Legal issue

(i) Whether the order of Minister of Information, Culture, Arts and Sports dated 10th August, 2016 violates articles 6(d), 7(2), and 8(1)(c) of the Treaty; (ii) Whether the order of the Minister directing Mseto to cease publication restricts press freedom, the right to freedom of expression and the right to receive and impart information.

Ruling

The Court declared that the order violated the fundamental principles under Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community had been violated.While noting that the rights to freedom of expression and press freedom were not absolute, the EACJ found that restrictions on these rights could only be imposed to protect the rights or reputation of others or for reasons of national security, public order, public health or public morals. The EACJ found that the EAC Treaty protects the right to freedom of expression and that the provisions of the EAC Treaty were “binding and not merely aspirational” and created an obligation on every member State to “respect those sacrosanct principles of good governance and rule of law which include accountability, transparency and the promotion and protection of democracy”.  The Court subsequently ordered the Minister to annul the order and allow Mseto to resume publication.

Reasoning

The Court asked whether the order issued by the Minister met the test of reasonability, rationality and proportionality prescribed in an other case Burundi Journalists Union v. The Attorney General of Burundi. The underlying principle in determining whether the Respondent’s defense – which is that the ban was pronounced for the protection of public interest and good order – is acceptable and lawful is by asking whether the decision unjustifiably restricts the right to freedom of expression, or press freedom, whether the restriction was made on the basis of existing law and with the intention to attain a legitimate aim.

On 4 August 2016, Mseto published an article alleging that an Assistant Minister had taken bribes to raise funds for President Magufuli’s presidential election campaign. On 10 August 2016, the Minister of Information suspended the publication of the newspaper for three years in terms of section 25(1) of the Newspaper Act. Section 25(1) allowed the Minister to suspend the publication of a newspaper if he was “of the opinion that it is in the public interest, or in the interest of peace and good order so to do”. Mseto’s editor and publisher challenged the suspension before the EACJ.

On October 7, 2016, the 1st and 2nd Applicants filed a Reference challenging an order issued by the Tanzanian Minister of Information, Youth, Culture & Sports on August 10, 2016. The order, based on section 25(1) of the Newspaper Act, 1979, directed the Applicants to cease publication of their newspaper, Mseto, for three months.

The Respondent filed a Response on November 24, 2016, along with a Notice of Preliminary Objection. The objection argued that the Applicants failed to exhaust local remedies. However, the Court determined it had jurisdiction and the case proceeded on its merits.

The judgment affirms the importance of the right to freedom of expression and of the press, and their importance in a democracy. Interestingly, this decision makes reference to numerous international instruments, including the European Convention on Human Rights (ECHR, article 10), the African Charter (Article 27), the International Covenant for Civic and Political Rights (ICCPR, Article 19). This decision cites a broad range of jurisprudence from India, South Africa, Uganda and the European Court of Human Rights.