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Kenya Law / Blog / Case Summary: East African Court of Justice declares several sections of the Tanzania Media Services Act, 2016 to be in violation of the Treaty for the Establishment of the East African Community for encroaching on the freedom of expression

East African Court of Justice declares several sections of the Tanzania Media Services Act, 2016 to be in violation of the Treaty for the Establishment of the East African Community for encroaching on the freedom of expression

Media Council of Tanzania & 2 others v the Attorney General of the United Republic of Tanzania

Reference No 2 of 2017

East African Court of Justice at Arusha

M K Mugenyi, PJ; F Ntezilyayo, DPJ; F Jundu, A Ngiye, & C Nyachae, JJ

March 28, 2019

Reported by Moses Rotich & Faith Wanjiku

Download the Decision

International Law – law of treaty–Treaty for the Establishment of the East African Community – admissibility of applications – conditions for exhaustion of local remedies – whether the applicants were required to exhaust available local remedies before filing the reference at the East African Court of Justice – Treaty for the Establishment of the East African Community, articles 23(1), 27(1) and 31.

International Law – law of treaty – Treaty for the Establishment of the East African Court of Justice – admissibility of applications – timeframe within which to file a reference at the East African Court of Justice – whether the application should be declared inadmissible on the ground that it was filed out of time – Treaty for the Establishment of the East African Community, article 30(2)

International Law – law of treaty – Treaty for the Establishment of the East African Community – res judicata – judicial estoppel – bar against bringing a suit in respect of which there were previous proceedings by similar parties regarding the same subject matter – whether an application at the East African Court of Justice could be declared res judicata for having been heard and determined by the national courts of Partner States

International Law – law of treaty – Treaty for the Establishment of the East African Community – jurisdiction – jurisdiction of the East African Court of Justice vis-à-vis that of national courts of Partner States – whether the EACJ had exclusive jurisdiction to interpret and apply the EAC treaty – whether the national courts of Partner States had jurisdiction to interpret the provisions of the Treaty for the Establishment of the East African Community – Treaty for the Establishment of the East African Community, articles 23(1), 27(1), 31 and 33(2).

International Law – law of treaty – Treaty for the Establishment of the East African Community – interpretation of treaties – what was the test to apply to determine whether or not a national law contravened the provisions of a Treaty

International Law – law of treaty – Treaty for the Establishment of the East African Community – fundamental rights and freedoms – where a national law is in conflict with a Treaty – effect of – whether by enacting the East African Community Act, the United Republic of Tanzania conferred jurisdiction on its national courts and thus limited the jurisdiction of the EACJ -Treaty for the Establishment of the East African Community, articles 6(d), 7(2), 23(1), 27(1), 31 and 33(2); East African Community Act, cap 411

International Law – law of treaty – Treaty for the Establishment of the East African Community – fundamental rights and freedoms – freedom of expression – where a national law violated fundamental rights and freedoms – whether Media Services Act, 2016 of Tanzania violated the provisions of the EAC Treaty for encroaching on the freedom of expression– Treaty for the Establishment of the East African Community, articles 6(d),and 7(2); Media Services Act (Tanzania), sections 7(3)(a), (b), (c) (f), (g), (h), (i), and (U), 13, 14, 18, 19, 20, 21, 35, 36, 37, 38, 39, 40, 50, 52, 53, 54, 58, and 59

International Law – law of treaty – Treaty for the Establishment of the East African Community – fundamental rights and freedoms – limitation of freedom of expression – whether imposing criminal sanctions on sedition, defamation, libel and false news publication unduly restricted the exercise of freedom of expression – General Comment 34 of the United Nations Human Rights Committee; Treaty for the Establishment of the East African Community, articles 6(d), and 7(2); Media Services Act (Tanzania), sections 35, 36, 37, 38, 39, 40, 50, 51, 52, 53 and 54

Brief facts

The three applicants were non-governmental organizations registered and operating as such within the United Republic of Tanzania (the respondent). The reference was a challenge to the Media Services Act No 12 of 2016 (the Act) enacted by the Parliament of the United Republic of Tanzania on November 5, 2016 and received presidential assent on November 16, 2016. The applicants averred that the Act as it was, was an unjustified restriction on the freedom of expression which was a cornerstone of the principles of democracy, rule of law, accountability, transparency and good governance which the respondent State had committed to abide by, through the EAC Treaty and other international instruments.

Specifically, the applicants sought the East African Court of Justice (EACJ) to declare that sections 7(3)(a), (b), (c) (f), (g), (h), (i), and (j), 13, 14, 18, 19, 20, 21, 35, 36, 37, 38, 39, 40, 50, 52, 53, 54, 58, and 59 of the Media Services Act, No 12 of 2016 of the United Republic of Tanzania violated articles 6(d), 7(2) and 8(1) of the Treaty for the Establishment of the East African Community( the EAC Treaty).

The respondent opposed the application citing court’s lack of jurisdiction, admissibility of the application, and that the Act did not violate the EAC Treaty in any way. The respondent stated that the applicants had failed to exhaust available local remedies in the national courts before seeking redress at the EACJ. They indicated that the matter was res judicata as the issues raised had been heard and determined by the High Court of Tanzania in Union of Tanzania Press Clubs and Hali Halisi Publishers Ltd v The Attorney General of the United Republic of Tanzania, Miscellaneous Civil Cause No 02 of 2017. Further, the respondent averred that the application had been filed out of time and in violation of article 30(2) of the EAC Treaty. The respondent contended that the alleged impugned sections of the Act were in line with the spirit and purport of the Act.

Issues:

i. Whether by enacting the East African Community Act, cap 411, the United Republic of Tanzania conferred jurisdiction on its national courts and thus limited the jurisdiction of the EACJ.

ii. Whether article 33(2) of the EAC Treaty conferred jurisdiction on national courts of Partner States to interpret the provisions of the EAC Treaty.

iii. Whether under the EAC Treaty there was a requirement to exhaust available local remedies before filing a reference at the East African Court of Justice.

iv. Whether the matter was res judicata for having been heard and determined by the High Court of the United Republic of Tanzania.

v. Whether the reference was filed out of time and in violation of article 30(2) of the EAC Treaty.

vi. Whether sections 7(3)(a),(b),(c),(f),(g),(h),(i)and(j) of the Media Services Act, 2016 infringed on freedom of expression by restricting type of news content that could be aired by media houses without justification hence violating articles 6(d) and 7(2) of the EAC Treaty.

vii. Whether sections 13, 14, 19, 20 and 21 of the Media Services Act, 2016 which established and dealt with a system of accreditation of journalists and media houses violated articles 6(d) and 7(2) of the EAC Treaty.

viii. Whether sections 35, 36, 37, 38, 39 and 40 of the Act dealing with the offence of criminal defamation limited the freedom of the press in contravention of articles 6(d) and 7(2) of the EAC Treaty.

ix. Whether sections 50 and 54 of the Act dealing with offences relating to media services were in contravention of articles 6(d) and 7(2) of the EAC Treaty.

x. Whether the definition of ‘seditious intention’ in section 52 and creation of seditious offences under section 53 of the Act violated articles 6(d) and 7(2) of the EAC Treaty.

xi. Whether section 58 of the Act, which gave the relevant cabinet minister absolute discretion to prohibit importation of any publication where the minister was of the opinion that the importation of such publication would be contrary to public policy, violated articles 6(d) and 7(2) of the EAC Treaty.

xii. Whether section 59, which gave the relevant cabinet minister power to prohibit or otherwise sanction the publication of any content where the minister was of the opinion that such content jeopardized national security or public safety, contravened articles 6(d) and 7(2) of the EAC Treaty.

Relevant Provisions of the Law

Treaty for the Establishment of the East African Community

Article 6(d)

“The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include:

(a)……

(b)…….

(c)…..

(d) good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.”

Article 7(2)

“2. The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.”

Article 8(1)(c)

1. The Partner States shall:

(a)…..

(b)…..

(c) abstain from any measures likely to jeopardise the achievement of those objectives or the implementation of the provisions of this Treaty.”

Article 23(1)

Role of the Court

1. The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with this Treaty.

Article 27(1)

Jurisdiction of the Court

1. The Court shall initially have jurisdiction over the interpretation and application of this Treaty:

Provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States.

Media Services Act No 12 of 2016 (Tanzania)

Section 7(3)

“A media House shall, in the execution of its obligations, ensure that information issued does not:

(a)undermine: -

i) The national security of the United Republic of Tanzania; or

ii) Lawful investigations being conducted by a law enforcement agent;

(b)impede due process of law or endanger safety of life of any person;

(c)does not constitute hate speech;

(d)disclose the proceedings of the Cabinet;

(e)facilitate or encourage the commission of an offence;

(f) Involve unwarranted invasion of the privacy of an individual;

(g)infringe lawful commercial interests, including intellectual property rights of that information holder or a third party from whom information was obtained;

(h)hinder or cause substantial harm to the Government to manage the economy;

(i) significantly undermines the information holder’s ability to give adequate and judicious consideration to a matter of which no final decision has been taken and which remains the subject of active consideration; or

(j) damage the information holder’s position in any actual or contemplated legal proceedings, or infringe professional privilege.”

Section 35

(1)Any matter which, if published, is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation, is a defamatory matter;

(2) The matter referred to under subsection (1) shall qualify to be a defamatory matter even when it is published against a deceased person; and

(3) The prosecution for the publication of defamatory matter concerning a person who is dead shall not be instituted without the written consent of the Director of Public Prosecutions.

Section 50

(1) Any person who makes use by any means of a media service for the purposes of publishing:

(a)Information which is intentionally or recklessly falsified in a manner which:

i Threatens the interest of defence, public safety, public order, the economic interests of the United Republic, public morality or public health; or

ii Is injurious to the reputation, rights and freedom of other persons;

(b)Information which is maliciously or fraudulently fabricated;

(c)Any statement the content of which is:

i Threatening the interest of defence, public safety, public order, the economic interests of the United Republic, public morality or public health; or

ii Injurious to the reputation, rights and freedom of other persons.

(d)Statement knowingly to be false or without reasonable grounds for believing it to be true;

(e)A statement with maliciously or fraudulent intent representing the statement as a true statement; or

(f) Prohibited information, commits an offence and upon conviction, shall be liable to a fine of not less than five million shillings but not exceeding twenty million shillings or to imprisonment for a period not less than three years but not exceeding five years or both.

(2)Any person who:-

(a)Operates media outlet without license;

(b)Practices journalism without accreditation; or disseminates false information without justification.

Section 52

(1) A “seditious intention” is an intention to: -

(a)Bring into hatred or contempt or to excite disaffection against the lawful authority of the Government of the United Republic;

(b)excite any of the inhabitants of the United Republic to attempt to procure the alteration, otherwise with than by lawful means, of any other matter in the United Republic as by law established;

(c)Bring into hatred, contempt or to excite disaffection against the administration of justice in the United Republic;

(d)raise discontent or disaffection amongst people or section of people of the United Republic; or

(e)promote feelings of ill-will and hostility beaten different categories of the population of the United Republic.

(2) An act, speech or publication shall not be deemed as seditious by reason only that it intends to:-

(a)Show that the Government has been misled or mistaken in any of its measures; or

(b)Point out errors or defects in the Government of the United Republic in legislation or in administration of justice with a view to remedying such errors or defects.

(3)In determining whether the intention for which the act was done, any work spoken or any document published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and in the circumstances in which he conducts himself.

Section 58

Where the Minister is of the opinion that the importation of any publication would be contrary to the public interest, he may, in his absolute discretion and by order published in the Gazette, prohibit the importation of such publication.

Section 59

The Minister shall have powers to prohibit or otherwise sanction the publication of any content that jeopardizes national security or public safety.

Held:

1. The jurisdiction of the East African Court of Justice (EACJ) was drawn from the EAC Treaty and in particular articles 23(1) and 27(1). Article 23 provided that the EACJ was a judicial body mandated to ensure adherence to law in the interpretation and application of, and compliance with the EAC Treaty. In enacting the East African Community Act, the respondent State was fulfilling a specific obligation under article 8(2) of the EAC Treaty which required each Partner State to, within twelve months from the date of signing the treaty, secure enactment and effective implementation of such legislation as was necessary to give effect to the EAC Treaty. There was nothing in the clear wording of article 8(2) to suggest that the article conferred jurisdiction to interpret and apply the EAC Treaty on any state organ.

2. Article 34 of the EAC Treaty buttressed the position that the EACJ had exclusive jurisdiction to interpret and apply the treaty. That was consistent with article 33(2) which provided that decisions of the EACJ on the interpretation and application of the EAC Treaty had precedence over decisions of national courts on a similar matter. The purpose of articles 34 and (33)(2) was to ensure uniform interpretation and to avoid possible conflicting decisions and uncertainty in the interpretation of the same provision of the EAC Treaty. Article 33(2) appeared to envisage that in the course of determining a case before it, a national court might interpret and apply a treaty provision. Such envisaged interpretation, however, could only be incidental. The article neither provided for nor envisaged a litigant directly referring a question as to interpretation of a treaty provision to a national court. There was no other provision that directly conferred on the national courts’ jurisdiction to interpret the EAC Treaty.

3. In bringing the instant reference, the applicants were exercising the right granted to them as residents of a Partner State of the Community, by article 30(1) of the EAC Treaty which provided that subject to the provisions of article 27, any person who was a resident in a Partner State could refer for determination by the EACJ, the legality of any Act, regulation, directive, decision or action of a Partner State on the grounds that such Act, regulation, directive, decision or action was unlawful or was an infringement of the provisions of the EAC Treaty. Article 33 no doubt conferred on a litigant resident in any Partner State, the right of direct access to the EACJ for determination of the issues set out therein. There was no requirement that before bringing a reference under article 30 of the EAC Treaty, a litigant had to exhaust a local remedy.

4. Whereas the requirement for exhaustion of domestic remedies rule was widely upheld by international courts having direct jurisdiction over individuals as a treaty requirement and as a rule of customary international law, the EAC treaty recognized capacity of individuals to seek redress for a breach of their rights enshrined therein against any Partner State or an institution of the Community. Article 31 gave the locus standi to any person to have direct access to the EACJ and the EAC Treaty had not provided the exhaustion of local remedies as a condition for the admissibility of petitions brought by individuals before the Court. The applicants were residents of the respondent State who sought to exercise their rights under article 30 of the treaty to approach the Court directly for determination of the legality of an Act of the respondent on the grounds that such Act was unlawful or an infringement of the provisions of the treaty. The court was bound to take up jurisdiction under articles 23 and 27 of the EAC treaty.

5. For a matter to be res judicata, the matter had to have been between the same parties, in respect of the same subject matter, and determined on merits by another court of competent jurisdiction. The litigant in the Tanzania High Court case Union of Tanzania Press Clubs Case (supra) was different from the applicants in the instant case. Further, in the Tanzania High Court, the matter at issue was whether the provision of the Act offended the Constitution of the United Republic of Tanzania. In the instant case, the question was whether the provisions impugned by the reference violated specific articles of the EAC Treaty. No evidence was tendered on the question of whether or not the Union of Tanzania Press Clubs Case was actually concluded on merit. Without even delving into what transpired in the Tanzania High Court proceedings, it was clear that the principle of res judicata had no application to the instant case.

6. On the question of whether the application was filed out of time, article 30(2) of the treaty provided that the proceedings should be instituted within two months of the enactment, publication, directive, decision, or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant. The respondent appeared to have placed undue emphasis on the word ‘enactment’ in article 30(2). The respondent, in its submission, proceeded on the basis that in the legislative process, ‘enactment’ was equated to passing of a Bill in parliament. Reading article 30(2) of the treaty, it was clear that the law known as Media Services Act, 2016, became law after firstly, being passed by the Parliament of the respondent on November 5, 2016 and secondly, being assented to by the President of the said respondent State on November 16, 2016. The passage of the Bill by Parliament was only one step towards the making of the law. Prior to the Act being assented to by the President, there was no law in respect of which there could have been a complaint. Indeed, as regards article 30(2) of the EAC Treaty, the focus was on ‘the action complained of.’ The action complained of against the respondent was the enactment of the Media Services Act, which became law on November 16, 2016 upon assent by the President. The applicants were well within time, in terms of article 30(2), in filing the reference on January 11, 2017.

7. The EACJ had jurisdiction under articles 23 and 27 of the EAC Treaty; the applicants were well within their right under article 30; the issue of res judicata did not arise; and in terms of article 30(2) the reference was filed within time.

8. In answering the question on what was the test to be applied by the EACJ in determining whether a national law met the expectations of the treaty, and finding no answer in the treaty itself, the courts had previously adopted a three part test set out as;

a. the limitation that was prescribed by law had to have been part of a statute, and had to be clear, and accessible to citizens so that they were clear on what was prohibited;

b. the objective of the law had to be pressing and substantial and important to the society; and

c. the state, in seeking to achieve its objectives ought to have chosen a proportionate way to do so. That was the test of proportionality relative to the objectives or purpose it sought to achieve.

9. When subjected to the three tier test above, several impugned provisions of section 7(3) of the Act failed the first test as being vague, unclear and imprecise;

a. Under section 7(3) (a), the word ‘undermine’ which formed part of the offence, was too vague to be of assistance to a journalist or other person, who sought to regulate their conduct within the law.

b. The word ‘impede’ was vague and would not meet the United Nations Human Rights Committee’s guidance that laws had to contain rules which were sufficiently precise, to allow a person in charge of their application to know what forms of expression were unduly restricted.

c. The Act did not define ‘hate speech’ and therefore, in the context, the term was vague and potentially too broad.

d. ‘Unwarranted invasion’ also failed the test of clarity and precision.

e. The phrase “infringe lawful commercial interests”, in subsection (g), “hinder or cause substantial harm” in subsection (h), “significantly undermines” in (i) and “damage the information holder’s position”, all, similarly fell short of clearly defining the scope and extent of the respective content restrictions, to enable journalists and other persons to properly appreciate the limitation to the right to freedom of expression or to be clear on what was prohibited.

10. On the second limb of the three tier test, the objective of the law had to have been pressing and substantial that it had to have been important to society. The aim of the content restrictions in section 7 of the Media Services Act was not self-evident. Article 19(3) of the of International Covenant on Civil and Political Rights (ICCPR) provided that free expression could be limited for respect of rights or reputation of others; or for the protection of national security or of public order, or of public health or morals. The respondent did not submit or otherwise sought to demonstrate to the court that the impugned sections of the Media Services Act contained restrictions which were necessary or appropriate to the legitimate aim sought to be achieved.

11. For the above reasons, the impugned provisions of section 7 of the Media Services Act, 2016 of Tanzania failed the first test of the three tier test. That failure was by reason of the broad and imprecise wording used in the sections, with the result that the provisions did not make it clear to citizens what was exactly prohibited such that they could regulate their actions. That failure alone constituted a violation of the right to press freedom and freedom of expression which in turn translated into a breach of the fundamental and operational principles set out in articles 6 and 7 of the EAC Treaty. Under article 6(d) and 7(2) of the EAC Treaty, the principles of democracy had to, of necessity, have included adherence to press freedom, and free press went hand in hand with principles of accountability and transparency which were also entrenched in articles 6(d) and 7(2) of the Treaty.

12. The respondent failed to establish there was a legitimate aim being pursued by in enacting the limitation in the impugned section of the Media Services Act, 2016, or indeed that the said limitations were proportionate to any such aim. Therefore, the cited provisions of section 7 of the Media Services Act were in violation of articles 6(d) and 7(2) of the treaty.

13. Sections 13, 14, 19, 20 and 21 of the Media Services Act established and dealt with a system of accreditation of journalists and media houses. Accreditation per se was not objectionable. In the instant reference also, there was nothing objectionable to either section 13 which dealt with functions of the Board or section 14 of the Act which dealt powers of the said Board when read with section 21(4), (5) and (6) of the Act.

14. In the context of section 19 of the Media Services Act, it was not clear what legitimate aim the accreditation requirement therein (as a limitation to the right to freedom of expression) pursued. A system of compulsory accreditation of journalists did not pursue the legitimate aim of public order, safety and protection of the rights and reputation of others. Sections 20 and 21 of the Media Services Act flew from section 19 and they stood or fell together. Sections 19 did not pass the three tier test. Sections 19, 20 and 21 of the Media Services Act, when read together, violated articles 6(d) and 7(2) of the Treaty.

15. Sections 35, 36, 37, 38, 39 and 40 comprised part V of the Media Services Act and dealt with the offence of criminal defamation. When applied to the three tier test, section 35, which defined defamation, was not sufficiently precise to enable a journalist or other person to plan their actions within the law. The definition made the offence continuously elusive by reason of subjectivity. An intending publisher, for the purposes of that section, would not have predicted that what they intended to publish concerning X was likely to expose X to hatred, contempt or ridicule and therefore injure X’s reputation. The offence created by section 35 fell short on clarity. With regard to the second tier of the test on legitimate aim, the respondent submitted that the restrictions in sections 35 and 40 of the Media Services Act were intended to ensure the rights, freedoms, privacy and reputation of other people or interest of public were not prejudiced by wrongful exercise of the rights and freedoms of individuals. That failed to meet the parameters set by the United Nations Human Rights Committee, in its General Comments 34, that the respondent ought to demonstrate a direct and immediate connection between the specific threat, and the specific action taken. The restriction by creation of the offence of criminal defamation also therefore failed on the second tier of the test.

16. On the third tier, General Comment 34 of the United Nations Human Rights Committee stated that the mode of restriction to be adopted to meet the criterion of proportionality should “be the least intrusive protective function.” The practice of imposing criminal sanctions on sedition, defamation, libel and false news publication had a chilling effect that could unduly restrict the exercise of freedom of expression of journalists. The application of such law would amount to a continued violation of internationally guaranteed rights of the applicants. Sections 35, 36, 37, 38, 39 and 40 of the Act violated the provisions of articles 6(d) and 7(2) of the EAC Treaty.

17. Section 50 of the Media Services Act created what were therein described as offences relating to media services while section 54 created the offence of publication of a false statement likely to cause fear and alarm. Applying the test above, and in particular the first limb thereof, section 50 seemed to be largely unobjectionable. However, subsection 1(c) failed the test in that “threatening the interests of defence, public safety, public order, the economic interests of the United Republic, public morality or public health”, was too broad and imprecise to enable a journalist or other person to regulate their actions. Similarly, in section 54, the phrase “likely to cause fear and alarm to the public or to disturb the public”, was too vague and did not enable individuals to regulate their conduct. Therefore, sections 50(1)(c)(i) and 54 of the Media Services Act were in violation of article 6(d) and 7(2) of the Treaty.

18. Section 52 of the Media Services Act defined “seditious intention” and section 53 created what it described as seditious offences. Section 52(1) of the Act failed the test of clarity and clarity was required in the first limb of the test. The definitions of sedition in the said section were hinged on the possible and potential subjective reactions of audiences to whom the publication was made. That made it all but impossible, for a journalist or other individual, to predict and thus, plan their actions. Section 52(3) of the Act compounded that problem in that, “the consequences which would naturally follow” would be entirely dependent on the subjective reaction of the person or audience to whom the publication was made. The restrictions and vagueness with which those laws were framed and the ambiguity of the mens rea (seditious intention) made it difficult to discuss with any certainty what constituted the seditious offence.

19. Read together, sections 52 and 53 of the Media Services Act fell foul of the proportionality part of the three tier test. Section 53(d) imposed custodial sentences for the offences created therein. Apart from serious and very exceptional circumstances, for example, incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of people, because of specific criteria such as race, colour, religion or nationality, the violations of laws on freedom of speech and the press could not be sanctioned by custodial sentences, without going contrary to Treaty provisions. For those reasons, and in the circumstance, sections 52 and 53 of the Tanzanian Media Services Act violated the provisions of articles 6(d) and 7(2) of the EAC Treaty.

20. The powers granted to the Minister in sections 58 and 59 of the Media Services Act were far reaching, and clearly placed limitations on the rights stated both in article 19 of the ICCPR as well as article 9 of the African Charter on Human and People’s Rights (ACHPR). Section 58 gave the minister absolute discretion while section 59 contemplated that it was the Minister who would determine that the content of a publication jeopardized national security or public safety, and prohibit or otherwise sanction such publication. A provision that gave a government power to prohibit a publication, invited censorship and seriously endangered the rights of the public to receive information, protected by article 9(1) of the ACHPR. Sections 58 and 59 of the Act contained provisions that constituted disproportionate limitations on the right to freedom of expression. The absolute nature of the discretion granted to the Minister, as well as the lack of clarity on the circumstances in which such Minister would impose a prohibition, made the provisions objectionable relative to the rights being restricted. Sections 58 and 59 of the Media Services Act were in violation of articles 6 (d) and 7 (2) of the EAC Treaty.

21. Sections 7(3)(a), (b), (c), (f), (g), (h), (i), and (j); sections 19, 20 and 21; sections 35, 36, 37, 38, 39 and 40; sections 50 and 54; sections 52 and 53; and sections 58 and 59 contravened articles 6 and 7 of the EAC Treaty.

22. Sections 13 and 14 were not in violation of the EAC Treaty.

Application partly allowed.

Orders

i. A declaration that the provisions of sections 7 (3) (a), (b), (c), (f), (g), (h), (i), and (j); sections 19, 20 and 21; Sections; 35, 36, 37, 38, 39 and 40; sections 50 and 54; sections 52 and 53; and sections 58 and 59 of the Media Services Act, 2016 of United Republic of Tanzania violated articles 6 (d) and 7 (2) of the Treaty for the Establishment of the East African Community,

ii. The United Republic of Tanzania was directed to take such measures as were necessary, to bring the Media Services Act, 2016, into compliance with the Treaty for the Establishment of the East African Community; and,

iii. Each party was to bear their own costs.

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