IV. Salient Features and Constraints in the Legal, Policy-Making and Institutional Frameworks

4.1 Potentiality for Arbitrary Use and Abuse of Power

The unchecked discretionary power accorded to authorities under the Wildlife Conservation Act in regulating and issuing licenses and permits was intended to ensure flexibility in the control of the hunting industry. The analysis of the provisions of the Wildlife Conservation Act shows that the Director, the Minister and the President have all been vested with enormous powers. In exercising their respective powers, these authorities can do practically anything under the guise of the law in the name of “public interest” - a term that is not defined in the Act.

The Director of Wildlife, for example, can personally shoot or authorize the shooting of any species of animal, whether endangered or not, without a license. He/she may cancel any person’s license if in his/her considered opinion it is in the public interest to do so. The Minister responsible for wildlife on the other hand, may also authorize the use of outlawed methods of hunting and the President has unfettered power to decide who can and who cannot hunt in Tanzania – this Presidential discretion is not even subject to the “public interest” requirement.

Indeed, most wildlife laws in other jurisdictions have provisions that give discretionary powers to authorities in charge of wildlife management generally. However, in most of these jurisdictions there is in place some mechanism that leaves no room for possibilities of abuses in the exercise of the discretion or arbitrary use of discretion. Botswana’s principal wildlife law, for example, places some checks and balance system to control the power of authorities vested with the management of wildlife resources. For example, the law explicitly requires the Minister responsible for wildlife to exercise his/her discretion in conformity to standards that are accepted, well known and clearly spelled out.³⁵

The concerns on the need to incorporate provisions into the hunting law to ensure that there is no room for abuse of discretion of powers vested in authorities controlling the hunting industry is practical. These concerns find support in courts that have already noted cases of abuse of powers and discretion by some authorities that have been vested with the control of the hunting industry. In the case of Wengert Windrose, for example, the High Court of Tanzania declared the action by the Director of Wildlife a nullity. The court was of the opinion that there was clear abuse of the powers vested in the Director of wildlife by the law.³⁶ In another case, the court was compelled to invoke its disciplinary measures by imprisoning a one time Director of Wildlife for defying a court order that sought to maintain the status quo of the Parties pending the determination of a matter relating to the granting of hunting blocks.³⁷

The Presidential Commission of Inquiry Into Corruption, formed in early 1996 to make findings on the nature and state of corruption in the country, noted the numerous dubious transactions in the hunting industry that are not commensurate with sound management of such a vital industry. The Commission’s report found that at one point, personal interests were used to regulate the country’s hunting industry in a system akin to the running of some kind of family business. It observed that in most cases, personal interests overrode those of the public in the exercise of the discretion vested by the law.³⁸

Local government officials have also been known to collude with personnel in the hunting industry to deny local people their rights to hunt. A case in point was witnessed in 1992, when the Ngorongoro District Council, with the blessing of the Wildlife Department, entered into a 10 year Agreement (instead of the usual 5 years) with one army officer from the Emirates to hunt in the Loliondo area in Ngorongoro District. This area is situated in the northern part of the country. It has been alleged that District Council officials and those of the Wildlife Division had to comply with “orders from above” as the army officer had contacts with senior government officials and was a personal friend of the President of the United Republic at that time.

The recently promulgated Tourist Hunting Regulations that seek to regulate the allocation of hunting blocs also vest a lot of discretion to the Director in permitting hunting activities in these areas.³⁹

The foregoing analysis reveals just a tip of the iceberg in the constant abuse and arbitrary application of the provisions of the Wildlife Conservation Act in matters relating to hunting. The analysis, however, suffices to support the assertion that the present structure of the law should be reviewed in order to check the immense powers that have been granted to authorities charged with regulating the hunting industry. The mechanism to check the discretion of such authorities that is employed in Botswana may serve as a useful model for Tanzania to adopt. There is a serious need to curtail the extensive powers granted to the authorities if Tanzania’s wildlife industry is to be effectively fostered and nurtured.

35. Sections 89 (2) and 90 of the Wildlife Conservation and National Parks Act; No. 28 of 1992, Laws of Botswana, is a good example. This provision limits the use of the Minister’s discretionary power by providing that decisions made by him/her in the exercise of the discretion in regulating trade in wildlife have to conform to the CITES objectives.
36. Wengert Windrose Safari (T) Ltd. Versus the Director of Wildlife et al, Misc. Civil Cause No. 35 of 1998, (Unreported)
37. See Tanzania Bundu Safaris Versus the Director of Wildlife and the A.G. High Court of Tanzania at Dar-es-Salaam, Civil Case N. 121 of 1995 (unreported)
38. See pp. 337-338, 410 (Vol. II) of the Commission’s Report.
39. See Wildlife Conservation (Tourist Hunting) Regulations, G.N 306/2000, regulation 16 (3) – Part IV of the Wildlife Conservation (Tourist Hunting) Regulations which provides that the “Director shall in his discretion set standards of quality tourist hunting trophies to all hunting companies” (Emphasis underlined)