Important media freedom judgment at the East African Court of Justice
The East African Court of Justice (EACJ) has handed down an important judgment for freedom of expression in Tanzania, and elsewhere in the region.
The legal challenge was brought by the Media Council of Tanzania, Legal and Human Rights Centre, and the Tanzania Human Rights Defenders Coalition, following the enactment of the Media Services Act ("the MSA") in 2016. The MSA was challenged on the basis it placed unjustified restrictions on freedom of expression – restricting certain types of news content and introducing the offences of criminal defamation, sedition, publication of a false statement, as well as granting the Minister absolute discretion to prohibit the importation of a publication which was found to be contrary to the public interest.
The applicants had argued that the impugned provisions of the MSA were too broad and imprecise to enable a journalist or others to regulate their actions, and therefore failed to comply with international law on freedom of expression. In addition, the applicants argued that the effect of the MSA had a chilling effect on press freedom and freedom of expression. In its judgment, the EACJ concluded that offences including, sedition and criminal defamation, were not “sufficiently precise to enable a journalist or other person to plan their actions within the law.” In the case of sedition, the judgment concluded that it would be “impossible” for journalists and other individuals to predict the outcome of their remarks. Similarly, in the offence of publication of a false statement likely to cause fear and alarm to the public, the EACJ found the term "likely to cause fear and alarm to the public or to disturb the public peace" was too vague to regulate conduct. Moreover, the EACJ agreed with the applicants’ submissions that provisions providing unfettered discretion to the Minister to sanction or limit content online constituted “a severe form of prior restraint” which contravened Tanzania’s obligations under the Treaty for the Establishment of the East African Community (“the Treaty”).
The EACJ declared sixteen key provisions of the MSA in violation of the Treaty and directed Tanzania to take necessary measures to bring the MSA into compliance with the Treaty under its treaty obligations.
The applicants were represented by Fulgence Massawe from Tanzanian NGO Legal and Human Rights Centre, with support from Media Legal Defence Initiative (MLDI). Mr Massawe noted that “the EACJ decision on the Media Services Act 2016 is not just a victory to the media fraternity but to the public as a whole in Tanzania. It is also a wake up alarm to the Tanzanian government on the types of laws they have been enacting recently, which has a serious impact on the civil space”. Welcoming the judgment, MLDI’s Legal Director Pádraig Hughes, noted that “striking down those elements of the act that would have had a significant negative impact on the ability of the press do their work represents an important positive step in pushing back against government interference.”