Tanzania’s judiciary is one of the most prolific in the region regarding its judgments, with the volume that is delivered and reported outstripping even those in South Africa and Kenya. But unlike those two, you will have to search long and hard for Tanzanian decisions going against the Dodoma government.
A judgment relating to the country’s most contentious current issue — the government’s proposed deal to cede the management of Tanzania’s ports to Dubai Ports World — illustrates the problem.
It’s a hugely controversial deal. Opponents are concerned, among other things, that it effectively hands some of the country’s most significant assets to a foreign entity. They also see certain specific clauses of the deal as problematic. For example, under the initial terms both Tanzania and Dubai Ports World agree to give up the right to withdraw from the agreement “under any circumstances whatsoever”.
Despite widespread objections the government appears unwilling or unable to extricate itself from the arrangement. Perhaps, as certain critics suggest, that’s because it has too much to lose in terms of promised kickbacks.
Some commentators believe the agreement is so unpopular that it could become a political watershed issue for the 2025 polls, a serious test for Samia Suluhu Hassan, Tanzania’s first woman head of state, and her ruling Chama Cha Mapinduzi party, which has held power since 1961.
The main opposition Chadema party is among the many groups and individuals opposed to the arrangement, and international NGOs Human Rights Watch and Amnesty International have both expressed concerns about the way government is cracking down on protests against the planned deal.
Among those “detained or threatened” for protesting are several lawyers. One, the president of the Tanganyika Law Society, fled the country, saying he was receiving death threats for criticising the port agreement. Another lawyer, part of the team in a case challenging the legality of the deal, was arrested with two other opponents, and the trio was threatened with prosecution for treason, a crime that carries the death penalty.
In the wake of international outrage, the three have since been released, though investigations are continuing into their planned treason charges.
The court ‘would not be tempted to cross the judicial line and poke our fingers or meddle in the affairs of the legislature’
‘No public relations exercise’
So outraged are some activists that a group recently brought a legal challenge in the high court. A key element in the litigation testing the deal was the extraordinary way parliament handled the right of the public to comment on the proposals.
Bypassing TV, radio and conventional media, and using social media alone, parliament gave the country notice of just 24 hours before public comment could be made. In addition, the period for comment was also a measly 24 hours — this for an issue that has caused immense public outrage.
On this question, the three high court judges who heard the challenge said that, though the notice and the period given for public participation was, in their opinion, neither reasonable nor adequate, parliament was entitled to make its own decisions about timetables. And if parliament felt 24 hours’ notice was enough, that was the end of the matter.
However, the judges expressed mild criticism — something seldom seen in Tanzanian courts — when they noted that, from the point of view of a “neutral eye”, “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”. Given the circumstances and “mighty importance” of the issue involved, more time was needed for public participation, particularly as “public participation was not meant to be a public relations exercise”.
Still, the court was “not inclined” to find that these “obvious inadequacies” nullified parliament’s process of ratifying the port deal. The court “would not be tempted to cross the judicial line and poke our fingers or meddle in the affairs of the legislature”, the judges said.
Whatever the fate of the Dubai Ports World agreement, it is judgments such as these that show Tanzanians why they shouldn’t look to the judiciary as their protector against the excesses of either the government or parliament.
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