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Regional Court Says Can Hear Serengeti Case, Dismisses Tanzania Appeal

By East African Community (EAC)

ARUSHA, Tanzania, March 16, 2012/African Press Organization (APO)/ -- The Appellate Division of the East African Court of Justice Thursday upheld a ruling of the First Instance Division that it had jurisdiction to hear a case in which a non government organization seeks to block construction of a highway through the Serengeti National Park.

By ordering that the matter should proceed for hearing in the First Instance Division, the Court dismissed an appeal by the Attorney General of the United Republic of Tanzania challenging an earlier suit filed by Africa Network for Animal Welfare (ANAW).

In making its decision, the Court took into consideration the provisions of the EAC Treaty Article 111 on the environmental and natural resources, where the Partner States recognize that development activities may have negative impacts on the environment leading to the degradation of the environment and depletion of natural resources and that a clean and healthy environment is a prerequisite for sustainable development.

The Appellate Division also decided the EACJ would not be drawn into whether it had power to grant a permanent injunction restraining the Tanzanian Government from constructing the highway, saying the matter is premature because the case was yet to be heard on its merits.

State Attorney Mr. E. Mwenyunge represented the Attorney General of the United Republic of Tanzania and while the Respondent (ANAW) was represented by Mr. Saitabao Kanchory Mbalelo. Justices Harold Nsekela, President, Philip Kiptoo Tunoi, Vice President, Emilie Kayitesi, Laurent Nzosaba and James Ogoola presided over the case.

Kenya Government Wins on Appeal in Mount Elgon Case

Also on Thursday the EACJ Appellate Division overruled the First Instance Division and dismissed a case filed by Independent Medical Legal Unit, alleged that the act of the Kenyan Government failing to investigate, prosecute and punish those responsible for executions, acts of torture, cruelty, inhuman and degrading treatment of over 3,000 Kenyan residents in Mount Elgon District contravenes the Treaty.

The Court concurred with the Kenyan Attorney General, who had appealed the case, that IMLU's suit had been filed out of time. The Treaty under Article 30(2) provides that a case should be instituted within two months of the enactment, publication, directive, decision or action complained of, or in on the day it came to knowledge of the complainant. The Appellate Division found that the complainant had knowledge of the acts complained of 2008 but filed its case in 2010.

Justices Harold Nsekela, President, Philip Tunoi, Vice President, Emillie R. Kayitesi, Laurent Nzosaba and James Ogoola however upheld the decision that the Court has jurisdiction to entertain the case.

They cited the fundamental principles that govern the achievement of the objectives of the Community which include good governance, adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people's rights in accordance with the provisions of the African Charter on Human and Peoples' Rights.

Senior Principal Litigation Officer Mr. Anthony Ombwayo represented the Attorney General of the Republic of Kenya and Ms. Kethi Kilonzo was IMLU's advocate.

The Court ordered that each party bears its costs.

Your Comment

Mathias Safari | 3/20/2012 10:28:00 AM
Actually the Appelate Division of the EACJ was very clear by reaching such coclusion concerning the issue of Serengeti Case. If it would rule infavour of Tanzania it would be considered a toothless dog. The decision is excellent due to the fact that it is very difficult to convince a patriot Tanzanian, who is tired with economic subotage by those in power, that the road construction was for the benefit of the EAC members. Congratulations the Court! Tanzania should take this as an example on the issue of appointing judges; in our new constitution which the President of Tanzania wants to monopolise all the powers of its enactment, Judges should not be appointed by the President. Judges appointed by the President become toothless dogs when they are to decide matters which the President is interested. Kenyans are good, I like the way they create judges, they comply to standards of humanity, democracy, rule of law and independent of judiciary. Briefly, EACJ I thank you for helping in protecting environment which some of Tanzanian leaders want to destroy.
Now for the issue of Mount Elgon case, here I think had the Court scrutinized careful the issue of state's power, it would have sided with IMLU. Actually the Attorney General Kenya said nothing strong to contradict the view on the failure to file the case within time. Briefly, the Counsel for IMLU Ms. Kethi Kilonzo left no gap for the Attorney General Kenya to pass. It is udisputable fact that since the violations of human rights were commited by the state, it was difficult to investigate the matter without encoutering inconveniences rendering danger to the life of those investigating or in alternative facing unnecessary obtacles leading to delay. It was difficult to get documents necessary to support the case. If the issue was to file the case in its immature stage it would be possible by the bush lawyer to do so, but I think the delay by the IMLU was inevitable and reasonable and that being the case it could be cured by Court's careful interpretation of Article 30(2) of the treaty in relation to the violations, nature of violations, time they were taking place and time they stopped. If they would fail to do that, this provision would be declared bad in law. If the Penal laws would be "st*p*d" like Article 30(2), murderers who could be reported late could escape punishment. I therefore advise the EAC to revise its treaty in respect of this provision to omit the requirement of two moths. I wish if I get employment in the EAC, I may be useful in many things.