MBEYA, Tanzania
Tanzania's High Court on Thursday dismissed a petition by four private citizens challenging the legality of the government’s new ports management deal with the United Arab Emirates and have it voided on constitutional grounds.
A three-judge High Court panel
sitting in Mbeya ruled that the constitutional case was "barren of
fruits" and lacked merit in almost all its aspects, including petitioners’
claims that the agreement contained clauses that violated Tanzania's constitution
and endangered national sovereignty and security.
Tanzania and the UAE signed a
memorandum of understanding in February 2022 for DP World, a multinational
logistics company headquartered in Dubai, to run the port of Dar es Salaam,
initially, before expanding to run other ports in mainland Tanzania, depending
on subsequent negotiations.
The MoU was followed by an
Inter-Governmental Agreement (IGA) titled Economic and Social
Partnership for the Development and Improving Performance of Sea and Lake Ports
in Tanzania, signed by Works and Transport Minister Prof Makame Mbarawa
with President Samia Suluhu Hassan's consent in October, had been endorsed by
parliament on June 10 this year.
Since then, the IGA has drawn
much public scepticism over how its conditions may impact Tanzania's long-term
control over its sea and lake ports.
Critics include opposition
leaders, religious clerics and legal experts who have questioned why the pact
does not have an end date and excludes ports in Zanzibar where President
Samia comes from.
The government and the ruling
Chama Cha Mapinduzi (CCM) party officials have vehemently denied claims that
the deal amounts to a "sell-off" of one of Tanzania's prime
properties to foreign investors and stressed that the IGA is not
"final" since it will be followed by a Host Government Agreement
(HGA) and Lease/Concession Agreement which will provide room for changes if
necessary.
In the Mbeya case, petitioners
Alphonce Lusako, Emmanuel Chengula, Raphael Ngonde and Frank Nyalusi - all
lawyers by trade - had argued that the IGA was "non-applicable" to
Tanzania because of its constitutional breaches and contraventions of laws
designed to protect Tanzania's natural wealth and resources.
In addition to putting
Tanzania's sovereignty and security at risk, they alleged that it was also
approved by parliament without following proper legal procedures including
ensuring sufficient public participation.
The respondents were the
Attorney General on behalf of the government, the Minister for Works and
Transport and his Permanent Secretary, and the Clerk of the National Assembly.
Among the issues brought before the three-judge panel for ruling was whether
the IGA could be considered a proper contract in itself under Tanzanian law and
whether Tanzania's parliament had legal authority to endorse it without public
involvement.
In their 91-page ruling,
Judges Dunstan Ndunguru, Mustafa Ismail and Abdi Kagomba rejected outright the
claim of constitutional breaches and approved the IGA as an admissible
"framework" document for future binding agreements related to the
initial MoU that should offer more clarity on the scope, commercial terms and
benefits of the entire project.
"The invocation of
Article 28 of the constitution as a testimony of erosion of sovereignty is
utterly erroneous as issues of sovereignty under the provision are limited to
defence and security and do not include matters of trade and investment,"
they asserted.
The ruling interpreted the IGA
as a "facilitative instrument for dispute settlement between the
parties" and agreed with the respondents that "specific agreements
will be more particular" on the nitty-gritty details of DP World's future
operations at the port of Dar es Salaam.
According to the judges,
raising specific issues which would be addressed by the HGA, project or
lease/concession agreements would be "premature."
On parliament's role in
endorsing the IGA, they said section 4 of the Natural Wealth and Resources Act
No. 6 of 2017 gave the National Assembly powers to "review any
arrangements or agreements made by the government relating to natural wealth
and resources" and ensure that unconscionable terms were rectified or
removed.
"If any of the
covenants of the IGA was considered or deemed to be unconscionable, the powers
to order renegotiation or any other remedy would not come from any other
institution than the National Assembly," they said.
And despite upholding the
petitioners' claim that the 24-hour notice issued by the Clerk of the National
Assembly for the public to submit their views prior to tabling the
document in parliament was too short to allow for sufficient public input,
the judges declared that the legislative body would not have been "bound
by such public opinion anyway."
The lead counsel for the
petitioners, Boniface Mwabukusi, said later that they intended to lodge an
appeal against the ruling with the Court of Appeal.
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