Wakilii

Mseto and Another v Attorney General of Tanzania (Reference 7 of 2016)

East African Court of Justice · [2018] EACJ 44 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference brought under the Treaty for the Establishment of the East African Community challenging a ministerial order banning publication of a newspaper
Decision
Order banning publication of Mseto annulled; Applicants permitted to resume publication with immediate effect

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice held that the Tanzanian Minister's order banning publication of the Mseto newspaper for three years violated Articles 6(d), 7(2) and 8(1)(c) of the Treaty for the Establishment of the East African Community. The order was issued without adequate reasons, without affording the applicants a reasonable opportunity to respond, and failed to establish how the publication violated public interest, peace or good order. The restriction on press freedom and freedom of expression was unlawful, disproportionate and did not serve any legitimate purpose. The Court ordered the Minister to annul the order and allow resumption of publication.

Outcome

Order banning publication of Mseto annulled; Applicants permitted to resume publication with immediate effect

Facts

The Managing Editor of Mseto, a Tanzanian weekly newspaper, and its publisher Hali Halisi Publishers Ltd challenged a ministerial order banning publication for three years. On 8th August 2016, the Registrar of Newspapers wrote to the Applicants at 4:00 p.m. demanding an explanation by 9:00 a.m. the next day regarding a news article alleging that a Deputy Minister had solicited bribes to fund President Magufuli's election campaign. The Applicants responded on 9th August 2016 stating the article was published to safeguard the President's image. On 10th August 2016, the Minister issued an order under Section 25(1) of the Newspapers Act directing cessation of publication for 36 months. No reasons were provided in the order itself. The Applicants contended the order violated their rights to press freedom and freedom of expression under the Treaty for the Establishment of the East African Community and international human rights instruments.

Issues

  1. Whether the order of the Minister of Information, Culture, Arts and Sports dated 10th August, 2016 violates Articles 6(d), 7(2) and 8(1)(c) of the Treaty for the Establishment of the East African Community.
  2. Whether the order directing Mseto to cease publication restricts press freedom, the right to freedom of expression and the right to receive and impart information, and if so, whether these rights are absolute.
  3. Whether the Respondent State should be ordered to annul the order and allow the Applicants to resume publication of Mseto with immediate effect.

Orders

  • Declared that the order issued by the Minister for Information, Culture, Arts and Sports dated 10th August 2016 restricts press freedom and violates the Respondent's obligations under Articles 6(d) and 7(2) of the Treaty to uphold democracy, rule of law, accountability, transparency and good governance.
  • Declared that the order violates the right to freedom of expression and the Respondent's obligations under Articles 6(d) and 7(2) of the Treaty to promote, recognize and protect human and peoples' rights and abide by universally accepted human rights standards.
  • Ordered the Minister to annul the order forthwith and allow the Applicants to resume publication of Mseto.
  • Ordered the United Republic of Tanzania to take measures without delay to implement the judgment within its internal legal mechanisms in accordance with Article 38(3) of the Treaty.
  • Costs of the Reference to be borne by the Respondent.

Rules and key headnotes

Freedom of Expression and Press Freedom — Restrictions — Requirements for Lawful Limitation
Any action restricting freedom of expression and press freedom must be provided by law, pursue a legitimate objective that is pressing and substantial, and be proportionate relative to the aim it seeks to achieve.
Freedom of Expression — Quality of Law — Sufficient Precision
A law restricting freedom of expression must give sufficient precision to allow a person to foresee with a reasonable degree of certainty what conduct will be prohibited. Vague concepts such as 'public interest', 'peace' and 'good order' that are undefined and left to unfettered ministerial discretion fail to meet the requisite quality of law demanded by international human rights standards.
Press Freedom — Prior Restraint — Procedural Safeguards
Prior restraint on press freedom through banning of publication is a severe measure requiring the most careful scrutiny. A publisher must be afforded a reasonable opportunity to respond to allegations before a ban is imposed. Issuing a ban less than 36 hours after demanding an explanation, without establishing how the publication violated statutory criteria, is unreasonable and unlawful.
Treaty Obligations — Fundamental Principles — Good Governance and Rule of Law
The fundamental principles of good governance, democracy, rule of law, accountability and transparency under Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community are binding and justiciable, not merely aspirational. Partner States are obligated to respect these principles and to recognize, promote and protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and universally accepted human rights standards.
Freedom of Expression — Legitimate Restrictions — Nexus Requirement
While freedom of expression and press freedom are not absolute and may be restricted to protect public interest, peace and good order, a restriction is only lawful where the authority establishes a clear nexus between the expression sought to be restrained and the harm to the legitimate interest. A knee-jerk reaction banning a publication hours after it reports on alleged high-level corruption, without demonstrating how the article violates statutory criteria, cannot be conduct within the parameters of rule of law and good governance.

Legislation cited (12)

  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 8(1)(c)
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Newspapers Act (Tanzania) Section 25(1)
  • Media Service Act No. 12 of 2016 (Tanzania)
  • Constitution of the United Republic of Tanzania Article 18
  • Constitution of the United Republic of Tanzania Article 30(2)
  • African Charter on Human and Peoples' Rights Article 9
  • International Covenant on Civil and Political Rights Article 19
  • East African Court of Justice Rules of Procedure, 2013 Rule 24

Cases cited (12)

  • Burundi Journalists Union v Attorney General of the Republic of Burundi (Reference No. 7 of 2013)
  • Application No. 13585/88 Observer & Guardian v United Kingdom (1991)
  • Director of Public Prosecutions vs. Daudi Pete (1993) TLR 22
  • Julius Ndyanabo vs. Attorney General (2004) TLR 14
  • Communications 140/94 & 145/95, Constitutional Rights Project, Civil Liberties Organization and Media Rights Agenda v Nigeria
  • Ramesh Thappar v State of Madras 1950 SCR 594
  • High Court Petition No. 628 of 2014 CORD v The Republic of Kenya & Others
  • Charles Onyango-Obbo & Another v Attorney General Constitutional Appeal No. 2 of 2002
  • Samuel Mukira Mohochi v Attorney General of Uganda (Reference No. 5 of 2011)
  • Plaxeda Rugumba vs. The Secretary General of the East African Community
  • Print Media South Africa
  • His Holiness Kesavananda Bharati Sripadanagalavaru vs. State of Kerala & Another [1973] Supp. SCR 1

Full judgment

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Mseto and Another v Attorney General of Tanzania (Reference 7 of 2016) [2018] EACJ 44 (21 June 2018)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.