Serengeti Highway case update following hearing before the EACJ on 23rd January

UPDATE ON SERENGETI HIGHWAY CASE BEFORE THE EAST AFRICAN COURT OF JUSTICE

The legal case filed by ANEW, the African Network for Animal Welfare, before the East African Court of Justice in Arusha against the Tanzanian government, came up for mention and a so called scheduling conference on the 23rd of January and since then the following information was received from Tanzania based sources, explaining the latest developments in the case.

The details are reflected verbatim as received herebelow for the information of readers and others keen to learn on progress made so far. More information will be published as and when available in accordance with the upcoming hearing schedules set by the EACJ.

The scheduling conference was held to ascertain.

1 Points of agreement and disagreement.

2 Possibility of mediation, conciliation, or any other form of settlement.

3 Whether evidence is going to be oral or by affidavit

4 Whether legal arguments shall be written or oral, or both

5 Estimated time of hearing

6 Any other matter as the court may deem necessary

*SUMMARY OF FACTS*:

1.1 The applicant alleges that:

1. The respondent intends to upgrade, tarmac, create, pave, re-align, construct, create and /or commission a trunk road (officially known as the NATA-MUGUMU-TABORA B-KLEINS GATE-LOLIONDO ROAD which road cuts across the Serengeti National Park.

2. This action above will have deleterious environmental and ecological effects and is likely to cause irreparable and irreversible damage to the delicate environment and ecosystem of the Serengeti National Park and the adjoining and inseparable Masai Mara Game Reserve.

3. There are no conceivable precautionary measures that can mitigate the negative effect of the action other than rerouting the road away from the Serengeti National Park.

4. The Serengeti National park is a world heritage property of outstanding economic value. Its protection and conservation is a matter of international concern.

5. The Serengeti is furthermore a trans-boundary resource in the East African region and is of particular economic and ecological importance to both Kenya and Tanzania.

6. The action infringes on the East African Community Treaty specifically Articles 5 (3) (c); 8 (1) (c); 111 (1) (b) and (d); 114 (1) (a) and (b); 112 (1) (e) and 116.

7. The action is unlawful for violating regional and international instruments such as:

a) The African Convention on the Conservation of Nature and Natural Resources (2003), Article 22 (2) (a)

b) The Rio Declaration under Principle no. 2 and 7

c) The Stockholm Declaration Principles no. 1,2 and 24

d) The United Nations Convention on Migratory Species of wild Animals (1979), articles 2 and 3.

e) The United Nations Charter of Economic Rights and Duties of States, Articles 3 and 30.

1.1.1 *The applicant seeks for*:

1) A declaration that the action to construct a road across the Serengeti National Park is unlawful and infringes the provisions of the East African Community Treaty specified.

2) A permanent injunction restraining the respondent from under taking the action complained of.

3) A permanent injunction restraining the respondent from maintaining any trunk road or highway across any part of the Serengeti National Park.

4) The respondent be permanently restrained from degazetting any part of the Serengeti National Park for the purpose of upgrading, tarmacking, paving, re-aligning, constructing, creating or commissioning the NATA-MUGUMU-TABORA B KLEINS GATE-LOLIONDO ROAD.

5) The respondent be permanently restrained from removing or relieving herself from the UNESCO obligations in respect to the Serengeti National Park on the object of upgrading, tarmacking, paving, re-aligning, constructing, creating or commissioning the said road or otherwise for that purpose upgrading, tarmacking, paving, re-aligning, constructing, creating or commissioning or maintaining a trunk road or highway across the Serengeti National Park.

6) Costs

*1.2 Response by the Respondent (24/02/2012)*

The respondent denies the allegations and contends that:

1. The road in dispute has been in existence and the Respondent only intends to upgrade and re-align it where necessary.

2. The Serengeti National Park is a world heritage site not a world heritage property.

3. The respondent denies any infringement of the Treaty of international instruments alleged.

4. The reference is baseless, ultra-vires, is aimed at usurping the powers of a member State of the EAC by limiting development to the key region which is the key objective of the EAC and transgressing the constitution of the United Republic of Tanzania without any color of right.

5. It should be dismissed with costs to the respondent.

*2.0 Agreed facts*

The Serengeti national Park is a vital trans-boundary resource in the East African region and is of particular economic and ecological importance to both Tanzania and Kenya.

*3.0 Points of Disagreement*

1. The road as proposed does not exist. It is being constructed, realigned and upgraded (Applicant).

2. The road exists. It is just being upgraded and realigned where necessary (Respondent)

*4.0 AGREED ISSUES*

1. Whether the Respondent intends to upgrade, tarmac, pave, realign, construct, create and / or commission a trunk road officially known as the NATA- MUGUMU-TABORA B- KLEINS GATE-LOLIONDO ROAD also known as the North Road or Serengeti Super Highway across the northern wilderness of the famous Serengeti National Park

2. Whether the disputed road exists and is in use

3. If so, whether the proposed action infringes the provisions of the EAC Treaty specified therein as well as the international instruments referred to.

4. Whether the applicant is entitled to the prayers sought.

*5.0 EVIDENCE*

Applicant: shall rely on the affidavit by J. Ngonyo Kisui on record and oral evidence and report of one expert witness (*Report to be filed by 22.03.2013).*

Respondent: shall rely on both the affidavit and oral evidence of 3(three) witnesses ( *statements from witnesses to be filed by 29.03.2013)*

*6.0 LEGAL ARGUMENTS*

Both parties shall file written submission in accordance with the court schedule and highlight on a date to be given by the Court.

*7.0 LENGTH OF HEARING*

Intended length of hearing is 2 (two) days. The court will give the date of hearing through a notice.

*8.0 MEDIATION*

It is recommended – But it is not an option for the applicant.

*Read more on the background of the case here<http://www.savetheserengeti.org/serengeti-legal-defense-fund/> and http://www.savetheserengeti.org/news/serengeti-legal-case-on-track/

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