The court rules that the IGA is not a contract that can be governed by the laws of contracts.
The High Court (Mbeya Divison) has ruled that the IGA contract between the Government of Tanzania and Dubai has no problem, so the objection raised by the plaintiffs bears no merit.
The decision was handed down by a panel of three judges led by Judge Dunstan Ndunguru, in collaboration with judges Mustafa Ismail and Abdi Kagomba.
The two core issues that were given a decision by the court include: If Article 2, 4(2), and 28(1) and (3) violates Articles 1, 8, and 28(1) and (3) of the national Constitution; and if IGA is a contract in the context of the Law of Contracts.
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The court rules that the IGA is not a contract that can be governed by the laws of contracts.
“The court has agreed that Dubai has the authority to enter into such agreements. Plaintiffs have not stated whether Dubai is barred from entering into an investment partnership agreement, as it is a matter of evidence. I agree with the State Attorney that it does not have the ability to enter into investment cooperation agreements,” said Judge Ndunguru.
Regarding whether the IGA violates Section 64 of the Procurement Act, the Court said, “The court has rejected that argument, saying that the IGA is an international contract and that no purchases were made in that contract. If the plaintiffs see that the TPA (Tanzania Ports Authority) entered into the procurement, then they should have joined the TPA in this case, so the argument has also been rejected by the Court.
Regarding whether the public was informed and given enough time to express their opinion, the Court said: “The Court recognises that Article 63 gives Parliament the power to ratify international agreements such as the IGA. The court does not agree that, in the current environment, the method used to provide information through social networks was correct.
“The position of the Court is that the Parliament should not be interfered with in its internal work, a position that is based on the decisions of various international cases.”
“And our conclusion is that, despite the effects of the procedure, we refrain from seeing if the deficiency affected the contract. The court refrains from overstepping its bounds. So this argument has also been rejected,” said Judge Ndunguru.
In addition, the Court has said, “We agree that Article 20 (1) of the IGA violates the Asset Protection Law because it requires that even signed contracts, in the case of conflicts, be arbitrated outside the country. We are surprised at the writing of that Article. However, Article 22 of the IGA provides the opportunity to make amendments, so such a small defect cannot make the contract invalid.
“If some articles violate the status of the country, that interpretation is not correct. Violation of defence and security is a wrong interpretation because Article 28 refers to military invasion, so we reject it,” he said.
“In general, we decide that the complaints brought by the plaintiffs are unfounded, and we dismiss them. Consequently, with that decision, the IGA contract is valid,” said Judge Ndunguru
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