SOMA KURASA ZOTE ZA HUKUMU YA KESI :
IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
(MBEYA SUB-REGISTRY)AT MBEYA
(NDUNGURU, ISMAIL AND KAGOMBA, JJJ)
MISCELLANEOUS CIVIL CAUSE NO. 5 OF 2023
IN THE MATTER OF THE CONSTITUTION OF THE UNITED
REPUBLIC OF TANZANIA, 1977 [CAP 2 R.E. 2002] AS AMENDED
FROM TIME TO TIME AND
IN THE MATTER OF A PETITION TO CHALLENGE PROVISIONS OF
THE CONTRACT AND PROCESS OF RATIFICATION OF THE
INTERGOVERNMENTAL AGREEMENT BETWEEN THE UNITED
REPUBLIC OF TANZANIA AND THE EMIRATE OF DUBAI (IGA) BY
THE NATIONAL ASSEMBLY OF THE UNITED REPUBLIC OF
TANZANIA FOR BEING ILLEGAL AND UNCONSTITUTIONAL
BETWEEN
ALPHONCE LUSAKO.............................................. 1st APPLICANT
EMMANUEL KALIKENYA CHENGULA.................... 2nd APPLICANT
RAPHAEL JAPHET NGONDE................................... 3rd APPLICANT
FRANK JOHN NYALUS............................................4th APPLICANT
AND
THE ATTORNEY GENERAL......................................1st RESPONDENT
MINISTER FOR WORKS AND TRANSPORT........... 2nd RESPONDENT
PERMANENT SECRETARY MINISTRY OF WORKS AND TRANSPORT.................................... 3rd RESPONDENT
THE CLERK OF THE NATIONAL ASSEMBLY...........4th RESPONDENT
JUDGMENT
28th July, & 10th August, 2023
ISMAIL, J.
The Petitioners in this matter are a disgruntled quartet of citizens of Tanzania who are suing on an Intergovernmental Agreement (known in acronym as "IGA"), which has become the talk of the country for the past two months. This is an agreement executed between the United Republic of
Tanzania ("URT"), on one part, and the Emirate of Dubai ("Dubai"), on the other ("State Parties"), on 25th October, 2022. The subject matter of the Agreement is the economic and social partnership for the development and
improvement of performance of sea and lake ports in Tanzania.
The preambular part of the IGA reveals that its signing was in
furtherance of a major step which entailed execution of a Memorandum of Understanding ("MoU"), between Tanzania Ports Authority ("TPA") and DP World ("DPW"), a Dubai based state owned enterprise, signed on 28th
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February, 2022, on the sidelines of the Dubai Expo, which was attended by Her Excellency Samia Suluhu Hassan, the President of the United Republic of Tanzania. The MoU signaled the intention to cooperate and singled out areas of cooperation between TPA and DPW "for development and/or
improvement of the operations and management of strategic ports
infrastructure of Tanzania Sea and lake ports, special economic zones,logistic parks and trade corridors...."Subsequent to execution of the IGA, the ratification process on theTanzanian side began in earnest. This process was in pursuance of Article 25 (2) of the IGA which entailed tabling it in Parliament where it was debated
and ratified on 10th June, 2023. The debate on the floor of the Parliament was reportedly preceded by issuance of a notice to the public, for solicitation of opinions on the draft parliamentary resolution that was to be debated and
passed as a prelude to the ratification of the IGA. While the notice was issued on 5th June, 2023, public hearing was scheduled for 6th June, 2023. In the end, the IGA was given a resounding nod by a majority of Members of
Parliament in attendance on the day.
Execution of the IGA and the eventual ratification has elicited an
emotive discussion that has polarized the country, with a section of the population feeling that the IGA is flawed in many ways, and that it should
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not be allowed to see the light of the day. Those who have found faults in the IGA include the petitioners. The quartet has come up with a raft of allegations which attempt to poke deep holes in the entire chain of the process that birthed the IGA and its eventual ratification. The blemishes are
thrown at Minister for Works and Transport; the Ministry's Permanent Secretary; and the Clerk to the National Assembly. The Attorney General is impleaded as a necessary party whose presence in the proceedings is, by law, indispensable. Through a petition, preferred by way of originating
summons, that is supported by the petitioners' affidavit, four grounds have been raised as the basis for their unreserved denunciation of the IGA. Thesegrounds are as reproduced hereunder:
1. That, the respondent's (sic) action of signing the International
Agreement (IGA) and tabling the same before the Parliament of the United Republic of Tanzania for ratification without a dully (sic)
notice to the public or making the same available to the general
member (sic) and without availing the member (sic) of public a
reasonable time to participate and give their opinion as required by law and the subsequent ratification of the same by the Parliament of the United Republic of Tanzania was given, submitted and givenratified in the ought (sic) right contravention of the provisions ofsection 11 (1) and (2) of the Natural Wealth and Resources
(Permanent Sovereignty) Act No. 5 of 2017 read together with
section 5 (1), 6 (2) (a), (b), (e) and (i) of the Natural Wealth and
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Resources Contracts (Review and ReNegotiation of UnconscionableTerms Terms) Act No. 6 of 2017;
2. That, the Intergovernmental Agreement between the United
Republic of Tanzania and the Emirate of Dubai signed by the second respondent and witnessed by the third respondent by virtue of
articles 2 (1), 4 (2), 5 (1), 6 (2), 7 (2), 8(1) (a), (b) (c), 8 (2), 10
(1), 20 (2) (a), (e) (i) and (ii), Article 18, 21, Article 23 (1), (3) and
(4), articles 26, 27 and 30 (2) of the international agreement
contravene the laws and the Constitution of the United Republic of Tanzania;
3. That, by the acts and conduct of the 2nd and 3rd respondents, and circumstances of this case the respondents did not only violate the express provision of the law but exposed the important natural resource to wit ports and other strategic infrastructure in a lousy agreement full of uncertainty contrary to the interest of the Public;and
4. That, Respondent's action of signing the Intergovernmental
Agreement between the United Republic of Tanzania and the
Emirate of Dubai while there are terms which endanger not only
sovereignty but also security of our country as referred under
Articles 7 (2), 23 (4) of the signed and ratified contract.
The supporting affidavit, jointly sworn by the petitioners has laid
grounds on which the prayers sought in the originating summons are
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premised. In general terms, the affidavit has taken a swipe at the process that culminated in the signing and ratification of the IGA; the danger that it poses to national security and sovereignty of the country in the control and
management of her natural resources as enshrined in the Constitution of the United Republic of Tanzania, 1977 ("the Constitution" or "URT Constitution") and Acts No. 5 and 6 of 2017. Of specific relevance in the petitioners' deposition are paragraphs 12, 13, 14, 15 and 16 of the said affidavit, whose substance is reproduced hereunder, with all their grammatical challenges:
12. That, the granting ofsuch tender to DWP for Emirate of Dubai is
discriminatory and in contravention of the laws of Public
Procurement Regulatory Authority Acts (PPPR) Cap 410 of 2011
as amended and other relevant laws as amended time to time.
13. That, the respondents' acts and conducts has;
(a) Undermined Sovereignty and Security of the United Republic of Tanzania in respect of its power to own manage and control its natural resources for the interest
of the United Republic of Tanzania;
(b) Infringed the Rights of the Member of the Public to participate in a meaningful discussion in respect of the Intergovernmental Agreement subject of this Petition;
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(c) That the deliberate act of the 2nd Respondent to table the
Intergovernmental agreement without adhering to the due
process of law breached the provisions of the constitution,
rule oflaw, good governance and respect of the nation and
utilization of her natural resources.
14. That as the Intergovernmental Agreement subject of this
application touches issue of natural resources the respondent
ought to have complied with compulsory requirements of the law to make the agreement available for public scrutiny.
15. That, acts, conducts and circumstances of the 2nd and 3d
respondents would lead to anarchy in the administration of
harbor and ports and all other strategic economic zone subject
of the Intergovernmental Agreement and that there is no
administrative mechanism or organ in and outside the National
Assembly with power and authority to control or review, make
good the situation and return to the constitution and law.
16. That, on lCfh June 2023 the Parliament of the United Republic of Tanzania illegally and arbitrary ratified the aforesaid the
intergovernmental agreement between United Republic of
Tanzania and the Emirate of Dubai while the said agreement was
in violation ofthe Constitution of the United Republic of Tanzania
and other laws of the United Republic of Tanzania.
The respondents have fielded a ferocious opposition to the petition.
This was done through a reply to the originating summons and counter-
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..........
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In the upshot of all this 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.
DATED at MBEYA this 10th August, 2023.
DUNSTAN B. NDUNGURU
JUDGE
10/08/2023
MUSTAFA K. ISMAIL
JUDGE
10/08/2023
ABDI S. KAGOMBA
JUDGE
10/08/2023
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