Why High Court dismissed case on IGA and what it means

The ruling means that Tanzania Ports Authority (TPA) could proceed with its planned agreement with the Dubai Port (DP) World for the planned investment at some berths at the Dar es Salaam port.

The IGA between Tanzania and Dubai, which the Parliament approved in June, 2023, divided the country between those in support of the move and those opposed tom it.

While the government has maintained that the IGA - which sets the stage for further negotiations on the Host Government Agreement (HGA) and lease/concession agreement before the commencement of a new chapter for cooperation between the TPA and DP World – was done in good faith, a number of people vehemently opposed the move, citing several reasons.

It was against such a background that Mr Alphonce Lusako, Mr Emmanuel Kalikenya Chengula, Mr Raphael Japhet Ngonde and Mr Frank John Nyalus went to the High Court’s Mbeya Registry, asking the Court to proclaim that the agreement was in contravention of the laws and the Constitution of Tanzania.

In the Miscellaneous Civil Cause No. 5 of 2023, the four Tanzanians also urged that the IGA contains terms which endanger not only sovereignty but also security of our country. The four were of the view that those who signed the IGA has erred for signing the document and sending it to Parliament for approval without giving Tanzanians enough time to debate the contents.

The respondents in the case were the Attorney General, the Minister for Works and Transport, the Permanent Secretary in the Ministry of Transport and the Clerk of the National Assembly.

However, delivering the verdict yesterday, judges Dunstan Ndunguru, Mustafa Ismail and Abdi Kagomba described the petition as barren of fruits and hence dismissed the same.

The judges declared that only Tanzania's Parliament could order a renegotiation, suspension or termination of the IGA for DP World's proposed investment at the Dar es Salaam port.

"It is only through the process initiated by the National Assembly that an arrangement or agreement may be declared by a resolution to be unconscionable," reads the ruling in part.

On the petitioners' castigation of Article 20 (1) of the IGA on the settlement of disputes, the Judges said the review of the said provisions gave them the impression that this is purely on the settlement of disputes between states and that is quite in order.

“We take the view, as well, that there could never be any other mechanism through which such a dispute would be handled internally using a legal regime of one country,” the ruling reads in part, adding: “This is an international agreement and as a matter of fact, the remit for dispute resolution should be within the mechanism vested with powers to handle disputes arising out of a treaty by two states.”

On the rights over land, the judges said they saw nothing untoward or derogatory of the country's sovereignty given that land tenure system in the country is full with pieces of legislation that govern the grant of land tenure.

“Grant of land tenure to port investors has to take cognizance of the powers vested in the TPA and follow the procedural requirements set in the law and authorities vested with powers are expected to play their roles,” reads a part of the ruling.

Doing otherwise, the ruling reads, will be contrary to the law and befitting appropriate sanction.

Regarding exclusivity that arises from Article 5 (1) of the IGA, then three judges said they were in agreement with the respondents that the exclusivity in this case refers to the right that DPW will have with regards to investments that they will embark on and for the entirety of the project duration. This does not, by any stretch of imagination, erode sovereignty of the State.

“We are of the considered view that, under this doctrine, what is referred to by the petitioners as independence is essentially an interdependence between states in sharing the resources with the world,” the Judges said in their ruling.

They said the country had not been treated to any plausible and convincing argument that the country's sovereign power will be stifled or grabbed from the country, through execution of the IGA.

The sovereign power being referred to here, is the one related to the use and exploitation of natural resources, the country choosing its own economic, environmental and development policies; and the sovereign right to freely regulate, expropriate and nationalize foreign investments.

The ruling puts to arrest a two-month long debate that saw the country being divided into two, with a section of the population feeling that the IGA was flawed in many ways, and that it should not be allowed to see the light of the day.

Government officials have, on several occasions, defended all the contested provisions but their explanations fell on deaf ears of those who opposed the move.