PUBLIC INVOLVEMENT IN ENVIRONMENTAL
DECISIONMAKING: TANZANIA
RUGEMELEZA NSHALA
Environmental Law Consultant
Research Report for the World Bank
1818 H Street, NW
Washington DC 20433
USA
January 2001
TABLE OF CONTENTS
1.0 Introduction----------------------------------------------------------------3
2.0 Constitutional Foundations of Environmental Rights In Tanzania----3
2.1Access to Information ------------------------------------------------------4
2.2 Freedom of Association
.5
2.3 Public Participation
.5
2.4 Right to Judicial Remedy
.6
3.0 Environmental Legislation and Management
8
3.1. National Environmental Management Act
..8
3.2 National Environmental Policy
3.3 National Forest Policy
3.4 National Human Settlements Development Policy
11
..11
.12
4.0 Environmental Impact Assessment in Tanzania
13
4.1. Laws Requiring Public Involvement in EIA
14
4.1.2. Marine Parks and Reserves Act
14
4.1.2. Mining Act
.15
4.1.3. Environmental Management For Sustainable Development.
Act; 1996
16
4.1.4 The Land Act, 1999 and the Village Land Act, 1999
18
4.1.5 Local Government (District Authorities)Act No.7 of 1982.
.. 19
5.0 Case Studies of Public Participation
20
5.1.Songo-Songo Gas Development and Power Generating
Project
20
5.2 Rufiji River Delta Prawn Project
.21
5.3. Bulyanhulu Gold Mining Project
..23
6.0 Conclusions
.26
7.0 Recommendations
..27
References
29
Endnotes
.30
1.0. Introduction
This analysis of Tanzania s legislation, trends, and experience with public involvement
in environmental decisionmaking founds that the environmental assessment process
stands on shaky legal ground, and that public participation is not required by law.
However, when public participation occurred, it offered valuable contributions.
The study recommends that Tanzania enact comprehensive environmental legislation that
incorporates environmental impact assessment, among other tools to protect the
environment. Such a law should entrench the right to public participation in the EIA
process and guarantee public access to environmental information. The paper
recommends that the World Bank should, as part of its Country Assistance Strategy, urge
the Tanzanian government to enact such a law as a matter of urgency. The paper also
suggests the need to amend legislation that curtails freedom of expression and public
access to information.
2.0 Constitutional Foundations of Environmental Rights in Tanzania
Tanzania is governed by the United Republic of Tanzania Constitution of 1977. In 1984
the Constitution was amended, and for the first time in the country s constitutional
history a bill of rights guaranteeing citizens fundamental freedoms was introduced. The
bill of rights only became operational in March 1988, however, as it was suspended for
three years to give the government time to amend conflicting laws and ensure smooth
operation of the new legislation. Nonetheless, to date only a few laws have been
amended. This has led the judiciary to declare certain laws that conflict with the bill of
rights to be unconstitutional.
Article 14 of chapter III of the Constitution establishes the right to life and its protection
by society. The High Court of Tanzania has on two occasions ruled that this right
includes the right to live in a clean and healthy environment. i In one of the cases the
presiding Justice critiqued the Dar es Salaam City Council for applying for a stay of
execution of a High Court decision stopping the Council from dumping waste in a suburb
of the city of Dar es Salaam. The justice stated:
I will say at once that I have never heard it anywhere for a public
authority, or even an individual, to go to court and confidently seek for
permission to pollute the environment and endanger people's lives,
regardless of their number. Such wonders appear to be peculiarly
Tanzanian, but I regret to say that it is not given to any court to grant such
a prayer. Article 14 of our Constitution provides that every person has a
right to life and protection of his life by the society. It is therefore a
contradiction in terms and denial of this basic right to deliberately expose
anybody's life to danger or what is eminently monstrous, to enlist the
assistance of the Court in this infringement.
Earlier, in the case of Sandhu Construction Co. Ltd v Peter M. Shayo,ii the High Court
ruled that:
Matters of public health are clearly more compelling than financial
considerations. Unlike financial loss, damage occasioned to health cannot
possibly be quantified. The position becomes even more serious when it is
considered that in ordering the crusher to re-open such order would
thereby not only be precipitating a health hazard to the entire
neighborhood, but also subjecting the victims to nuisance in the form of
noise and dust.
These cases show that although the right to a clean and healthy environment is not
explicitly spelled out in the Constitution, the judiciary has interpreted Article 14 of
Tanzania s Constitution to confer this right on citizens.
2.1. Access to Information
Article 18 of the Constitution gives citizens the right to receive and impart information,
but the enjoyment of this right is subject to other laws of the land. This and other similar
restrictions found in the constitution are known as exception clauses. Tanzania s
Constitution is laden with such clauses, which subject constitutional guarantees of
citizen s rights to other specific written laws. For example Article 18 states that:
Subject to the laws of the land, every person is entitled to freedom of
opinion and expression, that is to say, the right to freely hold and express
opinions and seek, receive and impart information and ideas through any
media and regardless of frontiers freedom from interference with
correspondences is also guaranteed. [emphasis added]
On several occasions the Court of Appeal has ruled that the exception clauses found in
the Constitution must be interpreted in a manner that does not subordinate the
Constitution to any other law. Courts have also insisted that the exception clauses should
be in conformity with the provisions of the Constitution.iii
Article 18(2) further states that every citizen has a right to be kept informed of
developments in the country and in the world which are of concern to the life of the
people and their work and of question or concerns to the community. This constitutes
the constitutional foundation for the public s right to access and receive environmental
information in Tanzania. Unfortunately, this provision is not reflected on the ground
because National Security Act No. 3 of 1970 gives the government sweeping powers to
classify information and thereby regulate its access by the members of the public.iv Under
the National Security Act, once information is classified it is only accessible to
authorized officers, who are government officials, thus excluding ordinary members
of the public from the right to access this information. The National Security Act makes it
an offense for members of the public to be found in possession of classified information.
Taking advantage of the law, government officials have tended to classify virtually all
information in their possession. In 1997, for instance, a journalist was jailed for being
found in possession of a letter from the Ruvuma Regional Commissioner to the Regional
Trade Officer directing the latter to deny the issuance of a business license to the
journalist. The journalist was later set free by the High Court, which ruled that that
directive was not a government document as defined by the Act, on the grounds that it is
not the duty of the government to deny business licenses to citizens.
Another piece of legislation that limits citizens right to access information is the
Newspapers Act of 1976. The Act defines as seditious the publication of information
criticizing the government or that creates dissatisfaction with the government. Despite the
heavy onus that is placed on the prosecution to prove sedition, many journalists have
been arrested and taken to court by the government for publishing news critical of the
government or disclosing government corruption and incompetence.
2.2. Freedom of Association
Article 20 of the Constitution provides for the freedom of assembly and association. This
is the constitutional foundation for political, labor, and civil society organizations in the
country. This right is somewhat circumscribed by the exception clause, which subjects it
to other laws. The Political Parties Act of 1992 regulates political parties, while a law
enacted in 1997 regulates trade unions, and cooperative unions fall under the Cooperative
Unions Act of 1991. Civil society groups, such as NGOs, are regulated by a draconian
piece of legislation called the Societies Ordinance of 1954. The law restricts the activities
of NGOs by placing them at the mercy of the Registrar of Societies, who can deregister
them virtually at will. A constitutional petition is pending in the High Court of Tanzania
in which the Tanzania Women s Council, best known by its Kiswahili acronym
BAWATA, took the government to court challenging its deregistration. BAWATA
argued that it had not been given the right to be heard, and was being forced to change its
constitution to change it from a mass movement to a research organization. BAWATA is
also challenging the constitutionality of the 1954 Ordinance, as it unduly restricts the
freedom of all NGOs to operate and pursue causes of empowering people and serving as
a watchdog over government activities. The case, although filed in 1997, has not yet been
decided because of endless legal objections put forward by the government.
2.3. Public Participation
Article 21 provides citizens with the right to take part in the governance of the country,
either directly or through elected representatives. When broadly interpreted this article
gives Tanzanians the right to be fully involved in the governance of their country; that is,
to play a role in the decisionmaking processes in Tanzania, including environmental
decisionmaking. The reality, however, is different.
The government has long relied on colonial principles and guidelines to deny the public
access to information. One of the colonial circulars often utilized is Government Circular
No. 1 of 1953, which states that consulting the public does not mean obtaining their
consent. This ruling arose from a stinging attack by the Trusteeship Committee of the
United Nations, which was dissatisfied with the way the colonial government was
making important decisions affecting peoples lives without consulting them. After the
end of colonial rule it was expected that the independence government would change this
circular and enact laws mandating popular involvement in decisionmaking processes. But
instead the government has pursued a policy of muzzling civil society by enacting laws
curtailing freedoms and undermining Parliament s efforts to effectively represent its
constituency.
In 1995 the situation worsened when the government amended the Constitution and
inserted in Article 21 a sub-article requiring any person seeking to run for office to
belong to a registered political party. This completely banned independent candidates.
The decision came after the High Court had ruled that a section in the Political Parties
Act of 1992, which allowed members of political parties to run for political office, was
unconstitutional. Sensing that it might lose the appeal, the government withdrew the
appeal it had filed in the Court of Appeal, and pressured the ruling-party controlled
parliament to amend the constitution.
Moreover, Tanzania does not have a Constitutional provision requiring the government to
hold a referendum when its wants to amend the Constitution or undertake a major policy
change. The government is of the view that Parliament is the only organ empowered to
carry out such a monumental task on behalf of the public. When the constitution requires
amending, the government appoints a presidential commission to investigate the issues
and consult members of the public to hear their general views and feelings on the issue.
The commission then prepares a report based on public views and its understanding of
the issues. The report and its recommendations are submitted to the government, which is
at liberty to accept or reject the commission s recommendations.
2.4. Right to Judicial Remedy
Articles 26 and 27 of the Constitution are particularly significant, as they address,
respectively, the duty to initiate public-interest litigation to ensure the observance of the
country s Constitution and legislation, and to protect the country s natural resources.
According to Article 26 every Tanzanian has the duty to ensure that the country s
Constitution is respected and upheld by everyone, and the article gives citizens the right
to institute public-interest litigation in fulfillment of that duty. Article 26(2) states:
Every person is entitled, subject to the procedure provided for by the law,
to institute proceedings for the protection of the Constitution and legality.
The High Court of Tanzania, in the case of Christopher Mtikila vs. Attorney General,v
held that public-interest litigation is allowed by that article, and that it is not necessary to
prove injury to institute a case vindicating public-interest rights. This was a case in which
the petitioner instituted a constitutional petition challenging the violations of his
constitutional rights to associate, to take part in the governance of the country, assembly,
and expression. The government opposed the petition by alleging that, among other
things, the petitioner lacked standing. Dismissing the government s objection the Court
stated:
I hold Article 26(2) to be an independent and additional source of standing
which can be invoked by a litigant depending on the nature of his claim.
Under this provision, too having regard to the objective thereof the
protection of the Constitution and legality a proceeding may be instituted
to challenge either the validity of a law which appears to be inconsistent
with the Constitution or the legality of a decision or action that appears to
be contrary to the constitution or the law of the law .It occurs to me,
therefore that Art. 26(2) enacts into our Constitution the doctrine of public
interest litigation.
The Court went on to look at the relevance of public-interest litigation in Tanzania and
found it to be a more promising strategy than others currently in place because the
majority of Tanzanian people are illiterate, and therefore unaware of their rights. And,
even when they are aware, their abject poverty means they do not have sufficient
resources to engage the service of lawyers. The court also stated:
Other factors should be listed but perhaps the most painful of all is that
over the years since independence Tanzanians have developed a culture of
apathy and silence. This in large measure is a product of institutionalized
mono-party politics, which in impressive dimension, like detention
without trial, supped up initiative and guts. The people found contentment
in being receivers without being seekers.
The government was not happy with the way the judiciary was using the bill of rights to
dispense justice, or the procedure the court had pursued in the absence of legislation
providing a procedure for vindicating constitutional rights. To stop the emerging judicial
activism the government in 1994 enacted the Basic Rights and Duties Enforcement Act
of 1994. The Act purports to provide a procedure for the institution of petitions
challenging the violation of basic rights and duties. But on the contrary, the Act curtails
the rights provided by the Constitution by creating a very cumbersome procedure, one
part of which is a requirement that a three-judge panel must hear any case filed to
vindicate constitutional rights. Given the shortage of judges in Tanzania, and the fact that
it is very difficult to harmonize their calendars, not a single case has been conclusively
determined under this law. The BAWATA case, one of the first cases filed under this law
in 1997, has up to now not been decided, due to the difficulty of getting three judges in
place.
In another interesting case 2,000 residents of the Rufiji River Delta opposed the
government s decision to allow the African Fishing Company to develop the world s
biggest prawn-farming project, and instituted a suit in 1998. This decision has never been
heard in full, as the panel of three judges has proven difficult to constitute and the
government has resorted to delaying tactics. However, a High Court judge had already
issued an interim order against the project until the case is finally determined. (See Case
Studies.)
Article 27 is of equal importance as it vests in the people of Tanzania the right to ensure
that their natural resources are utilized soundly, as every Tanzanian is a master of the
country s destiny. It states that:
 Every person is obliged to safeguard and protect the natural resources of the United
Republic, state property and all property jointly owned by the people, as well as to
respect another person s property.
 All persons shall be by the law required to safeguard state and communal property,
to combat all forms of misappropriation and wastage and to run the economy of the
nation assiduously, with the attitude of people who are masters of their own nation.
The foregoing establishes that there are solid constitutional grounds for environmental
rights in Tanzania s constitution, but that their enforcement is greatly circumscribed by
legislation that unduly circumvents these rights.
3.0. Environmental Legislation and Management
3.1.National Environment Management Act
National Environment Management Act No. 19 of 1983 established Tanzania s National
Environment Management Council (NEMC). The main function of the NEMC is to
advise the government on all matters relating to the environment. In particular, the
Council is enjoined to formulate policy on environmental management; coordinate the
activities of all institutions concerned with environmental matters; evaluate existing and
proposed policies and activities on pollution control and enhancement of environmental
quality; and recommend measures to ensure that government policies take adequate
account of environmental impacts. The Act also gives the NEMC power to formulate
proposals for legislation on environmental matters and recommend their implementation
by the government.
Section 7 (a) of the Act empowers the director general of NEMC to consider means and
initiate steps for the protection of the environment and for preventing, controlling,
abating or mitigating pollution. This provision confers considerable powers on the
NEMC director general, which, if used creatively, could be used to curtail many forms of
environmental degradation in Tanzania. As these powers have seldom if ever been used,
however, the director general s role has been interpreted as merely advisory.
The Act does not provide for environmental impact assessment; however, the NEMC has
over the years promoted the use of EIA as one way to control pollution in Tanzania. In
1997 the NEMC developed a set of Environmental Impact Assessment Guidelines and
Procedures, which, though not legally binding, were primarily designed to guide
developers in the initiation and implementation of development projects that do not
degrade the environment. The guidelines require that a preliminary report assessing
whether a proposed project will cause significant adverse environmental impacts be
prepared. This report, as in other jurisdictions, is used as an aid by the NEMC to
determine whether or not an environmental impact statement (EIS) should be prepared. If
the project is found likely to cause environmental impacts, the developer must submit an
EIS to the NEMC.vi
The guidelines and procedures outline three stages of EIS preparation, namely scoping,
preparation of terms of reference, and preparation of the final EIS. Scoping is required to
be performed by the project proponent or by his/her consultants to discern the main issues
of concern. This is to be undertaken in consultation with the NEMC, relevant sectoral
authorities, and affected and interested persons. The project proponent is required to
ensure that all interested parties are fully involved by giving them sufficient opportunity
to participate in the exercise. According to paragraph 2.3.1 of the guidelines, the overall
purpose of involving affected persons is to see how their views could be taken into
account in the terms of reference and EIA study.
To ensure that members of the public are fully involved in the process, the project
proponent is required to initiate a public information campaign in the area likely to be
affected by the proposed project, and to record any concerns raised by the members of the
public and address such concerns in the EIA.vii Volume two of the guidelines deals with
Screening and Scoping Guidelines, and elaborates on the requirement for a public
information campaign and the developer s responsibility for the scoping process, which
according to the guidelines must include the following information:
 Which authorities and members of the public are likely to be affected by the
proposed project?
 How will stakeholders be notified?
 What methods will be used to inform stakeholders of the project proposal and
solicit their comments?
 At what stage of the assessment process will opportunities be provided for
public participation and input?
The guidelines mandate public consultation whenever an environmental impact
assessment is being carried out. To this end the guidelines require that the project
proponent must, at least, consult with the principal stakeholders and inform them about
the proposed activity and ask their views about the project. When potentially problematic
activities are identified, more extensive consultation is warranted. The findings of the
entire process are supposed to be explicitly stated and shown in the EIA report.
The guidelines require the project proponent to comply with the public participation
requirements enumerated above. The project proponent must provide background
information on the nature of the proposed project (purpose, proposed actions, location,
timing, method of operation, and likely impacts) to assist interested and affected parties
to comment constructively and from an informed position during the scoping process.
(NEMC, 1997b, ibid., para. 2.3.1.) Paragraph 2.3.3 of the guidelines requires the project
proponent to establish a list of interested and affected parties, as well as to develop
methods of notifying them about the proposed project. The guidelines also require that
public concerns, interests, and aspirations feature in the record.
These guidelines, however, lack the force of law and fail to provide for redress when the
public consultation process is ignored. They offer no indication of what will occur if a
project proponent ignores the process. Extrapolating on this glaring omission, Lissu
argues that: The thinking behind this omission may have been that NEMC will enforce
the Guidelines and Procedures by withholding approval of EIA reports which have not
complied with the requirements. Given that the NEMC is under-resourced, with only an
office in Dar es Salaam, and bearing in mind that the guidelines have no force of law,
developers may be tempted to ignore the guidelines or to offer misleading information to
the NEMCthus defeating the purpose of EIA. If the NEMC were to base a decision not
to approve a project on environmental grounds, the door would be left open for a project
proponent to initiate a suit challenging the decision and the legality of the guidelines.
Moreover, while the NEMC is the environmental advisor and enforcer, its status is not
recognized by the emerging sectoral legislation calling for EIA. Neither the Mining Act
nor the Marine Parks and Reserves Act described below provide for NEMC involvement
in the review of the EIAs. Instead, these acts give the power to review EIA reports to the
Board of Trustees (in the case of Marine Parks and Reserves Act) and the commissioner
for mining and the minister (for the Mining Act). It might have been expected that EIAs
would be reviewed by the respective agencies in collaboration with the NEMC, with the
latter having the final word on the environmental impacts of the project. The respective
agency would then, based on the NEMC s environmental approval or rejection, approve
or reject the project. This is not, however, the case.
It is clear from the foregoing analysis, therefore, that EIA processes in Tanzania are
founded on shaky legal ground. This situation reflects the fact that the Government of
Tanzania is under pressure to allow powerful corporate interests to invest in the
exploitation of the country s natural resources, with minimum attention to
environmental considerations. The government s failure to enact legislation
guaranteeing public participation in the EIA processes has led to wanton environmental
degradation by both private investors and government-owned corporations.
3.2. National Environmental Policy
In 1997 the Government of Tanzania created a National Environment Policy. This was a
major step forward, as the country had long lacked a coherent national approach to
environmental issues. The policy, however, did not emanate from the NEMC, as the 1983
National Environmental Management Act demands, but instead from the Department of
Environment, located in the Vice President s Office, which has no legal power to
formulate policy. Nonetheless, it has become the nation s environmental policy, and was
ultimately passed by the Cabinet. The policy proposes, among other things, the enactment
of framework environmental legislation designed to coordinate the activities of various
government agencies dealing with different aspects of environmental protection. It also
calls for the entrenchment of EIA in the country s environmental law. It views EIA as a
planning tool to be used to integrate environmental considerations in the decisionmaking
process to avoid unnecessary damage to the environment. As a result the policy mandates
that environmental concerns receive due and balanced consideration in the process of
reconciling urgent development needs with long-term sustainability, before decisions are
made.
The policy calls for public participation in environmental matters, positing that
environmental issues are best handled with the participation of all citizens at the relevant
level. The policy states that:
Fundamental prerequisites for achievement of sustainable development is
broad public participation in decision-making, including the participation
of individuals, groups and organizations in environmental impact
assessment issues and in decisions, particularly those which potentially
affect the communities in which they live and work.
Although the policy was passed in 1997, until the present no law has been passed to put
these lofty pronouncements into practice; as a result the policy has done little to advance
environmental assessment and public participation in Tanzania.
3.3. National Forest Policy, 1998
Being one of the fourteen-biodiversity hotspots in the world, Tanzania is blessed with
about 33.5 million hectares of forest and woodlands. The two thirds of these hectares
consists of woodlands, which are on public land. 13 million hectares are forest reserves.
1.6 million hectares are under water catchments management (URT,1998;7). This
richness and the need of managing them sustainably moved the government in 1998 to
promulgate the National Forest Policy. The policy s goal is to enhance the contribution
of the forest sector in the sustainable development of Tanzania through the conservation
of its natural resources for the benefit of the present and future generations.
The policy reiterates the policy goals of the National Environmental Policy when it states
that:
Regarding public participation and education, environmental management must
be everybody s responsibility .The fundamental prerequisites for the
achievement of sustainable development is broad public participation in decisionmaking, including the participation of individuals, groups and organizations in
environmental impact assessments and decisions, particularly in those which
potentially affect the communities in which they live and work. viii
The policy acknowledges the importance of EIA as a planning tool that is used to
integrate environmental consideration in the decision making process in ensuring that
unnecessary damage to the environment is avoided. The policy states that EIA will be
undertaken for the investments aimed at converting forests land into other land uses or
those that might cause damage to the forest. EIA for the forest sector are to be prepared in
collaboration with other sectors and stakeholders. The policy recognizes the role of
NGOs in the formulation of forest related plans and programs. Likewise the policy calls
upon active involvement of local communities in the formulation forest planning and
decision-making.
It remains to be seen as to how these laudable proclamations of the policy on public
participation in the formulation of forest-related planning and decision-making will be
turned into action. While the policy recognizes the importance of EIA in ensuring that the
forest resources in the country are not degraded, the lack of framework environmental
legislation is a big impediment to the realization of its goals and sustainable development.
The amendment of the Forest Ordinance, 1959 to usher in public participation in the
environmental assessment and formulation of the forest related plans while welcome, is
not enough to guarantee sustainable forest management in Tanzania. The need for
framework environmental legislation and strong environmental agency are daylight truths
that the government of Tanzania cannot continue to ignore if it is truly committed to
sustainable development.
3.4. National Human Settlements Development Policy, 2000
This policy was passed in January 2000 by the cabinet after being moved by the Ministry
of Lands and Human Settlements Development. The policy was necessitated by the need
of providing the government with a roadmap for addressing the deterioration of human
settlements conditions in the country. Furthermore it is part fulfillment of Tanzania s
international legal commitments under United Nations Habitat Agenda II and the Istanbul
Declaration on Human Settlements Development. Among other things the policy aims at
protecting the environment of human settlements and of ecosystems from pollution,
degradation and destruction so as to bring about sustainable development. The policy
sees environmental protection especially in combating poor solid waste management,
crude dumping of toxic chemical compounds, industrial effluent discharges and air
pollution from industrial activities and gasoline emissions as imperative in guaranteeing
the well being of the Tanzanian people.
The policy, however, does not address, if at all, the importance of public participation in
the development of town planning schemes and also its participation in the EIA
processes, which again is not even mentioned in the policy but in Annex 1 of the policy
that deals with the strategies of effecting the policy directions. The strategy calls for the
performance of the EIA by industrial developer before construction or commencement of
the project. This is the main weakness of the policy as its failure to call for EIA and
guarantee public participation perpetuates status quo to the detriment of the Tanzanian
people. It is strongly argued that any law enacted to give effect to this policy must go
further and mandate environmental impact assessment and public participation on one
hand and provide elaborate provisions on public participation on the other.
4.0. EIA in Tanzania
Environmental Impact Assessment as an environmental management tool is a recent
phenomenon in Tanzania s environmental management regime.ix Of about 100 pieces of
legislation dealing with different aspects of environmental and natural resources
management, only two include EIA requirements. Mwalyosi and Hughes underscore the
unplanned and shoddy manner in which EIA has been undertaken in Tanzania. They
reveal that of the 50 documents described or purporting to be environmental
assessments only 26 were genuine. They argue strongly that EIA in Tanzania has not
been an intrinsic part of the projects concerned, but rather appears as an afterthought
relevant only for purposes of public relations. As a result the contribution of EIA to
project design and implementation appears to be marginal.
Analyzing EIA studies carried out for several hotels built in the Serengeti National Park
and Ngorongoro Conservation Areas, the two authors found that the studies were
commissioned on very short notice when detailed project designs had already been
prepared and severe time constraints were imposed on the EIA team in order to
minimize delays in the implementation project. As a result recommendations for
(modest) modifications were not considered acceptable by the lodge company, on the
x
grounds that the project design had already been completed.
Consequently, the authors found that one of the key recommendations of the EIA for that
projectthe integration of adequate liquid-waste treatment facilities into project
designhad clearly not been implemented, and the lodge was facing a considerable
problem in dealing with the disposal of such wastes. At the time of the evaluation visit,
wastewater overflowing from inadequate waste pits had created a new wetland
microhabitat. xi The study also found that some EIA reports appeared to justify, rather
than assess, the problematic issues associated with proposed projects. Some of these
shortfalls are likely to have occurred as a result of Tanzania s lack of comprehensive
EIA environmental legislation with clear guidelines on EIA preparation, review, and
approval.
Another important issue is that Tanzania lacks an institution with sole responsibility for
carrying out environmental impact assessment. The tendency and practice has been for
the sectoral institutions managing the resource involved to direct the investors to prepare
and produce EIAs for the proposed projects. For example, the Forestry Department is
responsible for EIA preparation in forestry projects. Once the investor produces the EIA,
it is submitted to the same institution that commissioned it. The sectoral institution may
opt to review it or submit it directly to the NEMC. Since the institution that
commissioned the preparation of the EIA report is also the approving institutionand thus
has in interest in seeing the project advance quicklythis procedure raises potential
conflict of interest issues.
4.1.Public Involvement in EIA
The two laws and two case studies presented below represent examples of how public
involvement in EIA has occurred in Tanzania. The first two examples are of cases in
which EIA was required by legislation covering a particular sector. The second two refer
to proposed development projects in which the public played very different roles; one
was a World Bank-sponsored project, the other was not.
Marine Parks and Reserves Act. In 1994 the Parliament enacted the Marine
Parks and Reserves Act, which was intended to provide for the establishment,
management, and monitoring of marine parks and reserves, as well a Marine Parks and
Reserves Unit. The Act requires the involvement of representative organs of local
communities, such as Village Councils. It obligates Unit Managers or park wardens to
specify a list of villages in the vicinity of the park or reserve that affect, or are affected
by, the facility. The list should also include other villages whose population regularly
uses or affects the marine park or reserve.
4.1.2.
The law requires the minister for conservation of natural resources to specify a minimum
distance from the boundaries of a marine park within which all villages must be included
when preparing a general management plan for the park. One commentator noted:
It appears that the purpose for inclusion in the said list is to facilitate
consultation with Village Councils. This is because the latter must be
notified upon specification under this section and the Unit Manager and
the Warden must convene a meeting of the Council to deliberate on such
notification.xii
The law s mandatory provisions require that village councils be involved when by-laws,
zoning, and general management plans of the marine parks are being formulated. Village
councils also have an advisory role in matters relating to the management and conservation
of parks or reserves, and act as a liaison between the village communities and the unit
manager, warden, advisory committee, and board of trustees.
Evidently the law does not require direct involvement by villagers, preferring instead
indirect representation by the village council, which according to Local Government
(District Authorities) Act No. 7 of 1982 is a village government. This is typical of
Tanzanian government practice, which tends to prefer dealing with small organs that can be
more easily manipulated and controlled. Village Councils are comprised of 25 people, while
the larger village assembly is composed of all adults in the village. Thus it is safe to say that
the Act does not provide sufficient room for public participation.
Section 16 (2) (a) of the Marine Parks and Reserves Act requires that an environmental
impact assessment to be carried out for certain activities to be undertaken in marine parks,
stating:
No authority shall allocate land and put to new use any area within a buffer
zone unless an assessment of the environmental impact of the proposed
activity is conducted pursuant to legal requirements, policy, practice or
pursuant to any applicable general management plan or regulations made
under this Act.
In addition section 16(2)(b) requires written notification of the proposed allocation of land
or new use to be submitted to the warden or unit manager at least 30 days prior to
preparation of the EIA. And where it is apparent that the proposed activity has negative
effect on fish, animals, water, aquatic flora, vegetation, or aquatic substrate the Act, instead
of prohibiting the activity or calling for mitigation measures by the project proponent, defers
to the Board of Trustees for advice.
The Act, then, is a weak piece of legislation that fails to provide a mechanism for EIA
enforcement. It also fails to call for essential EIA requirements, such as public participation,
access to information, and access to justice. Instead the Act defers to government
agencies expertise and views. Nor does the Act require that management organs of
marine parks or reserves make relevant information available to stakeholders (villagers,
NGOs, and other interested parties) to facilitate their participation in the EIA process.
4.1.2. The Mining Act. In 1998 the parliament enacted a Mining Act.xiii This
legislation makes extensive provisions for environmental management of mining
activities by introducing mandatory environmental management plans. As a condition for
granting various categories of mining licenses it requires that an EIA prepared by
independent consultants of international standing be submitted to the minister of mines.
The Act allows citizens groups to challenge a project proponent s failure to comply
with environmental management plans and EIA requirements.
The most glaring omission of the 1998 Mining Act is the absence of provisions for public
participation. As one legal scholar observed, despite the stringent requirements for EIA
and EMP preparation, the absence of public participation provisions in the law represents
a big lacuna, especially since the law grants wide and unfettered discretionary powers to
the minister, thereby providing fertile ground for corruption.xiv
Acknowledging the progressive provisions in the Mining Act, it nonetheless fails to
mandate public participation in environmental impact assessment or the formulation of
environmental management plans. The powers conferred on the minister to dictate the
terms of mining agreements represent a major flaw in the legislation. For the mining
industry to play a major economic rolewithout compromising or seriously degrading the
environmentit will be necessary to amend the law and guarantee public involvement in
the EIA process
4.1.3. Environmental Management For Sustainable Development Act;1996
On the 2nd of April 1996 the House of Representatives of Zanzibar passed this landmark
environmental management legislation in the island of Zanzibar. Zanzibar is a semiautonomous part of the United Republic of Tanzania. It has got its own government,
Parliament and Judiciary. The provides for the duty of every person to promote its
purposes which are to maintain basic ecological processes of land, water, and air,
promote the use of sustainable use of renewable natural resources, promote the
institutional capabilities for protecting the environment. The Section 6 of the Act
provides for the right to clean and healthy environment and the duty to maintain and
enhance that environment. The Act goes further to require that the utilization of
renewable and non-renewable resources must be guided with the principle of sustainable
development. Thus planning of renewable and non-renewable natural resources
management must be participatory and integrated.
The Act establishes a special Committee of the Revolutionary Council on Environment
and proclaims it to be the highest decision-making body on environmental matters in
Zanzibar. The Chief Minister, who together with unspecified number of members
appointed by the President of Zanzibar forms it, chairs it. It is charged with resolving
disputes pertaining to environmental protection, and it is the final decision-making body
on environmental matters. The Act also establishes the Department of Environment
(DoE) under the Ministry of Environment. The Department is a corporate body with
powers to sue and be sued. It is charged with many responsibilities one of which is to
manage and regulate environmental impact assessment requirements and procedures and
to facilitate public participation in attaining the objectives of the Act by empowering and
encouraging people to protect their environment (See. Section 19(1) (n)).
The Act requires of public involvement in the formulation National Environmental
Action Plan and local environmental action plans. It goes on to provide for the right of
any person to petition the Director of Environment for the preparation local
environmental action plan. Once approved the national and local environmental action
plans do bind both the government and all person. The community itself can only vary a
local environmental plan. The community must be consulted and has the right to
participate, through designated representative, when a decision of allowing
developmental activity in areas inside or outside that might have adverse effect of its
area. Again the public has the right to participate in the formulation of the Integrated
Coastal Area Management Plan and to petition its formulation by the Minister.
Part V of the Act provides the procedure for carrying out the Environmental impact
Assessment. EIA is required under section 38(1) and (2) for any activity, which is likely
to have a significant impact on the environment. Activities requiring an EIS are
prescribed under schedule 2 of the Act and they include: development of a major
residential area, operating a manufacturing industry with hazardous wastes and byproducts, operating a power generation plant, oil refinery, sewage treatment and disposal
system, operating water supply system, solid waste disposal system, development of an
area in a port, harbor or marina, land reclamation, development of hotel or resorts of 100
beds of more, irrigated agriculture of more than 20 hectares or more, aquaculture,
developing environmentally sensitive areas, including forests, mangroves, small islets
and water catchments and the degazettment of an area so protected by the laws of
Zanzibar.
Under Section 39 any person including the government is required to submit an
environmental report stating concisely the nature of the activity that is going to
undertake, including the description of the production process, number of people to be
employed. Upon receiving the report the Department of the Environment is supposed to
agree with the project proponent on the scope of the EIS (environmental Impact
Statement). Upon receiving the EIS the Department of Environment is supposed to
circulate it widely to other government organs for written comments, notify the public of
the time to review the EIS and submission of written comments and also must get the
views of the people who might be directly affected by the project. The comments period
is between 20 and 30 days. The DoE is supposed to finish its review of the EIS within 30
days thereafter. DoE is required by the law to take into consideration the comments
received on the EIS from the public.
The DoE is given powers to approve the EIS, request for more information or disapprove
the activity and refuse to issue an EIA certificate. The project proponent or the relevant
government organ may appeal against the decision to the Minister for Environment.
While making her decision of whether to allow an appeal or reject it the Minister in her
discretion may invite public comments. (S. 51(2) In making her decision the Minister is
required to give reason for her decision and must show that she has taken into
consideration the views from the DoE. It is not clear however that the Minister must
show that she is required to show that she has taken into consideration the public
comments she might have received under S. 51 (2). The minister s decision may be
appealed to the Committee whose decision is final.
Section 109 gives the public the right to enforce the Act by either petitioning the relevant
enforcing agency stipulated under section 107 of the Act which are: (the Ministry of
Health on all matters relating to air and noise pollution; Ministry of Water on issues
relating to water quality and pollution, Ministry of Fisheries on matters pertaining to
sustainable use of fish and marine resources, Ministry of Forests and Wildlife on forests
and wildlife matters, and the Ministry of Environment on all other matters pertaining to
environmental media); or the Court of law. It is not defined which court one could file
her case while exercising her right to enforce the Act. The Act provides for the right to
recover costs for any person who successfully moves the court to enforce the provisions
of the Act. Under the Act a person includes any individual or group of individuals
whether formally or not registered for environmental purposes and any community which
has prepared a community environmental management plan. It is interesting to note that
under the Attorney General is required to designate Stare Attorney responsible for
environmental matters in Zanzibar. She is required among other functions to represent the
public welfare in all lawsuits concerning the violations of the Act, and also to file civil
actions for the reparation of damages. These functions it is submitted do not take away
the public right to institute legal proceedings aimed at ensuring that the provisions of the
Act are complied with. Thus suits filed by the State Attorney can exists or be
consolidated by those filed by members of the public. The duties of the State Attorney
exist along side with that of the public and thus they compliment each other.
There is no case law on this Act yet suffice to say at this juncture that the Act, though
weak in the respect of designating the Special Committee of the Revolutionary Council
on Environment as the final decision-making body on environmental matters in Zanzibar
(which lacks necessary expertise in the field), provide sufficient avenue for public
participation in the preparation of environmental action plans and environmental
assessments. It also provides the right to enforce the law. Mindful of the fact that
Tanzania, and Zanzibar in particular, has a very low level of literacy it is not difficult to
see that the public is not able to offer meaningful contribution during the EIA process.
The Act does not specifically provide as to which language the EIS should be in and thus
if the EIS is conducted in English, which is always the case, a language that the majority
of the people in Zanzibar are not conversant with, then the public will be unable to
participate fully and offer an informed opinion. It is strongly submitted that the Act be
amended to require that an EIS be prepared in both Kiswahili and English. In addition,
that Act be amended to designate the Department of the Environment to be the one with
the final word on environmental matters in Zanzibar and thus any appeal should lie to the
High Court of Zanzibar and later on to the Court of Appeal of Tanzania
4.1.4.The Land Act, 1999 and the Village Land Act, 1999
The Tanzanian Parliament enacted the two pieces of legislation into law on the 11 th of
February 1999. The laws were necessitated by land conflicts in the country that could not
be solved under the Land Ordinance, 1923 which was enacted by the British Colonial
government. In 1990 the President of the United Republic appointed a Presidential
Commission of Inquiry into Land Matters that was led by Prof. Issa Shivji, a
distinguished academic and lawyer. In December 1992 it presented its findings to the
Presidents and recommended a new land law that would ensure maximum participation
of the public in all decisions pertaining to land management and allocation. The
Commission also called upon for creation of an independent and democratic land
management institution and removing the radical title from the president to the Land
Commission directly answerable to the Parliament. The Commission went ahead to
recommend of the establishment of land courts from village levels, to the national level.
The courts in the village were to apply the customs and traditions of the village in
question but while ensuring that the principles of gender equality are strictly observed
during deciding land conflicts. The recommendations to take away the radical title from
the President were not well received by the government. The government instead
appointed a foreign consultant to draft the new law. The law was debated somewhat
widely though the government made sure that its views prevailed. Due to the difficulty of
administering land under granted right of occupancy and customary law it was decided to
have two pieces of legislation one dealing with general land and reserved land on one
hand (granted rights of occupancy) and village land (customary law) on the other.
The laws declare all land in Tanzania as public land and vest it to the President as a
trustee for and on behalf of all citizens of Tanzania. The law requires the President and
all his or her delegates to discharge their land management duties as the trustee of all the
land in Tanzania so as to advance economic and social welfare of the citizens. The laws
incorporate the fundamental principles of national land policy of 1995. In the principles it
is stated that the government must ensure that the land is used productively and any such
use complies with principles of sustainable development. Again the principles calls for
the public participation in decision making on matters connected with land management
in the country.
The Village Land Act calls for the involvement of the village assemblies, comprising all
adult members of the village, in all decisions pertaining to the management of village
land. The Village Council (village government) is partly answerable to the village
assembly. For example, the village assembly must approve land allocation of village land
to any person in the village. The Village Council in its management of the village land is
supposed to have regard to the principles of sustainable development. The Acts do not
call or even mention environmental assessments but suffice to say since the Acts call
upon the relevant authorities to have regard to the principles of sustainable development
in their daily administration of the land then environmental assessment and public
participation, which are some of the principles underlying sustainable development, are
recognized by the Acts.
4.1.5. Local Government (District Authorities) Act No.7 of 1982
In 1972 Tanzania abolished the local government structure and created regional and
district authorities that were directly accountable to the Central government instead. The
entire exercise was dubbed decentralization but in fact it was centralization at local
levels. By the end of 1970s it was apparent that the regional and district authorities had
miserably failed to execute their mandate and the public was far removed from their
government than ever before. In 1982 the parliament enacted the Local Government Act
Nos. 7 & 8 establishing city, town, and village councils in all parts of Tanzania
(Mainland). The Acts endeavored to create strong and effective local governments that
were more autonomous in managing their own affairs, which operated in democratic and
transparent manner. The local governments were required to be accountable to the
people.
The Local Government Act No.7 of 1982 gives the minister, responsible with local
government, powers to establish district councils while powers to establish and register
villages are vested with the registrar of villages who is so appointed by the minister.
Section 111A (1) (b) of Act requires local governments to promote and ensure
democratic participation in, and control of decision-making by the affected people. The
local governments while discharging their functions under the Act are supposed to protect
the environment so as to bring about sustainable development. This requirement was
entrenched into the Act in 1999 during the major amendment of the Act following the
public outcry over the poor performance of local governments in the country and the need
to give them more powers and ensure that they are more accountable to the people.
The Act introduces public hearings, which the local governments must conduct whenever
they want to carry out a scheme of major public interest. The Act does not, however,
define what is a scheme of major public interest. It is submitted that this might involve
investments in the district and village owned natural resources; works that might impact
water catchments, road construction, factory constructions that might lead to
environmental pollution or those that might impact the daily lives of the people in the
district or village in question. Section 11IB requires the minister for the purposes of
ensuring effective, efficient, and participatory running of the affairs of the local
government to promulgate regulations governing public hearings. So far these regulations
have not been promulgated. It is this authors view that public hearing provide an avenue
for the public to participate in environmental assessment and ensure that the people views
are taken into consideration whenever local governments make any decision touching on
environmental management in the district. It is an avenue that must be encouraged to
grow and that the law should be amended to provide for more elaborate procedures on
their holding and not to be left at the discretion of the minister.
5.0. Case Studies of Public Participation
5.1. Songo-Songo Gas Development and Power Generating Project. This project
was proposed by SONGAS, a limited liability company, between Ocelot Energy Inc. and
TransCanada Pipelines Limited, IFC, CDC Project Partners, Tanzania Development
Finance Limited, Tanzania Petroleum Development Corporation (TPDC) and Tanzania
Electrical Supply Company Limited (TANESCO). The World Bank and the European
Investment Bank are financing the project under a loan agreement with the Government
of Tanzania, lending $198 million and $37 million, respectively. The overall aim of the
project is to generate 146 megawatts (MW) of electrical power from the natural gas found
on Songo-Songo Island, located about 240 kilometers south of Dar es Salaam. The
project involves the construction of 25 marine kilometers and 217 kilometers of land
pipeline from Songo-Songo island to the capital city. The total project cost was estimated
in 1996 at US$310 million.
The project was classified as Category A, and an environmental impact assessment
was carried out by a Canadian consulting company, HBT-AGRA, Ltd., for the Ministry
of Water, Energy and Minerals (MWEM). Because there were, at that time, no national
legal requirements for conducting an EIA, the process followed the World Bank s
international environmental protection guidelines (1991a and 1991b) and Canada s
environmental law requirements.
To carry out the EIA, HBT-AGRA included a team of experts from the Ministry of
Water, Energy, and Minerals; TPDC; TANESCO; Ocelot Tanzania Inc.; Trans-Canada
Pipelines Limited; and six academics from the University of Dar es Salaam. A
participatory approach was used to carry out the project design and the EIA. The World
Bank and MWEM prepared the project. There was some form of public participation,
including consultations with government ministries and departments, academics from the
University of Dar es Salaam, and key stakeholders such as local governments where the
project would be carried out and a few NGOSone of which became a project consultant.
Interviews with government officials and the investor indicate that leaders of villages
where the project pipeline would pass were consulted, and that villagers whose properties
and land would be destroyed and acquired were involved and adequately compensated.
The EIA, however, was not complete, so further studies were carried out by SONGAS
(the successful bidding company). SONGAS came into the picture after the EIA
commissioned by the MWEM and carried out by HBT-AGRA was in its final stages.
Both the World Bank and SONGAS required more information on issues not adequately
addressed in the EIA report. As of this writing the EIA report is still being reviewed by
an NEMC Technical Review Committee (TRC), which has called for the completion of
all studies to enable the committee to make a final recommendation to the NEMC
Director General.
During the period when the EIA was being conducted very few environmental NGOs
were in existence in Tanzania, so few NGOs were consulted and some lacked a deep
understanding of environmental issues. Moreover, only one public hearing was held
during the presentation of the EIA report.
5.2. Rufiji River Delta Prawn Project. The Rufiji River project was not supported by the
World Bank, but due to the controversy surrounding it and the fact that it successfully
brought the importance of EIA into the public domainit is a good example of the
positive impact of public involvement. The African Fishing Company (AFC), a Dar es
Salaam-based company, sought government permission in 1996 to be allocated 10,000
hectares of land in the Rufiji River Delta. The Delta is the largest in Eastern Africa, and
contains the largest estuarine mangrove forest on the continent s eastern seaboard.xv The
Delta is also home to about 30,000 people whose livelihoods depend on farming and
fishing on the rich waters of the estuary. The public became aware of the project in May
1996, when AFC submitted its environmental impact statement for discussion in a
seminar held at the Sheraton Hotel in the capital. Some villagers from the Delta were
bused to the meeting by AFC. In the audience were officials from government
institutions, environmental groups, academics, and chairmen of the villagers in the Rufiji
River Delta.
The EIA did not receive a warm reception; on the contrary, opposition was fierce. The
EIA alleged that no people would be displaced by the project. This was disputed by two
Norwegian academics working for the Rufiji Delta Mangrove Management Project, who
showed that 6,000 people would be displaced since about 4,000 hectares of mangrove
would have to be clear-cut to pave way for the project. A thorough EIA was demanded,
and AFC submitted an EIA document to the government in April 1997. The EIA team
constituted by AFC included experts drawn from different disciplines and institutions.
The report stated that the project was to be financed by the European Development Fund
(EDF) and European Investment Bank (EIB) under a credit facility amounting to US$180
million. The AFC argued that the project would be not only socially beneficial, but
economically sound, as it would generate between US$200-300 million annually.
The EIA also pointed to negative impacts of the project, which included mangrove
clearance, pollution from the disposal of wastewater effluents, contamination of
freshwater sources and agricultural land from the intrusion of seawater, and the possible
outbreak of infectious diseases. These impacts were to be mitigated by replanting of the
cleared mangroves, use of solid waste for road construction and earthwork repairs, and
close project monitoring. The report raised more controversy, as it was later discovered
that the experts never visited the area and the facts were falsified to suit AFC s interests.
To salvage the situation the government in June 1997 instructed the NEMC to undertake
a review of the EIA report. The Council was instructed to assemble a team of experts
from different government agencies, academic institutions, and foreign experts, as well as
to take into account laws and policies addressing marine and coastal areas. NEMC s
review team found that the EIA contained substantial errors, omissions, and
misrepresentations. The review report found that no money had been set aside to
compensate the people to be resettled or for the social services promised by the AFC to
residents. In regard to the economic benefits the project would bring to the nation, the
review team found that AFC s foreign exchange projections were grossly inflated, while
its estimate of the number of jobs to be created had been exaggerated twofold. In
conclusion, the team found that the area was economically better off without the project.
The review team was not pleased with the way top government officials had openly
campaigned for the project. The report was also critical of the way that the AFC had
treated the views and fears of the Rufiji residents. The EIA report had stated that: local
people should understand that the onus of approving any big projects lies with the Central
Government Thus [they] cannot have much say in big projects like the anticipated
one [because] their ability to analyze large projects is limited. xvi These comments
strengthen the assertion that public consultation in Tanzania has never been treated
seriously. Moreover, the project was found to violate various national laws, including the
Marine Parks and Reserves Act of 1994, the Forest Ordinance of 1959, and the Land
Acquisition Act of 1967. The review team recommended to the government that the
project should not be approved.
However, the government was unmoved by these findings and on November 30, 1997,
approved the project. It is important to note that while the Cabinet had approved the
project only in one of the six sites proposed by AFC, the Minister for Natural Resources
and Tourism communicated to AFC that it was allowed to undertake the project in all six
sites.
Members of the public and the donor community mounted criticism of the process by
which the government reached its decision. The Minister for Natural Resources told the
media on January 24, 1998, that the government decision on the project was final. The
residents of Rufiji had no alternative but to institute a civil petition challenging the
government decision for violating their constitutional rights and ignoring the NEMC
findings. In April 1999 the High Court of Tanzania issued an order to maintain the status
quo, virtually stopping the project. The Lawyers Environmental Action Team (LEAT, a
public-interest environmental law organization based in Dar es Salaam) is litigating the
case for the 2,000 residents of Rufiji. A year later, the investor was reported to be busy
selling assets and retrenching workers because the would-be financiers, due to public and
donor pressures and the High Court order, have lost interest in the project.
The Rufiji case study shows that when the public is involved, the EIA process in
Tanzania is capable of offering informed opinion. It also shows that lack of an
environmental enforcement agency in the country has paved way for political decisions,
tainted by corruption, to take precedence over critical environmental concerns. This
context permitted the government to ignore the NEMC findings, without even
commissioning a study to disprove them. The case also highlights that courts are ready to
intervene and offer effective remedy when approached by members of the public. But for
such a process to be effective, members of the public need the assistance of
environmental law organizations and lawyers capable of arguing their case.
5.3. Case No. 3: The Bulyanhulu Gold Mining Project
In 1975 the villagers in Bulyanhulu area, Kahama District Shinyanga Region, North
Western Tanzania, discovered gold in the area. These villagers owned the land under
customary land rights. In Tanzania land could either be owned under the granted right of
occupancy or customary law (deemed right of occupancy). The discovery of gold led to
the start of artisanal gold mining activities in the area. Likewise the Tanzanian
government through the State Mining Company (STAMICO) in collaboration with
foreign companies from 19977 to 1992 carried out extensive gold prospecting activities
so as to ascertain how much gold reserve was in the area. Doing so it allowed artisanal
miners to continue their gold mining activities. However most of the mined gold were
smuggled out of the country and sold for higher price than the one obtainable in
Tanzania. This necessitated the government of Tanzania s decision in April 1990 to
introduce gold selling and purchase by the Central Bank and the National Bank of
Commerce (NBC). In 1992 required all the artisanal miners in Bulyanhulu to from a
committee that would oversee gold mining and its selling into the designated banks.
In August 5 1994, however, a strange twist of events occurred, as the government of
Tanzania awarded Kahama Mining Corporation Limited (KMCL) a subsidiary of Sutton
Resources (a Canadian Company) a prospecting licence No. 216/94 over an area known
as Butobela in Geita District, Mwanza Region. The government did not even demand an
environmental impact assessment from KMCL before it was given the prospecting
licence and as a result KMCL did not conduct an Environmental Impact Assessment over
Butobela and areas adjacent to.
KMCL while knowing categorically that it has no any legal right over Bulyanhulu it used
its licence over Butobela to claim the immediate expulsion of artisanal miners (who it
dubbed as the illegals ) in Bulyanhulu, which it claimed to be its allocated area by
virtue of Licence No. 216/94. The government of Tanzania fell prey to this falsehood. In
1994 it started issuing statements to the effect that artisanal miners who together with
their families about 400,000 people must vacate the area as it belonged to KMCL.
In 1995 KMCL opened a civil suit against the small-scale miners and their committee and
prayed for their eviction in the area. The High Court of Tanzania refused the application
and demanded the issue of right to property, fair, prompt and adequate compensation be
heard and decided by the panel of three High Court judges. KMCL and the Tanzania
government were not pleased with the decision and decided to evict the artisanal miners
by force regardless the High Court order. On the 2nd of August 1996 the small scale
miners upon being ordered by the Government to leave Bulyanhulu, within 12 hours on
the 30th August 1996, successfully petitioned the High Court of Tanzania to issue another
injunction order against the government and KMCL on their evictions. Despite the
injunction order the government and KMCL went ahead with massive evictions of the
artisanal miners and as a result more than 65 artisanal miners are alleged to have been
buried alive in the mining pits. The issue of forceful evictions without fair, adequate, and
prompt compensation and the alleged burials of the small miners dominated the local and
international media. Yet KMCL and the Tanzania government proclaimed to the entire
world that the evictions were done in a peaceful manner and that no one was buried alive.
In 1997 to 1998 an Environmental Impact Statement was conducted by NORECOL,
Dames and Moore and it was commissioned by KMCL and its parent company Sutton
Resources, in the quest to obtain the political risk cover from the World Bank and the
Export Development Corporation of Canada. The EIA was conducted after the massive
evictions of the residents in Kakola and Bulyanhulu area. There were no public hearings
and only village leaders, district officials and other government functionaries were the
ones who were consulted. Very few NGOs were consulted and as the Songo Songo Gas
attests the same environmental NGO that participated in the review meetings of the EIA
in Dar es Salaam provided a bulk of local experts who conducted the EIA. The
Schoolteachers were used in data collection and also for translation.
The Terms of Reference were never made public to the residents in area. As a result the
EIA never addressed the issues of illegal license that KMCL had over Bulyanhulu,
forceful evictions, resettlement and fair, prompt and adequate compensation to the
evicted artisanal miners and the alleged killings. One EIA expert who independently
reviewed the EIA documents prepared by KMCL had this to say:
In many cases the EIA (Environmental Impact Assessment) documents lack
necessary information to evaluate what the environmental impact will be and how
the company will prevent or mitigate these impacts. For this reason, the EIS
(Environmental Impact Statement) and EMP (Environmental Management Plan)
for the project would very likely not have been approved in the U.S or
Canada Persons potentially affected by the mine have reason to question why
authorities in Tanzania would approve the EIA and the EMP for such a profitable
project when the probable environmental Problems are not well described and
methods and funding for treating these problems are largely absent from the
document xvii (Miller, G. 2001)
The Multilateral Investment Guarantee Agency (MIGA) did in 1998 send a team of three
experts to conduct due diligence before approving Sutton Resources application for
political risk cover. The three-persons team toured the area and met the representatives of
the evicted artisanal miners. In the meeting the Team never asked the issue of forceful
evictions, alleged killings it only wanted to know how much gold the artisanal miners
used to get and how much money they were getting and how they used the money.
In March 1999 Sutton Resources sold KMCL to another Canadian Company known as
Barrick Gold Corporation for $500 Million and it pursued the application for political
risk cover with MIGA. In September 2000 MIGA granted $115 Million to syndicate of
banks for the loan to KMCL and $56 Million to Barrick Gold. Gold mining in the area is
expected to last for 15 years with Barrick Gold obtaining $3 Billion while the Tanzanian
government getting only $75 Million!
In year 2001 the Lawyers Environmental Action Team (LEAT) filed an Official
Complaint to the Compliance Advisor/Ombudsman of MIGA/IFC over the forceful
evictions of Bulyanhulu residents and artisanal miners, illegal licence, the violation of the
High Court injunction, non-resettlement of the residents, failure to offer adequate and
prompt compensation to artisanal and in the process asked for the suspension of the
political risk cover as its issuances under the circumstances violated the laws of Tanzania
and MIGA policies. The Ombudsman has accepted LEAT complaint and will be
conducting investigation over the complaint before issuing her Report to the World Bank
President.
This case shows clearly the importance of conducting thorough environmental impact
assessment to not only address the environmental concerns but also the legality of the
project in question and human rights issues. That the forceful removals of the artisanal
miners and alleged killings were not disclosed by KMCL nor discussed in the EIS
submitted to MIGA cast a lot of doubt as to the authenticity of the entire EIS. The World
Bank must be cautious of any EIS that does not provide details as to how the public was
involved in the EIA process and how they actively contributed to its performance. The
failure of MIGA Team that conducted the due diligence to deal with these pertinent
issues that were in the public domain shows how unconcerned MIGA is to the plight of
the indigenous people whose policies are supposed to protect. There is an urgent need for
the World Bank to ensure that it practices what it preaches so as to not fund projects
tainted with gross human rights violations as the Bulyanhulu Mining project.
6.0. Conclusions
Some general conclusions can be drawn from this discussion of Tanzanian law and practice
on environmental assessment and its attendant attributes: public participation, access to
information, and access to justice. First, it is clear that these rights have firm constitutional
foundations, as both the Constitution and the jurisprudence that has developed around the
Bill of Rights have expanded the scope of the rights.
Second, the policy processes that have taken place since the Rio Summit have not been
consistent in their articulation of these rights. Policy documents acknowledge the need to
foster public participation, but no implementation mechanisms have been articulated and, as
a result, public participation has not been institutionalized. Access to information is
interpreted in policy documents as a technical problem of generating and disseminating
information gathered by experts and technical agencies, rather than as a political question
calling for opening up decisionmaking processes to the light of public scrutiny. As for
access to justice, the policy documents are conspicuously silent on the need for access to the
courts of law and other impartial judicial organs to enforce environmental rights.
Third, the development of Tanzania s legal regime for EIA leaves much to be desired.
There is no comprehensive legislative requirement for EIA across all sectors; although
sectoral legislation requiring EIA is slowly emerging. As a result there are many gaps and
loopholes in the law, which are exploited to the detriment of the environment and local
communities. For instance, there are no EIA requirements for development in protected
areas, such as national parks and forest reserves, or for foreign investment generally.
Even sectoral legislation requiring EIA does not spell out procedures and guidelines for
implementation.
Fourth, the legal regime for EIA does not incorporate the rights to participation and
access to information and justice as central tenets. Whereas legislation defines mandatory
requirements for EIA, the requirements for public participation and access to information
are missing in most cases. Where they exist, they are implemented as a matter of
administrative policy rather than as legal requirement. Even when the law provides
opportunities for redress, it has been weakened by provisions that prevent full access to
courts of law by relying on administrative tribunals, or require foreign arbitration of
disputes. These avenues for redress are thus dominated by either the executive branch,
whose impartiality is questionable, or by foreign arbitration panels, whose accountability
is doubtful.
Fifth, given the ad hoc nature by, which EIA law has developed, practice has been
equally sporadic and inconsistent. When opportunities for public participation have been
utilized and information made accessible, the level of public input and participation has
been quite impressive. Some projects have been stopped through public action, averting
environmental harm. But in many other projects, where public participation was not
encouraged and information was hidden from the public, decisions to approve projects
led to public resentment and opposition, and even the tragic loss of life.
7.0. Recommendations
For EIA to gain a firm legal ground in Tanzania there is an urgent need to enact a
comprehensive environmental law, or framework legislation, that not only mandates the
undertaking of EIA for all projects likely to have significant environmental impact, but
also require public participation and access to information as a matter of right.
Another urgent need is the creation of a strong environmental enforcement agency with,
among other powers, final say on the EIA regime. Creation of such an agency would
remove all the controversies that have surrounded EIA practice in Tanzania. Apart from
having the final word on EA, the agency should also be susceptible to public scrutiny and
oversight. Members of the public should be able to receive information and, when not
satisfied, be empowered to take the agency to court.
The 1976 Newspapers Act and the National Security Act of 1970 should be amended, as
they inhibit access to environmental information. For the public to actively participate
and assume their rightful role in environmental management, free access to information
must be guaranteed. A related action would be amendment of the Societies Ordinance,
which impedes freedom of association in Tanzania, allowing members of the public to
associate, as provided by the Constitution.
Also in need of amendment is the National Environment Management Act of 1983. Until
comprehensive framework legislation is enacted, the Act should explicitly give to the
NEMC power to review EIA. It would also be important to give legal effect to NEMC s
Guidelines and Procedures on Environmental Impact Assessment. This would
guarantee the Council a leading role in reviewing EIA until more comprehensive
legislation is enacted and remove the possibility of a legal challenge to the guidelines.
The World Bank should ensure that public consultations are held and performed as
required by its Operational Directive, and that NGOs knowledgeable about
environmental issues are fully involved in the process. In the case of the Songo-Songo
gas project, few NGOs were involved and some lacked expertise on environmental
matters. It is important to ensure that public hearings are held, allowing members of the
public to lodge their objections to a proposed project. The World Bank should prepare
and update a list of NGOs and community-based organizations working on
environmental matters, and call on them to be involved in assessing proposed projects. A
genuine effort should be made not to blacklist or sideline NGOs or individuals that might
offer critical views of the project. This will improve the image of the Bank and encourage
members of the public and NGOs to offer their views without fear of consequences.
When operating in Tanzania, the World Bank should also ensure that Village Assemblies,
the most representative and transparent organ of local communities, are fully involved in
the EIA process. Since they comprise all adult persons in the village and are the supreme
local policies making bodies, involving the Assemblies will ensure that all villagers are
aware of a proposed project and able to voice their views in public. It would also prevent
those village leaders susceptible to manipulation from entering into deals with the project
proponent or government agency. The events around the Rufiji Prawn Farming project
support this conclusion, because village leaders who had been approached by the investor
for support and housed at the Sheraton Hotel during the public hearing faced the wrath of
their villages if they supported the project. Fearing the latter they voiced strong
opposition to the project, to the chagrin of the investor and the government.
The World Bank should use its influence over the Tanzanian government to ensure that
comprehensive environmental legislation is enacted, and legislation that denies or
restricts access to information is amended. The World Bank has more influence on the
Tanzanian government than any donor organization. Marshalling its financial and
diplomatic power and skills, the Bank can actively engage the Tanzanian government in
seeing the wisdom of strong environmental legislation given that the Bank cannot offer
loans for projects that do not meet its stringent environmental requirements.
In order to enable the public to actively participate in the environmental assessments, EIA
documents, as far as possible must be written in simple English and also be translated in
Kiswahili the language that the majority of Tanzanian converse with. The translation will
enable the public to decipher the big documents and make sense out of them and give
informed contributions. Calling for public participation in the environmental assessment
while failing to ensure that the public understands fully what it is supposed to participate
in will render the entire process an exercise in futility.
The World Bank should invest more resources in supporting the NEMC, giving it not
only legal powers over EIA in Tanzania, but also sufficient human and financial
resources to carry out its mandate. Currently the NEMC is under-staffed, underresourced, and politically vulnerable.
Finally, the World Bank should offer courses in public participation in EIA to
government officials, NGOs, investors, and the public. Such training would provide
several benefits. It will serve to inform the public that the World Bank demands public
participation in the EIA process on projects it funds, familiarize them with the terms laid
out in Operational Directives, and suggest other potential avenues and recourses when the
EIA process is not followed. Few Tanzanians, for example, know about the Bank s
Inspection Panel. The public is also unaware of its right to demand and receive
documents that are currently deemed out of the public reach in Tanzania. Training will
also help the government, civil society, investors, and the public to come to grips with
participatory approaches, and thus have a meaningful and well-informed discussion of
projects and their environmental impacts and economic benefits.
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i
Joseph Kessy & Ors v. Dar es Salaam City Councili and Festo Balegele and 794 Ors v. Dar es Salaam City
Council.i
ii
Misc. Civil Application No. 28 of 1983 High Court of Tanzania at Arusha (Unreported).
iii
(Director of Public Prosecutions vs. Daudi Pete; Kukutia Pumbun and Anor vs. the Attorney
General){1995}.TLR 131.
iv
Ringia. D.W and Porter,S.J. Access to Environmental Information in Tanzania (Dar es Salaam:
LEAT, 1999) P..
v
(1993) Civil Case No.5 of 1993, High Court of Tanzania at Dodoma also reported in (1995}TLR
vi
. . The guidelines and procedures to a large extent mirrorthe EIA procedures under the United States
National Environmental Policy Act, 1970, 42 U.S.C. ss 4321-4347 (1994). Also see Stevenson (1999) for
analysis of the NEPA s procedural aspects.
vii
Lissu T.A, Environmental Impact Assessments of Foreign Investment Projects: A Study in Law, Policy
and Government Decision-Making in Tanzania (Dar es Salaam: LEAT, 2000).
viii
URT, National Forest Policy, 1998, P.5
ix
R. Mwalyosi and R. Hughes, The Performance of EIA in Tanzania: An Assessment, 1998.P.59
x
ibid P.61
Ibid P.63-64: Lissu Op.Cit; P.18
xii
Ibid: Op. Cit.
xiii
Act No.5 of 1998
xiv
Commission of Inquiry Against Corruption [Warioba Commission], November 1996, (Tanzania, 1996,
Vol. 1:63-4). (Lissu. Op.Cit. )
xi
xv
Semisi, Developing Management Plans for the Mangrove Forest Reserves of Mainland Tanzania;
Francis, Physical Processes in the Rufiji Delta and Their Possible Implications on the Mangrove
Ecosystem.
xvi
(AFC, 1997 Vol: 2 157-8, in Lissu).
xvii
Miller G, Letter to Tundu Lissu, September 2001