United Republic of Tanzania 1977 Constitution (reviewed 2005)

CHAPTER 5. DISPENSATION OF JUSTICE IN THE UNITED REPUBLIC, THE HIGH COURT OF THE UNITED REPUBLIC, THE JUDICIAL SERVICE COMISSION FOR MAINLAND TANZANIA, THE HIGH COURT OF ZANZIBAR, THE COURT OF APPEAL OF THE UNITED REPUBLIC AND SPECIAL CONSTITUTIONAL COURT OF THE UNITED REPUBLIC

PART I. DESPENSATION OF JUSTICE IN THE UNITED REPUBLIC

107A. Authority of dispensing justice

1. The Judiciary shall be the authority with final decision in dispensation of justice in the United Republic of Tanzania.
2. In delivering decisions in matters of civil and criminal matters in accordance with the laws, the court shall observe the following principles, that is to say –
   1. impartiality to all without due regard to ones social or economic status;
   2. not to delay dispensation of justice without reasonable ground;
   3. to award reasonable compensation to victims of wrong doings committed by other persons, and in accordance with the relevant law enacted by the Parliament;
   4. to promote and enhance dispute resolution among persons involved in the disputes.
   5. to dispense justice without being tied up with technicalities

107B. Independence of the Judiciary

In exercising the powers of dispensing justice, all courts shall have freedom and shall be required only to observe the provisions of the Constitution and those of the laws of the land.

PART II. THE HIGH COURT OF THE UNITED REPUBLIC

108. High Court of the United Republic and its jurisdiction

1. There shall be a High Court of the United Republic (to be referred to in short as “the High Court”) the jurisdiction of which shall be as specified in this Constitution or in any other law.
2. Where this Constitution or any other law does not expressly provide that any specified matter shall first be heard by a court specified for that purpose, then the High Court shall have jurisdiction to hear every matter of such type. Similarly, the High Court shall have jurisdiction to deal with any matter which, according to legal traditions obtaining in Tanzania, is ordinarily dealt with by a High Court provided that;the provisions of this subarticle shall apply without prejudice to the jurisdiction of the Court of Appeal of Tanzania as provided for in this Constitution or in any other law.

109. Judges of the High Court and their appointment

1. There shall be a Principal Judge of the High Court (who in the following provisions of this Constitution shall be referred to as the “Principal Judge”) and other Judges of the High Court who shall be not less than thirty who shall be appointed by the President after consultation with the Judicial Service Commission.
2. Subject to the provisions of this Constitution or any other law concerning the powers of the Chief Justice who is referred to in Article 118, the Principal Judge shall be the special assistant to the Chief Justice in the administration of the High Court and of all the other courts subordinate to it, and in the discharge of the functions of that office, the Principal Judge shall perform such functions and duties as he may, from time to time, be instructed or directed by the Chief Justice and, for the purposes of this Article, the Principal Judge shall also be known as the Head of the High Court.
3. In addition to his ordinary powers as a Judge of the High Court, the Principal Judge shall also have power to perform all such duties and functions related to the jurisdiction of the High Court which, in accordance with the provisions of this Constitution or any other law, or the legal traditions applicable, are matters which are required to be performed by the head of the High Court:Provided that the provisions of this subarticle shall not apply in relation to the discharge of duties or functions which, in terms of the provisions of this Constitution or of any other law or in accordance with legal traditions applicable in Tanzania are expressly stated or are deemed to be the duties or functions required to be performed only by the Chief Justice.
4. For the avoidance of doubt in relation to the interpretation or application of the provisions of subarticles (2) and (3), of this Article, it is hereby declared that except where this Constitution or any other law provides otherwise, the Chief Justice may, from time to time, give to the Principal Judge directions or instruction concerning the discharge of his duties and functions as head of the High Court. Likewise the Chief Justice may delegate to the Principal Judge some of his administrative and supervisory powers in relation to the discharge of functions in the High Court and in all other courts subordinate to it, and whenever necessary the Chief Justice may himself discharge directly any of the functions so delegated to the Principal Judge.
5. The office of Judge of the High Court shall not be abolished while there is a person holding that office.
6. Subject to the provisions of subarticle (8) of this Article a person may only be appointed Judge of the High Court if he has special qualifications as defined in subarticle (7) of this Article, and has held one of those special qualifications for a period of not less than ten years.
7. For the purposes of construing subarticles (6), (8) and (10) of this Article “special qualifications” means a person who holds a degree in law from a University recognized by the accreditation authority in Tanzania, and
   1. has been a magistrate;
   2. has held an office in the public service while possessing qualifications of attorney or has been a private advocate;
   3. possess qualifications for enrolment as an advocate and, has possessed those qualifications continuously for a period of not less than ten years.
8. Where the President is satisfied that a person holding one of the special qualifications has not held that qualification for a period of not less than ten years, but that that person has the ability, knowledge and in every respect is suitable for appointment as Judge of the High Court, and there are reasons which make such person deserve to be so appointed, then the President may dispense with the requirement that such person shall have held the special qualifications for a period of not less than ten years, and may after consultation with the Judicial Service Commission, appoint that person Judge of the High Court.
9. In the event that the office of Principal Judge falls vacant or that the Principal Judge is for any reason unable to perform the functions of his office, then, those functions shall be performed by one of the Judges who shall be appointed by the President for that purpose and that Judge so appointed shall perform those functions until a new Principal Judge is appointed and assumes the office of Principal Judge, or until the Principal Judge who was unable to perform his functions resumes office.
10. In the event that the office of any Judge falls vacant or that any Judge is appointed Acting Principal Judge or is for any reason unable to perform the functions of his office, or if the Chief Justice advises the President that the state of business then obtaining in the High Court requires the appointment of an Acting judge, the President may, after consulting the Chief Justice in the usual manner appoint an Acting Judge from amongst persons holding the special qualifications:Provided that –
    1. a person shall not be deemed to be disqualified from appointment in accordance with the provisions of this subarticle for the reason only that he has attained the age specified in subarticle (1) of Article 110 of this Constitution;
    2. for the purpose of appointing an Acting Judge in accordance with the provisions of this subarticle, the President may dispense with the requirement of holding the special qualifications for a period of ten years for the same reasons as those set out in subarticle (8) of this Article.
11. Any person appointed Acting Judge pursuant to the provisions of subarticle (10) of this Article shall continue to hold the office of Acting Judge for any period so specified in his appointment or if no period is specified, until his appointment is revoked by the President, but notwithstanding that his term of office has expired or that his appointment has been revoked, that person may continue to perform functions as Acting Judge until he has completed the preparation and delivery of a decision or until he completes any other business connected with matters which he had started hearing before his term of office expired or before his appointment was revoked.

110. Tenure of office of Judges of the High Court

1. Every Judge of the High Court shall vacate his office on attaining the age of sixty years, but the provisions of this subarticle shall apply subject to the subsequent provisions of this Article.
2. Any Judge of the High Court may retire from office in the service of the United Republic at any time on attaining the age of fifty five years, except where the President directs that he should not retire from office, and if the President so directs, then the Judge to whom the directions of the President relate shall not retire from office until the expiry of the period specified by the President for that purpose.
3. In the event that the President considers it to be in the public interest that a Judge who has attained sixty years of age continue in office, and the Judge agrees in writing to continue in office, then the President may direct that the judge continue in office for any period which may be specified by the President.
4. Notwithstanding that a Judge has attained the age at which he is required by the provisions of this Article to vacate office, a person who was holding the office of Judge of the High Court may continue to perform the functions of that office after attaining that age until he completes the preparation and delivery of the decision or until he completes any other business in connection with matters which he had started hearing before attaining that age.

110A. Procedures relating to discipline of Judges of the High Court

1. The procedure for dealing with discipline of Judges, for reasons other than those specified in subarticle (2) shall be as prescribed under the law to be enacted by the Parliament.
2. A Judge of the High Court may be removed from office only for inability to perform the functions of his office (either due to illness or to any other reason) or for behaviour inconsistent with the ethics of office of Judge or with the law concerning the ethics of public leaders and he shall not be so removed except in accordance with the provisions of subarticle (4) of this Article.
3. Where the President considers that the question of the removal of a Judge from office needs to be investigated, then the procedure shall be as follows:
   1. the President shall after consultation with the Chief Justice, suspend that Judge from office;
   2. the President shall appoint a Tribunal which shall consist of a Chairman and not less than two other members. The Chairman and with at least half of other members of the Special Tribunal must be persons who are judges of the High Court or Justices of Appeal in any country within the Commonwealth;
   3. the Tribunal shall investigate the matter and make a report to the President, advising on the whole matter, and shall advise him whether or not the Judge concerned should be removed from office in accordance with the provisions of this Article on the grounds of inability to perform his functions due to illness or any other reason or on grounds of misbehaviour.
4. If the Tribunal appointed in accordance with the provisions of subarticle (3) advises the President that the Judge the subject of investigation by the Special Tribunal be removed from office on grounds of inability to perform functions due to illness or any other reason or on grounds of misbehaviour, then the President shall remove the Judge from office and the employment of that Judge shall cease.
5. If the question of removing a Judge from office has been referred to a Tribunal for investigation pursuant to the provisions of subarticle (3) of this Article, the President may suspend the Judge concerned from duty, and the President may at any time rescind the decision to suspend such Judge, and in any case such decision shall lapse if the Tribunal advises the President that the Judge be not removed from office.
6. The provisions of this Article shall be without prejudice to the provisions of subarticle (11) of Article 109 of this Constitution.

111. Judges’ oath of office

A Judge of the High Court shall not assume the functions of his office until he has first taken and subscribed the oath of allegiance and also such other oath concerning the discharge of his duties as may be prescribed in accordance with a law enacted by Parliament.