AfricaPress-Tanzania: ALLIANCE for Change and Transparency (ACT) Wazalendo leader Zitto Kabwe has bowed out of the legal battle with President of the United Republic of Tanzania after withdrawing his case, challenging appointment of Charles Kichere as new Controller and Auditor General (CAG).
Zitto decided to withdraw the constitutional petition after noting that some of provisions under the Constitution of the United Republic of Tanzania alleged to have been violated during the appointment process were not pleaded in the case he had filed at the High Court in Dar es Salaam.
Before withdrawing the petition, Advocate Nyaronyo Kicheere, for Zitto, the petitioner, requested the court panel composed of Judges Lameck Mlacha, Juliana Masabo and Denhajj Masoud, to allow him to make amendments to the case by pleading the provisions in question.
However, state lawyers from the Solicitor General’s Office led by Deputy Solicitor General Gabriel Malata vehemently opposed the request.
The panel rejected the invitation by Zitto’s advocate. He subsequently asked to withdraw the petition with leave to refile the same.
The judges granted that the request and the petition was subsequently marked withdrawn.
Zitto filed the petition against the President of the United Republic of Tanzania, the Attorney General, Mr Charles Kichere and Prof Musa Assad, the former CAG.
It was a constitution petition based on the Constitution of the United Republic of Tanzania, 1977 (as amended from time to time), the Basic Rights and Duties Enforcement Act and the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014.
The petition was lodged by originating summons supported by the affidavit of Zitto, who is also a Member of Parliament for Kigoma Urban Constituency.
He sought orders that Section 6 (1) of the Public Audit Act is unconstitutional for offending Article 144 (I) of the Constitution and for being incompatible with Section 6 (2) (a) of the Act that extended the tenure of office of the CAG from 60 years in line with the permission given by Article 144 (1) of the Constitution.
The MP requested that the removal of Prof Assad from office by the President under the pretext of expiration of his tenure on November 3, 2019, was unconstitutional as he had not reached the mandatory retirement age 65 years as required by Section 6 (2) (a) of the Act in line with Article 144 (1).
He prayed for orders that the appointment of Mr Kichere is unconstitutional as Prof Assad, who was a substantive holder had not reached the mandatory retirement age of 65 years, declaration that the latter is the substantive holder of the office of the CAG, while the former is not the CAG.
November 4, 2019, President John Magufuli closed the debate, questioning his authority to revoke the appointment of the former CAG, Prof Musa Assad, replacing him with the then Tanzania Revenue Authority (TRA) Commissioner General Charles Kichere.
During a swearing in ceremony of officials he appointed on various capacities held at the State House in Dar es Salaam, Dr Magufuli explained that the Constitution of the United Republic of Tanzania was very clear and sets the procedure for which the CAG could be removed from the office.
His statement came amid a heated debate in the social media, questioning the decision to appoint a new CAG before the incumbent of the office completing his term in full and even reaching the statutory age of 65 years of his retirement.
Before being withdrawn, the petition passed through some tests from the Attorney General’s Chambers.
The state lawyers had requested the court to dismiss the petition for a number of grounds, including being bad in law for containing omnibus prayers.
They submitted that the petition was frivolous, vexatious and contrary to the provision of the Basic Rights and Duties Enforcement Act and was incompetent for having been preferred against a wrong party and misconceived, incompetent and bad in law for being brought in contravention of the Act.
The lawyers also submitted that the petition was incompetent for being supported by an affidavit which is incurably defective for contravening provisions under the Civil Procedure Code.
In a ruling, however, the Court dismissed all the grounds of objection for lacking merits.
