What lessons from EADB’s legal drama in Dar?

Second, as a result of those applications and petitions being struck out through preliminary objections, the amazing award in favour of Blueline has not been interrogated and justified before the Tanzania High Court or Court of Appeal.

Accordingly, if the pending matters in the Court of Appeal are not determined in favour of the Bank, then it will mean that for all its five years’ labour in the Tanzanian higher judiciary, it did not get even one shot at the merit of the arbitrator’s award.

Rule of law

In an engaging paper entitled, “Big Bills left on the Sidewalk: Why some Nations are Rich, and Others Poor,” published in the Journal of Economic Perspectives vol 10, Mancur Olson Jr, economics professor at the University of Maryland, argued that “a country’s institutions, constitutions and economic policies are decisive for its economic performance.”

In the context of this article the courts are, without doubt, some of the institutions vital to a country’s economic progress and wellbeing.

It is now axiomatic that the maintenance of the rule of law is essential to economic growth, prosperity and political stability, without which no meaningful economic activities are possible.

Prof Shadrack Gutto has written that diligence “in complying with international agreements is, or ought to be, an important indicator of a state that respects the rule of law”... and such “agreements/treaties are binding upon state parties and must be performed by them in good faith.”

Thus two of the key elements of the rule of law as a living, evolving and dynamic concept, are: First, there should be reasonable degrees of understanding and general commitment in the society as a whole to the principle of governance in accordance with the law and agreements at the national, regional and international levels.

Second is the presence of institutions for law enforcement that have the capacity to enforce the laws/agreements and that are independent and impartial at the national, regional and international levels.

In this connection it bears noting that the East African Development Bank is one of the autonomous institutions of the Community.

To enable the Bank to fulfil its obligations, the Charter which established it vests upon it immunities and privileges in judicial proceedings and protection of its assets under Articles 44 and 45.

When all is said and done the arbitration and court proceedings between the Bank and Blueline have called into question the value and efficacy of the Bank’s special status, exemptions, immunities and privileges under the Charter without which it would not be easy for it to fulfil its obligations.

In my considered opinion, the courts in the partner states cannot be blind to this reality.

To be sure, Articles 2 and 6 of the United Nations Basic Principles of the Independence of the Judiciary provide as follows:-

2. The judiciary shall decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect from any quarter or for any reason.