The East African Court of Justice has ordered Tanzanian government to immediately lift a ban on a newspaper that had been shut down over a controversial story implicating President John Pombe Magufuli(JPM) campaign aide.
On 4th August, 2016, Mseto published an article titled “Waziri amchafua JPM” (“Minister soils JPM”).
The article reported that one Engineer Edwin Ngonyani, an Assistant Minister in Magufuli’s government had taken bribes from certain persons and entities in a bid to raise funds for Magufuli’s election campaigns.
Four days after the publication of this article, Mseto was served with a notice from Nape Nnauye, the former Tanzania Minister of Information, Youth, Culture and Sports demanding explanations regarding the published article by 9th August 2016 on specified hours.
Meanwhile, the Applicants on 9th August, 2016, responded to the letter by stating that the article was published to safeguard the image of the President and his office and that in the Applicants view, they had committed no illegality.
However, on 10th August 2016 the Applicants were issued with an order banning Mseto publication. That, on 11th August 2016 a press conference was held by the Minister where he announced the Order banning Mseto publication.
The Applicants therefore instituted the Reference challenging the aforesaid Order for being in contravention of the Treaty for the Establishment of the East African Community (EAC).
It was the Applicants case that; the order restricts press freedom and the right to freedom of expression, which in turn violates the Respondent State’s obligation to uphold and protect the fundamental and operational principles of the EAC and the universally accepted human rights standards.
The Respondent alleged that the right to freedom of expression is not absolute and the Order complies with the Respondent’s obligations under the Treaty, the African Charter and the International Covenant on Civil and Political Rights (ICCPR).
Further contended that the reasons for the order were set out under Section 25 of the Newspaper Act (repealed) and submits that the Order was made against the Applicant’s newspaper because it was publishing incitements and false news.
Further that, the punishment inflicted under Section 25 of the Newspapers Act is reasonable and in conformity with Articles 6(d), 7(2) & 8(1)(c) of the Treaty.
The Court in its Judgment found that the Respondent having failed to establish how the publication in the Mseto newspaper violated the public interest, or the interest of peace and good order of the people lead to the conclusion that the impugned order was made in violation of the right of freedom of expression provided in Article 18(1) of the Constitution of Tanzania, or as provided for in Articles 19(3) of the ICCPR and 27(2) of the African Charter as a measure of universally accepted human rights standards.
Further, court said in its judgment that by issuing orders whimsically and which were merely his “opinions” and by failing to recognize the right to freedom of expression and press freedom as a basic human right which should be protected, recognized and promoted in accordance with the provisions of the African Charter, the Minister acted unlawfully.
The Court in making the findings noted that, the provisions of Articles 6(2) and 7(d) as well as 8(1) the Treaty, are binding and not merely aspirational.
The provisions are justiciable and create an obligation to every Partner State to respect those sacrosanct principles of good governance, and rule of law which include accountability, transparency and the promotion and protection of democracy.
That these principles were violated in this case and further found that whereas the rights to press freedom, to received and impart information are not absolute, in the present case, the restrictions were unlawful, disproportionate and did not serve any legitimate or lawful purpose.
The Court having held that the Minister acted in breach of the Treaty, it ordered that an unlawful action must be followed by an order taking the parties to the state of affair that existed previously as of 9th August, 2016 by ordering the resumption of the publication of Mseto as prayed.
The Court finally emphasised that, according to Article 38(3) of the Treaty, the United Republic of Tanzania is expected to take measures without delay, to implement this Judgment within its internal legal mechanisms.
The Judgment was delivered by the following Honourable Judges: Lady Justice Monica Mugenyi (Principal Judge), Mr Justice Isaac Lenaola (Deputy Principal Judge), Justice Dr. Faustin Ntezilyayo, Mr Justice Fakihi A. Jundu and Mr Justice Audace Ngiye.
The East African Court of Justice, First Instance Division on 21st June 2018 delivered Judgment in the matter between The Managing Editor of Mseto & Hali Halisi Publishers Limited and the Attorney General of the United Republic of Tanzania (Reference No. 7 of 2016).