Tanzania must overhaul its oppressive media law after court scraps appeal

11 June 2020 · Carmel Rickard

The Tanzanian government has suffered yet another blow to its efforts at curbing free expression: it has lost its appeal against a declaration of invalidity of key elements of a law that had given it wide-ranging powers to stifle the media. Earlier this week, the appellate tribunal of the East African Court of Justice dismissed the government’s attempts to appeal, saying the appeal had not been filed within the time limits set by the court.

Read judgment of the appeal court

Read judgment of the trial court

One of the most essential tools used by the Tanzanian government to curb the free flow of information and opinion has been its Media Services Act. However, key elements of that law were challenged at the East African Court of Justice by a joint application of three lobby groups supporting human rights and media freedom. The applicants argued that the law infringed the Treaty that established the East African Community and of which Tanzania was a signatory.

Tanzania’s Media Council, the Legal and Human Rights Centre and the Tanzania Human Rights Defenders’ Coalition argued that the restrictions in the Media Services Act was an unjustified violation of freedom of expression. Freedom of expression, in turn, was ‘a cornerstone of the principles of democracy, rule of law, accountability, transparency and good governance’ that Tanzania had committed to, through the Treaty and other international instruments.

In a significant judgment delivered a year ago, the trial court found that many of the challenged sections of the law were in conflict with the Treaty to which Tanzania was party. The court also ordered Tanzania to amend the law so that it complied with the Treaty requirements.

Appeal

Not surprisingly, given the importance of the law to Tanzania’s system of media control, the decision was made to challenge this outcome, and in April 2019, Tanzania noted an appeal. Despite the court rule that this had to be followed within 30 days by the actual instituting of an appeal, nothing further happened.

Tanzania had also not brought an application asking the court to condone its failure to act in time, and to grant an extension.

In the view of the original applicants, that was enough for the appeal court to dismiss the appeal forthwith. Tanzania, however, argued that there had been a good reason for its failure to follow the rules.

Litigation

As in the appeal of the publication Mseto, decided a week before this one, Tanzania’s Attorney General argued that there had been a major overhaul of the way litigation on behalf of the state would be handled, with new offices, new staff and new systems being set up. In the course of those all changes it had not been possible to prepare and file the appeal in time.

Counsel said there had been a further problem: their file on the matter had gone missing, making it impossible to prepare the required memorandum and record of appeal as required under the court’s rules.

The appeal judges said the applicants had been within their rights in applying to have the notice of appeal struck out. Counsel for Tanzania had conceded that ‘indeed no appeal was instituted by them’ and this meant that the appeal was ‘deemed to have been withdrawn’.

Extension

Given the lengthy argument by counsel for Tanzania, that it had good reasons for the delay, the court decided, however, to deal with that question.

If the respondent (Tanzania) had any good reason for its delay, the correct procedure to remedy that lapse was to apply to court for an extension of time to institute the appeal. ‘However, the Respondent has filed no such application for us to consider so the reasons argued before us for the delay in this application are beside the point and are irrelevant.’

The final result, said the judges, was that the notice of appeal was struck out with costs in favour of the applicants.

Faced with this outcome, the Tanzanian government now has no choice but to make radical changes to its media legislation, ensuring that its provisions comply with the democratic principles agreed in the Treaty that established the East African Community.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.