28 January 2013

Tanzania: AG Seeks Dismissal of Suit On Forodhani Hotel

THE constitution case challenging what has been described as 'controversial sale of the building housing the Court of Appeal', formerly Forodhani Hotel in Dar es Salaam, has reached an advanced stage before the High Court, with the Attorney General seeking dismissal of the matter filed by outspoken politician, Rev Christopher Mtikila.

Rev Mtikila has sued the Attorney General (AG), Minister for Justice and Constitutional Affairs and Chief Justice of United Republic of Tanzania over a decision to change the use of the building located along Kivukoni Front and initially preserved for its national heritage value.

But in his notice of objection to the hearing of the case, the AG states that the court "shall be moved to strike out the application" because the petitioner (Mtikila) has violated some provisions of the Basic Rights and Duties Enforcement Act.

A panel comprising Judges John Utamwa, Fauz Twaib and Zainab Mruke has directed the AG to file his submissions in support of the objection on February 18, while Mtikila who is the National Chairman of the opposition Democratic Party (DP) and represented by lawyers from Mpoki and Co. Advocates, is to reply by March 4.

The AG, according to the order of the judges, would file a rejoinder, if any, by March 11 and the parties would appear before the panel on March 12, with a view of fixing a date for delivery of ruling on the matter, in case the filing schedule of the submissions would be complied with.

In his petition, Rev Mtikila is asking the court to declare, among others, that the respondents have a constitutional duty and mandate to protect and preserve all properties of valuable national heritage, as they are assets of the state under Article 27 of the Constitution of United Republic of Tanzania.

He is further seeking orders that the respondents' act or intended act of allocating the Forodhani Hotel building to an investor or developer in disregard of the Public Procurement Act and its Regulations is in breach of Article 27 of the Constitution.

Article 27 (1) reads: "Every person has the duty to protect the natural resources of the United Republic, the property of the state authority, all property collectively owned by the people and also to respect another person's property."

Rev Mtikila alleged in the petition that the building, formerly called Dar es Salaam Club, has been unequivocally declared as a conservation building for its valuable heritage due to its historical, architectural and cultural value vide a Government Notice (GN) number 498 of 1995.

Following the allocation of the building by the government to the Judiciary, the court documents in the case show that about 2bn/- was spent for renovation, so that it conforms to the use of Court of Appeal administratively, judicial duties and functions.

According to the documents, in 2009 it was resolved that due to increased activities of the Judiciary, there was need to expand the administrative building, leading to erection of another two storey structure behind the main building on the plot at a cost of 1.3bn/-.

However, Rev Mtikila states in his petition, "In 2010 the owner of Kilimanjaro Hotel, ASB Tanzania Limited, approached officials of the Judiciary with a view of acquiring the Forodhani Hotel building in consideration of building a new Court of Appeal Building in its plot situated at Garden Avenue."

The said discussion and the transaction, he claims, had the blessing of the government which through the Minister for Justice and Constitutional Affairs in a budget speech for 2011/2012 in the National Assembly, confirmed and reaffirmed the position on the matter.

"The intended act by the government of allocation and demolition of the building is in violation of the spirit of the Antiquities Act as it intends to destroy, spoil, disfigure, thereby erasing the history of the nation, in that it, among others, did host the first pre-independence gala dinner," Mtikila explains.

However, in his response, the AG disputes some of Mtikila's claims, including that of allocation of the plot and its buildings to the developer to cause the pulling down another historic monument and value for future generations of the country, contrary to governing laws and the expectation of the society.

"On selling the Antiquity (Forodhani Hotel building) the government will highly benefit from the money which will be used in the development activities in our country. The respondents have adhered to the provisions of Public Procurement Act and Disposal of Public Assets by tender," the AG further responds.

In addition, the AG alleges, the Forodhani Hotel building was no longer an antiquity in law following an amendment of the schedule to the principle notice, by deleting the structure, which was the first item in the then list, thus the decision of the government to sell the building did not violate the Antiquities Act.

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