Tanzania-Legal showdown As High Court Rejects Government’s Objections In Zanzibar Port Challenge.

By Adonis Byemelwa

In a groundbreaking legal twist, the High Court of Tanzania has dealt a blow to the government's objections in a constitutional case spearheaded by Odero Charles Odero. The case, labeled number 15 of 2023 and unfolding in the High Court at Dar es Salaam, puts the spotlight on Odero's challenge against the operations of the Zanzibar port by a non-union entity. Odero, taking on the Attorney General (AG) and backed by Zanzibar AG as an "interested party," sets the stage for a legal battle of significant proportions.

Odero's legal challenge questions the constitutional validity of Zanzibar port operations not being conducted by the Government of the United Republic of Tanzania through the Tanzania Ports Authority (TPA), as mandated by the 1977 Constitution. Seeking a declaration that all port activities in Zanzibar fall under the exclusive authority of the United Republic of Tanzania, Odero also urges the court to declare TPA as the appropriate Union entity for overseeing all port activities in Zanzibar.

Further, Odero requests the court to declare the Zanzibar Port Authority Act of 1997 unconstitutional, citing violations of Articles 64(3) and (4) of the Constitution. He calls on the court to direct the AG to take swift legal action to bring all port operations in Zanzibar under the United Republic of Tanzania through TPA.

In response to Odero's constitutional challenge, both the Union AG and Zanzibar AG filed objections, arguing that the High Court lacked jurisdiction, Odero had no legal standing, and the case was irrelevant and outdated. Government lawyers presented their arguments, emphasizing that the Zanzibar Port Authority is not a Union entity, therefore, the High Court lacks jurisdiction. They suggested that Odero should have approached the Special Constitutional Court and that the recent IGA debate did not inform the public about Zanzibar law.

Lawyer Hangi Chang’a from the Office of the Attorney General and Said Salim Said from the Zanzibar AG's office contended that the case's flaw lies in the inclusion of the Zanzibar AG as an interested party instead of a respondent.

In a detailed response, Lawyer John Seka argued on behalf of Odero, asserting that the High Court is the appropriate institution to address constitutional challenges. He emphasized that the court has the responsibility to hear Union matters and can annul laws violating the Constitution.

After considering these arguments, the High Court, through Justice Abdi Kagomba, issued a preliminary ruling on March 4, 2024, rejecting the government's objections. The judge emphasized the court's unlimited jurisdiction over civil and criminal matters and clarified that the case falls under Article 108(2) of the Tanzanian Constitution. Justice Kagomba underscored the court's authority to hear constitutional cases brought by citizens challenging any law violating the Constitution.

The judge acknowledged Odero's initiative as an individual citizen to protect the Constitution, emphasizing the court's duty to address such matters when there is a constitutional violation. Furthermore, Justice Kagomba supported Lawyer Seka's argument that joining the Zanzibar AG as an interested party was essential for enriching the proceedings and ensuring Zanzibar's voice was heard.

This legal development holds significant implications for the principles of the Union government, as it reaffirms the role of the High Court in addressing constitutional challenges related to Union matters. Odero's case highlights the ongoing debate surrounding the jurisdiction of the Special Constitutional Court and the role of the High Court in safeguarding constitutional principles.

The ruling emphasizes the court's commitment to upholding constitutional rights and ensuring that individuals, like Odero, have the avenue to challenge laws that may violate the Constitution. The decision also reflects the importance of Zanzibar's representation in such constitutional matters, as evidenced by the inclusion of the Zanzibar AG in the proceedings.

As the legal battle initiated by Odero Charles Odero against the intergovernmental agreement between Tanzania and DP World unfolds, it has become a focal point for broader discussions on the division of powers between Union and Zanzibar entities. The case, labeled number 15 of 2023 in the High Court of Tanzania, is poised to set a precedent for constitutional challenges, prompting both the legal community and the public to closely monitor its progression.

Political analysts have raised early concerns about the DP World contract, questioning its claimed benefits and notably, its exclusion of Zanzibar ports. This inquiry extends beyond the legal realm, as even with financial support from loans, including those from the World Bank, Zanzibar has shown solidarity even in non-Union matters.

For instance, when Tanganyika secured a substantial loan of 600 billion for water projects, eyebrows were raised as half of the funds were allocated to Zanzibar. This raised questions about the debt burden seemingly shouldered solely by Tanganyika. If the purported benefits of the DP World contract were genuine, one would naturally expect Zanzibaris to actively seek involvement.

Notably, critics argue that President Samia's actions are justified, emphasizing historical injustices where Tanzania deprived Zanzibar of its independence for many years. This loss included their nationality, currency, and international representation. According to Ismail Jussa, leader of ACT Wazalendo, "What President Samia is doing is legitimate."

Odero Odero, representing the Civic and Legal Aid Organisation (CiLAO), emerges as a prominent critic of the DP World agreement. The controversy surrounding the agreement revolves around the exclusion of Zanzibar ports, prompting questions about the inclusivity of Union matters in the contract.

This constitutional challenge catalyzes a broader discourse on the delicate balance of powers within the Union government framework. It not only delves into legal intricacies but also resonates with historical grievances, making it a subject of keen interest for both legal experts and the general public.

As the case unfolds, it marks a pivotal moment in Tanzania's legal landscape, offering an opportunity to redefine the dynamics between Union and Zanzibar entities. The outcome will undoubtedly shape the trajectory of future constitutional challenges and influence the ongoing dialogue on equitable representation and governance within the Union. The controversial DP World agreement, now under the scrutiny of the judiciary, stands as a symbol of the complexities inherent in balancing Union interests with the unique identity and aspirations of Zanzibar.