Content Regulation / Censorship, Licensing / Media Regulation
Editorial Perfil S.A. v. Estado Nacional
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The East African Court of Justice declared that a Ministerial order banning a Tanzanian newspaper for three years violated the rights to freedom of expression and press freedom and was, therefore, in breach of the Treaty for the Establishment of the East African Community. The weekly newspaper was banned a week after it published a story about high level corruption involving an Assistant Minister in the Tanzanian government. It was banned pursuant to a law that gave the Minister of Information, Youth, Culture and Sports the power to ban a publication where he was of the opinion that it was in “the public interest, or in the interest of peace and good order so to do”. The newspaper argued that the order infringed the right to freedom of expression and so contravened Tanzania’s obligations as a member of the East African Community to, among other things, promote human rights and good governance. The East African Court of Justice ruled that the Minister had acted unreasonably, unlawfully and disproportionately by imposing the ban “whimsically” and on the basis of his own opinion. It ordered the Minister to annul the order and allow the newspaper to resume publication.
The case concerned Mseto, a weekly Tanzanian newspaper, that had been suspended for a period of three years because of its reporting in 2016. In 2012, a number of years prior to the underlying facts of this case, Mseto was informed by the Registrar of Newspapers in Tanzania that their license only permitted them to publish sports news. The Registrar warned that failure to comply with the terms of the licence would lead to legal action being taken. Between 2012 and 2016, the newspaper continued to publish more general news without any adverse consequences.
On August 4, 2016, Mseto carried an article entitled “Minister soils JPM” that alleged that an Assistant Minister in President John Magufuli’s government had taken bribes to raise funds for Magufuli’s presidential campaign. On August 8, the Registrar of Newspapers sent Mseto a letter requesting further information about the article. Mseto responded that they did not believe they had acted illegally in publishing the article and that the article sought to safeguard the image of the President. On August 10, 2016, the Minister of Information, Youth, Culture and Sports (Minister) issued an order suspending the publication of the newspaper for three years. The order stated that “[t]he newspaper title ‘MSETO’ shall cease publication including any electronic communications … for the duration of thirty-six months with effect from 10th August, 2016”.
This order was made pursuant to section 25(1) of the Newspaper Act 1979, which stated that “[w]here the Minister is of the opinion that it is in the public interest, or in the interest of peace and good order so to do, he may, by order in the Gazette, direct that the newspaper named in the order shall cease publication as from the date … specified in the order”. [para. 39] No reasons were given for the order, and the only information the newspaper received was a letter informing them that they were “prohibited from publishing or disseminating information by any means, including the internet”. [para. 5]
On October 7, 2016, the managing editor and the publisher of Mseto filed an application before the East African Court of Justice claiming that the order and section 25(1) of the Newspaper Act breached the rights to freedom of expression and press freedom and, therefore, violated the fundamental and operational principles under Articles 6(d), 7(2) and 8(1)(c) of the Treaty for the Establishment of the East African Community (Treaty). These Treaty provisions set out the principles to be followed by member states of the East African Community. Article 6(d) of the Treaty states that “[t]he fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include … 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 peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights. Article 9 of the African Charter on Human and Peoples’ Rights protects the right to freedom of expression. Article 7(2) of the Treaty states that “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(1)(c) requires that states “abstain from any measures likely to jeopardise the achievement of those objectives or the implementation of the provisions of this Treaty”.
The newspaper argued that the order interfered with the right to freedom of expression and press freedom, and that it was not founded in law, was not in pursuit of a legitimate aim, and was unnecessary and disproportionate. The newspaper argued that “any restriction on freedom of expression should not be made unless there was a real risk of harm to a legitimate interest, and that there ought to be a close causal link between the risk of harm and the right of expression sought to be limited”. [para. 28]
The Attorney General of Tanzania refuted the allegations made by the editor and publisher of Mseto, and claimed that the Minister’s order was lawful and the reasons for the order were provided under section 25(1) of the Newspaper Act. He argued that the order was made pursuant to a legitimate objective, which was to maintain peace and tranquility in society, as well as to protect the Constitutional rights of the individual. He also explained that the Minister’s order had been issued following “inciting and false news published by Mseto … which seemingly was intended to defame the President of the United Republic of Tanzania”. [para. 36]
While the proceedings were ongoing before the East African Court of Justice, the Newspaper Act was repealed but the order remained in force.
The central issue before the East African Court of Justice (Court) was whether the Minister’s order directing Mseto to cease publication for three years was an unjustifiable restriction of the right freedom of expression, press freedom and the right to receive and impart information in the context of the Treaty for the Establishment of the East African Community (Treaty). The Court held that the Treaty provisions, alongside Article 9 of the African Charter on Human and Peoples’ Rights, indicated that the right to freedom of expression was guaranteed but “only within the strictures and/or confines of the law”. [para. 46] It went on to state that Partner States of the East African Community must also aspire to protect and promote the rights to freedom of expression and press freedom “through the enactment of national laws that achieve the objectives of good governance, more so the adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities and gender equality.” [para. 50]
The Court referred to Burundi Journalists Union v. Attorney General of Burundi, which had commented on the essential role that freedom of the press and freedom of expression plays in a democracy. In linking the right to freedom of expression to the Treaty provisions cited by Mseto, the Court stated that “[i]t is thus, not in doubt that the rights to freedom of expression and free press run in tandem, and as rights guaranteed and also limited under law, may nonetheless also be described as human and democratic rights and freedoms which Partner States should aspire to protect and promote through the enactment of national laws that achieve the objectives of good governance”. [para. 50]
The Court went on to state that section 25(1) of the Newspaper Act was prima facie in accordance with the right to freedom of expression under the Constitution of Tanzania. However, any decision that was made pursuant to that provision would not be “acceptable and lawful” if it unjustifiably restricted the right to freedom of expression and of the press, or if it resulted in a restraint or restriction that was not made on the basis of an existing law and was not made with the intention of achieving a legitimate objective or aim. [para. 53]
The Court was particularly persuaded by the decision of the African Commission on Human and People’s Rights in Constitutional Rights Project v. Nigeria in which it held that “[t]he proscription of specific newspapers by name and the sealing of their premises without a hearing … amount to harassment of the press”. [para. 54] It added that the fundamental and operational principles of the Treaty “certainly demand that proscription of newspapers should be done lawfully and not whimsically or flippantly”. [para. 55] In light of this, and the context of the case, the Court noted that the question to be answered was whether the Minister “acted reasonably, rationally and proportionately when he ordered that [Mseto] should cease publication for a period of  months”. [para. 58]
The Court acknowledged that the right to freedom of expression is not absolute, and that the Treaty and the Tanzanian Constitution stipulate that a limitation of a right by law “is not rendered unlawful if its intent and purpose is to ensure that the rights and interests of other people or the interest of the public are not prejudiced by the wrongful exercise of the freedoms and rights of individuals”. [para. 62]
The Court again made reference to the Burundi Journalists Union case, and noted that in that judgment the Court stated that “a government should not determine what ideas or information should be placed in the market place and, if it restricts that right, the restriction must be proportionate and reasonable.” [para. 67] The Court concluded that the order had “obvious unreasonable, unlawful and disproportionate anomalies”. [para. 67] These anomalies were: (i) that the Minister provided no reasons for the newspaper’s shut down, the order was “ambiguous and not anchored in any provisions of law”, and the order was based on the Minister’s opinion; (ii) Mseto was not given a reasonable opportunity to respond to the allegations made in the letter from the Registrar prior to the order, the correspondence did not articulate how the impugned article violated section 25(1) of the Newspaper Act, and the resulting order was a drastic action to adopt less than 36 hours after the initial complaint was made to Mseto; (iii) the order was “discriminatory in that it violated the principles of freedom of expression and press freedom” by not giving “proper and cogent reasons as to why a duly registered publisher should cease publication of its newspapers”; (iv) the order was made without establishing how the impugned publication violated public interest, the interest of the peace and/or good order of the people of Tanzania (in accordance with section 25(1) of the Newspaper Act); (v) the order made no reference to the previous issue involving the newspaper in 2012 where it was told to publish only sports news, therefore this issue was irrelevant; and (vi) the Attorney General of Tanzania was unable to explain the nexus between section 25(1) of the Newspaper Act and the story about alleged corruption.
Accordingly, the Court held that the Minister’s order “was made in violation of the right to freedom of expression as elucidated in Article 18(1) of the Constitution of Tanzania, or as provided for in Article 19(3) of the ICCPR and 27(2) of the African Charter”. [para. 68] Additionally, the Court held that the order “derogates from the principles of democracy and adherence to the principles of good governance, the rule of law and social justice … [and] principles of accountability and transparency”. [para. 68] The Court held that the Minister had acted unlawfully “[b]y 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 principles of the African Charter”. [para. 68]
The Court declared that the fundamental and operational principles under Articles 6(d) and 7(2) of the Treaty had been violated in the case and that the restriction of the right to freedom of expression was “unlawful, disproportionate and did not serve any legitimate or lawful purpose”. [para. 69] The Court also ordered the Minister to annul the order and allow Mseto to resume publication. In its concluding paragraphs, the Court stated that the impugned article concerned “a serious complaint and in a time when the scourge of corruption is [a] lagging issue in Africa and the World, newspapers have an obligation to highlight instances of high level corruption. While it is not our place to determine whether the information published was correct or not, a knee jerk reaction to ban a publication, hours after the story hit the news stalls, cannot, in our view, be conduct that is within the parameters of the rule of law and good governance.” [para. 72]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by holding that an arbitrary three-year ban on a newspaper violated international law and the Treaty for the Establishment of the East African Community. In doing so, the judgment affirms the importance of the right to freedom of expression and of the press, and the important role the right plays in a democracy. This decision confirms that the press must be protected against frivolous or whimsical censorship measures adopted by government ministers, and that any restriction on the right to freedom of expression must be lawful, reasonable and proportionate.
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