THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA v. AFRICAN NETWORK FOR ANIMAL WELFARE

Case Number APPEAL NO. 3 OF 2014
Summary

The Applicant /Respondent, a charitable animal welfare organisation filed Reference No 9 of 2010 seeking inter alia orders permanently restraining the Appellant / Respondent from upgrading the Natta-Mugumu – Kleins Gate Loliondo Road averring that this would irreversibly damage the ecosystem of the Serengeti National Park and adjoining parks including Masai Mara national park in Kenya. The Appellant/ Respondent on their part contented that; the upgrade would stimulate socio-economic growth for over two million citizens and reduce transport costs between Mugumu and Loliondo; that any negative environmental impacts would be mitigated with the guidance of environmental expertise; and that the Reference was untenable in law as it sought to enforce a part of the Treaty which had not been operationalised through the conclusion of a Protocol on environment and natural resources.

On 20th June, 2014, the First Instance Division issued a permanent injunction 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. Being aggrieved by this decisions the Appellant filed this appeal.
RespondentAFRICAN NETWORK FOR ANIMAL WELFARE
ComplainantTHE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA
Date filed
CountriesTanzania
KeywordPermanent Injunction , Reference based on a proposal , Trans-boundary environmental impact , Treaty obligations
Treaty ArticleArticle 111 , Article 139 , Article 140 , Article 151 , Article 153 , Article 23 , Article 27 , Article 30 , Article 5 , Article 8 , Articles of EAC Treaty , Rule 1 , Rules of Procedure 2013

First Instance Judgment

VerdictConclusion 85.This 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
Quorum

Appeal Judgment

Verdict
  1. There can be no fetter against the Court’s carrying out its duty to interpret the provisions of the Treaty and to ensure that Partner States adhere to and live by the objectives, duties, undertakings and standards which they, as full-fledged Sovereign States, directly, deliberately, freely and voluntarily assumed under the Treaty.
  2. The omission to conclude a Protocol on the Environment and Natural Resources had nothing to do with the capacity of the Court to interpret the existing provisions of the Treaty. The Court’s function to apply the provisions of the Treaty cannot be deterred by the absence of a Protocol.
  3. The Trial Court committed no error in enforcing Chapter Nineteen of the Treaty, pending the conclusion of any Protocol for the Partner States’ co-operation on Natural Resources and the Environment.
  4. The Trial Court never took into account any alleged violations of the International Conventions and Declarations. However, by being signatories to these other International Conventions and Declarations, the EAC Partner States, subscribed to the various standards, norms and values of those Conventions.
  5. The Court was expressly created to be a judicial body clothed with all the attributes, powers, authority and stature ordinarily vested in similar judicial bodies.
  6. It was incumbent upon the Trial Court to assure itself that it was dealing with a real live dispute before it – and not a mere abstract proposition or theoretical hypothesis for constructing a road whose only tangible “action” was the Government’s commissioning of a feasibility study. The action must constitute more than a mere abstract idea, hypothetical plan, or academic postulate, or a dreamer’s wish on the part of the potential actor. Thus, the Appellant succeeded on this issue as the Trial Court erred in law by entertaining the Reference based on a proposal.
  7. The Trial Court did not err in granting an injunction to restrain the United Republic of Tanzania from ever implementing its proposal to construct the Serengeti Super Highway as “initially planned”. The grant of the injunction was proper and justified – given the imminent risk of irreversible damage inherent in any attempt to implement the “initial plan.” The “action” must constitute more than a mere abstract idea, hypothetical plan, or academic postulate, or a dreamer’s wish on the part of the potential actor. The power of the Court to grant permanent injunctions was upheld.
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Date deliveredJuly 29, 2015
Quorum