25 February 2013

Tanzania: AG Makes U-Turn On Dar Hotel Sale Case

THE Attorney General (AG) has withdrawn his objection seeking dismissal of the constitutional case filed by Reverend Christopher Mtikila to oppose the government's decision to sell the building currently housing the Court of Appeal, formerly known as Forodhani Hotel.

The withdrawal of the AG's notice of objection allows the outspoken politician (Mtikila) to field evidence before a panel comprising High Court Judges John Utamwa, Fauz Twaib and Zainab Mruke, to challenge what he called controversial sale of the building along Kivukoni Front to an investor.

The 'Daily News' was the first media outlet in the country to report on the matter in August 2011. The decision to sell the building stemmed from a need to pave the way for the extension of Kilimanjaro Kempinski (now Hyatt Regency) hotel.

"After careful consideration of the relevant laws and facts, the respondents have decided to withdraw the preliminary objections in the records," reads part of the AG's letter dated February 15, 2013, signed by State Attorney Richard Kilanga that has been filed at the High Court in Dar es Salaam.

In the case, the AG represents the Minister of Justice and Constitutional Affairs and Chief Justice of United Republic of Tanzania, while Mpoki and Associates are appealing for Rev. Mtikila, who is the national Chairman of Democratic Party (DP). The case has been set for mention on March 12.

The AG had advanced two grounds in his notice of objection to the hearing of the case and had requested the judges to "strike out" the matter because the petitioner (Mtikila) has violated some provision of the Basic Rights and Duties Enforcement Act, when filing the petition in question.

Rev. Mtikila is against the government's decision to change the use of the building, initially preserved for its valuable national heritage. He is asking the court to declare that the respondents have 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.

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 alleges 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.

"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 preindependence Gala Dinner," Mtikila explains.

However, in his defence, 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 of 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 that 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 list, thus the decision of the government to sell the building did not violate the Antiquities Act.

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