Samatta JK:
F This is an application by way of a chamber summons for an order of certiorari to bring up and quash a decision of the President of the United Republic `retiring' the applicant, who was an Immigration Officer, in the public interest.
The background to the application may, I think, be stated as shortly as is consistent with intelligibility. On 1 June 1984, the applicant was employed by the G Government of Tanzania as an Immigration Assistant. Following a promotion on 1 February 1991, he became an Immigration Officer, Grade III. In the third paragraph of his affidavit supporting the application, the applicant asserts that during the whole of his career in the Civil Service he was never formally warned, reprimanded or in any way penalised for anything done in connection with, or incidental to, the performance of his duties. No information is given in the H counter-affidavit contradictory of this averment. In the 2 June 1995 issue of the Daily News, a government-owned daily newspaper, there appeared an account, among others, to the effect that the then Minister for Home Affairs had sacked twenty eight officials of the Immigration Department, including the applicant, for receiving bribes. Upon I
making inquiries about this story with his superiors the applicant was informed that A the story was essentially false as, among other things, the Minister lacked power in law to make the reported decision. About two months later -- on 4 August 1995, to be more precise -- the applicant received a letter addressed to him by the Acting Principal Secretary (Establishments), whose body reads, in Swahili, as follows: B
`Ninapenda kukurifu kwamba, Mtukufu Rais, amekustaafisha kwa Manufaa ya Umma kuanzia tarehe 20 Julai, 1995. Amekustaafisha kwa mujibu wa Kifungu Na 36(2) cha Katiba ya Jamhuri ya Muungano wa Tanzania ikisomwa pamoja na `Standing Order' Na. F35, 44 na. C 49(c), Kifunga Na. (f) cha Sheria ya Malipo ya Pensheni Sura (371); Kanuni za Utumishi Serikalini 1970 Kanuni Na. 29(2) na Sheria ya Utumishi Serikalini Na 16 ya mwaka 1989 Kifungu Na. 19(3). D
2. Aidha, kutukana na uamuzi huu wa kukustaafisha kwa Manufaa ya Umma, utalipwa Pensheni kwa utumishi wako Serikalini hadi tarehe 20 Julai, 1995.' D
Speaking through his advocate, Mr Nassoro, the applicant says that the President's decision to retire him in the public interest is invalid in law and ought, therefore, to be quashed by this court. Mr Songoro, Senior State Attorney, opposed E the application.
Before dealing with counsel's submissions, it is necessary, I think, to quote in extenso the provisions of law relied upon by the President in reaching his F impugned decision. As expected, I will start with s 36(2) of the Constitution of the United Republic (hereinafter referred to as `the Constitution'). The section reads:
`(2) Subject to the provisions of this Constitution and of any relevant written law, the power to appoint persons to offices in the public services of the United Republic, and the power of promotion, termination of appointment, dismissal and disciplinary control of persons G appointed to those offices shall be exercised by the President, the service commissions and such other authorities as may be specified in respect of any office or category of offices by this Constitution or any relevant written law.' H
Section 8 of the Pensions Ordinance (the Ordinance), as amended by s 6 of the Pensions Laws (Miscellaneous Amendments) Act, 1978, provides:
`8 Subject to the provisions of s 9A, no pension, gratuity or other allowance shall be granted under this Ordinance to any officer except I
A on his retirement from the public service in one of the following cases:
(a) on or after attaining the age of fifty:
Provided that in respect of
(i) officers in the Police Force of the rank of Constable and officers [in] the Prison Service, at the rank of Prison Officer Grade III, this paragraph shall have the effect as if `forty years' were substituted for `fifty years'; and B
(ii) officers in the Police Force above the rank of Constable and of or below the rank of Sergeant and officers in the Prison Service above the rank of Prison Officer, Grade III and of or below the rank of Prison Officer, Grade I, this paragraph shall have the effect as if `forty-five years' were substituted for `fifty years'. C
(b) in the case of transfer to other public service, in circumstances in which he is permitted by the law or regulations of the service in which he is last employed to retire on pension or gratuity: Provided that, if his service is superannuated under the Federated D Superannuation System for universities or similar insurance scheme, he has retired from the public service on one of the grounds mentioned in paragraphs (a), (c), (d), (e) and (f) of this section;
E (c) on the abolition of his office;
(d) on compulsory retirement for the purpose of facilitating improvement in the organisation of the department to which he belongs, by which greater efficiency or economy may be effected;
F (e) on medical evidence to the satisfaction of the appropriate authority that he is incapable by reason of any infirmity of mind or body of discharging the duties of his office and that such infirmity is likely to be permanent;
(f) in the case of removal from the public service in the public interest as provided in this Ordinance;
G (ff) if he retires from the public service with the consent of the President, and the President, by writing under his hand, declares that this paragraph shall apply to him;
(g) on retirement in circumstances, not mentioned in the preceding paragraphs of this section, rendering him eligible for a pension under the Pensions (Governors of Dominions, etc) Acts, 1911 to 1947, of the United Kingdom or any Act amending or replacing those Acts: H
Provided that a gratuity may be granted to a female officer in accordance with the provisions of this Ordinance, who retires for the reason that she has married or is about to marry, notwithstanding that she is not otherwise eligible under this section for the grant of any pension, gratuity or other allowance.' I
Section 19 of the Civil Service Act, 1989, a legislation which repeals and replaces A the Civil Service Act, 1962 (Cap 509), is in the following terms:
`19-(1) The power to dismiss and to terminate the appointment of civil servants shall be exercised in accordance with the provisions of this section. B
(2) The power to dismiss shall not be exercised unless --
(a) a disciplinary charge is preferred against him;
(b) he is afforded an adequate opportunity to answer the charge, and
(c) an inquiry is held into the charge in accordance with regulations made under s 24. C
(3) The President may remove a civil servant from the service of the Republic if he considers it in the public interest so to do.
(4) Nothing in this section shall be construed as restricting --
(a) the compulsory retirement of any person under section 10 or in the paragraph (c), (d) or D (e) of section 8 of the pensions Ordinance, or under the provisions of the Tanganyika (Compensation and Retiring Benefits) Order in Council, 1961, or Retirement (Special Provisions) Act, 1962, or sub-section (2) of section 17 of the Republic of Tanganyika (Consequential, Transitional and Temporary Provisions) Act, 1962; or
(b) The termination, otherwise then by dismissal, of the service of any public officer, other E than the substantive holder of a pensionable office, in accordance with the terms of his employment, or the dismissal of any person from any office on the personal or domestic staff of the President or of any person holding an office the emoluments of which are payable at an hourly or daily rate. F
(5) Nothing in sub-section (1) or (2) shall apply to the dismissal of a civil servant who is an employee to whom the provisions of Part III of the Security of Employment Act, 1964, shall apply.
(6) Nothing in subsection (1), (2) or (3) shall apply in relation to any person holding the office of Controller and Auditor -- General.' G
I must now proceed to quote Regulation 29 of the Civil Service Regulations, 1970 (the Regulations). The Regulation reads:
`29-(1) Where the Principal Secretary is of opinion that a reason exists why an officer serving H on pensionable terms and who has attained the normal age of voluntary retirement, should be called upon to retire otherwise than on disciplinary or on medical grounds, the Principal Secretary may request the officer concerned to show cause why he should not be compulsorily retired. The Principal Secretary shall forward any representations made by the officer, pursuant to the notice given to him, together with his own recom- I
A mendations to the appointing authority, who shall decide whether or not such officer should be called upon to retire.
(2) Where a Principal Secretary is of the opinion that the President should be invited in the exercise of the powers conferred upon him by subsection (3) of section 20 of the Act [the Civil Service Act, 1962], to consider the removal of an officer in the public interest, the Principal B Secretary shall furnish to the President through the Principal Secretary (Establishments) such particulars as the President may, from time to time, by general or specific direction, require.'
C Standing Orders F 35, 44 and 49 for the Public Service, 1971, read as follows:
Standing Order F 35
`F 35 All appointments at the pleasure of the President. -- Excepting Judges of the High Court and the Controller and Auditor-General whose tenure of office is governed by the terms of the Interim Constitution of Tanzania, all other officers hold their respective offices subject to the D pleasure of the President of the United Republic. The pleasure of the President that any one of these officers should no longer hold it, may be signified through the Principal Secretary (Establishments) in which case no special formalities are required.' E
Standing Order F 44
`F 44 Removal in the public interest. -- The president may remove a civil servant or police officer from the public service if he considers it is in the public interest to do so otherwise than for the purpose of localization of the public service. The decision of the President that an officer F be removed from the service in the public interest may be signified through the Principal Secretary (Establishments) in which case no special formalities are required. The question of pension will be dealt with in accordance with the relevant provisions of the Pensions Ordinance (Cap 371).'
G Standing Order F 49
`F 49 Grounds for retirement on pension and/or gratuity under the Pensions Legislation. -- The Pensions Act (sic), (Cap 371) and the Regulations made thereunder, set out the circumstances under which a pensionable officer may elect to retire or may be called upon to retire others than on disciplinary grounds. These grounds are summarised below: H
(a) on or after attaining the age of 45 years:
Provided that an officer of the rank of Constable in the Police Force or an officer of the rank of Prison Officer Grade III in the Prisons Service may elect to be called upon to retire after he has attained the age of 40 years; I
(b) on the abolition of his office; A
(c) for purpose of facilitating improvement in the organisation of the Department to which he belongs by which greater efficiency or economy may be effective;
(d) on medical grounds;
(e) female officers may elect to retire on marriage, and will be granted such gratuity or pension, if any, for which they may be eligible.' B
Those are the provisions upon which the President, according to the letter addressed to the applicant by the Principal Secretary (Establishments), quoted C above, based his impugned decision. I will now proceed to deal with the contentions addressed to me by counsel. I hope I can summarise those contentions very briefly without doing any injustice to them. In his engaging argument Mr Nassoro contended that the President's decision is invalid for the following reasons: (a) the basis for the decision is vague because the provisions of D law relied upon therein deal with matters of employment which are incompatible; (2) the Standing Orders referred to in the Principal Secretary's letter have no force of law as there were declared by this Court (Mwalusanya J) in James F Gwangilo v Attorney-General, (1) to have been superseded by the Constitution and the Civil E Service Act, 1989; and (3) the failure by the President to give reasons for his decision is fatal to the said decision: the President was found in law to disclose to the applicant the factor or factors which, in his opinion, constituted the alleged public interest. Mr Songoro urged me to hold that the President's decision is F proper and in accordance with the law of the land. He forcefully contended that the paramount words in the Principal Secretary's letter, as far as the reason for the President's decision is concerned, are the words `amekustaafisha kwa Manufaa ya Umma'. According to the learned Senior State Attorney, the Applicant had no G right in law to be given more information than that. Counsel urged me to hold that the President acted within his powers, and the procedure he applied was correct and sufficient. It seems to me that it is desirable, if not necessary, that some of the general principles which I consider to be relevant to the determination of the application now before me should be distinctly set out. In my opinion, the following are those principles: H
(1) The common law principle that a civil servant is dismissible at pleasure (see Shenton v Smith (2) and Gould v Stuart (3)) is not part of the law of this country: see s 36(2) of the Constitution as I
A read together with s 26(1) of the said Constitution, and James F Gwangilo's case supra. In this country, civil servants are dismissed for misconduct only: see s 19(2) of the Civil Service Act, 1989. When a civil servant is dismissed cause must be assigned. The English common law doctrine of `service at pleasure' has, as, I hope, amply B demonstrated above, no place in the law of this country. The saying `Whatever pleases the emperor has the force of law' forms no part of our law.
(2) While in England the courts are not concerned with the Civil service as such, because the civil servant there is in law only a servant of the C Crown, dismissible at the pleasure of the Queen without notice or compensation, in Tanzania the civil servant has some legal rights, including the right to be afforded an opportunity to show cause why he should not be dismissed from the service, which are enforceable in the courts.
D (3) No power conferred by law on a public leader or officer is absolute or limitless. Every such power must be exercised in good faith and in accordance with the Constitution and other laws. Any assertion that presidential powers brook no limitation would have no basis in law.
E (4) Compulsory retirement of a civil servant or his removal from service in the public interest may be challenged in this Court on, among others, any of the following grounds:
(a) the legislation under which the impugned decisions was made is unconstitutional;
F (b) the decision is mala fide ie, it is actuated by malice or some purpose other than that for which it is authorised by the law: malice would be held to exist where, for example, the alleged public interest, where removal is concerned, is founded upon non-existent facts;
G (c) the decision is perverse, that is to say, one which no responsible man would have made.
(5) The Standing Orders for the Public Service have no legislative effect; they are meant for departmental and administrative purposes: see IG Lazaro v Josephine Mgombera (4). Those Orders form the internal law of the Civil Service. H
Having stated these principles, I proceed to ask myself whether the impugned decision of the President is not valid in law. My mind is free from doubt as to how that question ought to be answered. I agree with Mr Nassoro that the President's decision is unsupportable in law. I hold that view for the following reasons: I
(1) The letter from the Principal Secretary cites provisions of law which are A incompatible, that is to say, provisions which do not go together. Whereas the removal of a civil servant from service under s 8(f) of the Ordinance, s 19(3) of the Civil Service Act, 1989, reg 29(2) of the Regulations and Standing Order F44 is based on the general requirement of public interest, the removal under Standing Order F 49(c) must specifically be based on the need of, to quote the Order, B `facilitating improvement in the organisation of the Department to which [the civil servant] belongs by which greater efficiency or economy may be effective'. By being based on the two sets of provisions the President's decision has, I agree with Mr Nassoro, caused the applicant considerable embarrassment. C
(2) The citation, in the Principal Secretary's letter, of Standing Order F 35 as being one of the legs on which the President's decision was intended D to stand suggests, very strongly, that in making, or coming to, his decision the President was under the mistaken belief that the applicant held his office in the Immigration Department at his (the President's) pleasure. I have, I hope, sufficiently demonstrated that in this country civil servants, including immigration officers, do not hold office at the pleasure of the President. It is perfectly correct to say that a civil E servant's security of tenure is lesser than that of a judge, but it is equally correct to observe that that security is not as limited as is implied by the Principal Secretary's letter. Standing Order F 35 cannot be valid in law, because it is inconsistent with the provisions of ss 22 and 36(2) of the Constitution as read together with s 11(1) of the said Constitution. F
(3) No provision of law speaks of retirement of a civil servant in the public interest. Neither s 19 of the Civil Service Act, 1989 nor reg 29 of the Civil Service Regulations, 1970, confers on the President power to retire a G civil servant in the public interest. The provisions speak of removal, and not retirement, in the public interest. It is not of little interest to point out that even Standing Order F 44 does not speak of retirement. It speaks of removal. Paragraph (d) of s 8 of the Ordinance refers to compulsory H retirement for the purpose of facilitating improvement in the organisation of the department to which the servant belongs, by which greater efficiency may be effected. Neither what is stated in the Respondent's counter-affidavit nor what fell from the lips of Mr Songoro at the Bar during the hearing of the application gives even a faint suggestion that the pur- I
A ported termination of the applicant's employment falls under one of the categories of compulsory retirement mentioned in s 10 of the Ordinance, as amended by s 7 of the Pensions Law (Miscellaneous Amendments) Act, 1978. When all this is taken into account, it must be correct to say, as I do, that the use of the word `amekustaafisha' in the Principal Secretary's letter to the applicant causes even more confusion B as to exactly why the President acted in the manner he did with regard to the applicant's employment.
C Since I am of the settled opinion that the above three grounds constitute a sufficient warrant for faulting the President's decision, I do not find it necessary to consider Mr Nassoro's argument that, when ordering the removal of a civil servant from public service in the public interest, the President is bound in law to give reasons disclosing factors which, in his opinion, constituted public interest in the Dparticular case. In James F Gwagilo's case supra, Mwalusanya J was of the clear opinion that such reasons made be given. Thought the point is not an uninteresting one, I do not for the reason I have given, think it right to lengthen this ruling by discussing it.
E Before I part with this application, I would like to say a word or two on the true application of the provisions of s 23 of the Civil Service Act, 1989. The section reads:
F `23 -- (1) No proceedings shall be brought in any court on ground only that the provisions of this Act, other that the provisions of sub-section (2) of section 3 and Part V, have not been complied with; but nothing in this section shall apply to any criminal proceedings for an offence against any of the provisions of this Act.
(2) The question whether --
G (a) The President validly performed any function conferred on him by section 36 of the Constitution or by this Act;
(b) the Commission or other delegate has validly performed any functions the exercise of which has been delegated or deputed to it or him, shall not be enquired into by or in any court, subject to the provisions of sub-section (3).
H (3) Where a person is dismissed, the provisions of sub-section (2) shall not apply in relation to that dismissal unless prior to the dismissal, the provisions of section 19(2) are complied with.'
I was inclined to think that I was not deterred by these provisions from entertaining the instant application. In my opinion, those provisions do not take away the supervisory jurisdiction of this I
Court where it is alleged, as is the case in the present application, that a decision A made by the President under s 36 of the Constitution and the provisions of the Civil Service Act, 1989, is invalid in law. As I understand the law, if a decision purportedly made by an authority which falls under the supervisory jurisdiction of this Court is challenged on the ground that it is not valid in law or it is null and void it becomes the bounden duty of the Court to hear the aggrieved party. It must be B distinctly understood, however, that this Court's supervisory jurisdiction is one of supervision and not of appeal or revision. When it exercises that jurisdiction this Court does not sit as a super-executive. Thus, when it issues an order of certiorari C the Court does not substitute another order in the place of the quashed order, but it removes that order out of the way, as one which should not be used to the detriment of any individual: see Walsall Overseers v Railway Company (5) at 39. Where an authority exceeds its jurisdiction, its decision will be regarded by the courts as invalid in law and beyond the protection of any exclusionary formula: see Anisminic v Foreign Compensation Commission (6). Parties to disputes as to legal rights must have access to legal tribunals for the settlement of those D disputes.
For the reasons I have given, I hope not at an inordinate length, I allow the application and quash the President's decision purporting to retire the applicant in the public interest. The respondent is to pay the applicant's costs in the E application.
1997 TLR p14