Legal issue

(i) Whether the Court has jurisdiction to hear and determine the Reference; and (ii) Whether the cited provisions of the Act are a violation of the Treaty for the Establishment of the East African Community.

Ruling

The Court found Sections 7(3)(a), (b), (c), (f), (g), (h), (i) and (j); Sections 19, 20 and 21; Sections 35, 36, 37, 38, 39, 40, 50, 54, 52, 53, 58 and 59, of the Act to be in violation of the right to freedom of expression protected under articles 6 and 7 of the Treaty for the Establishment of the East African Community. The Court directed Tanzania to amend the Act and to make it comply with the Treaty.

Reasoning of the Court

On the jurisdictional issue, the Court held that it had jurisdiction to determine of the legality of an Act of a Partner State on the grounds that such Act is unlawful or an infringement of the provisions of the Treaty. In determining whether a national law meets the expectations of the Treaty, the Court adopted a three-tier test which consists of asking 3 questions: (i) whether the limitation is prescribed by law? It must be part of a Statute, and must be clear and accessible to citizens so that they are clear on what is prohibited; (ii) whether the objectives of the law is pressing and substantial; (iii) whether the state in seeking to achieve its objectives has chosen a proportionnate way to do so. It was the Court’s view that the Respondent had failed to establish that the Act pursued a legitimate aim and that the limitations were proportionate to any such aim.

The Media Council of Tanzania (the Media Council) and two other non-governmental organizations, the Legal and Human Rights Centre Tanzania Human Rights and the Defenders Coalition, challenged the Media Services Act, 120 of 2016 (the Act) in the East African Court of Justice. The Applicants argued that the Act in its current form is an unjustified restriction on the freedom of expression which is a cornerstone of the principles of democracy, rule of law, accountability, transparency and good governance which Tanzania has committed to abide by, through the Treaty for Establishment of East Africa Community. The Applicants submitted that the Act infringed articles 6(d), 7 and 8 of the Treaty.

This Reference was initiated by the Applicants on January 11, 2017, supported by affidavits from Kajubi D Mukajanga, Hellen Kijo Bisimba, and Onesmo Olengulumwa. Supplemental affidavits from Jabir Iddrissa and Geoffry Dillinga were filed on August 14, 2018. The Applicants submitted written submissions and a supplementary list of authorities on April 13 and 14, 2018, respectively. They also filed a rejoinder to the Respondent’s written submission on August 14, 2018.

The Respondent filed a response and an affidavit sworn by Silvia Novatus Matiku on February 28, 2017. Their written submissions were initially filed out of time on June 29, 2018. However, upon application and with no objection from the Applicants, the Court granted an extension of time, deeming the submission properly filed.

This decision is significant as it sets out the test used by Court when determining whether national law complies with the provisions of the Treaty. This test is borrowed from the High Court of Kenya.