A lot is being said about judges, often nicknamed shysters.
However, Judge Thomas Mihayo, who even after retirement from the law corridors is still being hired, has a unique charisma. At the age of 70, he is strong enough to chair the Tanzania Tourism Board.
In this two part interview by Our Staff Writer MOHAMED MAMBO, Judge Mihayo speaks about his career, challenges and achievements.
Q: Kindly can you run me on your academic life and what inspired you to study law.
Answer: I thank you for giving me an opportunity to express myself on matters, I, by and large, had left them for my consumption. I will answer your questions as follows.
I started Class One at a Catholic School in my village called Ng’wanangi in Busega District, Mwanza Region way back in 1954 and after a second attempt, I was selected to join Standard Five at Bukumbi Middle School in 1959 and Nsumba Secondary School in 1963 and thereafter I did my High School at the then Karimjee Secondary School (now Mkwakwani) in Tanga and graduated in 1968.
When time came for filling our “Kalamazoo” forms showing what we wanted to study at University, my first choice was B.A. (Education). A classmate of mine who was a friend, one Serapion Kahangwa, (now a Senior Advocate in Mwanza) passed by and on seeing my first choice; he laughed and asked me why I was not selecting Law.
I asked him “what is Law?”
His answer: “We shall know when and if we get there.” So I crossed B.A. (Education) and substituted it with “Law”. I was indeed selected to join Law but for some reason Mr. Kahangwa was not selected. He joined us in Law in about one month after we had started lectures. That is how I joined Law.
Q: Can you precisely tell me one of the most delicate and sophisticated case you have ever handled and what you learnt out of it?
A: It is good that the question talks of “one of the most” delicate and sophisticate case I handled. My answer is, there are many. But one of them is Civil Case No. 197 of 1993 Ache Mwendu Limited Vs. Bank of Tanzania and four others.
Out of that case I learned that a delay in handling and finalizing a case is injury to justice per se. That case was first filed in 1993 and the judgment of the High Court was handed on 30th September 2008! The case was not an easy one indeed and lot of money was involved! But most of important exhibits were missing by the time hearing started!
Q: Have you ever been robbed/mugged in life and hence hate such kind of a criminal standing before you to decide on his/her fate at your own jurisdiction.
A: Fortunately, I have never been robbed in my life.
Q: How do you marry legal profession where you have been in in your active life with the new docket of being Chairman of TTB, which has nothing to do with the legal aspect, but to woo tourists?
A: There is a legal humor which goes like this: “Law deals with everything from Agriculture to Zebra Crossing.” The word Agriculture starts with an “A” and Zebra Crossing starts with “Z”. So Law deals with the whole alphabet. In my view, there is nothing in life that is outside the ambit of Law.
When I was appointed Chairman of TTB, I did not have a deeper knowledge what it was. So, I looked for the Act establishing TTB, the history and any Government Notices and Rules made under it and the rest is not difficult. I had to first know the institution very well.
And after a thorough briefing from the Managing Director and management and a long briefing from the Minister of Natural Resources and Tourism the then Professor Jumanne Maghembe I was ready to go.
Q: Being a former President of Tanganyika Law Society (TLS) what did you learn worth sharing with the new brand of staff in the same office?
A: I was serving my second term as President of TLS when I was appointed Judge of the High Court in 2003. At that time we were elected purely on merit. Things have changed much. Looking at it, I feel, and there is heavy evidence to indicate that, unfortunately, political considerations are now almost ruling TLS. It is a difficult situation.
Q: Have you ever lost sleep over deciding on a verdict?
A: Have I have lost sleep while deciding on a verdict! Yes, many times over. I always say, anybody who envies a Judge’s work has never been one. Losing sleep over deciding a case is the normal life of a Judge. There are cases where the evidence balances so much it gives you sleepless nights to decide.
There are cases where the society has taken a position, rightly or wrongly. There are politically charged cases. All I can say, losing sleep on a case is the normal life of a Judge.
Q: How often have you given a wrong verdict?
A: To know that my verdict was wrong, the matter must go to the Court of Appeal. When your verdict is overturned, it is when you know you gave a wrong verdict.
The procedure is that where a Judge discovers he gave a wrong verdict and there is no appeal yet, he has to write to the Chief Justice praying to him to have the verdict considered in the Court of Appeal after explaining the reasons.
The reason is that when you give judgment, you become functus officio. This means you have performed your office and you have no further authority or legal competence over it. The Court of Appeal can say “you were not wrong here” or can correct where you thought you went wrong.
But in normal appeals, even where the Court of Appeal overturns your verdict there are situations you feel, deep down, that the Court of Appeal is not correct. But on the Common Law Principle of stare decisis and that litigation must came to an end, you let it rest there.
Q: Is there one case that has affected you most after you passed a verdict and regretted?
A: In my experience, I regretted when I had to acquit a person because he is what I used to say “morally guilty” but not “legally guilty” I will give two examples:- (i) In one case I pre sided as a young magistrate in 1972, someone had been charged with arson.
The facts were that on a Monday, he had a quarrel with the owner of the house regarding a place of land and the accused had said “Wait, you will see”. A day after this, the complainant found his house gutted. The only evidence they get was a small piece of blanket.
The accused was arrested as the strongest suspect on account of the exchanges. The case gave me a lot of sleepless nights. I discussed it with my senior, the late Justice Buxton Chipeta, he was a Senior Resident Magistrate then. He advised that on the facts, it was an acquittal.
My conscious was so certain this person was the arsonist. But where was the evidence? Eventually, I had to acquit. The law is, that suspicion however strong, cannot be used to ground a conviction. (ii) The second was an appeal upon conviction for rape. The evidence was very strong. But corroboration was missing.
The offence was reported a week after commission because the family was waiting for the father of the victim who had gone on Safari! This acquittal really pained me.
Q: What was the worst piece of evidence you were forced to see?
A: I really do not know how I can answer! When I started work we used to conduct “Inquests” for purposes of finding cause for some of the deaths. I am surprised these days this Act is not in use. Mostly these days they are using “Commissions of Inquiry!”
Accidents like the Ukara Ferry could have been unlocked by an inquisition with less cost but some result! Now, when conducting an inquest there were incidences of a magistrate ordering and supervising an exhumation of a body. I was a young man then and deaths were rare.
It was very scary to watch the human remains being exhumed. Down the line, you get used and life goes on.
Q: What has been the scariest moment in your career?
Again I can remember two. The first one happened when I was in Tanga as a Resident Magistrate. In my second year of service, I was in Lead Memorial Hall, (now Mkonge Hotel) and a live band was performing. A tough looking young man held me by the shoulder and asked, “Do you remember me?” I said no.
You sent me to Maweni (The Regional Prison) last year for eight months and now I am out. And then he said “good bye” and left. He left me terribly terrified and actually trembling, the lady I was dancing with saw all this and started to cry. Some guard came and when he learned, who I was, he called the police who took me home.
I hardly slept even if a policeman had been posted to my house to guard me! The second one was recently, a year or so ago, when another person I met at fruits kiosk called out.
“Judge Mihayo, you are too tough. You put me to jail for 30 years? But I behaved well in prison and I am now out. I stopped robbing.” I jumped in my car and drove off. I did not remember him nor did I say good bye.
Q: Being once a Judge of the High Court of Tanzania, what are the new broom/ officers likely to learn from you as they support the country (at the highest court hierarchy) to tame economic saboteurs, who seem to be obstacles in the Fifth Phase government’s dream of industrialization and as a result of fleecing community projects?
A: A judge’s work becomes easier once “he abides by the law, has integrity and fairness, he is firm, incorruptible and reads the law.” A Judge’s work is very difficult. If a Judge accepts a bribe from someone who wants that Judge to call ‘white-black,’ the job becomes more difficult.
A Judge should be an example when on duty and even when he retires. The Society expects a lot from him. He should reciprocate and give to Society what they expect of him. He should be an example of humility.