East African Court of Justice, Arusha, 25th September, 2018: The First Instance Division has granted an interim order restraining the government of Tanzania and its agents from evicting the residents of Ololosokwan Village Council and 3 other Villages from the disputed land bordering Serengeti National Park.
The Court ordered the Respondent to stop evicting, destroying the Residents’ homesteads or confiscating their livestock on that disputed land comprised of 1500 sq km of a land in the Wildlife Conservation Area bordering Serengeti National Park until the main Reference is determined.
Further the Court added that, the interim order against the Government (Respondent) restrains the office of the Inspector General of Police from harassing or intimidating the Applicants in relation to the Case pending the determination thereof. Again Court stated that, a grant of the interim orders sought in this case would in effect forestall the continued eviction and harassment of the Applicants’ Residents until the matter is concluded.
The Court also said that whereas evictions, destruction and loss of property and arbitrary arrests that characterized the social upheaval in that village could, if subsequently found to have wrongfully happened at the instance of the Respondent, be compensated by an award of damages. The Court was not persuaded that an award of damages in itself would be adequate recompense for the magnitude of loss that they represent.
That on the other hand stifling of peoples’ right to access to justice, if subsequently proven, appears to court to fall within the category of wrongs that might occasion irreparable injury given that once that right is lost in relation to specific facts.
The Court also carefully considered the totality of the circumstances of this case and it took the view that, in the short term, the important duty to avert environmental and other ecological concerns pales in the face of the social disruption and human suffering that would inevitably flow from the continued eviction of the Applicants’ residents.
It is undoubtedly apparent to the Court that the justice of the matter dictates a temporary intervention in favour of the residents’ representatives, to wit the Applicants. That the Party/ Applicant stands to suffer significantly more injustice, should the court decline to grant a temporary injunction in this matter than does the Respondent, therefore the balance of convenience is heavily skewed/tilted in its favour of the Applicant.
In addition Court said that the Applicants’ claim to protection from the violation of their property rights, as well as the right to access justice, would be weighed against the Respondent’s right to implement the Tanzania natural resources laws to protect the Wildlife Conservation Area from unlawful human activity, as well as its duty to ensure compliance by all persons with the Tanzania legal regime generally.
The Court hence allowed the Application and ordered that costs shall abide the outcome of the Reference and directed the matter to be fixed for hearing. The Application was filed on 21st September 2017 seeking temporary halt to the residents’ eviction and the destruction of their property pending the determination of the main Reference.
The Ruling was delivered by Honorouble Lady Justice Monica Mugenyi, (Principal Judge), Justice Dr Faustin Ntezilyayo (Deputy Principal Judge), and Justice Fakihi A. Jundu.
Parties present in Court to receive the Ruling were Mr Nelson Ndeki representing the Applicants.
The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.
Arusha is the temporary seat of the Court until the Summit determines its permanent seat. The Court’s sub-registries are located in the respective National Courts in the Partner States.
In this blog post:
Two sets of interim measures issued by the court
Whose land is it?
Past and present efforts to grab the 1,500 km2 osero from the Maasai
At last some good news! The East African Court of justice has not only restrained the Tanzanian government from more eviction attempts while the case is ongoing, but also restrained the office of the Inspector General of Police from harassing or intimidating the villagers that have sued the government. Though unfortunately there’s some confused reporting resulting from confused writing of the ruling that makes it seem like the government’s vague plan for the 1,500 km2, the plan that must be stopped, would already have been implemented. I should have published this blog post days ago.
Two sets of interim measures issued by the court
On Tuesday 25th
September the East African Court of Justice, via the Justices Monica K. Mugenyi, Faustin Ntezilyayo, and Fakihi A. Jundu, delivered its ruling
on Application No.15 of 2017, and issued interim orders. When the villages of Ololosokwan, Kirtalo, Oloirien, and Arash on 21st
September 2017 filed the main case, Reference No.10 of 2017, during the illegal mass arson operation – in which beatings, illegal arrests, blocking of water sources, and rape were committed by mostly rangers from Serengeti National Park, together with other rangers and local police - they also filed this application to restrain the government from evicting them, destroying their homesteads, and confiscating their cattle. The illegal operation was stopped on 26th
October 2017 by the then new Minister for Natural Resources and Tourism, Hamisi Kigwangalla, who also made some big and unprecedented promises that he later backtracked on. In 2017, many people were upset that the case wasn’t filed, and an injunction sought the first day the rangers started their arson operation on village land in Oloosek on 13th
August 2017. There was a delay due to some shockingly unresponsive leaders, but then the ruling by the East African Court of Justice issuing the interim measures didn’t come until one year and four days after being sought.
The ruling includes the urgent letter written by the villages’ main counsel Donald Deya on 31st May 2018, then made into an application, in which he informed about numerous complaints by leaders and community member of the villages suing the government that had been severely harassed and intimidated by police officers led by the Officer Commanding Investigation Division of Ngorongoro district, Marwa Mwita. Their authority to sue the government was questioned, and they were interrogated about who was “supporting them”. The police demanded that the villagers withdraw the case and that signatories to the minutes of village meetings that authorized the litigation withdraw their signatures, or state that they did not sign the said minutes. Several individuals from the applicant villages received multiple formal and informal summons to present themselves to the police. They were detained and interrogated in threatening and intimidating circumstances, some overnight or for multiple days, while some were still detained at the time of writing the letter. The second part of the court order restrains the office of the Inspector General of Police from harassing or intimidating the Applicants in relation to the Case pending the determination thereof. I do hope this also applies to rangers and to soldiers, that with the army camp in Lopolun have joined abuse and lawlessness in Loliondo.
After a long, complicated, and partly disappointing word jungle, the judges explain their ruling as that the court “carefully considered the totality of the circumstances of this case and it took the view that, in the short term, the important duty to avert environmental and other ecological concerns pales in the face of the social disruption and human suffering that would inevitably flow from the continued eviction of the Applicants’ residents.” And their conclusion is:
“In the result, having held as we have in this Ruling above, we do hereby allow the subsisting Application with the following Orders:
a. An interim order doth issue restraining the Respondent, and any persons or offices acting on his behalf, from evicting the Applicants’ residents from the disputed land, being the land comprised in the 1,500 sq km of land in the Wildlife Conservation Area bordering Serengeti National Park; destroying their homesteads or confiscating their livestock on that land, until the determination of Reference No. 10 of 2017.
b. An interim order doth issue against the Respondent, restraining the office of the Inspector General of Police from harassing or intimidating the Applicants in relation to Reference No. 10 of 2017 pending the determination thereof.
c. The costs hereof shall abide the outcome of the Reference. We direct that it be fixed for hearing forthwith.”
I’ve got comments on some of the wording in the ruling, and it should be noted that what the East African Court has restrained the Tanzanian government from doing is already criminal behaviour in Tanzania. I hope that the court order will have some effect restraining lawlessness in Loliondo.
There is Serengeti National Park, and then there is village land. There isn’t any “buffer zone” under any other name. That’s what the “investor” and parts of the government want, not what is. It’s the announced plan that the applicant villages are seeking to stop.
The ruling describes the initial government response as affidavits of 9th November 2017 (these had not been shared with me) claiming that the 1,500 km2 would somehow not be village land, but something described as a “Wildlife Conservation Area” or “Game Reserve”. Therefore, the government (attorney general) argued that the 2017 operation did not take place on village land. This kind of big lie is easily identified as of the Kagasheki/Maghembe style (explained below). At the court hearing on 7th June 2018, and in the subsequent affidavits (that I have read) the respondents have changed their arguments to instead claiming that the operation only took place inside Serengeti National Park, which the government’s (DC, MNRT, and TANAPA) own documents clearly show is not true. These are two different, obvious and substantial falsehoods, and I find it worrying that the court can still use to term “Wildlife Conservation Area” about the 1,500 km2.
Also worrying is that the court struck out the affidavits sworn by the four chairmen, since they are referred to as the village chairmen, but also as the “village councils”, and the “villages”. The chairmen can, and do, represent the councils and the villages, but nobody is going to believe that they arethe councils or villages. If anything, there’s defective writing that I don’t understand enough to judge, maybe it had to be struck out, but there can’t be any attempt to mislead when those who have sworn the affidavits so obviously are the persons who also are village chairmen. Anyway, I don’t understand how the court could notice this, but not the two big contradicting lies by the government side.
Another problem is that the ruling is worded as if the sub-division of villages would somehow have caused the threat to the 1,500 km2 when that’s another issue, about more villages, not about less village land, and the wishes by investors and others to alienate more Maasai land for a “buffer zone” have existed since before sub-division, and continue after it.
Whose land is it?
Filing this case in September 2017 was necessary because of the efforts of parts of the Tanzanian government – lobbied by Otterlo Business Corporation (OBC) that organizes hunting for Sheikh Mohammed of Dubai, supported by parastatals within the ministry for natural resources and tourism, and maybe in a more discreet manner also by Germany – to for environmental reasons, alienate 1,500 km2 of important dry season grazing land from the Maasai of Loliondo, which would lead to the destruction of livelihoods and culture, environmental degradation on remaining land, and increased conflict with neighbours, since the Maasai would be forced to go somewhere. The Maasai already suffered a huge land loss with the creation of Serengeti National Park in 1959, and are the legitimate owners of land in Loliondo outside the national park. Their villages were registered in 1978 following the Operation Vijiji law of 1975 through the Ministry of Local Government and officially received confirmation of village status. The land is further protected as village land that’s managed by village councils on behalf of all villagers, while decisions about the land are made by the village assembly (all villagers over the age of 18). All land in Loliondo is village land per section 7(1) of the Village Land Act No. 5 of 1999 since it fulfils the following definitions - one definition being enough to qualify as village land.
-Land within the boundaries of villages registered according to the Local Government (District Authorities) Act, 1982.
-Land demarcated as village land under any administrative procedure or in accord with any statutory or customary law.
-General land that villagers have been using for the twelve years preceding the enactment of the Village Land Act, 1999. This includes land customarily used for grazing cattle or passage of cattle (definitions by TNRF, 2011).
Past and present efforts to grab the 1,500 km2 osero from the Maasai
There have been several efforts to alienate the 1,500 km2 osero (bushland) including the most horrendous crimesand the most outrageous lies. Unfortunately, it seems like the magnitude of these crimes and lies makes it difficult to successfully explain what’s going on.
In 2009, a catastrophic drought year like 2017, the Field Force Unit, assisted by OBC rangers, illegally evicted thousands of people, burned their bomas, and dispersed cattle into an extreme drought area. 7-year old Nashipae Gume from Arash was lost in the chaos, and continue lost to this day. People eventually moved back.
Next attempt at alienating the 1,500 km2 osero was to use Wildlife Conservation Act 2009 (WCA 2009) that came into operation in 2010. Since the 1950s, 4,000 km2 - that’s more than the whole of Loliondo division of Ngorongoro district - is a so-called game controlled area (GCA) that initially regulated hunting but didn’t restrict other human activities, and as can be seen, totally overlaps with village land. In WCA 2009 GCAs are protected areas (GCA 2009), not allowed to overlap with village land, and the act states that all GCAs must be reviewed within one year of the act coming into operation. OBC has since 1992 (and the Loliondogate scandal documented by Stanley Katabalo until he passed away under disputed circumstances) the hunting block (permit to hunt) in the whole 4,000 km2 area, but do their actual hunting in the 1,500 km2 of very important Maasai grazing land next to Serengeti National Park. OBC funded a draft district land use plan that not surprisingly proposed turning the 1,500 km2 into the new kind of protected area. This plan was strongly rejected by Ngorongoro District Council in early 2011, and for some time leaders in Loliondo thought that they had defeated the government. OBC maintained their unhappiness about the “unrealistic” size of the hunting block (including towns and agricultural areas) in a report they released in 2016 with complaints about the Maasai directed to the Ministry for Natural Resources and Tourism.
In 2013, then Minister Kagasheki attempted to alienate the 1,500 km2 essential for the survival of the Maasai. Kagasheki did this using loud statements and big falsehoods. His strategy was to shamelessly lie that the Maasai were “landless” and instead of saying that his plan was to take away the 1,500 km2, he pretended that the victims of this land grab would be generously gifted with the remaining 2,500 km2! There were mass meetings and several protest delegations to Dar es Salaam and Dodoma. Representatives of both the opposition and the governing party sided with the Maasai against Kagasheki’s terrible threat. A strangely worded petition by the global web movement Avaaz, launched already before Kagasheki started making his statements, reached over 2 million signatures. In a speech on 23rd September 2013 then PM Pinda declared that the land obviously was village land and that the Maasai should continue their lives as before Kagasheki’s threats. 2013 was a stressful time, the MP at the time was corrupted, and there was a feeling that much could have been done better and the threats stopped sooner, but by now it seems like a golden era of unity and fearlessness.
The journalist, Manyerere Jackton, who in the Jamhuri newspaper since 2010 has written over 50 articles inciting against the Loliondo Maasai – going to the extreme of claiming that 70% would not be Tanzanian – and slandered every individual he suspects of being able to speak up against OBC and the 1,500 km2 grab idea, was in December 2014 and January 2015 joined by “documentaries” on Channel Ten television hosted by the reporter Jerry Muro (currently DC for Arumeru) in the same inciteful and defamatory style, with a heavy presence of OBC’s general director, Isaack Mollel, talking about the destructiveness of the Maasai while saying that the land belonged to the government that had granted the hunting block to OBC. At the same time, divide and rule was intensified, focusing on an “investor-friendly” group led by the councillor for Oloipiri, William Alais. The new DC, Hashim Mgandilwa, was a dangerously stupid character using an “anti-Kenyan” operation to install fear. Though the worst damage to the defence of the 1,500 km2 was done in 2016 with an intensified intimidation drive. Threats, defamation, and having to be very careful with “government employees” had always been part and parcel of speaking up for land rights in Loliondo, but this worsened with several illegal arrests and malicious prosecution in 2016. Many were silenced.
When everyone was terrified, and some had been silenced, the dangerous, but slow-moving PM Majaliwa set out to “solve the conflict”. The Arusha RC, Mrisho Gambo, was in December 2016 tasked with setting up a select, non-participatory committee – with members both hostile and supportive of the Maasai - that was to reach a proposal that had to be either a GCA 2009, or a Wildlife Management Area (WMA). The effects of a functioning WMA on the life of a common herder are the same as those of a GCA 2009, but the land would stay nominally as a village land, so leaders would maintain some control to negotiate and delay, or to become WMA fat cats. A WMA had been resisted in Loliondo for a decade and a half, but is a kind of community-based conservation that’s been imposed under threat in other parts of the country. When touring Loliondo to mark “critical areas” the RC’s committee was met with spontaneous, sometimes violent, protests in village after village. By this time, all leaders supported a WMA, and saw the RC as their “only ally” against complete alienation of the 1,500 km2 osero. On 21st March 2017 the RC’s committee finally reached the compromise proposal of a WMA, which they on 20th April 2017 handed over the PM. This was seen as a victory…
|Ololosokwan 17th March 2017 recieving the RC's committee
Meanwhile, the rains had failed and the Minister of Natural Resources and Tourism, Jumanne Maghembe, was leading his own campaign for a GCA 2009, cheered on by the heads of the different parastatals within his ministry. In January 2017, the “journalist” Manyerere Jackton shared a photo of himself standing next to the minister in the drought stricken osero where the minister declared that the land had to be taken as a protected area before the end of March 2017. Then in March, Maghembe brought the Parliamentary Standing Committee on Lands and Natural Resources on a Loliondo trip so co-opted that several committee members complained to the press about being used to rubber stamp the minister’s wish to hand the land to the “investor”. As reported by journalists that were present, the Serengeti Chief Park Warden Mwakilema told the standing committee members that funds from the German development bank were subject to the confirmation of the land use plan that would alienate the 1,500 km2. His words led to 600 women marching upon Wasso town, with the message, “Our land, our life” to protest both OBC and the German money. The district council decided not to accept the German funds, and the council chairman didn’t sign, even if some feared that he had done so secretly.
|"Conservation is our tradition, OBC leave us our land" and ""District Council, don't receive money from the Germans, since it's death to us", Wasso 15th March 2017
While still waiting to hear the PM’s decision, on 13th August 2017 an “unexpected” illegal eviction and arson operation was initiated in the Oloosek area of Ololosokwan and then continued all the way to Piyaya 90 kilometres further to the south. Beatings, arrests of the victims, illegal seizing of cows, and blocking of water sources followed. Women were raped by the rangers. Leaders first claimed not to have heard about anything other than an operation inside the national park, but soon surfaced DC Rashid Mfaume Taka’s illegal order dated 5th August that included “closely bordering areas”. Onesmo Olengurumwa of Tanzania Human Rights Defenders Coalition raised the alarm already on the first day of the operation, and I wrote a blog post. The councillor of Ololosokwan ward and the chairmen of Ololosokwan and Arash villages spoke up, but MP Olenasha, elected for his seriousness about land issues and trusted by many (me included) kept quiet, except for in social media briefly lamenting what was happening. The operation was officially funded by TANAPA and the criminal rangers were from Serengeti National Park, assisted by local police, NCA rangers, KDU (anti-poaching) rangers, and OBC rangers. A press statement from the Ministry, including the words by the DC didn’t hide the fact that the illegal operation was taking place on village land, and the aim was to protect conservation in the park, Loliondo GCA and the Serengeti ecosystem, and to protect the tourism business. The DC told the anti-Loliondo press that the evictions were not about the 1,500 km2, since that issue was awaiting PM Majaliwa’s decision. His apparent message was that evicting people and burning their houses 5 km inside village land, and along a 90 km stretch was just a normal and legal thing to do, if found convenient. Minister Maghembe, on the other hand, made up his own story and started pretending that the 1,500 km2 was a “Game Reserve”, and using the old map from the rejected land use plan, shamelessly lied and tried to slander Loliondo activists Manyerere-style without remembering what to say about each person, while the ignorant reporter on Azam tv giggled about being lectured by the minister.
The human rights abuse just went on and on, and wasn’t stopped even after an interim stop order by the government organ Commission for Human Rights and Good Governance (CHRAGG). After an eternity of extreme abuse, on 21stSeptember 2017, the villages of Ololosokwan, Kirtalo, Oloirien, and Arash filed the case in the East African Court of Justice, together with the application seeking urgent interim measures that were then issued by the court a year later on 25th September 2018.
In an awaited cabinet reshuffle on 7th October 2017 Maghembe was removed and Hamisi Kigwangalla appointed as new Minister of Natural Resources and Tourism. After some initial confused statements about Loliondo, Kigwangalla made a visit and on 26th October 2017 he stopped the illegal operation. Not only did he stop the abuse, but then the new minister spoke up about the corruption syndicate at the service of OBC, said he’d clean up his house, fired the director of wildlife, Songorwa, and announced that rangers at Klein’s gate that had been colluding with the investor would be transferred. He explained that OBC would have left before January 2018 never to be given another hunting block, and complained that the director, Isaack Mollel wanted to bribe him cheaply. Kigwangalla was an instant hero in Loliondo.
Then things went downhill and Kigwangalla announced in social media that he on 13th November 2017 received a delegation headed by the German ambassador and that the Germans were going to fund community development projects in Loliondo, “in our quest to save the Serengeti”. This was the money for the Serengeti Ecosystem Development and Conservation Project to be implemented by TANAPA (the official funders of the illegal operation, and whose rangers committed the human rights crimes) and Frankfurt Zoological Society (FZS, that have been working against Maasai land rights since the 1950s). This was also the money that Chief Park Warden Mwakilema had told the standing committee was subject to the alienation of the 1,500 km2. Alarm was raised in Loliondo that the district chairman, Matthew Siloma, would have signed secretly, which some already had suspected. To date, nothing has been heard from the Germans, at least not publicly, confirming or denying that they would be pushing for the destruction of the livelihoods of the Loliondo Maasai.
OBC never showed any signs of leaving, and on 6thDecember PM Majaliwa announced his decision at a meeting in Dodoma attended by some 60 people, and at the same time he explained that OBC were staying, but that Mollel would be investigated. The decision was neither a GCA 2009, nor a WMA, but a vague and frightening “special authority” to manage the 1,500 km2. Fortunately, further details and implementation have been delayed, and the only additional information that’s been shared semi publicly is that the “special authority” would be placed under the Ngorongoro Conservation Area Authority that keep the people of NCA at a deficient nutritional level through their ban on subsistence cultivation, and alienation of grazing area after grazing area.
In limited access social media, Kigwangalla confirmed that OBC were staying and that more such investors were needed with the new structure! Though he was still maintaining that the director, Mollel, was troublesome. In March 2018 on Twitter he welcomed Sheikh Mohammed and his crown prince on a brief hunting trip, and in May, when the Oakland report about Loliondo and NCA had been released, Kigwangalla had a complete Twitter meltdown insulting people, denying any wrongdoing by the government, and reaching the extreme of saying that Loliondo GCA was uninhabited! On 4th August 2018 Kigwangalla was seriously injured in a road accident, and has since only returned to talk about the brevity of life, about what’s important, and not, and to greet Prince William of England upon his Tanzania visit 27th September. I hope he’s had much time to think. OBC’s director, Mollel, is still around even if he’s keeping a low media profile.
As mentioned, the government (attorney general) side first responded to being sued using confused Kagasheki/Maghembe-style “arguments”, pretending that the 1,500 km2 would already be some kind of “protected area”, even if they seemed confused about what kind of area that would be. They also had a preliminary objection that the villages couldn’t sue the government, but this objection was struck down by the court on 25th January. Then, leading up to the court hearing on 7th June, there was massive harassment and intimidation on the ground in Loliondo, with the aim to derail the case, the village chairmen were prevented from attending the hearing since they were instead summoned to Loliondo police station, and now the court has fortunately issued interim measures to restrain this criminal behaviour. The government’s argument at the hearing on 7th June, besides the claims that the village meetings authorizing suing the government were fraudulent, seem to have changed to saying that the operation only took place inside Serengeti National Park, and this is also what’s argued in the affidavits. This is quite remarkable since the government’s own documents show that the operation with its human rights crimes was committed illegally on village land. It’s clearly stated in both the order issued by the DC, and the statement from the Ministry of Natural Resources and Tourism, and a map by TANAPA, shared mid-operation, of burned bomas (or bomas to be burned) show that, despite of the catastrophic drought that forced herders to enter the national park with their animals, an overwhelming majority of the bomas were burned on village land. Almost no bomas at all were in the northern parts of the national park, while a few to the south were in an area where the boundary is disputed.
It couldn’t be clearer that the 1,500 km2 osero belongs to the villages, that the loss of this land would have enormous negative consequences for the economic and cultural survival of the Maasai, and that they have already suffered far too much loss and abuse at the hands of authorities that always favour far more environmentally destructive foreign “investors” over its own citizens.