Landmark ruling from the East African Court of Justice upholding media freedom

Media Council of Tanzania and Others v Attorney-General of the United Republic of Tanzania, Reference No. 2 of 2017

Date of judgment: 28 March 2019

Court: East African Court of Justice (Arusha First Instance Division)

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On 28 March 2019, the East African Court of Justice (EACJ) held that various provisions of the Tanzanian Media Services Act 120 of 2016 (the Act) violated articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community (EAC Treaty), as well as the right to freedom to freedom of expression. Consequently, the EACJ ordered the Tanzanian government to bring the Act in line with the EAC Treaty.

Background

 The applicants challenged various provisions of the Act, enacted by the Tanzanian Parliament, on the basis that it was an unjustified restriction on the right to freedom of expression. In particular, the applicants challenged the Act on the following bases:

• That it violated freedom of expression by restricting the type of news or content without reasonable justification (section 7 of the Act).
• That introduced the mandatory accreditation of journalists and gave powers to the Board of Accreditation to cancel that accreditation (sections 13, 14, 19, 20, and 21 of the Act).
• That it provided for criminal penalties for defamation (sections 35, 36, 37, 38, 39 and 40 of the Act).
• That it criminalised the publication of false news and rumours (sections 50 and 54).
• That it criminalised seditious statements (sections 52 and 53).
• That it vested the Minister with absolute powers to prohibit the import of publications or sanction media content (sections 58 and 59).

Determination by the EACJ

Section 7 of the Act: Content restriction

The applicants argued that various sub-sections of section 7 of the Act violated freedom of expression by restricting the type of news content without justification. The EACJ held that although the provisions were set out in law, the contents of these sections were vague, unclear and imprecise. In particular, it noted that the use of the word “undermine” in sub-section 7(3)(a), which formed the basis 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.

The EACJ was further concerned with the following words being too broad or vague: “impede”, “hate speech”, “unwarranted invasion”, “infringe lawful commercial interests”, “hinder or cause substantial harm”, “significantly undermines” and “damage the information holders position”.

In respect of section 7, the EACJ concluded that the impugned provisions were impermissible by reason of the broad and imprecise wording used, as well as because the respondent had failed to establish that there was a legitimate aim being pursued in enacting the limitation or that the limitation was proportionate to any such aim. Accordingly, the EACJ held that the impugned provisions were in violation of articles 6(d) and 7(2) of the EAC Treaty.

Sections 13, 14, 19, 20, and 21 of the Act: Accreditation of journalists

The applicants argued that these provisions, which established and dealt with a system of accreditation, violated the EAC Treaty. The EACJ referred to previous case law indicating that accreditation is not per se objectionable. However, the EACJ was concerned with the definition of the term “journalist”, contained in section 19 of the Act, on the basis that the definition was too broad to provide sufficient provision to allow an individual to foresee what activities were forbidden without accreditation.

The EACJ noted further that it was not clear what the legitimate aim the accreditation requirement in section 19 pursued. Having found that section 19 of the Act was in violation of the EAC Treaty, the EACJ concluded that sections 20 and 21, which flowed from section 19, were also consequently in violation of the EAC Treaty.

Sections 35, 36, 37, 38, 39 and 40 of the Act: Criminal defamation

The applicants submitted that the criminal defamation laws were an inappropriate means of limiting press freedom, and that the protection of reputation could be assured appropriately and proportionately by the civil laws of defamation. According to the EACJ, section 35 of the Act failed to define defamation in sufficiently precise terms to enable a journalist or other person to plan their actions within the law. Further, the definition made the offence continuously elusive by reason of subjectivity. The EACJ also held that the respondent had failed to demonstrate a direct and immediate connection between the specific threat and the specific action taken. Accordingly, the EACJ held that sections 35-40 of the Act violated the provisions of articles 6(d) and 7(2) of the EAC Treaty.

Sections 50 and 54: False news and rumours

The EACJ noted that the wording in section 50(1)(c) of the Act – “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, the EACJ held that the wording in section 54 – “likely to cause fear and alarm to the public or to disturb the public peace” – was too vague and did not enable individuals to regulate their conduct. As such, the EACJ held that sections 50(1)(c)(i) and 54 of the Act were in violation of articles 6(d) and 7(2) of the EAC Treaty.

Sections 52 and 53: Seditious statements

The EACJ noted that it was persuaded by the applicants’ submission that section 52(1) of the Act failed the test of clarity and certainty. In this regard, it noted that the definitions of sedition were hinged on the possible and potential subjective reactions to audiences to whom the publication was made. This, according to the EACJ, made it all but impossible for a journalist or other individual to predict and thus plan their actions.

The EACJ noted further that section 52(3) of the Act compounded this 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 EACJ therefore concluded that sections 52 and 53 of the Act violated articles 6(d) and 7(2) of the EAC Treaty.

Sections 58 and 59: Imports and media content

The EACJ noted that the powers granted to the Minister were far-reaching, and clearly placed limitations on the right to freedom of expression contained in the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. The EACJ noted that the provisions did not have sufficient clarity to enable a person to predict what publications would fall foul of the Minister’s subjective judgment as to what would be contrary to the public interest or jeopardise the national security or public safety.

Further, the EACJ stated that 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. The EACJ therefore held that sections 58 and 59 of the Act were in violation of articles 6(d) and 7(2) of the EAC Treaty.

Order of the EACJ

In the result, the EACJ made the following order:

“Having found as stated above, we hereby order as follows:

1. It is declared 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 Act violate articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community.
2. The United Republic of Tanzania is directed to take such measure as are necessary, to bring the Media Services Act into compliance with the Treaty for the Establishment of the East African Community.
3. Each party shall bear its own costs.”

The full judgment is accessible here.

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