- May 15, 2024
- Posted by: Strategic Litigation
- Category: Cases
- Background of the case
In March 2018, Tanzania introduced stringent regulations targeting online content creators, including bloggers, social media users, and online news outlets. These regulations, stemming from the Electronic and Postal Communications (Online Content) Regulations of 2018, were a culmination of a decade-long trend of heightened government control of online civic freedoms . The history of government intervention in online content dates back to the early 2010s, when Tanzania began enacting laws to regulate internet activities.
The regulations added to existing legislation, such as the Media Services Act, by formalising and professionalising online content creation by imposing licensing requirements and disclosure obligations on bloggers and online media services. These provisions effectively eliminated anonymity and imposed a financial burden on content creators, making it difficult for independent voices to thrive in the online space. Furthermore, the regulations empowered the Tanzania Communications Regulatory Authority (TCRA) to oversee online content providers and enforce compliance with the new rules. This centralization of regulatory authority enabled the government to exert greater control over the digital sphere and restrict online expression that was deemed critical or oppositional.
The impact of the regulations was profound, as evidenced by the widespread discontent expressed by content creators, digital activists, and human rights organisations. The regulations were cited for stifling freedom of expression, inhibiting whistleblowing and investigative reporting, and imposing a financial burden on small businesses and independent bloggers. In response to the regulations, various stakeholders, including human rights organisations, media outlets, and digital activists, initiated legal challenges to contest the legality and constitutionality of specific provisions.
CSL as other like minded individuals initiated a case at the East African Court of Justice; Center for Strategic Litigation Limited vs. Attorney Tanzania and Secretary General EAC Reference no. 9 of 2018. However, as the case was ongoing the 2018 online content regulations were repealed and replaced by the Electronic and Postal Communications (Online Content) Regulations, 2020 which were enacted in July 2020. The new regulations still contained provisions that limit fundamental rights and freedoms. This prompted the Center for Strategic Litigation in collaboration with the Legal and Human Rights Center, Tanzania Human Rights Defenders Coalition and Media Council of Tanzania to institute another public interest case against the Tanzanian government (Reference No 30 of 2020) at the East Africa Court of Justice. This legal challenge hinges on the argument that the regulations undermine and fail to uphold the fundamental principles of democracy, rule of law, accountability, transparency, and good governance as enshrined in the EAC Treaty.
In a 2021 interview with BBC, President Samia Suluhu reiterated her support for online criticism, emphasising its value in understanding public opinion. Subsequently after Suluhu’s remarks, the Minister of Home Affairs George Simbachawene announced plans to monitor social network discussions, sparking opposition. University professor Dr. Christopher Cyrilo criticized the move on Twitter, warning against state repression. He was consequently arrested but released after public outcry.
In 2022, the government of Tanzania made amendments to some of the provisions of the 2020 Online Content Regulations through the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022. Despite the President’s statements and these amendments, internet freedom in Tanzania has registered limited progress. Repressive laws remain, and the while suppression of online dissent prevails albeit at a lower frequency than under the previous administration.
Against this backdrop the Center filed a petition in April, 2024, against the government of Tanzania. In contrast to the previous two cases, the current legal challenge targets the 2020 online content regulations along with their 2022 amendments, alleging violations of human rights as guaranteed by the Constitution of Tanzania. The current regulations restrict freedom of expression, the right to a fair hearing, privacy and the right to work as enshrined under the Constitution of the United Republic of Tanzania.
As Tanzania approaches elections, this case bears particular significance in securing the civic and democratic space ahead of the key processes.. The persistence of unconstitutional provisions within these regulations poses questions on the country;s commitment to the rule of law and the defence of fundamental freedoms and rights ahead of the key democratic processes.
- Understanding the jurisdiction of the High Court of Tanzania
The High Court of Tanzania has the original jurisdiction and power to hear cases related to alleged violations of fundamental rights, freedoms, and duties as outlined in Articles 12 to 29 of the Constitution. It can determine the validity of laws or actions that conflict with the Constitution and may provide opportunities for rectification of defects found in such laws or actions.
- Grounds upon which the case was brought to Court
The case was initiated based on several key grounds, each forming the basis for its submission. The main ground being relied upon is the existence of provisions that limit the enjoyment various rights including;
- Violation of the Right to a Fair Hearing: The regulations under regulation 8 grants the Tanzania Communications Regulatory Authority (TCRA) unfettered powers concerning the issuance, suspension, and revocation of licences without proper safeguards against abuse, thereby limiting the right to a fair hearing. This provision violates Article 13(6)(a) of the Constitution.
- Violation of Freedom of Expression: Regulation 3, 5, 7, 9, 12, 14, 15, 19, and 21, along with several items in the third schedule, contain ambiguous and wide-ranging provisions that restrict freedom of expression. The requirements for licences to provide online media services and the broad definitions of prohibited content are unjustifiable restrictions on freedom of expression. The provisions of the regulations obligate online content service providers and users to comply with vague and broad obligations, which can lead to inconsistent application and potential abuse. Further criminal penalties imposed by these regulations are viewed as excessive and unjustifiable, further limiting freedom of expression and violating Article 18(a), (b), (c), & (d) of the Constitution.
- Violation of the Right to Privacy: The regulations under its provisions specifically Regulation 17 mandates the disclosure of third-party information without adequate safeguards against abuse, infringing on the right to privacy. This infringes on the protection of the right to privacy as provided under Article 16 of the Constitution.
- Violation of the Right to Work: Regulations 4, 6, and the second schedule of the 2022 amendments impose restrictions that affect individuals’ right to work, particularly by requiring licences for providing online media services, which impacts the ability of individuals to disseminate information and express opinions freely. This is also a violation of the constitutional right to work as provided under Article 22.
- Evidentiary considerations
- The existing legal framework
National Legislation: The existence of the Electronic and Postal Communications (Online Content)2020 and the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 and its continued use to restrict fundamental freedoms in Tanzania.
- Past cases challenging the Online Content Regulations
The case challenged the restrictive measures imposed by the Electronic and Postal Communications (Online Content) Regulations 2018, the Center for Strategic Litigation (CSL) filed a Reference before the East African Court of Justice, alleging violations of democratic principles enshrined in the East African Community Treaty. These violations included the imposition of restrictive measures on online news and information, mandating registration and licensing for online media, and granting sweeping powers to the Tanzania Communications Regulatory Authority (TCRA). While this case was pending, Tanzania introduced the Electronic and Postal Communication (Online Content) Regulations of 2020 on July 19, 2020, replacing the 2018 regulations and leading to the withdrawal of the case.
This ongoing case brought before the East African Court of Justice stems from the enactment of the Electronic and Postal Communications (Online Content) Regulations 2020 by the Minister for Information, Culture, Arts, and Sports of the United Republic of Tanzania on July 17, 2020. Published through Gazette Notice No. 538 of 2020, these regulations are criticised for unduly restricting the freedom of expression, a fundamental tenet of democracy and good governance upheld by Tanzania under the East African Community Treaty and international legal frameworks. The Center for Strategic Litigation, along with allied organisations, initiated proceedings to safeguard the Treaty’s provisions, arguing that the regulations contravene Articles 6(d), 7(2), and 8(1)(c) of the EAC Treaty, which mandate member states to adhere to the Community’s principles and operational standards without implementing measures that undermine these objectives. As the case was ongoing the government passed the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 that amended some of the provisions being challenged in the case. The case is still pending in Court.
- Alleged Human Rights Violations by the Government of Tanzania
- Freedom of expression
- Article 18(c) of Constitution of the United Republic of Tanzania: Every person has the freedom to communicate and a freedom with protection from interference from his communication.
- Article 9(1) and (2) of African Charter of Human Rights and Peoples’ Rights (ACHPR):
- Every individual shall have the right to receive information
- Every individual shall have the right to express and disseminate his opinions within the law.
- Article 19(1) and (2) of the International Convention of Civil and Political Rights (ICCPR):
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
- Right to Privacy
- Article 16(1) of the Constitution: Every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect and protection of his residence and private communications.
However, this right is not without limitations. Article 16(2) of the Constitution states that the government must implement legal procedures detailing the specific circumstances, manner, and extent to which the right to privacy can be encroached upon, ensuring that these limitations are consistent with the provisions of this Article.
- Right to Non-Discrimination
- Article 13(2) of the Constitution of the United Republic of Tanzania: No law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect.
- Article 13 (4) of the Constitution of the United Republic of Tanzania: No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office.
- Article 2 of the African Charter of Human and People’s Rights: Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
- Article 7 of the Universal Declaration of Human Rights: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
- Article 2(1) of the International Covenant on Civil and Political Rights: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- Reliefs sought in Court
- Declaration that the provisions of Regulation 8 of the Electronic and Postal Communications (Online Content) Regulations, 2020 violates the right to a fair hearing under Article 13(6)(a) and freedom of expression under Article 18(a), (b), (c), & (d) as stated in the Constitution of Tanzania, and is therefore unconstitutional.
- Declaration that regulations 11, 14, 15, 19, and 21 of the Electronic and Postal Communications (Online Content) Regulations, 2020 restrict freedom of expression as outlined under Article 18(a), (b), (c), & (d) the Constitution of Tanzania, and are therefore unconstitutional.
- Declaration that the provisions of Regulation 17 of the Electronic and Postal Communications (Online Content) Regulations, 2020 contain provisions that violate the right to privacy and freedom of expression as stipulated under Article 16 and 18(a), (b), (c), & (d) of the Constitution and are therefore null and void to the extent of their inconsistency.
- Declaration that the provisions of Regulations 3, 5, 7, 9, and 12 of the Electronic and Postal Communications (Online Content) Regulations, 2020 as amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 violate the right to freedom of expression under Article 18(a), (b), (c), & (d) of the Constitution of Tanzania and are therefore unconstitutional to the extent of their inconsistencies.
- Declaration that the provisions of Regulation 4, 6, and the second schedule of the Electronic and Postal Communications (Online Content) Regulations, 2020 as amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 infringe on freedom of expression and the right to work as envisaged in Article 18(a), (b), (c), & (d) and Article 22 of the Constitution of Tanzania and are therefore unconstitutional to the extent of their inconsistencies.
- Declaration that the provisions of Regulation 20 of the Electronic and Postal Communications (Online Content) Regulations, 2020 as amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 and Regulation 11 of the Electronic and Postal Communications (Online Content) Regulations, 2020 violate the right to freedom of expression under Article 18(a), (b), (c), & (d) of the Constitution of the United Republic of Tanzania of 1977 as amended and are therefore null and void to the extent of their inconsistencies
- Status of the case
The case is currently ongoing at the High Court of Tanzania, with the Center scheduled to appear again on June 14, 2024. This legal challenge holds significant importance as it questions the constitutionality of the regulations. Particularly noteworthy is its relevance as Tanzania approaches elections, given the recent history of the suppression of civics space including infringing upon the rights of internet users to express themselves freely online during election periods.