East African Court of Justice (EACJ) renders construction of a superhighway across Serengeti National Park unlawful
August 25, 2014
East African Court of Justice (EACJ) renders construction of a superhighway across Serengeti National Park unlawful
African Network For Animal Welfare (ANAW) V The Attorney General of The United Republic of Tanzania.
Reference No 9 of 2010
Before: Jean-Bosco Butasi, PJ, Isaac Lenaola, DPJ, John Mkwawa, J.
June 20, 2014
Reported By Linda Awuor & Diana O. Kerubo
The Applicant, African Network for Animal Welfare (ANAW),a Charitable Pan-African animal welfare and community-centered organization registered as a Non-Governmental Organisation in Kenya sought to challenge the proposed action by the Government of the United Republic of Tanzania to construct and maintain a road known as the “Natta-Mugumu – Tabora B-Kleins Gate – Loliondo Road, across the northern wilderness of the Serengeti National Park.
This road was intended for the use of the general public with all the attendant consequences to the environment, generally.
Before the Reference was filed, 53 km earth road existed between Tabora B Gate and Kleins Gate within Serengeti National Park and only 5 km of that road was paved with gravel or murram. It was mostly used by tourists and Tanzania National Parks Authority (TANAPA) officials and any other person who wanted to do so had to obtain special authorization from Serengeti National Park’s Management to use it.
The move by the Government to construct the road according to the Applicants would have deleterious environmental and ecological effects and was likely to cause irreparable and irreversible damage to the delicate ecosystem of the Serengeti and adjoining national parks such as the Masai Mara in Kenya.
They also claimed that United Republic of Tanzania’s actions were a violation the Treaty and its obligations in respect of Serengeti which had been declared a “World Heritage Property” of “outstanding Universal value” according to the United Nations Educational, Scientific and Cultural Organization (UNESCO) and therefore its protection and conservation was a matter of international concern.
The respondents on the other hand claimed that the road was already in existence and in use and that it was merely being upgraded. Its use according to them had no negative impact on the Serengeti ecosystem and in upgrading ,all negative environmental impacts were mitigated.
The applicant sought declaratory, injunctive and restraining orders against the Respondent.
- Whether the Reference was bad in law as it sought to enforce a part of the Treaty which was yet to be ratified by all Partner States thus unenforceable in law.
- Whether the Applicant had locus standi to institute a reference premised on alleged violations of International Conventions and Declarations on the environment and natural resources.
- Whether the Respondent intended to upgrade, tarmac, pave, realign, create or commission the trunk road-Serengeti Super Highway.
- Whether the disputed road existed and was in use.
- Whether the proposed construction infringed Articles 5,8 and 111 of the EAC Treaty and International Instruments.
- Whether the Applicant was entitled to the prayers sought
International Law-treaties-ratification of treaties-operationalization of certain parts of a treaty through a protocol-protocol to operationalize chapter 19 of the treaty-whether the Reference was bad in law as it sought to enforce a part of the Treaty which was yet to be ratified by all Partner States thus unenforceable in law-Articles 111-114, Article 151 (1),152,153 (1)of the Treaty for the Establishment of the East African Community.
Environmental Law-environmental impact assessment- impact of construction of a superhighway across a national park-whether the proposed construction infringed Articles 5, 8 and 111 of the EAC Treaty and International Instruments.
Treaty for the Establishment of the East African Community.
Article 5(3) (c)
For purposes set out in paragraph 1 of this Article, and as subsequently provided in particular provisions of this Treaty, the Community shall ensure:
the promotion of sustainable utilization of the natural resources of the Partner States and the taking of measures that would effectively protect the natural environment of the Partner States.
Article 8 (1) (c);
The Partner States shall:
co-ordinate through the institution of the Community, their economic and other policies to the extent necessary to achieve the objectives of the Community.
Action by the Community relating to the environment shall have the following objectives:
To preserve, protect and enhance the quality of the environment;
Article 151 (1)
The Partner States shall conclude such protocols as may be necessary in each area of co-operation which shall spell out the objectives and scope of the institutional mechanism for co-operation and integration.
This Treaty shall enter into force upon ratification and deposit of instruments of ratification with the Secretary-General by all Partner States.
Article 153 (1)
This Treaty and all instruments of ratification and deposit of instruments shall be deposited with the Secretary General who shall transmit certified true copies thereof to all the Partner States.
Article 11 of the Vienna Convention
The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession or by other means if so agreed.
- The Treaty was signed on 30th November 1996 and there was no evidence that Tanzania or any other Partner State never ratified it or ratified it with exceptions. Signature and ratification were two different and distinct steps in the treaty – making process and that ratification was the final consent by a Partner State to be bound by the provisions of a treaty. Therefore, Tanzania having signed and ratified the Treaty, it was clearly bound by each provision therein.
- Article 151 (4) of the Treaty provided that the Annexes and Protocols to the Treaty formed an integral part of the Treaty and by its very nature, a protocol under Article 151 (1) of the Treaty spelled out the objectives and scope of, and institutional mechanisms for co-operation and integration but failure to enact a protocol ought not have ousted the obligations placed on a Partner State by clear and unambiguous provisions in the body of the Treaty. Chapter Nineteen was as binding on Tanzania as to other Partner States with or without a protocol in that regard.
- Where a Partner State failed to honour commitments made to other international organizations, with appropriate facts placed before the Court, a decision to ensure compliance would be made in favour of a party that fit the description in Article 130 (4) and which had a genuine complaint in that regard. In fact, the Organisation of African Unity ( now the African Union) , the United Nations and its agencies and other international organizations, bilateral and multi-lateral development partners interested in the objectives of the Community were specifically named in that regard and Partner States were implored to accord special importance to co-operation with those agencies.In appropriate circumstances, a case would be made if a Partner States acted to the contrary.The Court could not purport to operate outside the framework of the Treaty and usurp the powers of other organs created for the enforcement of obligations created by other instruments including the African Charter and Protocol [Democratic Party vs Secretary General, East African Community and 4 Others.]
- The Applicant’s case was not alleged violations of the International Declarations and Conventions per se, but infringement of Chapter Nineteen of the Treaty, a matter well within the mandate of the Court and the Applicant had locus standi under Article 30(1) of the Treaty to bring proceedings in that regard.
- The Respondent intended to upgrade the Natta-Mugumu-Tabora B – Kleins Gate-Loliondo Road from its current earth status. There was however no evidence that it intended to re-align it but certainly upgrading involved construction and commissioning thereof.
- There was no doubt that the United Republic of Tanzania had initially intended to construct a bitumen road from Natta through Mugumu to Tabora B Gate at Serengeti and 53 kms of it would have had to go through the Park to Kleins Gate and onwards to Loliondo. The intention, according to the report by Inter-Consult Ltd, was to provide an all-weather road linking the district town of Mugumu and Loliondo to the regional capitals of Musoma and Arusha and thereby stimulating socio-economic growth of 2.3 million people living in the districts of Serengeti and Ngorongoro whose respective capitals of Mugumu and Loliondo would be served by the bituminized road.
- The Government took into account the concerns raised on the negative impacts on the environment and did not commence the construction of the proposed road. However, if the initial proposal was implemented, then the adverse effects would not be mitigated by all the good that the road was intended to bring to the 2.3 million people residing in the affected areas of Mugumu- Loliondo. On the obligations imposed on Tanzania by Articles 5(3),8(1)(c),111(2) as well as 114(1) of the Treaty, there was no doubt that if implemented, the road project as initially conceptualized, would be in violation of the Treaty to that extent only.
- The Government of the Republic of Tanzania was lawfully entitled to construct roads within its territory, where it failed in its obligations to the conservation and protection of the environment within the meaning of Articles 5(3) (c), 8(1) (c) and Article 111(1) as well as Article 114(1), then a declaration would be made in that regard. In the instant Reference, it was obvious that while its actions had the potential to cause irreversible damage to the Serengeti environment and ecosystem, once UNESCO and other bodies, including the Applicant intervened, it did not proceed with the road project and instead retreated to the drawing board and was conducting further studies on it. However, if allowed to proceed with the road project as previously conceptualized, it would be in breach of the Articles of the Treaty.
- Regarding the prayer by the Applicant seeking to restrain the Respondent from maintaining any road or highway across the Serengeti National Park, it was clear that if the road project was implemented as originally planned, the effects would be devastating both for the Serengeti and neighbouring Parks like the Masai Mara in Kenya There was therefore need to stop future degradation without taking away the Respondent’s mandate towards economic development of its people.
- The Applicant sought a permanent injunction restraining the Respondent from maintaining any road or highway across any part of the Serengeti National Park. This was practical and proper to ensure that the United Republic of Tanzania as a Partner State stayed within its obligations under the Treaty. However the final orders would be tailored so as not to tie its hands in programmes that it had designed for its people. This was within the courts mandate under Rule 68(5) of the Court’s Rules of Procedure.
- With regards to costs, the litigation was in the wider public interest and for the sake of sustainable future for the environment. Therefore, the Applicant had no direct benefit in the final orders and so each party was to bear its own costs.
A declaration was issued that the initial proposal or the proposed action by the Respondent to construct a road of bitumen standard across the Serengeti National Park was unlawful and infringed Articles 5(3)(c),8(1)(c),111(2) and 114(1) of the Treaty.
A permanent injunction was issued restraining the Respondent from operationalizing 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.
Each party tobear its own costs.
Relevance to Kenya
Kenya is a Partner State to the East African Community. It is also bound by various treaties and conventions it ratifies by virtue of Article 2(5) and (6) of the Constitution of Kenya including those that seek to protect and preserve the environment.
The case is also valuable in the Kenyan context as it is acknowledged and the court recognized that the construction of the superhighway was likely to affect Kenya’s Masai Mara.
Keeping in mind that both preservation and protection of the environment and development programs such as construction of roads are considered to be of paramount importance, there arises a need for Partner States to assess and balance the need for development of the one hand and effect of development and its potential to inflict irreparable harm to the environment and the need to protect the ecosystem on the other.
Environment has been considered in this case as a matter of public and international interest. Governments cannot be seen to unduly favour development interests at the expense of the overriding interest to preserve and protect the ecosystem for the good of the public and for the sake of future generations.