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Tanzania’s parliament gave just 24 hours’ notice for the public to make representations about one of the most contentious issues in recent times: an agreement between Tanzania and Dubai over management of Tanzania’s ports.
But three judges of the high court have now held that, though the period given for public participation was, in their view, neither reasonable nor adequate, parliament was entitled to make its own decisions about time-tables. And if parliament felt that 24 hours was enough, then that was the end of the matter.
The court was dealing with a petition based on argument that the agreement, ratified by parliament, violated international law as well as Tanzania’s constitution because it handed management of natural resources to a foreign entity.
Explaining their refusal to intervene despite the short time allocated by parliament for public comment, the judges said, ‘[T]he conduct of … parliament in this matter, from the issuance of the notice and all other subsequent steps, however mistaken they may be, are matters which would not be questioned by any court, including this Court. It is a “no-fly zone” that should be observed and we are not persuaded that we should drift from that established position.’
Inadequacies
Tanzania’s courts have little history of finding against government or parliament, so the judges’ ultimate conclusion was unsurprising.
They wrote that ‘while there are obviously inadequacies surrounding the issuance of the notice [for public comment] and the duration thereof’, the court was not ‘inclined’ to find that these inadequacies would nullify parliament’s ratification process. The court ‘would not be tempted to cross the judicial line and poke our fingers or meddle in the affairs of the legislature.’
A second petition dealing with objections to the agreement, due to be heard in court a few days after the first judgment was delivered, was struck out by the high court, with no order as to costs.
Death threats
And while it appears that legal efforts to challenge the validity of the agreement may now have reached a dead end, Human Rights Watch and Amnesty International have both expressed concerns about the crackdown on protests against the planned deal.
HRW says at least 22 people have been ‘detained or threatened’ by the authorities over the last two months, for their part in criticising the agreement.
Among those against whom action has been taken are three lawyers. One has now fled the country, claiming he had received death threats after his criticism of the deal. Another, who helped argue the petition challenging the legitimacy of the port management deal with Dubai, is among a trio threatened with prosecution for treason, a crime that carries the death penalty. The three have been detained and denied bail.
Truncated
Tanzania’s president Samia Suluhu Hassan signed an agreement last year with the CEO of the Ports, Customs and Free Zone Corporation, Ahmed Mahboob Musabih, for the company to manage ports in Tanzania on behalf of Dubai. During June, the national assembly ratified the agreement, having given the public just 24 hours to make representations on the proposal.
Though ultimately finding in favour of the government in its judgment on the petition to set the agreement aside, the court used far stronger language than usually heard from Tanzanian judges, particularly in relation to the truncated period given by parliament for public comment and whether this was ‘reasonable’.
The judges accepted argument from the government that ‘reasonableness is what Parliament considers to be reasonable’, but added, ‘[J]udging from a neutral eye’s point of view, we cannot go along with [the] contention that a period of less than 24 hours is reasonable or adequate to convey information to a large section of the public’.
‘In our view … circumstances of this case and the mighty importance of the business set for the day, some more time was needed to ensure that the coveted importance of public participation is upheld and seen to have been conformed to.’
Void
The government’s legal team had argued that even if public participation fell short of the required standard, then the ‘presence of parliamentarians filled the void’ since MPs ‘are representative of the people’. The judges weren’t impressed with this argument, calling it ‘stranger than fiction’ and adding that ‘public participation was not meant to be a public relations exercise.’
The court dismissed many of the petitioners’ argument as baseless, including their concern that the agreement effectively surrendered Tanzanian sovereignty to Dubai. However, it did find that it would have preferred ‘better drafting’, taking into account that the agreements would include ‘terms and conditions which will touch on national resources’.
The court also expressed concerns about an aspect of the agreement in terms of which both Tanzania and Dubai agreed that they would give up the right to withdraw from the agreement ‘under any circumstances whatsoever’. The judge said it was unfortunate that counsel on both sides hadn’t spent more time on this aspect since, ‘not unexpectedly, such a stringent clause was likely to raise questions and worries when read at a glance, especially [its provision] that the state parties shall not run away from the [obligations of the agreement] even in the event of severance of diplomatic or consular relations.’
