Regional court criticized for entertaining case without evidence

The Appellate Court of the East African Court of Justice (EACJ) has criticised the regional bloc’s lower court for entertaining a case against a controversial proposal by the Tanzanian government to build a tarmac road across the Serengeti National Park.

A panel of four judges of the EACJ Appellate Division led by the court’s president, Dr Emmanuel Ugirashebuja, said the EACJ First Instance Division had erred in law by considering a proposal whose implementation was not backed by any evidence.

In their 32-page judgment, the judges agreed with the Tanzanian government’s argument that there were no architectural plans and drawings, bills of quantities, cabinet approval, a budget endorsed by Parliament for delivery of construction machinery and materials on the site or even commencement of a loan process for financing the project.

Other judges in the panel were Justices Liboire Nkurunziza, the court’s vice president, James Munange Ogoola, Aaron Ringera and Edward Rutakangwa.

The Appellate Court, however, dismissed three arguments presented by Tanzania in its appeal, all of which bordered on questioning the lower court’s jurisdiction to hear the case. It particularly criticised the government for “attempting to derail and divert the court”, terming the move a “calculated abuse of the process.”

Tanzania had appealed against an injunction imposed by the bloc’s lower court last year stopping it from constructing a road cutting through its world-famous game park.

The lawyer for the Nairobi-based Network for Animal Welfare (ANAW), Saitabao Ole Kanchory, welcomed the Appellate court’s decision.

“Although there was no specific ruling on the Serengeti highway, we are extremely encouraged by this decision. It has turned into a landmark case upon which conservationists in the region can now build. It has wider implications, not just for the Serengeti but for other areas,” said Mr Kanchory.

According to the lawyer, all parties now agree that if the initial proposal is implemented, then the adverse effects would not be mitigated by all the good that the road was intended to bring.

Protected land

ANAW, a charitable Pan-African animal welfare, went to court in 2010 to bloc the Tanzanian government from making good its pronouncement of building a road cutting through the protected land.

The charitable organisation’s move was prompted by President Jakaya Kikwete’s repeated remarks that his administration would build a tarmac road despite international protests.

In his judgement, the lower court Deputy Principal Judge, Isaac Lenaola, had ruled the planned tarmac road from Loliondo-Kleins Gate/Tabora B to Mugumu/Natta unlawful, saying it would damage ecosystem of the world heritage site.

He also added that, if implemented, the plan would infringe on the treaty establishing the East African Community (EAC) which requires partner states to respect protocols on conservation, protection and management of natural resources.

However, the Appellate court now concurs with the Tanzania government’s argument that the lower court entertained a case based on a mere proposal to upgrade the road.

It, nonetheless, dismissed Tanzania’s other grounds of appeal, one of them being that it was not proper to enforce Article 111-114 of the EAC Treaty which was not yet negotiated, agreed, signed and ratified by all partner states.

It also disagreed with the government’s assertion that the lower court had erred by maintaining it had jurisdiction to listen to dispute of the alleged violation of the International Conventions and Declarations.

The judges ordered both parties to bear their own costs of the law suit.

OP The East African