3.3 Legislation

As has already been pointed elsewhere, the Wildlife Conservation Act is the principal law regulating wildlife in Tanzania. The Act places the control and regulation of the hunting industry to three main authorities. These are the Director of Wildlife, the Minister Responsible for wildlife and the President of the United Republic. An exploration of the provisions of the principle wildlife law reveal that the nature and extent of the powers vested in the authorities manning the hunting industry do not provide for, nor guarantee a level playing ground - a vital ingredient in the operations of an effective hunting industry. An exploration of the provisions will help in expounding this assertion.

The Act vests the Director of Wildlife with the power to oversee the overall management of wildlife in the country. The office of the Director is established under the provisions of section 3 of the Act. The Director is a Presidential appointee. His/her powers extend to matters relating to hunting and generally to those that are either direct or incidental to the control and regulation of the hunting industry in the country.

The provisions of the law define "hunting" to mean an "act directed or incidental to the killing of any (wild) animal."²⁶ Hunting of any wild animal is, therefore, generally prohibited unless authorized by the law.²⁷ In order to hunt, therefore, one has to apply for a license under section 25 of the Act. Relevant authorities issue such licenses to persons who meet the criterion provided by section 25. Accordingly, for one to be entitled to a game license under the provisions of section 25, he/she has to be above the age of fourteen and in possession of a valid firearm license in respect of the firearm that he/she intends to use for hunting. Licenses for hunting specified animals can only be issued to citizens of the United Republic of Tanzania, or persons who have been ordinarily citizens for a period of at least twelve months immediately preceding the date of application.

A licensing officer has the power to summon an applicant to appear in person before him/her to answer any queries or produce any document relevant to the application.²⁸

Some of the conditions that would disentitle one to a hunting license are provided for by section 56 of the Act. Accordingly, persons who have been convicted of an offense under the Act or any other law in any country that is designed to protect wildlife would generally not qualify for a grant of license. Also, those persons who, at one point in time had their licenses cancelled or suspended under the wildlife laws of Tanzania fall in this category. Non-disclosure of prior conviction of a wildlife-related offense/s and or the suspension or cancellation of a license under wildlife laws when applying for a license under the Act amounts to an offense. We should hasten to point out here that the Director of Wildlife has been vested with power to grant a license or permit to any person who falls under this category. The law, however, does not provide for the criterion for invoking the Director's power to lift the disqualification. The only safe assumption is that the Director would use his/her discretion wisely.

Section 10 of the Act prohibits hunting in game reserves or game controlled areas without the written permission of the Director of Wildlife. The Director is also empowered to issue licenses for hunting wild animals found in partial game reserves and even those declared as national game.²⁹

The Act permits the Director of Wildlife to issue general licenses to authorized associations and designated organizations declared as such by the Minister responsible for wildlife.³⁰ Once an authorized association has been issued with a license, it may undertake hunting activities by itself or sub-lease its license to an individual or group of individual to do the hunting on its behalf.³¹

A scrutiny of the provisions of the principal wildlife conservation law that regulates hunting reveals that there are a number of restrictions that may be used to regulate the hunting industry. The law contains provisions that regulate the timing of hunting by establishing a category of closed seasons. Accordingly, the Minister responsible for wildlife is vested with the power to prohibit, restrict or otherwise regulate the hunting of any animal in any area during a period he/she may specify. The period so specified is referred to as a "closed season."³²

Other provisions of the Act that have a direct bearing to the subject are those that require different types of licenses for hunting/capturing any animals and those that place restrictions on taking of trophies from animals, except by permit or special permission. There are circumstances where particular exceptions to the restrictions can be made. Among these is the general power of the Minister responsible for wildlife to exempt any person or group of persons from the requirements of permits, at his/her discretion.

The provisions of section 32 of the Act, empowers the Director to grant licenses for the capture of wild animals in order to undertake certain activities related to culture, scientific and educational purposes and for any purpose which "in the opinion of the Director" is in the national interest. Again, unfettered discretion is granted to the office of the Director.

Section 40 of the Wildlife Conservation Act prohibits hunting wild animals that are found on private lands unless one has a license to do so or where the owner of a private land gives consent. At the same time, however, where the Director of Wildlife is of the opinion that it is in the public interest that an animal on private land be hunted, he/she may, under the provisions of the same law, authorize the hunting of such animal irrespective of the owner's consent.

Section 41 of the Act gives discretion to the Director of Wildlife, upon getting the consent of the Minister, to grant a President's license. Such license would enable the grantee to hunt any wild animal whether or not there is a law protecting such animal. The implication of this is that there is no guarantee that wild animal species that are placed in the endangered category will be spared. This is contrary to the spirit of the Convention on International Trade in Endangered Species of Flora and Fauna (CITES) that Tanzania has ratified.

Under the provisions of section 42, the Director of Wildlife may direct that an applicant for a hunting license give security for compliance with the provisions of the Act or any subsidiary legislation made under the law before being issued with a license. Such security could be in the form of a bond or amount of money specified by the Director. Where a person who has given security contravenes the provisions of the law, the Director may direct that the amount deposited, or part thereof be forfeited to the government.

Not only is the law silent on the criterion for determining the amount to be deposited or forfeited, but it does not also provide any mechanism to check the powers vested onto the Director of Wildlife. For example, by providing that in exercising his/her discretion, the Director applies uniform standards for all applications in requiring a security or bond. The law also empowers the Director, again at his/her discretion, to extend the period of validity of any hunting license or permit for up to three months.³³ Also, the Director of wildlife, a game or licensing officer may, if in their opinion it is in the public interest to do so, refuse to issue, cancel or suspend hunting permits or licenses under the provisions of section 55 of the Act. Any person who is aggrieved by any refusal, cancellation or suspension may appeal to the Minister responsible for wildlife and the decision of the Minister on any such appeal shall be final and conclusive.

Section 53 empowers the Director to make regulations prescribing the type and class of weapons that may or may not be used for the hunting of any particular species of animals. Section 54 outlaws certain methods of hunting. These include, among many others, the use of mechanically propelled vehicles, use of poison, bait, missiles, explosives, dogs and devices intended to reduce sound made by the discharge of firearms. The Director of wildlife, yet again at his/her sole discretion, may permit the use of any of the outlawed methods of hunting.

Over and above the immense discretionary powers accorded to the Director of Wildlife, the Act further gives the Director unfettered discretion to kill or authorize the killing of any wild animal save one that is confined to a National Park or the NCA. Section 52 of the Act provides that:

"Notwithstanding anything to the contrary in this Act, the Director may kill, or authorize the killing of any animal in any place, not being a national park or the Ngorongoro Conservation Area."

As already intimated to earlier, the Minister responsible for wildlife is also given powers to regulate and control hunting under the Wildlife Act. Under the provisions of section 17, for example, the Minister may prohibit hunting during the closed season. Section 29 of the Act empowers the Minister to make regulations governing the hunting of specified animals, including limiting the numbers and wild animal species to be hunted.

The Minister may also issue permits to hunt animals that have been placed in the list of the schedule to the Act, (endangered or rare species) and also those that have been specified. It is not necessary for the Minister to issue a license to any person or category of persons who he/she permits to hunt. The Minister is not required by law to inform any person or authority the criteria applied in the exercise of his/her discretion to permit a person to hunt without a license. The proviso to section 23 of the Wildlife Conservation Act is clear on this, it states:

"Provided that the Minister may, by order, permit any person or category of persons to hunt any specified or scheduled animal without a game license." (Emphasis provided).

The use of the word "by order" in the above context implies that the Minister is not required to make public the person or category of persons he/she has permitted to hunt without licenses. If the intent of the legislature were to mandate the Minister to inform the public, the wording would have been similar to that of the section immediately following which provides that:

"The Minister may, by order in the Gazette amend, add, vary or replace the second and Third Schedules to the Act." (Emphasis provided)

The use of the words "by order published in the Gazette here imply that the Minister is duty bound to make known to the public information on the variation, addition or replacement of the schedules to the Act.

The President is another authority that is vested with power to control the hunting industry by the provisions of the Wildlife Conservation Act. Accordingly, the law vests in the President the power to modify restrictions imposed on hunting of animals.³⁴ Also, under the provisions of section 22, the President may, by order published in the Gazette, declare any category of persons as being a category of persons who shall not be granted any game license in relation to hunting any or all categories of animals specified in that order. Again, the law does not provide any guidance on how the President's power is to be exercised, once again leaving a lot of discretion in the running of the affairs of industry.

The above exploration shows the extent to which the law has accorded unchecked discretionary powers the various authorities designated by law to control and regulate the hunting industry. The next chapter shows how the employment of such power may operate to the detriment of the industry.

26. Ibid, section 2
27. See section 23 and 38 of the Wildlife Conservation Act, 1974
28. Ibid., section 25 (3).
29. Ibid., sections 14 and 16, respectively
30. Ibid., section 26 (1) and (2). See also paragraphs 6 and 7 of G.N 272 of 1974
31. See paragraphs 10,11, 18 and 19 of G.N 272 of 1974
32. See sections 17 and 18 of the Wildlife Conservation Act, 1974
33. Ibid., section 45
34. Ibid., section 9