ABUSE OF POWER

In practice, the signing of the Consensus Agreement between TAHOA and the government has not helped to bring order to the hunting industry because corruption, nepotism, and victimization have continued unabated. Officials in the Wildlife Department have disregarded the terms of the Agreement whenever it suited them.

The Wengert Windrose case illustrates this tendency. In this case, the Applicant was allocated five hunting blocks in May 1997. Due to bad climatic conditions, and poaching activities, the company reported to the Director of Wildlife that it was not going to meet the required 40 percent utilization rate stipulated in the Consensus Agreement in three of its five blocks. At this point, the company began receiving letters from the Wildlife Division stating that three blocks would be withdrawn for failure to meet the utilization quota. In accordance with the Consensus Agreement's provision that, if unable to meet its quota, a hunting company can meet its obligations to the government by paying a top-up fee. Wengert Windrose offered to pay this fee, once advised of the amount required. In response, it received a fax message dated 25th April 1998 - a Saturday and thus a non-working day - demanding payment of the fees by Monday 27th April even though, because the annual Union Day holiday fell on the previous Sunday, this day was a public holiday. When the offices re-opened on Tuesday, the company officials made efforts to pay the top-up fee but could not do so because its bank (located in Arusha) could not issue drafts worth more than $5,000 without authorization from its Dar es Salaam Headquarters. However, the bank promised that the drafts could be obtained the following day. On 29th April 1998, the company took the bank drafts to the Wildlife official in Arusha who, upon communicating with the Director of Wildlife, was instructed not to accept them. On 15th May, the company received a letter reducing its allocation to three hunting blocks, effectively dispossessing it of two blocks of its original quota. After its appeal to the Minister was rejected, the company had no choice but to ask for the court's intervention. Delivering a very embarrassing judgment to the Wildlife Division and the Minister, Justice Kalegeya stated:

From what has been discussed, it stands out clearly that the First Respondent abused his powers by unilaterally and arbitrarily setting the deadline for payment of necessary fees on 27th and the 28th April, 1998 contrary to the already set date of 30/4/98 as per "Consensus Agreement." He further abused his powers by refusing payment of the top-up fee on 29/4/98, and this was unreasonable, first considering the fact that it was a day before striking the deadline, and secondly, even if it was otherwise, refusing payment when there was a sound and justifiable reason for delay…The 1st Respondent, the Director of Wildlife, for reasons best known to himself decided to set a deadline of his own, which decision barred the Applicant from paying the required top-up fee within the official time, and therefore his subsequent acts against the Applicant's interests allegedly for failure to pay the fees were without any colour of legality and can only be a nullity for being a clear abuse of his powers. Besides, the 1st Respondent's decision and actions of 25th, 27th and 28th April, 1998 exhibit hasty elements akin to those of a fire brigade in action, which however good intentioned they might have been cannot escape being branded unreasonable let alone failing being saved from an imputation of bias (emphasis supplied). Concerning the issuance of a deadline falling on a public holiday, he stated:

This case shows that the current system of allocating hunting blocks is flawed since it allows officials of the Wildlife Division to allocate and withdraw hunting blocks without good cause. By issuing a demand on a non-working day, contrary to government's undertakings in the Consensus Agreement, the Wildlife Department officials demonstrated that they do not respect their own legal commitments. Not only was this behavior arbitrary and high-handed, it demonstrated indifference to the nation's welfare, because the top-up fee should have been paid even if the deadline had passed.

Similar abuses came to light in the case of Tanzania Bundu Safaris vs. The Director of Wildlife and the Attorney General. In this 1995 case, Tanzania Bundu Safaris was dispossessed of its allocated hunting blocks by the Director without being given the reasons or the right to challenge his decision. He took this action just 14 days before the Safari Club International Conference in Las Vegas, USA, where hunters and hunting companies were to met to confirm hunting safaris for the coming season.

Tanzania Bundu Safaris was aggrieved by that decision and sued the government in the High Court. Not only did the court issue a temporary order for the restoration of the blocks, it also imprisoned the Director, Mr. Muhidin Ndolanga, for contempt of court, leading to his resignation from the civil service.

Despite its court victory, Tanzania Bundu Safaris experienced significant financial loss, as it took almost six months to prosecute the case and restore the withdrawn hunting blocks. Meanwhile, it had to stop doing business, as hunters were not sure of the outcome of the case and would not risk doing business with a company whose blocks had been withdrawn.