of MT. 59505 SGT. Aziz Athuaman Yusuf vs Republic (Criminal Appeal 324 of 2019) [2022] TZCA 718 (14 November 2022), where it was stated that a party who neglects to exercise their rights cannot later claim they were deprived of them. Additionally, Mr Mkisa argued that the inquiry proceeded, resulting in the applicant's conviction. He went on to argue that following the disciplinary laws governing the Police Force, the presiding officer deemed the prescribed punishment excessive and refrained from imposing it in accordance with Regulation C.7(6) of the Police Service Regulations. Instead, the

inquiry report was forwarded to the Regional Commanding Officer, the RPC, who was required to endorse the punishment mandated by PGO 106 (35) in PF32. He further contended that despite the absence of this endorsement in the records due to its voluminous nature and the fact that they never attached it, it remained an integral component. Mr Mkisa further argued that it is undisputed that the decision to terminate the applicant's employment was communicated after she made herself available, as evidenced by the attached LA1 in the applicant's affidavit. According to him, all procedures outlined in Regulation C.7 were duly followed, and the right to a fair hearing had been observed. He Page 10 of 23 maintained that the charges were communicated verbally and that the applicant's absence during proceedings was self-imposed. He, therefore, prayed for the dismissal of the application. Finally, Mr Daniel emphasised that the discrepancies in the applicant’s affidavit rendered it unreliable, as stated in the case of Benson Ndile vs Abel Mwakifwange (Civil Application No. 495/06 of 2023) [2024] TZCA 544 (10 July 2024). He stated that contradictions arose between what she presented in her evidence and what she claimed in her affidavit. He also outlined the grounds for certiorari as stated in the case of E. 933 CPL Philimatus Fredrick (supra). He further contended that the applicant exercised

the right to appeal to the IGP. He also maintained that mandamus orders are only issued when the applicant demands performance and the respondent refuses. In this application, no demand was made, and the 1st respondent gave no refusal. According to him, the applicant’s prayer of reinstatement cannot be granted since the procedures to dismiss her were followed. Therefore, he prayed for the dismissal of the application. In rejoinder, Mr. Samson argued that the respondents had conceded the need for a preliminary investigation before the inquiry was conducted. He contended that the respondents' submission of unsigned and undated Page 11 of 23 charge sheets further weakened their position. He also maintained that the applicant had not forfeited her right to be heard, as the respondents had failed to prove her evasion and distinguished the present application with the case of MT 59505 SGT. Aziz (supra). Regarding providing false information in the affidavit, he contended that paragraph 8 of the Affidavit pertains to summons, and in Annexure LA2, no reference is made to summons, distinguishing this application from the case of Benson Ndile vs. Abel Mwakifwange (supra). He concluded by urging the court to grant the reliefs sought by the applicant. Having considered the parties' submissions, the court finds two issues for determination: whether the application has merits and whether

the applicant is entitled to the reliefs sought in the chamber application. However, before pondering on the issues raised, I am indebted to set the record straight regarding the jurisdiction of this court, considering that after termination by the Inspector General of Police, the applicant came straight to court and applied for judicial review for prerogative orders of certiorari and mandamus. In this case, the laws applicable to police officers for appointments, promotions, disciplinary affairs and terminations are the Police Force and Page 12 of 23 Prisons Service Commission Act, Cap 241 (the Act), its Regulations GN No. 161 od 1995 and the Police General Orders. Section 7(5) of the Act provides for the disciplinary authority of officers below the rank of an Assistant Inspector of Police to be the Inspector General of Police (IGP). The said section provides that: “7(5) The final disciplinary authority in respect of Police and Prison Officers below the rank of Assistant Inspector is vested in the Inspector-General of Police and the Principal Commissioner of Prisons respectively.” [Emphasis supplied] With that in mind, I am alive with sections 5(f) and 9(2) of the said Act, where one may appeal to the Commission if not satisfied with the decision of a delegated authority, including the IGP, as in the circumstances of this case. Notwithstanding the provisions of these sections,

which grant the aggrieved party the option to appeal to the Commission, the applicant herein has chosen not to pursue the said avenue, as the provision does not impose any mandatory obligation to do so, and I find no harm with that. I say so because, despite the IGP being her final disciplinary authority, an appeal to the Commission would have been appropriate had the applicant sought to challenge the merits of the disciplinary decision. Page 13 of 23 However, in the present matter, the applicant's challenge is not directed at the substantive findings of the decision but rather at the legality and procedural propriety of how it was reached by the said authority. In such a context, considering the Inspector General of Police (IGP) as the ultimate authority has decided, and in light of the applicant's challenge regarding the procedural aspects of the decision-making process, judicial review emerges as the most appropriate recourse. Since judicial review is specifically crafted to examine the legality of the decision-making process, and the decision in contention was issued by an entity with the power to oversee disciplinary issues concerning police officers of the same rank as the applicant, therefore, given the applicant's procedural grievances, this Court is properly seized of jurisdiction to entertain the application for judicial review as moved by the applicant. After

establishing this court's jurisdiction to handle the current application, I also intend to address the matter of parties being bound by their pleadings, as contended by Mr Samson, and the argument that the respondents were prohibited from submitting the disciplinary proceedings and charge sheet in court. I am alive of this principle, as evidenced by a plethora of decisions, including the ones cited by Mr Samson. However, given Page 14 of 23 that in this particular application, the court, as it has been the practice for ensuring fair dispensation of justice, see the case of Robson Mosha & 2 Others vs The Inspector General of Police & Another (Misc. Civil Application No. 9432 of 2024) [2024] TZHC 7995 (10 September 2024), directed the respondent to submit the same in court in the presence of both parties. Since it is from these documents that this court could determine the correctness of the procedure challenged by the Applicant, and because the court has never been barred from calling for records, and considering that no injustices have been occasioned to either party, the documents ordered by the court to be submitted by the respondents were rightly filed in the current application in light of its circumstances. I will now delve into the merits of the application, starting with the procedural requirements for dealing with disciplinary issues of police officers of the

applicant's rank. The procedure for disciplining a police officer is stipulated under Part IV of the Police Force and Prisons Service Regulations, GN No. 161 of 1995, which, of course, should be read in conjunction with SECTION 4 PGO No. 106 of the Police General Orders, GN No. 315 of 2021. Paragraph C.7 of the former provides as follows, and I wish to reproduce for ease of reference: Page 15 of 23 “C.7. Procedure at inquiries into disciplinary offences: non-commissioned officers and constables. (1) Where it appears to a Senior Police Officer that there is a prima facie case against a non-commissioned officer or a constable (hereinafter in this regulation referred to as "the defaulter") for an offence against discipline, he shall frame a charge or charges against the defaulter.” [Emphasis supplied] From the provision above, it is apparent that unless a prima facie case has been established, the senior Police Officer cannot formulate a charge against the defaulter. For a prima facie case to be established, P.G.O No. 106(8) requires there to be a complaint and allegation against a police officer, and the same has to be thoroughly investigated prior to charging the defaulter. P.G.O No.106 (8) provides that: “Every complaint and allegation against any Police officer by a member of the public shall be investigated with the greatest care in accordance with the provisions of

P.G.O.No.103; every case shall be referred to a Commanding Officer, and serious cases requiring court proceedings shall be forwarded to the Chief of Police Force with the Commanding Officer’s recommendations. Where it is shown that a breach of discipline has occurred, instructions shall be given by the Commanding Officer for the defaulter to be charged, and the final action against the alleged offender shall be shown in P.F.32 and Defaulter Charge Sheet Copy P.F.32A. It is essential, in the interests of the Force, that the truth or falsehood of each allegation is established with the minimum of delay……...” [Emphasis supplied] Page 16 of 23 Prior to P.G.O 106(8), there is P.G.O No. 106(7), which requires a preliminary inquiry(investigation) to be prepared to establish the truthfulness or falsehood of the complaint or allegation to assess and decide whether a prima facie case is established. The said provision states whether a disciplinary charge against the offender can be instituted. “The preliminary inquiry, however short, must be prepared in order that the apparent truth or falsehood of the complaint or allegation can be assessed and a decision reached as to whether or not a disciplinary charge should be laid against the alleged offender.” [Emphasis supplied] The essence of the preliminary inquiry in proceedings like the present is to ensure that the process is fair and

thorough and that the decision to charge someone is based on a legitimate foundation. According to these provisions, failure to conduct such an inquiry is a denial of due process or natural justice. Apart from that, though, I noted that in his submissions, the learned counsel for the applicant was mixing the references of the said P.G.O. No. 106, under its paragraph (6), it provides that: “The recorded proceedings in every defaulter case shall be in the following parts: (a) Preliminary inquiry into the alleged offence; (b) Record of evidence taken when the case is tried by the Disciplinary Tribunal so empowered to hear it.” [Emphasis supplied] Page 17 of 23 As stated earlier, by delineating these two parts in this paragraph of P.G.O 106, the drafter aimed to ensure transparency, accountability, and a systematic approach to handling defaulter cases within the disciplinary process. Accordingly, this structured framework helps conduct fair and thorough investigations and hearings and reach informed decisions based on the available evidence and legal procedures. In the present application, since the applicant contended that these procedures were not followed and, on the other hand, the respondents averred that all the procedures were followed, the court compelled the respondents to furnish the disciplinary proceedings to ascertain whether the underlined procedures were adhered to.

The respondents filed the said proceedings; however, the preliminary inquiry part was nowhere to be seen in the recorded proceedings. Mr Mkisa conceded that preliminary inquiry is crucial in disciplinary proceedings, and the same was conducted in the present case; he was, however, quick to state that the same was not appended to the proceedings due to its voluminous nature. In addressing Mr Mkisa's response, I should emphasise that judicial review assesses whether the decision-making process was lawful, rational, and procedurally fair. In this application, this court ordered the availability Page 18 of 23 of the said documents; however, they were not disclosed to the fullest by the respondents. It is, therefore, trite that when the court issues an order, the same has to be complied with fully as the same binds the respective parties. See the case of The Registered Trustees of Baraza la Waislam Tanzania (BAKWATA) vs Idrisa Athumani for Masjid -L- ULLA and Two Others (Land Revision No. 17616 of 2024) [2024] TZHC 8821 (22 October 2024), where this court stated that: “This standpoint is rooted in the principle that court orders are not mere formalities; instead, they are legally binding directives designed to uphold justice.” Since there is a duty of disclosure in judicial review, it is essential that all relevant documents be made available to the court for scrutiny. See the case

of R (Bancoult) vs Secretary of State for Foreign and Commonwealth Affairs (No.4) UKSC [2017] AC 300 as referenced by this Court in the case of Robson Mosha & 2 Others vs The Inspector General of Police & Another (supra). In the former case, it was observed that: “it is a proud feature of judicial review of administrative action that the public authority whose actions or decisions are under challenge has a duty to make full and fair disclosure of all the relevant materials. Only if this is done can the court perform its vital role of deciding whether or not those actions were lawful.” [Emphasis supplied]. Page 19 of 23 Further, it is trite law that when a party asserts that a document is integral to the decision-making process, like in the present case, they are responsible for ensuring that the document is properly submitted for the court’s examination. See sections 112 and 115 of the Evidence Act, Cap 6 R.E.

2019. The court cannot assess the legality of a decision without access to the full and relevant record. Therefore, in my view, the contention that records were excessively voluminous to incorporate certain crucial documents is inadequate. If the document in question is indispensable, its exclusion from the record suggests non-adherence to procedural requirements, and the court can only presume compliance or presume that procedures were adhered to with explicit and substantiated proof. The intricacy or scale of the documentation cannot supersede the court's requirement for lucidity in ascertaining the accuracy, propriety, and legality of the process followed. Consequently, the respondents' failure to present the court with the preliminary inquiry as stipulated by P.G.O 106(6) speaks volumes; ultimately, it indicates that there was no such a record. This, therefore, makes procedures in the aforementioned inquiry flawed since the investigation lacked fairness and thoroughness, and the hearing and the decision rendered Page 20 of 23 were not predicated on the existing evidence and legal procedures, thereby violating the tenets of the due process, i.e. natural justice of the applicant. Considering that this ground is enough to dispose of this application, I would, however, by passing by, like to comment on the charge accompanying the proceedings. It should be noted that in charging

the defaulters of the applicant's rank, the Senior Police Officer is required to frame a charge as far as Regulation C. 7(1) of the Police Force Regulations is concerned. According to this Regulation, the crucial elements to be considered in formulating a charge include specifying the offence committed, citing the relevant section of the law, and including a statement of the specific act or acts alleged to have been committed by the defaulter. It should be clear and concise, detailing the time, place and motive of the alleged offence, and ultimately be signed by an authorised officer accordingly. The aim is to enable the defaulter to understand the nature of the offence and prepare a defence. See the case of Awadhi Abrahamani Waziri versus The Republic; Criminal Appeal No. 303 of 2014, Court of Appeal of Tanzania (Unreported), it was stated that: Page 21 of 23 The importance of proving the offence as alleged in the charge hardly needs to be over-emphasized. From the charge, the accused is made aware of the case he is facing with regard to the time of the incident and place so that he would be able to marshall his defence. [Emphasis supplied] When a crucial element, such as a signature, is absent in a charge, the offender is inherently disadvantaged. It is crucial at this moment to note that affixing one's signature to the charge in proceedings of this nature serves to validate

it, ensuring that the individual accountable for initiating the prosecution is held responsible for its contents. Furthermore, the act of signing a charge guarantees that the disciplinary procedure is legally sound, procedurally legitimate, and duly authorised, thereby safeguarding the rights of both the defaulting party and the disciplinary authority. Therefore, the lack of a signature renders it defective. See the case of Charles Mlande v Republic, Criminal Appeal No. 270 of 2013 CAT (Unreported), where the case of Abdalla Ally v Republic, Criminal Appeal No. 235 of 2013 CAT (unreported) was referenced; it was held as follows: "... being found guilty on a defective charge based on a wrong and/or non-existent provision of the law, it cannot be said that the appellant was fairly tried in the court below... In view of the foregoing shortcomings, it is evident that the appellant did not receive a fair trial in court. The wrong or non-citation of the appropriate provisions of the Penal Code under which the charge was preferred left the appellant Page 22 of 23 unaware that he was facing a serious charge of rape..." [Emphasis supplied] Guided by the above principle, in the present case, Mr Kulwa argued that the charge sheet was not signed by the disciplinary authority or the authorised officer. I concur with this assertion as it raises doubts about the fairness of the trial faced by

the applicant, considering that the decision to terminate her employment was based on an unsigned charge. Given these significant procedural irregularities in the disciplinary process, I find that this application is meritorious, as it is evident that the applicant was prejudiced from the outset. As a result of the procedural irregularities in the disciplinary inquiries concerning officers of the applicant’s rank, it is undeniable that the applicant's right to a fair hearing was compromised. Therefore, this court finds merit in the applicant’s application and, hence, grants the writ of certiorari in her favour. Furthermore, the decision by the Inspector General of Police (IGP) to terminate the applicant's employment is considered erroneous and is hereby quashed and set aside. While assessing the current application, despite the articulate argument presented by Mr Daniel that the prayer for the writ of mandamus is premature, the circumstances Page 23 of 23 surrounding this application necessitate its issuance, which I duly grant. Should the Respondent opt to address the applicant's disciplinary issues, it is imperative that such actions adhere strictly to the principles of natural justice. In the circumstances, I make no order as to costs. It is so ordered. DATED at GEITA this 07th November 2024. G.V. MWAKAPEJE

JUDGE Right to appeal explained. G.V. MWAKAPEJE

JUDGE 07/11/2024