By Evarist Baimu Nyaga Mawalla - Home

Now the said plaintiff has filed a suit for a declaration that his retirement in publicinterest was wrongful. He prays to be declared as still a lawful employee of thegovernment. He claims Shs. 47,559,511/60 as damages for wrongful retirementand his arrears of salary and other allowances that he was entitled to. He alsoclaims shs. 157,717,644/60 as special damages. The Government through theState Attorno Mr. Nyabiri has raised a preliminary point to the effect that thiscourt has no jurisdiction to try this case. However the plaintiff through hisadvocate Mr. Dominic Mbezi has contended that this court has the jurisdiction totry the case.First the State Attorney Mr. Nyabiri has argued that the President under Art. 36(2) of the Constitution has the prerogative power to terminate of remove a civilservant in the public service in public interest. He said that power issupplemented by the Government Standing Order F.35 which states that a civilservant holds his office at the pleasure of the President and so he can bedismissed at will. Counsel for the plaintiff Mr. Mbexi has rightly pointed our thatthe correct Standing Order is F.44 which states that a civil servant holds hisoffice at the pleasure of the President.I will be quick to point out that the Standing Orders have no force of law. Thosestanding orders have been by the provisions of the Civil Service Act. No. 16/1989and the Constitution. The Standing Orders had validity only during the colonialperiod when the Crown could dismiss a civil servant at will as he hold office atthe pleasure of the Crown. When Tanganyika became a Republic in 1962 theprerogative power of the crown to dismiss a civil servant at will did not evolvo tothe President. Instead the President could only remove a civil servant not at willbut in public interest as per 20 (3) of the Civil Service Ordinance Cap. 509 of1961. Therefore the prerogative to dismiss at will have therefore boon abrogated.As Prof. Abraham Kiapi points out in his book ‘Civil Service Laws in East Africa’(1974) East African Literature.The power to dismiss can only be exercised if it is in the public interest. There isa distinction between this and the power to dismiss at will exercisable by theCrown in England of the President in Uganda. Whereas under the prerogativethis Crown nood not state whey an officer is being disclose and no cause noodbe shown for the discharge, under the Tanzania Act, the President must act if thepublic interest so requires. There must exist some circumstance to enable thePresident to form the opinion that the removal of an officer is in the publicinterest.In fact Art 36 (2) of our 1977 constitution which the State Attorney has citedreinforces the view that the President has no power to dismiss the civil servant atwill, contrary to what the Standing Order provide. The Art. 36 (2) of theConstitution clearly provides that the president has no power to terminate orremove someone in public interest except in the accordance with the previsions452