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Case note

East African Court of Justice annuls ban on Tanzanian newspaper

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Managing Editor, Mseto and Another v Attorney General of the United Republic of Tanzania, Reference No. 7 of 2016

Court: East African Court of Justice, First Instance Division

Date of judgment: 21 June 2018

On 21 June 2018, the East African Court of Justice (EACJ) declared that the order issued by the Tanzanian Minister for Information, Culture, Arts and Sports (the Minister), dated 10 August 2016, restricted freedom of expression and press freedom and thereby constituted a violation of the respondent’s obligation under the Treaty for the Establishment of the East African Community (the Treaty) to uphold and protect the principles of democracy, rule of law, accountability, transparency and good governance. Accordingly, the EACJ ordered the Minister to annul the order and to allow the applicants to resume publication of Mseto.

Background

The first applicant is the editor of a weekly Tanzanian newspaper, Mseto. From around September 2012, the Minister – through the Registrar of Newspapers – had written to the applicants to inform them that they were only supposed to publish sports news in terms of their licence, and that no other kinds of news were permitted. The Registrar of Newspapers further informed them that failure to comply with their licence would lead to action being taken against them. However, the applicants continued publishing more than sports news, without any adverse action being taken between 2012 and 2016.

On 8 August 2016, the Minister wrote to the applicants in respect of a news item titled “Waziri amchafua JPM” (“Minister soils JPM”). The news item indicated that Engineer Edwin Ngonyani, an Assistant Minister in the government of President John Pombe Magufuli’s (referred to as “JPM”) had taken bribes in a bid to raise funds for President Magufuli’s election campaigns. The applicants responded that, in their view, they had committed no illegality.

On 10 August 2016, the Minister issued an order directing the applicants to cease publication of Mseto for a period of three years. The Minister’s order read as follows:

The newspaper title “MSETO” shall cease publication including any electronic communication as per the Electronic and Postal Communications Act for the duration of thirty-six months with effect from 10th August, 2016.

This was communicated to the applicants in a letter dated 11 August 2016 from the Office of the Registrar of Newspapers, which informed the applicants that they were prohibited from publishing or disseminating information by any means, including the internet. No further reasons were provided for the order.

The Minister was purportedly empowered to make such an order in terms of section 25 of the Newspapers Act, 1979, which read as follows: “Where the Minister is of the opinion that it is in the public interest, or in the interest of peace and good order so to do, he may, by order in the Gazette, direct that the newspaper named in the order shall cease publication as from the date (hereinafter referred to as “the effective date”) specified in the order.” Section 25(1) has since been repealed by the Media Service Act, 2016, but the order banning the publication of Mseto has still been in force.

Before the East African Court of Justice

The EACJ noted that the rights to freedom of expression and press freedom run in tandem, and may be described as human and democratic rights and freedoms which states should aspire to protect and promote “through the enactment of national laws that achieve the objectives of good governance, more so the adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities and gender equality”.

After considering the relevant treaty provisions, the EACJ held that the Minister’s order had the following “obvious unreasonable, unlawful and disproportionate anomalies”:

  • There were no reasons proffered in the order issued on 10 August 2016.
  • The applicants were not afforded a reasonable opportunity to respond.
  • The order violated the principles of freedom of expression and press freedom by failing to give proper and cogent reasons as to why a duly registered publisher should cease publication of its newspaper.
  • The order was made without there being established how the publication of the newspaper specifically violated public interest, interest of the peace and/or good order of the Tanzanian people.
  • The order made no reference to the earlier correspondence or the previously-held position that the newspaper could only publish sports news.
  • It was unclear why the offending article would be in violation of section 25(1) of the Newspapers Act.

The EACJ therefore concluded that the restrictions imposed by the Minister were unlawful, disproportionate and did not serve any legitimate or lawful purpose. In this regard, the EACJ stated as follows:

The Respondent having failed to establish how the publication in the Mseto newspaper violated the public interest, or the interest of peace and good order of the people, can only lead to the conclusion that the impugned order was made in violation of the right of freedom of expression … The order indeed derogates from the principles of democracy and adherence to the principles of good governance, the rule of law and social justice. Further, the order failed to conform with and adhere to the principles of accountability and transparency. By issuing orders whimsically and which were merely his ‘opinions’ and by failing to recognize the right to freedom of expression and press freedom as a basic human right which should be protected, recognized and promoted in accordance with the provisions of the African Charter, the Minister acted unlawfully.

Order of the East African Court of Justice

The EACJ therefore made the following order:

“(a) lt is hereby declared that the order issued by the [Minister] dated 10th August 2016 vide Gazette Notice No 242 restricts press freedom and thereby constitutes a violation of the Respondent’s obligation under the Treaty to uphold and protect the principles of democracy, rule of law, accountability, transparency and good governance as specified under Articles 6(d) and 7(2) of the Treaty;

(b) It is also declared that the order issued by the Minister aforesaid violates the right to freedom of expression and constitutes a violation of the Respondent’s obligations under the Treaty to promote, recognize and protect human and peoples’ rights and to abide by the universally accepted human rights standard as stipulated under Articles 6(d) and 7(2) of the Treaty;

(c) The Minister is hereby ordered to annul the order forthwith and allow the Applicant to resume publication of Mseto;

(d) The United Republic of Tanzania shall, in accordance with Article 38(3) of the Treaty take measures, without delay, to implement this Judgment within its internal legal mechanisms; and

(e) The costs of this Reference shall be borne by the Respondents.”

The full judgment is accessible here.

Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].

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