20 Aug A Victory for Media Freedom and another Blow Dealt to Criminal Defamation and Sedition Laws by the East African Court of Justice
Tetevi Davi is future pupil barrister at 25 Bedford Row in London and a Nicolas Bratza, Tancred and Hardwicke Scholar of Lincoln’s Inn. He writes regularly on international human rights law, international criminal law and transitional justice, primarily with a focus on Africa. He is a rapporteur for Oxford International Organizations where his research focuses on African treaties.
On 28 March 2019, The First Instance Division of the East African Court of Justice (‘the Court’) delivered its judgment in the case of Media Council of Tanzania and Others vs Attorney General of Tanzania. In this landmark decision, the Court held that several sections of Tanzania’s Media Services Act, No. 120 of 2016 (‘the Act’) violate the freedom of expression, which it found to be inherent in Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community (1999) (‘EAT’). This case marks the latest addition to a string of judgments from African courts in which criminal defamation and sedition laws, which primarily target the media, have been held to be incompatible with human rights standards enshrined in both regional and international treaties.
The case was brought by a coalition of Tanzanian human rights NGOs: The Media Council of Tanzania, the Legal and Human Rights Centre and the Tanzania Human Rights Defenders Coalition. The applicants claimed that the Act, which became law in 2016, constitutes an unjustified restriction on the freedom of expression and violates Article 6(d) and 7(2) EAT. Article 6(d) EAT sets out the foundational principles of the East African Community, which include “…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 7(2) EAT essentially duplicates this provision, however instead of the African Charter, refers to “the maintenance of universally accepted standards of human rights” as a fundamental community principle.
The applicants claimed that several provisions of the act violate the freedom of expression by, for example, restricting certain types of media content without reasonable justification, mandating, and permitting the state to revoke, accreditations for journalists and giving the government power to sanction media content; of particular note are sections 35-40 and 52 and 53 of the Act, which criminalise the publication of “defamatory matters” and “seditious” statements. In its response, Tanzania denied that many of these provisions infringed on the freedom of expression and argued that specific infringements were reasonable and necessary to protect society and “national honour”.
The Court first examined the nexus between the broad Community principles outlined in Articles 6(d) and 7(2) EAT and the specific right to freedom of expression. Here, it drew on its comments in the case of Burundian Journalists Union vs AG of the Republic of Burundi (2013) where it stated that “…Under Articles 6(d) and 7(2) the principle of democracy must of necessity include adherence to press freedom”. As well as finding the right of press freedom to be inherent in the concept of democracy, the court also stated that “a free press goes hand in hand with the principles of accountability andtransparency, which are also enshrined in Article 6(d) and 7(2).” The Court therefore determined the right to freedom of expression, of which freedom of the press is an integral part, to be inherent in the concepts of democracy, accountability and transparency contained in Articles 6(d) and 7(2) EAT.
The Court went on to explain that whilst the freedom of expression was a fundamental right, it was not absolute and could be limited. In deciding whether any such limitation was justifiable, the Court adopted the three-part test formulated by the Supreme Court of Canada in the case of R v Oakes  1 SCR 103. This test asks :
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 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.
The Court held that a limitation on the right to freedom expression must pass each of these requirements so that a failure to meet any one of them means that the measure must be declared unlawful.
Sections 35 -40 of the Act provide for criminal penalties for the publication of “defamatory matters”. Section 35(1) defines a defamatory matter as:
Any matter, which if published, is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation…
In its analysis, the Court determined that the criminal defamation laws set out in these provisions fail all 3 parts of the Oakes test. Firstly, it found that that the definition of a defamatory matter was not sufficiently precise to enable a journalist, or anyone else, to plan their actions within the law. According to the Court :
“…The definition makes the offence continuously elusive by reason of subjectivity. How for example, would an intending publisher, for the purposes of this section, predicts that what they intended to publish concerning X is likely to expose x to hatred, contempt or ridicule and therefore injure X’s reputation”
Secondly, the Court dealt with Tanzania’s assertion that the legitimate aim of the law was “to protect the honour of [its] nation”. In responding to this argument, the Court noted that Tanzania had not made any attempt to demonstrate a direct and immediate connection between this alleged threat and the ban on defamatory statements. In regards to the third limb of the test, namely the proportionality assessment, the Court simply re-stated the comments of the Court of Justice of the Economic Community of West African States (‘ECOWAS Court’) in Federation of African Journalists v. Republic of The Gambia (2018). This case also dealt with criminal defamation laws and in declaring them to be disproportionate, the ECOWAS Court had held that:
The practice of imposing criminal sanctions on sedition, defamation, libel and false news publication has a chilling effect that may unduly restrict the exercise of freedom of expression of journalists. The application of these laws will amount to a continued violation of internationally guaranteed rights of the Applicants.”
Sections 52 and 53 of the Act, create offences of sedition. Section 52(1) defines a “seditious intention” as an intention to:
…(a) Bring into hatred or contempt or to excite disaffection against the lawful authority of the Government of the United Republic;
(b) 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
(c) Bring into hatred, contempt or to excite disaffection against the administration of justice in the United Republic;
(d) raise discontent or disaffection amongst people or section of people of the United Republic; or
(e) promote feelings of ill-will and hostility between different categories of the population of the United Republic…”
In its analysis, the Court determined that these provisions fell foul of the first limb of the Oaks test, which mandates that a provision must adhere to principles of clarity and certainty. This was because :
“The definitions of sedition in the said section are hinged on the possible and potential subjective reactions of audiences to whom the publication is made. This makes it all but impossible for a journalist or other individual, to predict and thus plan their actions”.
The Court also held that these laws failed the proportionality assessment contained within the Oaks test. Here, it quoted with approval the decision of the African Court on Human and Peoples’ Rights (‘AfCHPR’) in the case of Lohé Issa Konaté vs Burkina Faso (2013) (which I discussed in detail here). In declaring similar provisions as a violation of the African Charter, the Court had held that:
“Apart from serious and very exceptional circumstances for example, incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of people…the Court is of the view that the violations of laws on the freedom of speech and the process cannot be sanctioned by custodial sentences…”
Regional and other international courts in Africa have now developed an accretion of jurisprudence which puts the prohibition on criminal defamation and sedition laws beyond doubt. Cases cited above, such as Konaté v Burkina Faso at the AfCHPR, Federation of African Journalists v The Gambia at the ECOWAS Court and now this judgment from the East African Court of Justice, have established that these laws, which are frequently used to stifle media dissent, represent an unacceptable impingement on the freedom of expression. As the Court pointed out in its decision, this is an essential component of any democracy and closely linked to principles of accountability and transparency. In the months directly following this judgment, there were encouraging reports that the Tanzanian Government had committed to holding talks with stakeholders aimed at improving the environment for independent journalism. These overtures however, have been overshadowed by recent news of a brutal crackdown by the Government on journalists and media professionals; of particular note is the continued detention of Tanzanian journalist Erick Kebendera. Furthermore, a new bill has been introduced in the Tanzanian Parliament, which reportedly creates an onerous approval process for those seeking to challenge government data or publish “non-official” statistics and establishes a statutory film board, which has the power to censor films being shown in the country. This is a concerning and retrograde step for Tanzania, and it is hoped that institutions like the East African Community and African Union can urge it to re-consider these developments and bring itself back into line with this ruling as well as its regional and international human rights commitments.