Mwalusanya, J: Delivered the following considered judgment of the court:
The power of the President of the United Republic of Tanzania to remove a civil servant from service C in public interest is being challenged in this case. The question is, does the President have the authority to remove someone in the public service in public interest disclosing what that public interest is? Under s 19 of the Civil Service Act 16 of 1989 it is provided: D
`19. The President may remove a civil servant from the service of the Republic if he considers it in the public interest to do so.'
The issue is, what is in public interest? Is the word of the President final? In other words in deciding E as to whether the decision was in public interest, what test to apply, a subjective test or an objective test? The State Attorney Mr Nyabiri has argued that the test is subjective and so the decision of the President cannot be questioned in court. F
There is another question as to whether this court has jurisdiction to inquire as to whether the President complied with the law. Under s 23(2)(a) of the Civil Service Act 16 of 1989 it is provided:
`23(2)(a)The question whether the President has validly performed any function under this Act shall not be inquired into by or in any court.' G
Have the courts been rendered impotent by that provision ousting the jurisdiction of the courts? These are the questions that I have been invited to answer in this case.
The plaintiff in this case is a seasoned civil servant one Mr James Funke Gwagilo who until 15 May H 1990 was a Regional Development Director for Tabora Region. By a letter dated 29 December 1990 he was informed by the Principal Secretary (Establishment) that `the President under s 19(3) of the Civil Service Act 16 of 1989 and s 8(f) of the Pensions Ordinance cap 371 and Standing Order F35 has directed that you are retired from the public service I
A in public interest with effect from 15 May 1990'. No reasons were disclosed as to what rendered the retirement to be of interest to the public at large. However the letter states that the retired servant would be paid all his pension due.
Now the said plaintiff has filed a suit for a declaration that his retirement in public interest was B wrongful. He prays to be declared as still a lawful employee of the government. He claims Shs 47,559,511/60 as damages for wrongful retirement and his arrears of salary and other allowances that he was entitled to. He also claims Shs 157,717,644/60 as special damages. The Government C through the State Attorney Mr Nyabiri has raised a preliminary point to the effect that this court has no jurisdiction to try this case. However the plaintiff through his advocate Mr Mbezi has contended that this court has the jurisdiction to try the case.
D First the State Attorney Mr Nyabiri has argued that the President under article 36(2) of the Constitution has the prerogative power to terminate or remove a civil servant in the public service in public interest. He said that power is supplemented by the Government Standing Order F35 which states that a civil servant holds his office at the pleasure of the President as such he can be dismissed at will. Counsel for the plaintiff Mr Mbezi has rightly pointed out that the correct Standing E Order is F44, which states that a civil servant holds his office at the pleasure of the President.
I will be quick to point out that the Standing Orders have no force of law. Those standing orders have F been superseded by the provision of the Civil Service Act 16 of 1989 and the Constitution. The Standing Orders had validity only during the colonial period when the Crown could dismiss a civil servant at will as he held office at the pleasure of the Crown. When Tanganyika became a Republic G in 1962 the prerogative power of the Crown to dismiss a civil servant at will did not devolve to the President. Instead the President could only remove a civil servant not at will but in public interest as per s 20(3) of the Civil Service Act 1962, cap 509. Therefore the prerogative to dismiss at will has been abrogated. As Prof Abraham Kiapi points out in his book Civil Service Laws in East Africa H (1984) East African Literature Bureau at 54:
The power to dismiss can only be exercised if it is in the public interest. There is a distinction between this and the power to dismiss at will exercisable by the Crown in England or the President in Uganda. Whereas under the prerogative the Crown need not state why an officer is being dismissed and no cause need be shown for the I discharge, under the Tanzania Act, the President must act if the
public interest so requires. There must exist some circumstance to enable the President to form the opinion that the A removal of an officer is in the public interest.
In fact article 36(2) of our 1977 Constitution which the State Attorney has cited reinforces the view that the President has no power to dismiss a civil servant at will, contrary to what the Standing Order Bprovides. Article 36(2) of the Constitution clearly provides that the President has no power to terminate or remove someone in public interest except in accordance with the provisions of the Constitution or the law of the land. Now the only law available for termination or removal in public interest is the Civil Service Act 16 of 1989. C
In the same breath it may be of interest to note the observation of Prof McAuslan in his book Administration Law in Kenya where at 10 he states: D
It would then follow that wrongful dismissal would be actionable, as a breach of contract of employment. In Kenya neither the Constitution nor the regulations provide for dismissal at pleasure by the President or the Public Service Commission, only termination of appointment in the Public interest; this is very different from dismissal. It would E seem to follow therefore that there is a proper contractual relationship between the Kenya Government and the servants, one in which, it is true, all the cards are stacked on one side, but that is not uncommon these days and it represents a step forward from the colonial position. F
I hope by now the State Attorney Mr Nyabiri has understood that the Government Standing Orders do not represent the true state of the law. Mr Nyabiri was also quite wrong to think that the Uganda case of Opoloto v Uganda (1) represents the true position of the law. That case held that the President of G Uganda had the power to dismiss a civil servant at will. That is the position in Uganda where the Constitution of Uganda stated that on the attainment of Republican status, the prerogative powers of the Crown became vested in the President of Uganda. But in the 1977 Constitution of Tanzania we have no such provision. The President of Tanzania has no prerogative power to dismiss a civil H servant at will but in terms of article 36(2) of our Constitution he must remove someone in the civil service in accordance with the law ie Civil Service Act 16 of 1989.
Now the next question is whether removal in public interest is equivalent to termination at the will of the President. The answer is I
A an emphatic no. As Prof Abraham Kiapi rightly points out in the passage I have quoted above, whereas in the termination at will the Crown need not show the cause for the discharge, under our law the President must state what the interest of the public is being served. To quote his word: `There must exist some circumstance to enable the President to form the opinion that the removal of B an officer is in public interest.' The President cannot and should not just out of the blue, state that he was removing someone in public interest without disclosing the interest of the public to be served. Otherwise he will be accused of acting arbitrarily and in a high-handed manner. In other words it will C be an abuse of power.
The duty to give reasons by the President when removing someone in the civil service in public interest is reinforced by the provisions of article 13(6)(a) of our Constitution. That provision states that every person whose rights and obligation are being determined by a public officer, has the right D of appeal or the right to another remedy against that decision. By the phrase `another remedy' there is envisaged the right to judicial review. But there can be no judicial review if the decision-maker has not given the reasons for his decision. As Lord Upjohn observed in the case of Padfield v Minister of E Agriculture, Fisheries and Food (2) at 1061
. . . if he does not give any reason for his decision a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion.
F No doubt the absence of reasons would render the constitutional right to appeal to judicial review ineffective and illusory. Consequently there is an implicit obligation to give reasons in order to facilitate and render meaningful the exercise of the right of appeal and judicial review. Our Constitution in article 13(6)(a) must have intended the constitutional right of appeal and judicial G review to be an effective right and that the President by keeping silent cannot defeat the citizen's constitutional right. To hold otherwise would mean that the President could in almost every case, render the right of appeal and judicial review completely nugatory - see the decision of the Privy H Council in the case of Minister of National Revenue v Wright's Canadian Ropes Ltd (3) at 123. If reasons are not given for a decision by the President that will render it virtually impossible for the courts to perform their function of judicial review. If the basis and reasons for the impugned decision are not articulated it is difficult for a reviewing court to adjudge the validity of the decision. The courts I cannot exercise their duty to review unless they are
advised of the considerations underlying the action under review. That is the common law rule also A all over the Commonwealth - see In the Matter of Amir Hamza Umar and the Minister for Local Government(4) and Osmond v Public Service Board (5). B
Another reason for requiring disclosure of reasons for retiring in public interest, is to ensure proper application of mind, to reduce the possibility of casualness and capricious. In brief to maintain the integrity of the decision-making process. The compulsion of disclosure of the public interest involved C guarantees consideration and introduces clarity. If reasons for an order are given there will be less scope for arbitrary or partial exercise of powers and the order ex-facie will indicate whether extraneous circumstances were taken into consideration by the President in reaching his decision. That will be an effective restraint on abuse of power. D
In addition to imposing a healthy discipline on the decision makers, public confidence in the decision-making process is enhanced by the knowledge that acceptable reasons have to be given by those who exercise administrative power. Besides, even if the decision is adverse, the person E affected may be convinced by the reasons to accept it as a reasonable and fair exercise of discretionary power.
Another important consideration underlying the requirement to give reasons as to why a servant is removed in public interest, is to satisfy a basic need for fair play. A person affected by an adverse F order is entitled to know why the decision has gone against him or her. What is required is not a detailed judgment but a brief and concise statement of reasons for the adverse decision.
Moreover, the obligation to give reasons, our President should note, also flows from the citizen's right to know and the right to have information which is an essential component of the freedom of speech and expression guaranteed under article 18 of our Constitution. The Supreme Court of India in the case of S P Quota v Union of India (6) declared the right to know from the guarantee of free speech in the Indian Constitution. I adopt that reasoning. Thus the rights to have information obliges the President and other authorities to disclose reasons for their decisions which affect citizen's rights.
It can be said with confidence that since article 13(6)(a) of our Constitution provides for the right of appeal and right of judicial review from every decision affecting citizen's rights, then ipso facto
A it creates a third head of the principles of natural justice ranking equally with audi alteram partem (the rule against bias). This third head is the right to reasons from a decision-maker - that it is a denial of natural justice to refuse to give reasons to the party who lost. Thus the third pillar of the principles of natural justice is here to stay just as day follows night. In order that it be at no B disadvantage in point of latinity, this third arm of the principles of natural justice, should be referred to as nullum arbittrium sine rationibus.
So the State Attorney Mr Nyabiri was wrong as was the President to equate removal in public C interest with termination at the President's will or pleasure. There is a vast different between the two as adumbrated above.
Then Counsel for the Republic Mr Nyabiri argued that it is for the President and not the courts to determine what amounts to public interest. He said that the decision of the President is subjective D and that is why the legislation in question states that `if the President considers it' to be in public interest. So he said that the words used put it clearly that it is entirely in the discretion of the President to determine whether a particular decision is in public interest or not. I am quite certain that the State Attorney is wrong. In matters of this kind the test is an objective test and not a subjective E test. A similar expression was considered by the Tanzania Court of Appeal in the case of Agro Industries Ltd v Attorney-General (7) whose judgment was delivered on 23 April 1993. What was in F issue was the provision in s 10(2) of the Land Ordinance cap 113 which provides:
`Notwithstanding the provisions of ss (1) the President may revoke a right of occupancy if, in his opinion, it is in the public interest so to do.'
G In that case the revocation of right of occupancy was done by the President in favour of a trespasser (a public corporation) as against a lawful owner (a private company). The Tanzanian Court of Appeal, as per Ramadhani JA held that notwithstanding the wording suggesting a subjective H test the test to be applied was an objective test. He said at 14-15 of the typed judgment:
In the eyes of the law a trespasser is a trespasser be it a public enterprise or a private enterprise or an individual. So the crucial question is what action is in the public interest: to protect one with a legal title or to protect a I trespasser? What is at stake is the sanction of a legal right, and pertaining the right to property, against the use of
naked force. Which of the two should be protected in the public interest? We are satisfied that public interest, as we A have stated to understand it, requires that legal property rights should be protected against trespassers. . . . Admittedly that subsection provides a subjective test and that is: in the opinion of the President. In this case that opinion was based on the recommendations of the PMO which did not describe Darbrew in its true colours that it was a trespasser. In fact the President was misled. If the President was seized of the full and correct situation he B would not, in our opinion, have used his name to protect a trespasser albeit a public enterprise. He would have been of the opinion that, that was not in the public interest'.
The important point to remember is that the Tanzania Court of Appeal applied an objective test despite the wording of the statute in question. Ramadhani JA emphasized that point at pages 12-13 of his typed judgment by stating
`So what do we understand by an action being in the public interest? We think it is so when looked at objectively with impartial eyes the section is primarily and not incidentally in the interest of the public which depending on the matter at issue, may even comprise the individual or individuals concerned and it matter not whether the public is aware of it or not.'
So a matter which benefits an individual may be in public interest depending in the circumstances, for example where the basic human rights of an individual are at stake against an oppressive majority or public.
The subjective formulation of discretionary powers is not a new phenomenon, as often the executive attempt to restrict the scope of judicial review. But the courts do not consider themselves impotent in the face of those subjectively framed discretionary powers. In a case from England, the case of Secretary of State for Education and Science v Metropolitan Borough of Tameside (8) the statute stated that `if the Minister was satisfied' he could decide something. The issue was whether he could be challenged. Lord Wilberforce said at 681-2:
`This form of section is quite well known and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts if for the Secretary of State alone, the court must enquire whether these facts exist and have been taken into account, whether judgment has been made on a
A proper self-direction as to those facts, whether the judgment has not been made on other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment however bona fide it may be, becomes capable of challenge.'
B And a similar view is taken by Lord Denning MR in the case of Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (No 2) (9) where the statute said `if it appeared to the Minister' he could do certain things. Lord Denning MR at 492-3 said:
C `If it appears to the Secretary of State, this in my opinion does not mean that the Minister's decision is put beyond challenge. The scope available to the challenger depends very much on the subject matter with which the Minister is dealing. In this case I would think that if the Minister does not act in good faith or if he acts on extraneous considerations which ought not to influence him or if he plainly misdirects himself in fact or in law, it may well be that D a court would interfered. But when he honestly takes a view of the facts or the law which could reasonably be entertained, then his decision is not to be set aside simply because thereafter someone thinks that his view was wrong.'
E The Privy Council as per Lord Salmon expressed their sentiments in more biting language in the case of Attorney-General of St Christopher, Nevis and Anguilla v Reynolds (10). When it said at 656:
F `Their Lordships consider that it is impossible that a regulation . . . could be properly construed as conferring dictatorial powers on the Governor, and that is what the regulation would purport to do if the words "if the Governor is satisfied": mean "if the Governor thinks that etc". No doubt Hitler thought that the measures - even the most G atrocious measures - which he took were necessary and justifiable, but no reasonable man could think any such thing.'
The notion of a subjective or unfettered discretion is contrary to the Rule of Law. All power has legal H limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If the discretion is not subject to review by a court of law then in our judgment that discretion would be in actual fact as arbitrary as if the provisions themselves do not restrict the I discretion to any purpose and to suggest otherwise would in our view be naïve.
Perhaps at this juncture I should remind all and sundry that the importance of the role of the courts in A trammeling abuse of executive and administrative power of the government was fittingly put across by the eminent English judge Lord Denning MR in the case of Laker Airways Ltd v Dept of Trade (11) where he said at 194-5: B
`These courts have the authority and I would add the duty, in a proper case, when called upon to enquire into the exercising of a discretionary power by a Minister of his department. If it is found that this power has been exercised improperly or mistakenly so as to infringe unjustly on the legitimate rights and interests of the subject, then these C courts must so declare. They stand, as ever, between the executive and the subject, as Lord Atkin said in a famous passage, alert to see that any coercive action is justified in Law. To which I would add: alert to see that a discretionary power is not exceeded or misused.' D
So the learned State Attorney is patently wrong to think that since the discretionary powers of the President are subjectively worded, then the President is beyond challenge. As amply demonstrated above, the President can be challenged, so as to see that his power has been properly exercised. E
We now go to the ouster clauses and which sometime they are referred to as pricative clauses, which attempt to oust the jurisdiction of the courts. As stated earlier, the ouster clause here is contained in s 23(2)(a) of the Civil Service Act 16 of 1989. At the outset I would like to put down F plainly that ouster clauses are paper tigers meant to scare the unwary and the uninitiated in this realm of the law. They are simply put there as scarecrows. As Hon Mr Justice John Laws states in his article `Is the High Court the Guardian of Fundamental Constitutional Rights?' in the Public Law Journal Spring 1993 at 78: G
`Since the case of Anisminic v Foreign Compensation Commission (12) clauses purporting to oust the jurisdiction of the courts have fallen into disuse. To oust the courts power of review is necessary to put some party above the H law or at least to make it and not the court the judge of what the law is, which is the same thing. The courts will presume against the conferment of such a power.'
The same view was expressed by Lord Diplock with characteristic pungency in the case of Re Racal Communications (13): I
A `It proceeds on the presumption that when Parliament confers on an administration tribunal or authority, as distinct from a court of law, power to decide a particular question defined by the Act, conferring the power, Parliament intends to confine that power to answering the question as it has been so defined and if there has been any doubt as to what that question is, this is a matter for courts of law to resolve in fulfilment of their constitutional role as B interpreters of the written law and expounders of the common law and rules of equity.'
To be sure, ouster clauses are ineffective to exclude the power of the High Court to exercise its C supervisory role as conferred on it by article 108(2) of our Constitution over inferior tribunals and public authorities. It is axiomatic that all statutory power conferred on public officers including the President are subject to supervision by the High Court exercising its classic and traditional function D of judicial review notwithstanding the existence of an ouster clause. The Tanzania Court of Appeal has espoused that view in a number of cases inter alia AG v Lessinoi Ndeinai & others (14), Ally Linus v Tanzania Harbours Authority (15) and D R Kaijage v Esso Standard Tanzania Ltd (16). In the last case mentioned Makame JA observed that despite an ouster clause the High Court could E examine a decision to see if the rules of natural justice were observed in arriving at the decision, which would in turn determine whether there was a valid decision or any decision at all. However I have to point out that the position now is that not only can the decision of a public authority be F challenged for violating the principles of natural justice, but the ground has been expanded. Lord Diplock in the case of Council of Civil Service Unions v Minister for the Civil Service (17) identified four principles which can be used to challenge a decision of a public authority, and that case was G cited with approval by the Tanzania Court of Appeal in the case of Sanai Murumbe v Muhere Chacha (18). These four principles are illegality (failure to follow the law); procedural impropriety (failure to observe the principles of natural justice and failure to act with procedural fairness); irrationality (making a decision which is outrageous in its defiance of logic or of accepted moral standards that H no reasonable person who had applied his mind to it could have made such a decision); proportionality (that the means employed by a decision-maker are no more than is reasonably necessary to achieve his or her legitimate aims). The doctrine of proportionality has been recognised I by the Tanzania Court of Appeal in the case of DPP v Daudi Pete (19)
and Kukutia Ole Pumbun v Attorney-General (20). The decision of the President in this particular A case is open to challenge on all these four principles.
It may be argued on behalf of the President that since the President did not disclose on which ground of public interest he removed the servant in the civil service, then it is not possible to mount a B challenge on his decision. That argument is naïve. In the Agro Industries Ltd case (supra) the President did not disclose the public interest involved when he revoked somebody's right of occupancy, nevertheless the Tanzanian Court of Appeal took into account the history of the case C which revealed that the revocation was made to assist a public corporation to occupy the land in dispute in which it had trespassed into and the court held that, that was not in public interest. In the case at hand although the President has not disclosed as to what public interest would be served in removing the servant from the civil service yet taking into account the history of the case, the court at D the main trial would be at liberty to consider on whether the President was correct to take into account in reaching his decision the fact that the civil servant in question had an economic sabotage criminal case in which he was acquitted and there were disciplinary proceedings against the said servant but which ended in favour of the said servant. The trial court will have to consider as to E whether the President was right to take into account these extraneous considerations in arriving at his decision.
The courts under the doctrine of separation of powers are charged with the task of upholding the Constitution and acting as a check on other branches of the government. In the two themes above, I F have attempted to explain how the judiciary has rejected attempts by the Executive to overreach individual rights by the use of legislation providing subjective discretionary powers and legislation ousting the jurisdiction of the courts. Court's resistance to attempts on the part of the political G branches of the government to acquire uncontrolled power is highly commendable and shows that they are fitted to provide an effective check against oppressive exercise of power by the Executive. William Wade, in Constitutional Fundamentals', Hamlyn Lectures, 32nd series, (1980) at 83-4 has commended the court's role by stating: H
`. . . to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power. It is no exaggeration, therefore, to describe this as an abuse of the power of Parliament, speaking constitutionally. This is the justification, as I see it, for the strong, it might even be said rebellious stand which the I
A courts' have made against allowing Acts of Parliament to create pockets of uncontrolled power, in violation of the rule of Law. Parliament is unduly addicted to this practice, giving too much weight to temporary convenience and too little to constitutional principle. The laws delay, together with its uncertainty and expense tempts government to take B short cuts by elimination of the courts. But if the courts are prevented from enforcing the law, the remedy becomes worse than the disease.'
It is only hoped that the Executive will take this dialogue with magnanimity. Uncontrolled power on the C part of the Executive does not augur well with a democratic government. It should be noted that Courts are in a position of independence and so they are often better placed than the President or any other public authority to assess the weight of competing aspects of the public interest.
Finally the State Attorney Mr Nyabiri advocating for the President, argued that the provisions of ss 6 D and 7 of the Pensions Ordinance cap 371 bar the plaintiff to present his claim in Court. Both these sections provide that `no officer who has been retired in public interest has an absolute right to compensation for past services and to other allowances he is otherwise entitled to'. The short E answer to these provisions is that they are unconstitutional and so void. They are denying a person the right to remuneration for work done contrary to article 23(1) of our Constitution. Equally article 24(2) providing for the right to property is violated, as that basic right states that no one may be deprived of his property without authority of the law which shall set out conditions for fair an adequate F compensation. The law that is impugned is not good law and is not saved by article 30(2) of our Constitution because it is arbitrary and without adequate safeguards against any such arbitrary decision. And if offends the principle of proportionality - it is not shown that it is reasonably G necessary to achieve a legitimate objective. Both these principles have been expounded by the Tanzania Court of Appeal in the cases of Kututia Ole Pumbun v Attorney-General and DPP v Daudi Pete (supra). It should be noted that under article 9(1)(b) of our Constitution, the President and all the H state agencies are required to direct all the policy and business towards the preservation and compliance with the basic law of the land, that is the Constitution. And article 26(1) of our Constitution directs that every person including the President is obliged to comply with the Constitution. It is therefore surprising to note that the President has opted to obey the unconstitutional I Pensions Ordinance which offends the basic
law of the land. I have to remind the President and all other public officials that under s 5(1) of the A Constitution (Consequential Provisions) Act 16 of 1984 they have to regard all the existing law (laws passed before 1 March 1985) as modified as an to bring them into conformity with our Bill of Rights Act 15 of 1984. So all laws passed before 1 March 1985 should not be taken at their face value, but B should only be obeyed if they don't go against the basic law of the land, the Constitution. The President of the United Republic should be in fore-front to disregard all the laws that are in breach of the Constitution, such as the Pensions Ordinance. As amply demonstrated above the Pensions C Ordinance violates the right to property and the right to a just remuneration for work done. Therefore under s 5(1) of Act 16 of 1984 and article 64(5) of our Constitution, I declare the provisions of s 6 and 9 of the Pensions Ordinance to be void. I hold that the plaintiff is at liberty to present his claims before this court. D
E
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