The law is clear on ‘sedition’, so what is the TCRA doing?

        Five TV stations were slapped with fines totalling Sh60 million this month after the Tanzania Communications Regulatory Authority (TCRA) content committee decided that they had broadcast “seditious” content in their coverage of a press conference called by the Legal and Human Rights Centre (LHRC) to present a report on human rights abuses associated with the November 2017 by-elections to elect ward councillors.

The LHRC documented these allegations, including allegations of human rights abuses by the police and by representatives of various political parties. The TCRA’s decision raises serious questions about how the law should be interpreted and applied in cases where “sedition” is alleged.

The TCRA is, in many ways, an admirably transparent organisation. The TCRA website is a great example of how to make important information available to the public: all laws and regulations relating to its work can be found in seconds by anyone with access to the internet. In its own press conference, the Authority offered a public explanation of the reasons for their decision, which was based in part on five specific rules in the Broadcasting Services (Content) Regulations.

TCRA’s regulatory over-reach

So here is the problem. “Sedition” is not mentioned anywhere in the rules cited above. Neither is it found in the Broadcasting Services Act, 1993 under which the regulations were established. Nor, indeed, in the Tanzania Communications Regulatory Authority Act of 2003 or the Electronic and Postal Communications Act, 2010 that significantly amended TCRA’s mandate.

This begs this first fundamental question: How can the TCRA legitimately penalise five TV stations for “seditious” broadcasts, when “sedition” is not mentioned in the relevant enabling law?

“Sedition” is defined in both the Media Services Act and the Penal Code, with very similar wording in each. Both define “seditious intent” as an intention to bring into hatred or contempt the lawful authority of the government or the administration of justice, to raise discontent or disaffection among people, or to promote feelings of ill-will and hostility between different categories of the population.

Nevertheless, both laws also provide very clear protections against arbitrary and frivolous charges of sedition. They state that something cannot be deemed “seditious” where it intends only to show that the government has been misled or mistaken in any of its measures, or to point out errors or defects in government, in the Constitution, in legislation or in the administration of justice, with a view to remedying such errors or defects.

In other words criticism of the government or the police in order to get them to correct their mistakes is not sedition. This defence would seem to apply to LHRC’s report and the media coverage of that report.

What is the ‘national interest?

The word “sedition” does not appear in the TCRA regulations. But, a key concept that is mentioned is “the national interest”. Broadcasters are required to ensure that their coverage does not cause injury to this elusive notion.

Reporting on alleged human rights abuses by the police, and by representatives of political parties, may embarrass the government. Such reporting may even cause some citizens to become unhappy with the police or the government. But it is surely “in the national interest” for the media to report anyway. To deny the media such a right would be to allow such abuses to continue unreported and unchallenged.

It seems that, in arriving at its decision, the TCRA concluded that reporting on the LHRC’s findings by the five TV stations was contrary to Tanzania’s “national interest”.

This raises the second crucial question: What exactly is “the national interest”? In this specific case, is it better for the national interest that the reputation of the police is spotless, or that citizens are protected from politically-motivated violence and a flagrant disregard for the rule of law?

Two principles are at stake

How this plays out depends entirely on what the TV stations decide to do in the coming days – the fines must be paid by early February 2018. Two principles are at stake. The first is whether the Authority should operate within the confines of the law. The second is whether the national interest can be separated from and ranked above the government’s interest.

The TV stations can stand up to the TCRA by refusing to pay the fines and asserting their innocence on both legal and moral grounds. Or they can write a cheque.

Tanzanians are watching.