Access to Public Information, Content Regulation / Censorship, Licensing / Media Regulation
Esquivel v. Costa Rican Electricity Institute
Closed Expands Expression
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The East African Court of Justice unanimously held that numerous provisions in Tanzania’s Media Services Act violated the Treaty for the Establishment of the East African Community as they infringed the right to freedom of expression. The case had been brought by three non-governmental organizations in Tanzania who were concerned that the legislation’s use of criminal offences for defamation, false news and other conduct by the media; the restrictions the Act imposed on the publication of conduct; and the requirement of media accreditation seriously infringed freedom of expression and media freedom in Tanzania. The Court found that the Tanzanian government had failed to demonstrate that the limitations to the right in the law were legitimate, and held that the impugned provisions violated the treaty by infringing the right to freedom of expression protected by the African Charter on Human and Peoples’ Rights. The Court directed Tanzania to bring the Act into compliance with the Treaty.
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 Media Council 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” [para. 5]. The Media Council submitted that the Act infringed articles 6(d), 7 and 8 of the Treaty for the Establishment of the East African Community.
Article 6(d) states that one of the fundamental principles that govern the Community is “good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people’s rights in accordance with the provision of the African Charter on Human and Peoples’ Rights” [para. 8 emphasis added].
Article 7 obliges member states to adhere to the principles set out in article 6(d) and states that “[t]he Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights”.
Article 8 requires that member states “abstain from any measures likely to jeopardise the achievement of [the Treaty’s] objectives or the implementation of the provisions of this Treaty”.
Mungenyi, Ntezilyayo, Jundu, Nyachee JJ delivered the unanimous judgment of the East African Court of Justice. The central issue for the Court was to determine whether the impugned provisions in the Act were unjustifiable limitations to the right to freedom of expression and so violated the Treaty.
The Media Council argued that there were numerous problems with the Act: it restricted types of news or content without reasonable justification; it introduced a mandatory accreditation for journalists and gave power to the Board of Accreditation to withdraw accreditation; it criminalized defamation, false news and rumours and seditious statements; and it conferred on the Minister absolute power to prohibit importation of publications and sanction media content [para. 12].
The Attorney General argued that the criminal offences and the power given to the Minister did not violate freedom of expression given that the right to freedom of expression is not absolute. In addition, it argued that the accreditation requirements “provide the rights and obligations of a media house and the manner in which they should conduct themselves” and serve as “an oversight and control mechanism over the journalism profession for scrutiny, statistics and growth” [para. 76]. The Attorney General submitted that the Act was justifiable on the grounds that it sought to give effect to the protection of the right to freedom of expression in article 18 of the Tanzanian Constitution by protecting the rights and interests of individuals and of the public.
The Court emphasized that the principles set out in the Treaty must be interpreted as creating obligations on member states. The Court referred to its judgment in Burundian Journalists Union v. Attorney General of the Republic of Burundi, Reference No. 7 of 2013 which had recognized that “there is no doubt that freedom of the press and freedom of expression are essential components of democracy” [para. 58] and had confirmed that the right to freedom of expression under the Treaty incorporated press freedom.
The Court, referring to the Canadian case of R v. Oakes 1986 ISCR 103 and the Kenyan case of CORD v. Kenya HC Petition no 628 of 2014, applied the three-stage limitation test to determine whether the Act was a justifiable limitation of the right to freedom of expression. The Court summarized the three-stage test as being “(a) is the limitation one that 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: (b) Is the objective of the law pressing and substantial? It must be important to the society; and (c) Has the State, in seeking to achieve its objectives chosen a proportionate way to do so? This is the test of proportionality relative to the objectives or purpose it seeks to achieve” [para. 60] The Court referred to the Tanzanian case of Ndyanabo v. Attorney General of Tanzania (2002) TLR 14 which had recognized that the Constitution seeks to strike a balance between “individuals’ liberty and social control” [para. 35].
The first provision the Court analyzed was section 7(3) which requires that media houses ensure that the information they issue does not undermine the national security or lawful investigation, does not impede due process of law or endanger any person; does not constitute hate speech; does not disclose Cabinet proceedings; does not facilitate or encourage the commission of an offence; does not involve an unwarranted invasion of an individual’s privacy; does not infringe lawful commercial interests; does not cause substantial harm to the Government to manage the economy; or does not infringe the holder of the information’s ability to consider whether to provide the information and their professional privilege or position in legal proceedings.
The Court applied the three-part test, and, with reference to the CORD case and to the African Court on Human and People’s Rights case of Konate v. Burkina Faso App No. 004/2013/(2014), held that the provision did not meet the requirements of clarity as it was “vague, clear and imprecise” and that it therefore was not “prescribed by law” [para. 66]. The Court found that “the word ‘undermine’ which forms the basis of the offence, is too vague to be of assistance to a journalist or other person, who seeks to regulate his or her conduct” and that “’impede’ is vague and would not meet the UN Human Rights Committee’s guidance that ‘laws must contain rules which are sufficiently precise, to allow persons in charge of their application to know what forms of expression are legitimately restricted and what forms of expression are unduly restricted” [para. 66]. In addition, the Court said that “hate speech” was not defined which meant the provision was vague and “potentially too broad”, and that “’unwarranted invasion’ also in our view fails the test of clarity and precision” [para. 66]. The Court also found that the phrases “infringe lawful commercial interests”, “hinder or cause substantial harm”, “significantly undermines” and “damage the information holders position” did not adequately define the scope of the content restrictions and so did not provide clarity on what was prohibited by the legislation [para. 66].
Applying the second leg of the test to the provision, the Court discussed the Media Council’s submissions that although article 27(2) of the African Charter on Human and Peoples’ Rights and article 19(3) of the International Covenant on Civil and Political Rights both allowed for the limitation of the right in order to protect security or the rights of others, the UN Human Rights Committee’s General Comment Number 34 stresses that a “State Party relying on legitimate aim to justify a provision restricting free expression, can only do so by demonstrating ‘in specific and individualized fashion the precise nature of that threat, and the necessity (and proportionality) of the specific action taken, establishing a direct and immediate connection between the expression and the threat’.” [para. 70]. The Media Council had submitted that “imposing a system of prior censorship, does not pursue a legitimate aim consistent with Article 19 of the ICCPR and Article 9 of the African Charter” [para. 71]. The Court held that the Attorney General “failed to establish either that there was a legitimate aim being pursued … or indeed that the said limitations are proportionate to any such aim” [para. 75].
In respect of sections 13, 14, 19, 20 and 21 which addressed the accreditation of journalists, the Court again referred to the Burundian Journalists case which had “acknowledged that accreditation per se is not objectionable” [para. 77]. However, with reference to the General Comment 34, the Court held that the “definition of ‘journalist’ in section 19 is too broad” and “difficult to define with precision” [para. 79]. In addition, the Court referred to the African Commission case of Scanlen and Holderness v. Zimbabwe Case No. 297/05 (2009) and noted that “[i]n the context of section 19 of the Act, it is also not clear what legitimate aim the requirement therein (as a limitation on the right to freedom of expression), pursues” [para. 80]. The Court held that section 19 failed to pass the limitations test and that as section 20 and 21 flowed from 19 the three provisions did violate the Treaty. Section 13 and 14 were found to be consistent with the Treaty.
In respect of criminal defamation in the Act, the Media Council had referred to the Resolution of the African Commission on Human and People’s Rights which had called for the repeal of criminal defamation and insult laws, and submitted that “criminal defamation laws are an inappropriate means of limiting the freedom of the press” and that reputations of others “can be assured appropriately and proportionately by the civil laws of defamation” [para. 84]. The Attorney General had argued that the offence of criminal defamation was permissible because “the intent of the legislature was to protect honour of the founders of (our) Nation” [para. 88] and that the offences “do not restrict the freedom of expression and right to access information but rather, ensure the rights, freedoms, privacy and reputation of other people or interest of public are not prejudiced by wrongful exercise of the rights and freedoms of individuals” [para. 89].
The Court dismissed the Attorney General’s argument, holding that it “fails to meet the parameters referred to above, set up by the UN Human Rights Committee, in its General Comment 34, that the Respondent State demonstrates a direct and immediate connection between the specific threat, and the specific action taken” and that the Act’s inclusion of the offence of criminal defamation failed the second tier of the test in that the objective of the law was not pressing and substantial [para. 89]. The Court also held, with reference to the General Comment 34, that “to meet the criterion of proportionality, the mode of restriction adopted should ‘be the least intrusive protective function’” and referred to the ECOWAS Court of Justice case, Federation of African Journalists v. Republic of the Gambia EWC/CCJ/JUD/04/18 which had held that the use of criminal sanctions had a chilling effect on journalists’ freedom of expression and that applying the laws amounted to a “continued violation of internationally guaranteed rights” [para. 91]. The Court referred to the Inter-American Court of Human Rights case of Kimel v. Argentina SERIE C No. 177-2008 which had commented that the broad definition of criminal defamation “might be contrary to the principles of minimum necessary, appropriate and last resort or ultimo ratio intervention of criminal law” [para. 85]. The Court held that “section 35 which defines defamation is not sufficiently precise to enable a journalist or other person to plan their actions within the law” and that, therefore, “[t]he offence created by Section 35 falls short on clarity” [para. 87]. Accordingly, the Court held that sections 35, 36, 37, 38, 39 and 40 violated the Treaty.
Section 50 of the Act created “offences relating to media services” and criminalized the use of a media service for publishing information or a statement which threatens “the interests of defence, public safety, public order, the economic interests of the United Republic, public morality or public health”; harms the reputation of others; is “maliciously or fraudulently fabricated”; is a statement “knowingly to be false or without reasonable grounds for believing it to be true”; is a statement “with maliciously or fraudulent intent representing the statement as a true statement”; has prohibited information; or operates a media outlet without licence or practices journalism without accreditation, and imposes a fine and/or imprisonment of between three and five years [para. 92]. Section 54 created the offence of “publication of a false statement likely to cause fear and alarm” [para. 93].
In assessing this provision the Court held that “threatening the interests of defence, public safety, public order, the economic interests of the United Republic, public morality or public health” was “too broad and imprecise to enable a journalist or other person to regulate their actions” [para. 94]. The Court referred to the Zimbabwean case of Chavunduka v. Minister of Home Affairs CIV APP No. 156/99, and held that “likely to cause fear and alarm” was also too vague [para. 95].
Sections 52 and 53 concerned seditious offences. The Act defines “seditious intention” as an “intention to bring into hatred or contempt or to excite disaffection against the lawful authority of the Government of the United Republic; excite any of the inhabitants of the United Republic to attempt to procure the alteration, otherwise with than by lawful means, of any other matter in the United Republic as by law established; bring into hatred, contempt or to excite disaffection against the administration of justice in the United Republic; raise discontent or disaffection amongst people or section of people of the United Republic; or promote feelings of ill-will and hostility between different categories of the population of the United Republic” [para. 97].
The Court held that the definitions of sedition “fails the test of certainty required in the first limb of the test” as they “are hinged on the possible and potential subjective reactions of audiences to whom the publication is made” [para. 99]. The Court highlighted the phrase – “in determining whether the intention for which the act was done, any work spoken or any document published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct” – as particularly problematic as it would be “entirely dependent on the subjective reaction of the person or audience to whom the publication is made” [para. 99].
In striking down these provisions the Court referred to Federation of African Journalists, Konate and the Ugandan case of Mwenda v. Attorney General (UGCC) 5(2010) which had found that such offences violate the rights of journalists and that criminal sanctions should only be applied in exceptional circumstances [para. 100-103].
In respect of section 58 and 59 which granted the Minister the power to prohibit the importation or publication of any conduct on the grounds that the Minister “in his absolute discretion” was of the opinion that it would threaten the public interest, national security or public safety, the Attorney General had submitted that the Minister’s decisions would always be subject to judicial review, and that he had to exercise the power “judiciously”, non-arbitrarily and subject to the interest of public safety and national security [para. 107]. However, the Court stated that this submission “does not answer the question of the subjectivity of the Minister’s judgment in deciding when to exercise the powers, and more importantly, that this subjectivity denies persons the precision and certainty that would enable them to plan their actions” [para. 108]. The Court referred to the African Commission’s judgment in Media Rights Agenda and Constitutional Rights Project v. Nigeria Comm. No. 224-98 which had noted that the power to prohibit publication “invites censorship and seriously endangers the rights of the public to receive information” [para. 109]. The Court held that sections 58 and 59 did constitute disproportionate limitations to the right to freedom of expression as “[t]he absolute nature of the discretion granted to the Minister, as well as the lack of clarity on the circumstances in which such Minister would impose a prohibition, in our view, makes the provision objectionable relative to the rights restricted” [para. 110].
The Court therefore declared that sections 7(3)(a), (b), (c), (d), (e), (f), (g), (h), (i) and (j); 19; 20; 21; 35; 36; 37; 38; 39; 40; 50; 52; 53; 54; 58; and 59 were in violation of the Treaty, but that sections 13 and 14 did not violate the Treaty. The Court directed the government of Tanzania to “take such measures as are necessary to bring the Media Services Act into compliance with the Treaty for the Establishment of the East African Community” [para. 118].
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The East African Court of Justice confirmed that any limitation to the right to freedom of expression must be fully justified by a State seeking to restrict the right, and that an infringement of the right constitutes a violation of the obligations to protect the African Charter rights set out in the Treaty for the Establishment of the East African Community.
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