In 2010, the African Network for Animal Welfare brought a legal case in the East African Court of Justice against a proposed highway that would cross the Serengeti National Park.
In June 2014, the East African Court of Justice (EACJ) issued an injunction against a paved highway. The government of Tanzania appealed that decision, challenging the authority of the Court itself by saying it no jurisdiction or power to issue injunctions.
The key points of the Court’s decision are:
The Court affirmed its jurisdiction under the environmental terms of the East African Treaty, including the right to issue injunctions.
The Court said that an action to build a Serengeti highway had not been established. It ruled that no injunction against it could be granted for this reason.
Should action be taken to start a highway, clearly it will contravene the terms of the East African Community Treaty.
Significance of the Case
Note: Although we say Tanzania, it is shorthand for “the Tanzanian administration under President Kikwete.”
The East African Court of Justice established a historic precedent for the East African Community’s right to regulate environmental issues.
It affirmed the Court’s own authority over such issues under the current East African Community Treaty.
It established the right of any individual or organization to bring such a case before the Court, not just a government.
These decisions taken together provide a new and important tool for conservationists to protect shared East African ecosystems and wildlife.
Although we have no specific highway ban, the Court reaffirmed the dangers of the highway and established the basis for a future ban should construction begin, saying there was an
“…imminent risk of irreversible damage inherent in any attempt to implement the ‘initial plan.’ … In this regard, 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 Tanzania’s above-mentioned undertakings of [The East African Treaty].
“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…”
The judges praised the African Network for Animal Welfare (ANAW) for bringing the first ever environmental case before the Court. It appears that the Court is ready to entertain more such cases:
“The Applicants have, against all formidable odds, partially triumphed in their quest (in this, the first Environmental Case of its kind to be brought before this Court). They brought the Reference and have prosecuted it not out of any wish for personal, corporate, or private gain; but out of the public spirited interest of the noblest kind – namely conservation, preservation and protection of a natural resource which (in this particular case), is truly a gem of a heritage, one-of-a-kind for all mankind.”
Tanzania’s intentions were clearly to undermine the authority of the East African Community and its judicial system. It sought to deny the Court any jurisdiction or power. The Court forcefully upheld its power calling Tanzania’s tactics “an attempt to derail and to divert the Court” and “a calculated abuse” of the process.
Tanzania could have dropped the highway legal case earlier and walked away. But it didn’t. It filed an appeal, causing speculation that it intends to someday build such a highway.
It is doubly important to be vigilant, because a future case will have to be brought when specific actions bring the highway into the realm of possibility. A highway or upgraded road, or any roads that would interfere with the migration and the ecosystem could be started quickly.
Finally, rather than outside pressure, this case was initiated by an East African NGO in an East African legal system, under a treaty that was designed to protect member states. It is exactly the kind of local initiative that is needed if conservation is to succeed.
View PDF: EACJ_APPEAL_DECISION_7-31-15
Questions Remain: Although the decision bars the paved highway originally proposed by the Tanzanian government, many important issues are left open:
Upgraded road still planned: Although the case sought to prevent any upgrading, the court has not specifically barred this.The government of Tanzania said that it had abandoned plans for a paved road and will instead upgrade to an all-weather gravel road. This road would replace a seasonal dirt track currently used by four wheel drive vehicles. The track is in a zone designated as a Wilderness Area that is reserved for park vehicles and walking safaris.
Roads for public use not addressed: Although the court document mentioned that roads in the Serengeti should be “reserved for tourists and park personnel and not the general public, “ it’s injunction did not mention this. Tanzania still has the ability to open roads for the public, including commercial use.
Roads outside of the park not addressed: The Serengeti ecosystem includes areas within the Serengeti National Park and areas outside. Wildlife migration takes place in both areas, often well outside park boundaries. There are plans for paved roads in migration areas in the north that will impact the migration. The court case did not address this. See: http://www.savetheserengeti.org/issues/highway/stop-the-serengeti-highway/
An uncertain future: Many observers believe that the gravel road will inevitably become a highway carrying more commercial traffic. There will be increased traffic and continued pressure to connect the paved roads with a commercial link through the park. Richard Leakey, for one, says that the highway is “inevitable.”
Previous Posts & Discussions
View PDF: Lower Court Decision EACJ Judgement
“A permanent injunction is hereby issued restraining the Respondent from operationalising 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 programs or initiate policies in the future which would not have a negative impact on the environment and ecosystem in the Serengeti National Park.”
The court case against the Serengeti highway took another step toward resolution. On August 20, 2013, the East African Court of Justice resumed its 3rd quarter session by hearing testimony from witnesses for and against the highway.
The African Network for Animal Welfare (ANAW), which brought the case, presented one witness, with the government of Tanzania presenting three. ANAW reported to us the following:
“We had a good day in court in Arusha and our expert witness testified. His evidence was on the state of the road and the negative effects of the road if it were to be constructed. He told the court among other things that due to noise and increased public movement on the road, animal behavior would be affected and that it would affect migration.
The Tanzanian side had three witnesses one Ms Zafarani Madayi who is the head of safety and environment at Tanzania Roads Agency, she gave evidence that the negative impact cited would be adequately be addressed. She however did not state how that would be done. The next witness was DR James Wakibara who is the Chief Ecologist at Tanzania National Park(TANAPA) his evidence was to discredit our witness report that it was not done in a scientific way and that some part of it was from literature research. He stated that there is no evidence that the road would affect migration. The two witnesses portrayed the project as good for tourism and opening up the eastern and northern part of the country.
The other witness was Mr. William Mwakilema who is the chief Warden Serengeti National park. His evidence tried to show our expert report as a research and thus claimed that the expert should have applied for necessary permits to do research. The court had observed that the expert report was part of the proceeding.
Before the hearing the Tanzanian side had filed a preliminary objection on matters of Jurisdiction and ANAW right to file the case. The court ruled that the objection could not be heard under rule 41 of court procedure rules which provides that the objection should have be filed before the scheduling Conference which was in April. The court also observed that those two issues had been dealt with by the appellate Division of the court.
The court directed that we file and serve our written submissions by 10TH October and the respondent to file and serve their submission by 15TH of November 2013 and then we will do a rejoinder if any within 14 days. Thereafter the Court will communicate the date for the parties to highlight the key issues in their submission. The case was covered by the media thought the Tanzania media seems to misrepresent what was said.”
Read a review of the case by journalist Wolfgang Thome here.
Update December 1, 2012
The East African Court of Justice has said that the trial will move forward by announcing a Scheduling Conference for January 23, 2013. This follows an earlier ruling in which the court threw out objections by the Tanzanian government. Read a news article on the announcement.
This case is significant, as it could stop future plans for a commercial corridor through the Serengeti. But it is also significant for several other reasons:
- It was brought by a local East African conservation organization, rather than by an external organization or government exerting pressure.
- It operates within the legal framework of an East African court system designed expressly to deal with such issues.
- It is a test of the power and jurisdiction of the EACJ to decide on transboundary issues within East Africa, especially those relating to conservation
The case was filed by the Africa Network for Animal Welfare (ANAW) challenging the government’s decision on the grounds that if constructed, the road would have far-reaching consequences on the Serengeti-Mara ecosystem which is shared between Kenya and Tanzania. ANAW had wanted the Tanzanian government compelled to stop the construction of the road through a permanent injunction
The EACJ is the instrument for settling disputes among members of the East African Community, which are Kenya, Tanzania, Uganda, Rwanda, and Burundi. Serengeti Watch is supporting this legal action and is asking for your help as well.
Saitabao ole Kanchory, attorney for ANAW (right) arguing before the court.
The legal case is significant. It seeks to permanently restrain the government of Tanzania from the following:
- “constructing, creating, commissioning or maintaining a trunk road or highway across any part of the Serengeti National Park.”
- “degazetting (removing) any part of the Serengeti National Park for the purpose of upgrading, tarmacking, paving, realigning, constructing, creating or commissioning” the highway.
- removing itself from UNESCO obligations with respect to the Serengeti National Park.
The legal action states that the highway is first and foremost an infringement of the Treaty for the Establishment of the East African Community. It would cause “irreparable and irreversible damage to the environment of the Serengeti National Park and the adjoining and inseparable Maasai Mara Game Reserve in Kenya.”
Under the terms of the EAC Treaty, partner states are required to cooperate in the management of shared natural resources, notify each other of activities that are likely to have significant transboundary environmental impacts, and to follow protocols for Environmental Impact Assessment.
Other obligations cited fall under: the United Nations Convention on Biodiversity, the United Nations Declaration on the Human Environment, the Stockholm Declaration, and the African Convention on the Conservation of Nature and Natural Resources.
The legal action was filed last December by the African Network for Animal Welfare (ANAW), located in Kenya. See the news article: Activists file suit against Serengeti Highway move
Website for the East African Community.
More on the East African Court of Justice can be found here.
Website for the East African Community environmental section
Download document on Transboundary Environmental Assessment for Shared Ecosystems.
Download document on environmental protocols
ANAW press release from March 2012. ANAW_press_rel_3-15-12
“Any dispute concerning the interpretation or application of the Treaty or any of the matters referred to the Court cannot be subjected to any method of settlement other than those provided for in the Treaty. Where a dispute has been referred to the Court, the Partner States are enjoined to refrain from any action which might be detrimental to the resolution of or might aggravate the dispute further, a Partner State or the Council “must take”, without delay, the measures required to implement a judgment of the Court.” – Wikipedia