The Tanzanian government has suffered yet another blow to its efforts at curbing free expression: it has lost its appeal against a declaration of invalidity of key elements of a law that had given it wide-ranging powers to stifle the media. Earlier this week, the appellate tribunal of the East African Court of Justice dismissed the government’s attempts to appeal, saying the appeal had not been filed within the time limits set by the court.
Read judgment of the appeal court
Read judgment of the trial court
One of the most essential tools used by the Tanzanian government to curb the free flow of information and opinion has been its Media Services Act. However, key elements of that law were challenged at the East African Court of Justice by a joint application of three lobby groups supporting human rights and media freedom. The applicants argued that the law infringed the Treaty that established the East African Community and of which Tanzania was a signatory.
Tanzania’s Media Council, the Legal and Human Rights Centre and the Tanzania Human Rights Defenders’ Coalition argued that the restrictions in the Media Services Act was an unjustified violation of freedom of expression. Freedom of expression, in turn, was ‘a cornerstone of the principles of democracy, rule of law, accountability, transparency and good governance’ that Tanzania had committed to, through the Treaty and other international instruments.
In a significant judgment delivered a year ago, the trial court found that many of the challenged sections of the law were in conflict with the Treaty to which Tanzania was party. The court also ordered Tanzania to amend the law so that it complied with the Treaty requirements.
Not surprisingly, given the importance of the law to Tanzania’s system of media control, the decision was made to challenge this outcome, and in April 2019, Tanzania noted an appeal. Despite the court rule that this had to be followed within 30 days by the actual instituting of an appeal, nothing further happened.
Tanzania had also not brought an application asking the court to condone its failure to act in time, and to grant an extension.
In the view of the original applicants, that was enough for the appeal court to dismiss the appeal forthwith. Tanzania, however, argued that there had been a good reason for its failure to follow the rules.
As in the appeal of the publication Mseto, decided a week before this one, Tanzania’s Attorney General argued that there had been a major overhaul of the way litigation on behalf of the state would be handled, with new offices, new staff and new systems being set up. In the course of those all changes it had not been possible to prepare and file the appeal in time.
Counsel said there had been a further problem: their file on the matter had gone missing, making it impossible to prepare the required memorandum and record of appeal as required under the court’s rules.
The appeal judges said the applicants had been within their rights in applying to have the notice of appeal struck out. Counsel for Tanzania had conceded that ‘indeed no appeal was instituted by them’ and this meant that the appeal was ‘deemed to have been withdrawn’.
Given the lengthy argument by counsel for Tanzania, that it had good reasons for the delay, the court decided, however, to deal with that question.
If the respondent (Tanzania) had any good reason for its delay, the correct procedure to remedy that lapse was to apply to court for an extension of time to institute the appeal. ‘However, the Respondent has filed no such application for us to consider so the reasons argued before us for the delay in this application are beside the point and are irrelevant.’
The final result, said the judges, was that the notice of appeal was struck out with costs in favour of the applicants.
Faced with this outcome, the Tanzanian government now has no choice but to make radical changes to its media legislation, ensuring that its provisions comply with the democratic principles agreed in the Treaty that established the East African Community.