By FAUSTINE KAPAMA-Judiciary
THE High Court yesterday dismissed the petition by
four citizens, challenging the Inter-governmental Agreement executed between
United Republic of Tanzania and Emirate of Dubai over economic and social
partnership for performance development and improvement of sea and lake ports
in Tanzania.
Judges Danstan Ndunguru, Mustafa Ismail and Abdi
Kagomba ruled in favour of the Attorney General and three other Respondents
after holding that the constitutional petition lodged by Alphonce Lusako,
Emmanuel Chengula, Raphael Ngonde and Frank Nyalu, the Petitioners, lacked
legal merits.
“.... we find this, petition barren of fruits.
Accordingly, the same is hereby dismissed. Since this is a public interest
matter, we do not find any justification for granting of costs. We, therefore,
make no order as to costs. Order accordingly,” they declared.
Other Respondents in the case, also challenged signing
of IGA on execution of Memorandum of Understanding between Tanzania Ports
Authority (TPA) and DP World (DPW) were Works and Transport Minister, Permanent
Secretary Ministry of Works and Transport and the Clerk of the National
Assembly.
During hearing of the petition, the petitioners came
up with a raft of allegations which attempted to poke deep holes in the entire
chain of the process that birthed the IGA and its eventual ratification and the
blemishes were thrown at Minister for Works and Transport and other
Respondents.
They contended, among others, that the signing of IGA
and tabling the same before the Parliament for ratification without a dully
notice to the public was in contravention of section 11 (1) and (2) of the
Natural Wealth and Resources (Permanent Sovereignty) Act.
The petitioners also alleged that the
Intergovernmental Agreement between the United Republic of Tanzania and the
Emirate of Dubai signed by virtue of some articles of the international
agreement contravene the laws and the Constitution of the United Republic of
Tanzania.
In the judgment, the judges pointed out that the IGA
is a framework agreement that sets standards of the areas agreed for
cooperation.
“It follows that an agreement whose sole purpose is to
provide a set up for cooperation between or among its parties cannot be
expected to embody features that are enshrined in the Law of Contract Act, a
legal regime whose sole purpose is to regulate contracts (.......),” they said.
The judges noted from submissions of counsel for both
sides that were in unison that the IGA, went through a ratification process in
the National Assembly which was preceded by a public hearing through which
opinions were solicited and gathered.
They said that while aspersions have been cast on the
legitimacy of the ratification process, there was no denying that the agreement
required an endorsement (ratification) of the National Assembly.
“This alone fundamentally distinguishes the IGA from
the rest of the agreements whose effectiveness commences the moment the parties
append their signatures or on the date appointed by the parties,” the judges
said.
They were, discerned that intergovernmental agreements
are entered by the executive branch of the government, and that what makes them
binding is completion of the ratification process.
There was an argument raised by the petitioners that
ports, special economic zones, logistic parks and trade corridors have been
listed as potential areas for takeover by DP World, an impression that such are
areas which are being given without anything in return, that is, consideration.
“With respect, this contention is misconceived and we
are not persuaded to go along with it. In our considered view, the listing of
these areas is informed by the fact that these are specific areas of
cooperation agreed by State Parties.
“They may not necessarily crystalize into areas of
investment unless the Host Government Agreements and Project Agreements define
the scope of investment and benefits to be gained from each party to the
agreements,” the judges said.
The petitioners had also put forward an allegation
that the Emirate of Dubai did not have capacity to contract, the ground being
that it was not authorized by the United Arab Emirates to enter into an
agreement with the United Republic of Tanzania.
In the judgement, the judges had this to say,
“Needless to say, in our view, this required a factual account which would
prove lack of capacity of the Emirate of Dubai to contract. The petitioners
have not treated us to anything that suggests that such permission was
withheld.”
They were settled in their view that, since the
parties were competent and with capacity to enter into trade and investment
cooperation agreement, the signing of the IGA was not shrouded in any irregularity
which would render it invalid or illegal.
The judges were also settled in their minds that IGA
is an international agreement whose oversight framework is not the LCA. They
concluded that, to the extent this is not a normal contract, section 25 of the
LCA is, in the circumstances of this case, immaterial.
There was another area of consternation which related
to compliance with the provisions of the Public Procurement Act, a contention
which the petitioners claimed that section 64 was infracted. However, the
respondents valiantly opposed to this argument, terming it as baseless and
misplaced.
In their judgment, however, the judges e hastened to
state and take the view that the petitioners were too removed from the
realities of international law that has modelled these types of agreements in a
manner that excludes the application of municipal laws that have been
infracted.
“In our considered view, it is a folly, to say the
least, to contend that this is an Agreement which would be governed by any or
all of the provisions of the Public Procurement Act while the petitioners are
aware or ought to be aware that no procurement had actually been done by any of
the State Parties.
“(....) this is not the kind of an agreement which
would factor in low levels issues of procurement whose 'place of domicile' is
in the Host Government Agreement and/or project agreements that await further
negotiations between TPA and DP World.........” they said.
On the contention that the public was not given
adequate time by the Parliament to air their views on the IGA, the judges
pointed out that the public participation was not meant to be a public
relations exercise.
They said that it was meant to create an engagement
that the Parliament itself considered to be an integral part of the process. “Need
would not arise for such solicitation if the Parliament considered its members
as sufficiently representing people in that respect,” the judges said.
They concluded in such issue that while there were
obviously inadequacies surrounding the issuance of the notice and the duration
thereof, we are inclined to hold that the net effect of the inadequacies would
not have the consequence of vitiating the ratification process or render the
IGA invalid.
“This Court would not be tempted to cross the judicial
line and poke our fingers or meddle in the affairs of the Legislature,” the
judges said.
During hearing of the petition, Advocates Mpale Mpoki,
Boniphace Mwabukusi, Phillip Mwakilima and Levino Ngalimitumba appeared for the
petitioners, whereas Principal State Attorneys Mark Mulwambo, Edson Mweyunge
and Hangi Chang'a, as well as Senior State Attorney Alice Mtulo along with
State Attorneys Stanley Kalokola and Edwin Webiro represented the respondents.
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