EAST AFRICAN COURT OF JUSTICE’S APPEAL DIVISION AFFIRMS LOWER COURT RULING AGAINST THE SERENGETI HIGHWAY
(Posted 26th August 2015)
In a recent decision handed down did the Appeals Division of the Arusha based East African Court of Justice uphold three of four points from the ruling of the lower court in regard of a permanent injunction sought by the African Network for Animal Welfare, in short ANEW on behalf of the Tanzanian, East African and global conservation community.
This ruling is seen as a massive setback for the Tanzanian government which had suggested that the Court had no jurisdiction over the matter as the country had not formally signed the protocol on covering environmental matters. This was seen, both in public and by the Appeals Court, as literally a lame excuse trying to weasel out of Tanzania’s commitment made when accepting the protocol provisions in the first place. With the June 2014 decision now by and large standing will Tanzania find it next to impossible to build a paved highway across the Serengeti’s most vulnerable migration routes, either paved or un-paved. Bolstered by the success is it expected that any such attempts will meet with yet more legal challenges and Tanzania, already rattled and shamed by the full scale of the elephant slaughter under the present regime becoming public knowledge, may not find any high ground to defend a road project which is bound to decimate the great herds of wildebeest and zebras too.
Said the Appeals Division in its ruling: ‘It is quite evident that were the authorities of [Tanzania] to take any measures to activate their initial plan to construct the Super Highway through the Serengeti, as originally conceived, they would have, without a doubt, fallen foul of the [The East African Treaty]’.
In summary can the following conclusions be drawn now as to the outcome of the case:
Has the Court case stopped a Serengeti Highway?
No. The lower court barred a paved highway. The appeals court ultimately sidestepped an actual injunction.
Tanzania said in its appeal that there was no highway project to ban, just plans. The Court wondered why Tanzania did not bring this up in lower court, but ultimately sided with Tanzania as a point of law, citing that under the East African Treaty there had to be specific actions underway. An Environmental Impact Study and survey markers evidently were not enough.
Did Tanzania then win its case?
No, and they are on notice that a paved highway will likely be banned by the East African Community. Perhaps more significantly, Tanzania contested the very authority of the East African Court and they lost, thus re-affirming the right of the Court’s authority in environmental issues.
What is the overall significance of this case?
Although there was no specific ruling on the Serengeti highway, we are extremely encouraged by this decision. It has turned into landmark case upon which conservationists in the East African Community can now build. It has wider implications, not just for the Serengeti but for other areas.
What specifically was settled?
The East African Court of Justice has affirmed that on behalf of the East African Community the following:
– It has jurisdiction over member states on environmental issues.
– Individuals and NGOs can bring such suits before the Court.
– Sections that deal with the environment under the East African Treaty are enforceable even though protocols for this have not been signed by all member states.
– It affirms an East African Treaty that calls for "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 Partner States."
Does the Court’s decision provide any specific protection for the Serengeti?
Not directly, but the appeals court sided with the lower court in saying,
"The point here is that all parties now agree that if the initial proposal is implemented, then the adverse effects would not be mitigated by all the good that the road was intended to bring…"
It set the stage for future action and has given highway opponents reason to be optimistic should the highway, or any other potentially damaging project, become imminent.
Can Tanzania go ahead and build a highway in defiance of the Court?
Yes, but it would then be contravening the East African Community Treaty. At that point, no one is sure what would happen. It would be a test of the East African Community itself.
What other highway threats are there?
In the lower court ruling, a northern, asphalt (bitumen) road was banned from the park, not a gravel road. The government of Tanzania says it will still build an all-weather gravel road along the same route. Many observers warn that a gravel road will be destructive in itself and will inevitably become a paved highway carrying more commercial traffic.
Also not addressed are roads just outside of the Park. The entire Serengeti ecosystem includes areas within the Serengeti National Park and areas outside. Wildlife migration takes place in both areas, and paved roads in migration areas outside the park will have an impact on the migration.
What if Tanzania goes ahead with a Serengeti highway?
It would require immediate action to bring an injunction. At least much of the groundwork is in place for that. However, new funding would have to be sought.
How does Tanzania benefit from the EACJ decision?
Tanzania has a lot to gain from strong transboundary ecosystem protection, especially on water rights issues. See our discussion.
What now?
Serengeti Watch is very encouraged by the precedent set in this case. However, it shows that we must do what we set out to do, keep our eye on the Serengeti.
If you have more questions, please contact us here: info
Thanks at this stage must go to Serengeti Watch, an NGO formed to protect the Serengeti’s integrity when the news was broken here in early 2010 that the Tanzanian government was indeed planning to build a super highway across the national park. Initially strenuously denied did the truth however come out a few months later and soon afterwards was the court case launched. The full Appeals Division ruling is available through the link below in a PDF format.
http://serengetiwatch.org/wp-content/uploads/2011/03/EACJ_APPEAL_DECISION_7-31-15.pdf
