Enforcing Regional Judiciary Decisions: The Case of Tanzania’s Media Services Act

By Francis Nyonzo

The Media Council of Tanzania (MCT) was established in 1995 as a response to stakeholders’ desire for a new and improved media law to replace the outdated Newspaper Act No. 3 of 1976. The founders of MCT aimed to create a voluntary, non-governmental council managed by journalists themselves. At that time, there was opposition to a draft of a new media law that was being proposed.

In 2006, MCT, TAMWA, and MISA-Tan formed a coalition called the Coalition on the Right to Information (CoRI) to discuss the need for a new law and gather stakeholders’ opinions. There was a debate on whether there should be one law regulating the right to information and another for media services. Stakeholders advocated for two separate laws.

In 2007 and 2008, MCT and its partners published alternative drafts of both the Right to Information law and the Media Services law, based on the collected opinions. The research, opinion gathering, and drafting of stakeholder proposals were led by Sengondo Mvungi of the University of Dar es Salaam, in collaboration with other professionals.

CoRI added more players in 2009, and in 2011, they included in their strategic plan a trip for members of parliament to a third-world country with good laws on media and the right to information to learn about the laws’ implementation. In 2012, a delegation of eight members of parliament, led by Juma Seleman Nkamia, went to India for one week.

In 2016, the Media Services Act, 2016 (MSA), also known as the Media Services Act, was passed, along with the Access to Information Act, 2016. Getting the Media Services Act (2016) was both a triumph and a setback. Numerous media and human rights activists expressed dissatisfaction with the MSA, arguing that it curtailed press freedom and had a detrimental impact on the media landscape.

The challenging sections of the Media Services Act

Tanzania is committed to upholding international, regional, and constitutional standards of press freedom and freedom of expression. However, the provisions of the Media Services Act (MSA) do not meet acceptable standards for promoting freedom of expression.

Section 19(1) of the MSA violates the Declaration of Principles on Freedom of Expression in Africa by requiring journalists to be accredited and preventing anyone from practising journalism without accreditation. This restriction hinders individuals from gathering, collecting information, and disseminating news to the public. Section 7(3) of the Act limits media houses from issuing information for unclear reasons, potentially leading to fear and inhibiting their freedom.

Sections 58 and 59 of the Act give the minister unchecked power to prohibit the importation or publication of any content deemed contrary to the public interest or jeopardizing national security or safety, which infringes on the right to seek, receive, and impart information.

The Act’s direction on private media coverage through Section 7(2)(b)(iii) and (iv) conflicts with the Declaration, which promotes a diverse and independent private broadcasting sector. These provisions may compromise the media’s independence and limit their coverage.

The Journalists Accreditation Board, which regulates the journalism profession in Tanzania, does not meet the standards set out by the Declaration. All seven members of the board are appointed by the minister, which undermines its independence. Subjecting journalists to the process of accreditation is an unnecessary legal restriction that affects freedom of expression.

The Act also establishes media regulatory bodies lacking independence and specific guidelines. This lack of independence affects the individual’s right to freedom of expression, which includes the right to seek, receive, or impart information regardless of national frontiers, as provided under the Constitution.

The Act has several weaknesses, including vague provisions that may lead to problems in their application. For example, Section 8 prohibits several acts, including publishing, selling, and distributing print media without a license, but it’s unclear whether it applies to cumulative acts or individual acts. Section 7(3)(a)(i) and (c) prohibit media houses from issuing information that undermines national security or constitutes hate speech, without defining what constitutes such information.

The Act requires licensing for media houses and print media, which curtails freedom of expression. This requirement is an impermissible restriction on the right to freedom of expression, especially since the regulatory bodies established by the Act, such as the Journalists Accreditation Board and the Independent Media Council, are not independent.

Section 54 criminalises false news, rumours, and reports, without considering the publisher’s intentions, which may lead to punishment for innocent parties. These weaknesses need amendments to safeguard press freedom and the right to freedom of expression.

Litigations

In early 2017, The Union of Tanzania Press Clubs (UTPC) and Hali Halisi Publishers Ltd. lodged a constitutional case with the Mwanza High Court, while the Media Council of Tanzania (MCT), the Legal and Human Rights Centre (LHRC), and the Tanzania Human Rights Defenders Coalition (THRDC) filed a case with the East African Court of Justice (EACJ), alleging that the law contained provisions that violated press freedom and contravened the East African Community Treaty.

However, the Mwanza constitutional case was never heard at the merits level. It was dismissed on a technicality at the High Court and subsequently at the Court of Appeal, where the judges deemed it too late to be submitted.

The case in the EACJ was decided on March 28, 2019. The court agreed with the applicants that 16 out of the 18 clauses they complained about violated the Treaty Establishment of the Community, thus requiring the Tanzanian government to take action to remedy the situation. The government was dissatisfied and issued a notice of appeal. However, the 90-day period for filing an appeal in that court passed without the government doing so. In June 2020, the Appeals Division of that court dismissed the government’s notice, leaving the government with the task of implementing the court’s directives.

The EACJ’s Decisions

Tanzania was directed to take necessary measures to bring the media services act into compliance with the Treaty for the establishment of the East African Community. It was declared that the provisions of sections 7(3)(a), (b), (c), (f), (g), (h), (i), and (j); sections 19, 20, 21; sections 35, 36, 37, 38, 39, and 40; sections 50 and 54; section 52 and 53; sections 58 and 59 of the Media Services Act violate Article 6(d) and 7(2) of the Establishment of the East African Treaty. The treaty emphasizes the importance of good governance, which includes principles such as democracy, rule of law, accountability, transparency, social justice, equal opportunities, gender equality, and the recognition and protection of human and peoples’ rights in accordance with the African Charter.

The provisions that are against the Establishment of the East African Treaty exclude some people from practising journalism, criminalise defamation, and in fact, the issue of sedition.

The saga continues

On January 8, 2022, President Samia Suluhu Hassan created a new Ministry of Information, Communications, and Information Technology, and appointed Nape Nnauye as minister. Nnauye, who oversaw the Ministry of Information when the Media Services Act was passed, told stakeholders of the government’s intention to review and improve the law. On December 17, 2022, at the National Media Conference, Minister Nnauye promised Tanzanians that press freedom must be legally guaranteed and not depend on the leader’s goodwill or charity.

In February 2023, the government presented the Written Laws (Miscellaneous Amendments) Act, 2023 bill to Parliament, and it was read for the first time. It contained proposals to amend the Media Services Act. The proposed amendments are only in 8 sections, which mostly minimized the fines and jail sentences for the offences. That means for the most part the decisions of EACJ have been ignored. This calls for a need of having a way of enforcing what the regional judiciary decides in making the partner states adhere to the signed agreement.

EACJ is a bit different from the Court of Justice of the European Union (CJEU) in enforcing the decisions made. Some of the mechanisms that the CJEU uses are infringement proceedings, financial penalties, preliminary rulings, direct actions and non-compliance proceedings. In making sure that East African Community works, the EACJ should ensure that the decisions made are observed by member states. That should include imposing fines on the member states when there is a delay or ignoring the court’s decision. Otherwise, the efforts made by the stakeholders are in vain if the court’s decisions are not enforced on the member states.

Francis Nyonzo is an Economist, Researcher and Author at Jamii Forums