East African court faults Tanzania’s Media Services Act

Media Council of Tanzania executive secretary Kajubi Mukajanga (right) celebrates with lawyer Jebra Kambole after the East African Court of Justice declared in Arusha yesterday that some provisions of the Media Services Act suppressed the freedom of expression and access to information. PHOTO | FILBERT RWEYEMAMU

Dar es Salaam. The East African Court of Justice (EACJ) declared yesterday that some provisions of the Media Services Act (MSA) suppressed the freedom of expression and access to information.

The court said in a 50-page verdict that the sections largely violated the treaty that established the East African Community (EAC).

The EACJ’s decision was received as a major victory by civil society and human rights groups who sought a declaration of the regional court after losing a similar petition in local courts.

The court has directed the government to take necessary measures to bring the MSA into compliance with the EAC Treaty.

The case was filed by the Media Council of Tanzania (MCT), the Legal and Human Rights Centre (LHRC) and Tanzania Human Rights Defenders Coalition (THRDC) in January 2017. The MSA was passed by Parliament in November 2016.

They argued sections of the Act were unjustified restriction on the freedom of expression and violated Articles 6 (d), 7 (2) and 8 (1) (c) of the Treaty.

Judges Monica Mugenyi, Faustine Ntezilyayo, Fakihi Jundu, Audace Ngiye and Charles Nyachae sided with the applicants that section 7 (3) (a), (b), (c), (f), (g), (h), (h), (i) and (j) of the MSA restricted news content without justification.

The section requires media houses to ensure that information issued does not undermine national security, constitute hate speech, infringe on lawful commercial interests, hinder or cause substantial harm to the government to manage the economy.

“The word ‘undermine’ which forms the basis of the offence, is too vague to be of assistance to a journalist or other person, who seeks to regulate his or her conduct, within the law,” said the judges.

They further held that the Act does not define hate speech, “and therefore, in the context, the term is vague and too broad”.

“The phrase “infringe lawful commercial interests”, “hinder or cause substantial harm,” “significantly undermines,” all similarly fall short of clearly defining the scope and extent of the respective content restriction, to enable journalists and other persons to properly appreciate the limitation to the right of freedom of expression or to be clear on what is prohibited, they said.

Regarding sections 13, 14, 19, 20 and 21 on accreditation of journalist, the court agreed the term “journalist” was too broad “to provide sufficient provision to allow individual to foresee what activities they are forbidden from performing without accreditation”.

The judges dismissed the Attorney General’s contention that accreditation of journalists on the grounds of public order, safety and for the protection of the rights and reputation of others as unsustainable and an unnecessary restriction.

The application also challenged the inclusion of sections of the act which establish the offence of criminal defamation.

Section 35 defines defamatory matter as any matters 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.

“It seems to us that Section 35 which defines defamation is not sufficiently precise to enable a journalist or other person to plan their actions within the law,” said the panel. The judges also ruled on impugned sections 50 and 54 of the act which create offences relating to media services and publication of a false statement likely to cause fear and alarm.

They restrict publication of information threatening the interest of defence, public safety, public order, the economic interest of the United Republic of Tanzania, public morality or public health.

But the court concluded that the subsections were “too broad and imprecise to enable a journalist or other person to regulate their actions”.

The judges also ruled sections 52 and 53 of the act which define seditious intention and creates seditious offences respectively, saying they failed the test of clarity and certainty.

The court said sections 58 and 59 which gives a minister powers to prohibit publication of any content on grounds of national security or safety placed limitations to the freedom of expression and the right to information.

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