This article is part of ASF’s 2023 annual report.
Since 2022, ASF has been implementing a regional project promoting the use of public interest litigation as a tool to bring about positive reforms in the areas of civic space and civil liberties in Uganda and Tanzania.
In Tanzania, ASF has partnered with the Center for Strategic Litigation (CSL) to identify laws that hinder the right to freedom of expression, and to challenge them in national and regional courts. During Magufuli’s presidency, many laws were enacted to restrict the freedom of expression. Though Samia Suluhu Hassan’s accession to power has been the sign of a certain opening of civic space, many laws are still in place and can be put into practice if they are not repealed.
CSL filed the first case under this project before the East African Court of Justice (EACJ), challenging sections of the National Arts Council Act to align with international standards of artistic freedom and freedom of expression.
The EACJ is the judicial body of the East African Community, established in 1999 by the Treaty Establishing the East African Community. The particularity of the EACJ, in comparison with other regional or international courts (including the African Commission and Court on Human and People’s Rights), is that there is no legal requirement for exhaustion of local remedies, which is very favourable to plaintiffs. However, parties are restricted by a two-month limitation period to seize the Court, starting from the act or decision allegedly violating provisions of the Treaty. There are no specific human rights provisions in the Treaty. The majority of human rights cases are brought under the fundamental principles outlined in Article 6(d) and 7(2) of the EAC Treaty, namely the principles of good governance, democracy and the rule of law.
With regard to the freedom of expression of artists in Tanzania, a recent report on artistic freedom published by Culture and Development East Africa, shows that artists in the country are limited in their ability to express their art by political interference, cultural protectionism and repressive laws and regulations. It is not uncommon in Tanzania for state regulatory authorities, such as the National Arts Council (NAC) and the Tanzania Communications Regulatory Authority (TCRA), to ban artwork or for artists to be arrested on the spurious grounds that their work undermines the government. In September 2023, the police arrested Sifa Bajune, a gospel musician, after the release of her song “Tanzania inaeleka wapi” (“Where is Tanzania heading”), which the TCRA ordered online platforms to remove, claiming it contained offensive content against the government. Another example is that of the continentally-renowned artist, Diamond Platinumz, whose music video of the song “Mtasubiri” the NAC banned from mainstream and social media, conceding “blasphemous”.
The NAC, Baraza la Sanaa la Taifa (BASATA) in Swahili is the state authority with the mandate to regulate artistic works in Tanzania. The NAC was initially established under the National Arts Act of 1984 with the responsibility to “promote the development and production of artistic works in Tanzania”, but its powers were broadened in 2019 to include the right to “rate, inspect, seize, suspend or destroy any work of art being produced, displayed or kept in contravention of the Act and other relevant laws”.
These broad powers have allowed BASATA to curtail the freedom of expression of artists but have never been challenged in a court. The opportunity to bring a case before the EACJ arose in July 2023 when BASATA and TCRA imposed a ban on the song “Amkeni” by Tanzanian artist Emmanuel Elibariki, which addresses governance concerns in the country. The ban, resulted in the song’s prohibition on social and mainstream media. In September 2023, ASF supported CSL in initiating a public interest litigation suit against the Tanzanian government at the EACJ.
In its challenge of the decision, CSL asserts that the actions of BASATA and the provisions of National Arts Council Act violate fundamental principles outlined in the East African Community (EAC) Treaty, as well as international human rights instruments. The case seeks to critically examine the delicate balance between national ethics, interests and the protection of democratic principles, in particular freedom of expression and artistic freedom within the EAC. If the court decides to follow CSL’s arguments, its judgment, could reshape the artistic expression landscape in the region. CSL asked the court to declare that Tanzania breached the EAC and international human rights treaties, to order the immediate lifting of the broadcast prohibition on the song, and to amend relevant sections of the National Arts Council Act for it to align with international standards of artistic freedom and freedom of expression.
Through this project, ASF and CSL also identified other pieces of legislation in Tanzania that impede freedom of expression. This resulted in a constitutional petition by CSL challenging the Electronic and Postal Communications (Online Content) Regulations (2020) along with its 2022 amendments in the High Court of the Republic of Tanzania. This act regulates online content and provides the Tanzania Communication Regulatory Authority (TCRA) with broad powers to issue, suspend and revoke licences of online content service providers. The petition aims to limit these extensive powers and address the provisions in the Act that endorse censorship.
In its petition, CSL argued that the act unjustifiably restricts the freedom of expression by requiring a licence to provide online media services. This limitation on who can disseminate online information, with exemptions for mainstream media in certain cases, is inconsistent with constitutional provision on freedom of expression. Even more restrictive are the wide, ambiguous and impracticable obligations for online content service providers, who have to pay exorbitant fees for the licence application and renewal process. The regulations also give wide powers, without safeguards against abuse, to the TCRA to issue suspend and revoke such licences. These provisions not only restrict freedom of expression but also violate the right to work, which is equally protected by the Constitution, as it might limit the income of those people depending on online work but who fail to afford the high licence fees.
In Uganda, similar laws have been enacted to stifle the freedom of expression, in particular the freedom of the press. The Computer Misuse Act was amended in October 2022 to further restrict access to information by journalists. Before the law was passed, several actors appeared before the Parliamentary Sectoral Committee on Information, Communication Technology and National Guidance -mandated to collect public views on a particular bill- and urged parliamentarians not to vote the bill into law, as it significantly restricted press and media freedoms, including the rights to freedom of expression and access to information.
After the passing of the law, ASF supported Chapter Four and other petitioners in challenging the law, which contained many problematic provisions. The amendments criminalise unauthorized voice or video recording of another person even if a person is in a public place; criminalise sharing of any information about or that relates to another person without their authorization; criminalise “unsolicited information” without defining what amounts to unsolicited information; classifies “ridicule, degrade and demean” among hate speech crimes in Uganda and criminalise sharing or transmission of “malicious information” without defining what amounts to malicious information. These broad offenses, which are severely sanctioned – up to ten years imprisonment for some – are repressive in many ways. They restrict journalists and media practitioners from seeking to collect information and curtail investigative journalisms.
