Tanzania: Court Set to Hear Zitto Case Against Removal of Cag

Dar es Salaam — The Tanzania High Court has accepted and set January 28, 2020 as date for hearing of the case filed by a firebrand opposition politician, Mr Zitto Kabwe, against the removal of Prof Mussa Assad as the Controller and Auditor General (CAG).

In the case number one of 2020, whose summon has been issued, the respondents are Attorney General (AG) Prof Adelardus Kilangi, Mr Charles Kichere and Prof Assad.

The High Court summon dated January 21, 2020 seen by The Citizen says the miscellaneous civil case will be heard before Judge Mlacha Masoud Masabo on January 28, 2020 at 9am.

In this case, Mr Kabwe is represented by advocate Rugemeleza Nshala, who doubles as Tanganyika Law Society (TLS) president, and Nyaronyo Mwita Kicheere.

Mr Kabwe, who is the Kigoma Urban legislator-cum-ACT Wazalendo party leader, prays for the court to declare that provisions of section 6(1) of the Public Audit Act No 11 of 2008 is unconstitutional as it offends provisions of Article 144 (1) of the country's constitution.

Mr Kabwe also prays that the section is incompatible with section 6(2(a)) of the Public Audit Act No 11 of 2008 that extended the CAG's tenure of office from 60 years to 65 years in line with Article 144(1) of the Constitution.

He demands that the removal of Prof Assad as CAG citing expiry of his tenure was unconstitutional as he had not reached the mandatory retirement age of 65 years as stipulated by the constitution and sections of the law.

"That the appointment of Mr Kichere is unconstitutional because Prof Assad, who was holding the position, had not reached the mandatory retirement age of 65 years and had not committed any acts incompatible with his office," Mr Kabwe prays the court.

Therefore, he demands that the High Court should declare Prof Assad as a substantive holder of the CAG office because he has not reached the mandatory retirement age of 65 years and that Mr Kichere is not the country's CAG. In the foundation of the case, Mr Kabwe states that provisions of section 6(1) of the Public Audit Act No 11 violate Article 144(1) of the Constitution, which provides the mandatory retirement age of the CAG as 65 years upon enactment of section 65(2) of the Public Audit Act No 11 of 2008.

Mr Kabwe further argues since Article 26(1) of the Constitution requires every person to respect and uphold the Constitution, the removal of Prof Assad due to expiration of five-year term violates Article 144(1) of the Constitution that set the term of office to be 60 years before being increased to 65 years by the Parliament.

According to him, during the swearing of Mr Kichere, President Magufuli said when executing his duties he should bear in mind that, "the owner of the government is around, and that the auditor general is not another organ of government".

"The statement violates Article 27(1)-(2), which requires assiduous use of public resources and Article 143(2)(a)-(c), and 143(3)-(6) of the Constitution that provide powers to the CAG to audit all public expenditures and ensure funds from the Consolidated Fund are used in accordance with the law and provisions of the constitutional," he says.

According to him, the AG has failed to provide legal advice to government leaders including the president leading to removal of the CAG contrary to age limits restrictions.

In his affidavit, Mr Kabwe says Prof Assad was 53 years old when he was appointed the CAG on November 5, 2014, noting that according to his Curriculum Vitae (CV), he was born on October 6, 1966.

Therefore, he was removed before attaining the age of 60 or 65 years as stipulated by the constitution and the amended Public Audits Act of 2008, according to him.

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"Prof Assad is therefore supposed to remain in the office until when he reaches the age of 65, or if he passes away before attaining that age or if he commits incompatible acts proved by a team of investigation," he states.

He blames Mr Kichere for accepting the appointment while Prof Assad hasn't attained retirement age of 65.

Also, Prof Assad is blamed for handing over the office to Mr Kichere while knowing he hasn't reached mandatory retirement age of 65 years.

He ascertains that Prof Assad is denied the right for appointment into public office as the law doesn't allow retiree in the position to be appointment to hold any other public office position.

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