COURT DISMISSES DP WORLD PETITION

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.

The building housing the High Court of Tanzania at Mbeya.