Regional court upholds freedom of expression, media freedom

11 June 2020 · Carmel Rickard

The Tanzanian government, seen as oppressive in its attitude to a number of democratic freedoms including freedom of expression and free media, has lost a significant battle at the East African Court of Justice. The EACJ, which resolves disputes involving the East African Community and its member states, was approached by the newspaper, Mseto, after the Tanzanian government suspended it from all operations for three years. First, the EACJ trial court held that the suspension was unlawful. Now, the EACJ appeal tribunal has set aside the government’s appeal application and refused it an extension of time to file the appeal. The Tanzanian government recently announced that it will no longer allow its citizens to bring cases against it in the African Court on Human and Peoples’ Rights, the continent’s human rights court. In view of this new defeat at the EACJ, might Dodoma be considering how to prevent another embarrassing recurrence at the EACJ as well?

Read judgment from the East African Court of Justice, trial court

Read judgment from the East African Court of Justice, appeal court

When the Tanzanian newspaper, Mseto, was controversially banned for three years in 2016, the move sparked years of litigation at the East African Court of Justice, litigation that now seems to have been brought to an end by an appeal decision from that court delivered last week.

This particular court is not very well known outside the region, but its findings in the two Mseto cases, not to mention other judgments delivered by the EACJ, indicate that its decisions are worth reading – and, if you are a judge or counsel, worth citing.

The suspension of the weekly newspaper followed within days of a story it had carried on 4 August 2016, alleging that a deputy minister in the government of President John Magufuli had taken bribes to raise funds for Magufuli’s presidential campaign. According to Columbia Global Freedom of Expression, the Minister of Information, Youth, Culture and Sports issued the order against Mseto, saying the publication ‘shall cease publication including any electronic communications’ for three years with effect from 10 August 2016.

Fragility

The banning and suspension of Mseto was, in other words, a situation clearly illustrating the fragility of free of expression and free media in Tanzania.

Two months later the editor and publisher of Mseto brought an application to the East Africa Court of Justice, challenging the suspension. Counsel for Mseto argued that the banning order infringed the right to freedom of expression and had no proper basis in law. Tanzania’s attorney general, however, said the order was lawfully made under the Newspaper Act and that it was necessary to curb Mseto from incitement and publishing false news apparently aimed at defaming Magufuli.

In June 2018, five judges of the EACJ trial court found in favour of the publication. They held that while the law at the time might have allowed a newspaper to be suspended, there had to be clear grounds for taking such action.

Disseminate

They cited the Treaty that Tanzania (and other member states) had signed on joining the East African Community. Among provisions in the Treaty was a reference to the African Charter on Human and Peoples’ Rights and its clauses enshrining the right of every individual to ‘receive information’, to ‘express and disseminate his (or her) opinions within the law.’ Further, the Treaty obliges partner states to refrain from any action that will prejudice these objectives.

Had Mseto been given proper reasons for the decision? Had the minister acted rationally and proportionately in taking the decision? – No reasons were given as to why the publication was being shut down, the court found. Nor was Mseto given a reasonable opportunity to respond to the allegations against it.

The orders against the paper were given ‘whimsically’, and failed to measure up to the standards of accountability and transparency. The principles of promoting and protecting democracy were also violated by the government’s action. Nor did it serve ‘any legitimate or lawful purpose’.

Watchdog

The trial court thus ordered that Mseto had to be allowed to continue publishing. The relevant minister had suggested ‘that the President of a Partner State cannot ever be mentioned in newspaper articles’. That cannot be, said the court: the price of democracy was that public watchdog bodies like the media had to be allowed to operate freely within lawful boundaries.

What happened next was predictable: shortly after the decision, Tanzania noted an appeal. However, a year went by without anything further being done to file the appeal, and Mseto eventually applied to the court’s appellate division to strike out the appeal notice. This was quickly followed by another application by the Tanzanian government, asking for an extension of time to file its appeal, which, by that stage, was out of time.

The appeal judges decided to deal with the two applications as one dispute: whether the Tanzanian AG’s notice of appeal should be struck out or whether the AG should be given an extension to file, given that it was now out of time.

Expired

Counsel for Mseto argued that the issue should be decided and finalised even though the ban on the publication had by that stage expired. Counsel explained that, despite the ban lapsing, Mseto was unable to resume publication because Tanzania’s Registrar of Newspapers had refused to issue a new licence on the basis that an appeal was pending.

The AG said that there was a good explanation for why it had taken so long to file the appeal in this case: structural changes had been made to the way Tanzania managed litigation of all civil matters. A new Office of the Solicitor General was set up during the period that the appeal should have been filed, and staff were not yet available to handle the matter.

Closely examining the relevant timelines, however, the appeal judges said that the restructuring of the AG’s office began in February 2018, while the trial court’s Mseto decision was delivered more than four months after this. It was ‘unclear’ why the appeal could not have been filed in time, since the AG conceded in court that there was no reason why the AG could not file the appeal during the period of restructuring.

No plausible reason

The court thus found there was ‘no plausible reason’ why the appeal was not filed in time. Instead, the application for an extension was filed more than a year later, a fact that ‘shows dilatoriness’ by the AG, said the court.

The Rules of Court provided that if an appeal was not filed within the time laid down, the party concerned would be held to have withdrawn the appeal. The party would also be liable to pay the costs associated with failing to continue the appeal.

Thus, the court’s final order was to strike out the appeal with costs against the AG. Likewise, the AG’s application for an extension of time failed.

Decline in respect

Mseto is not the only publication closed down by the government, and a number of other steps have been taken by the Tanzanian government to restrict the media, journalists and the free flow of information generally. In its 2019 world report, Human Rights Watch noted that since the election of Tanzania’s President John Magufuli in December 2015, the country had ‘witnessed a marked decline in respect for free expression, association and assembly.’

Tanzania recently indicated that it would withdraw its agreement allowing individuals and NGO’s from Tanzania to bring cases against the government before the African Court on Human and Peoples’ Rights. This, despite the fact that the court is based in Arusha, Tanzania. The question that has to be asked now, following the government’s decisive loss before the East African Court of Justice, is whether the Magufuli government will seek a way of extracting itself from the jurisdiction of this court as well.

Carmel Rickard

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