SATURDAY February 2, 2019
By Joe Lihundi
Tranquility News Reporter, Arusha
Tanzania has appealed to a regional court to drop the Media Services Act 2016 case against it with costs, pending determination of a similar case at the local court.
“Resources should not be wasted for matters that can be better resolved within the domestic arena,” Ms Alicia Mbuya, the Principal State Attorney, told the East African Court of Justice (EACJ) recently.
Ms Mbuya was referring to a constitutional case No 2 of 2017, which the Union of Tanzania Press Clubs (UTPC) and Halihalisi Publishers filed against the Tanzania Attorney General at the High Court Mwanza chapter.
The duo is seeking legal interpretation of the same Media Service Act 2016 in relation to Article 18 of the 1977 Constitution of Tanzania.
However, Mr Fulgence Massawe, the counsel for the Media Council of Tanzania (MCT) and two civil society organisations, denied at the regional court that his clients were directly involved in the Mwanza case.
Early last year, the MCT, the Legal and Human Rights Centre (LHRC) and the Tanzania Human Rights Defenders’ Coalition (THRD- Coalition) filed a case against the Tanzania Attorney General at the regional court, contending that the Act had the potential for suppressing free press, good governance and democratic development in the country.
In its response to application No 2 of 2017, the Tanzania government claimed, among others things, that the regional court lacked the merit to hear and determine the case.
But Mr Massawe said Article 27 of the East African Communty (EAC) Treaty empowered the court to consider all cases raising questions pertaining to interpretation and application of the treaty.
Ms Mbuya went on arguing that the EACJ though did not require the applicants to exhaust local courts before they accessed it; the case in question deserved the requirement for the sake of justice and judicial economy.
“Resources should not be wasted for matters that can be better resolved within the domestic courts,” the principal state attorney maintained.
She defended the Act saying it was legitimate and proportional to the objectives of international human rights treaties as well as to those of the EAC one, stressing:
“There cannot be any such thing as absolute liberty wholly free of restraint, for that would lead to anarchy and disorder.”
Tanzania Parliament passed the Act on November 2016 and President John Magufuli assented to it in the same month.
Most of the provisions of the Act violated both fundamental and operational principles stipulated in Articles 6(d), 7(2) of the EAC Treaty, the applicants claim.
Mr Massawe said the Tanzania government failed to meet its obligations under the EAC Treaty, as the Act provided for content restrictions, accreditation of journalists, ministerial powers prohibiting importation of publication, criminal offences of defamation, false news and sedition.
A three-pronged test the regional court had applied to Burundi Journalists Union’s case against the Burundi government was evidence that the provisions were contrary to the EAC Treaty, he said.
The Burundi journalists union had argued at the same court that the 2013 Burundi press law restricted freedom of the press and the freedom of expression contrary to the government’s obligations under Articles 6(d) and 7(2) of the EAC Treaty.
“…some of those provisions Reference No 5 of 2013 Page 38 cannot pass the test we set out above and are therefore in violation of Articles 6(d) and 7(2) to that extent only,” the regional court said in its ruling then.
Mr Massawe explained that in the first test, the limitation ought to be part of a statute which was clear and accessible to citizens for them to foresee what was prohibited.
Second, the law must have been promulgated to meet an objective which was important to the society; and third, the right to freedom of expression ought to be limited as little as possible.
Both sides are now waiting for the date of the court’s ruling after Principal Judge Monica Mugenyi, and judges Fakihi Jundu, Faustine Ntezilyayo, Audace Ngiye and Charles Nyachae finishing hearing of the case.
MORE IFO: EAC TREATY
Article 6(d) of the EAC Treaty reads “the fundamental principles that shall govern the achievement of the objectives of the community by the partner states shall include good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights”.
Article 7(2) states, in turn, “the principles that shall govern the practical achievement of the objectives of the community shall include the partner states undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights”.