Case Number APPEAL NO. 3 OF 2011

The Respondent filed Reference No. 9 of 2010 in this Court challenging the “action” of the Government of the United Republic of Tanzania, among others, upgrade, construct or commission the “Natta-Mugumu-Tabora B – Klein’s gate – Loliondo road” (also known as the “North Road” or the “Superhighway”) across the Serengeti National Park. In that Reference the Respondent contended that the Government’s action was unlawful and infringed the provisions of the EAC Treaty. They sought a declaration that the Appellants actions were unlawful and infringed provisions of the Treaty and a permanent injunction restraining the Appellant from carrying out the construction.

The Appellant opposed the Reference and raised several preliminary objections to the reference. The First Instance Division overruled the objections and awarded cost to the Appellant.

Date filedOctober 19, 2011
KeywordEnvironmental protection , Permanent Injunction , Preliminary Points of law , Procedural irregularities
Treaty ArticleArticle 111 , Article 112 , Article 114 , Article 23 , Article 27 , Article 30 , Article 35 A , Article 39 , Article 5 , Article 8 , Rules of Procedure 2010

First Instance Judgment

VerdictThis Reference raises issues that are today the subject of wide debate across the world, including; environmental protection, sustainable development, environmental rule of law and the role of the State in policy formulation in matters relating to the environment and natural resources. In addition, the role of the Court in balancing its interpretative jurisdiction against the needs of ensuring that Partner States are not unduly hindered in their developmental programs has come to the fore. All these issues must however be looked at from the one common thread running through the Reference viz. the need to protect the Serengeti ecosystem for the sake of future generations and whether the road project has potential for inflicting irreparable damage to the environment. The damage will be irreversible and we have already ruled on that subject based on the evidence before us and no more. And we have also restrained ourselves from merely approving the decision of the United Republic of Tanzania because it may be a popular decision with its policy makers-See Society for the Protection of Silent Valley vs Union of India 1980 Kerala HC. Whatever orders we must make therefore should be preventative and for obvious reasons; the environment, once damaged is rarely ever repaired. 86. Having so stated, the final orders that are appropriate in the unique circumstances of the matter before us are the following: i)A declaration is hereby issued that the initial proposal or the proposed action by the Respondent to construct a road of bitumen standard across the Serengeti National Park is unlawful and infringes Articles 5(3)(c),8(1)(c),111(2) and 114(1) of the Treaty. ii) A permanent injunction is hereby issued restraining the Respondent from operationalising its initial proposal or proposed action of constructing or maintaining a road of bitumen standard across the Serengeti National Park subject to its right to undertake such other programmes or initiate policies in the future which would not have a negative impact on the environment and ecosystem in the Serengeti National Park. iii) Each party shall bear its own costs.         It is Ordered accordingly.
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Date deliveredJune 20, 2014

Appeal Judgment

VerdictAll grounds of Appeal, on preliminary objections are dismissed, the matter is remitted back to the First Instance Division for substantive trial and adjudication of the Reference on merits.
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Date deliveredMarch 15, 2012