“Ten years on: Assessment, Challenges and Prospects”
Windhoek, Namibia May 3-5, 2001
EASTERN AFRICA REGIONAL PERSPECTIVES
Background paper prepared by Dr. Lewis O. Odhiambo, School of Journalism, University of Nairobi, Kenya
The processes and experiences in political liberalisation in Eastern African countries during the 1990s have not been the same in every country. In Kenya, multi-party politics came rather painfully, having been accompanied by violent inter-ethnic conflicts and massive loss of lives in some districts of the Rift Valley Province in the wake of the general elections of 1992 and in parts of the Coast Province in the wake of the 1997 general elections. Nevertheless, both internal and external pressures from human rights groups, politicians, journalists, the donor community and the diplomatic community have prevailed on Kenyan authorities to accept change. In the end, Kenyan leaders have embraced broad principles and practices of liberal democratic governance, even if rather shakily.
Tanzania, on the other hand went through political reforms fairly peacefully, having had its constitutional reforms that ushered in multi-party politics in the early 1990s without a hitch. Uganda still practices no-party politics, but presidential elections have been held once in the mid-1990s and are being held again this March, 2001. Thus, democratic governance in Uganda has not been institutionalised; rather it depends entirely on the personality of the head of state.
No doubt the mass media have played their role in the process of political liberalization as Windhoek I envisaged they should. In fact, there has been a recursive relationship between media and the political process, with the media influencing the pace of political change and political liberalization, in turn, facilitating media growth, pluralism and relative independence. This is as it should be, as the key pillar of the declarations of Windhoek I was that the maintenance and fostering of an independent, pluralistic and free press was an essential component of the development and maintenance of democracy.
Indeed, Eastern African countries have made great efforts to liberalise the mass media sector in tandem with the prevailing spirit of pluralistic politics. This report outlines some of the efforts that were made in Kenya, Tanzania mainland, Zanzibar and Uganda in the 1990s. But the report also identifies obstacles to the full realization of media pluralism and freedom. It demonstrates how legislation alone, though an important first step in media growth, cannot ensure smooth operation of the media sector. Political pressures, judicial inclination toward the enforcement of administrative law rather than encouragement of individual liberties, underdevelopment of the media sector, intrigues among the politically powerful, and the state of the economy are all interlinked in determining the state of journalism and media sector in a country.
This report identifies and analyses weaknesses in the constitutional provisions of each country with regard to their protection of fundamental human rights of which freedom of the media is one. It reviews case law to bring out the plight of journalists and their media organizations as they interact with politics and politicians as well as an entrenched administratively inclined judicial system. Other statutory threats to media freedom are identified and analysed in so far as they place journalists and the media in difficult circumstances in the process of carrying out their work. The study also looks at the state of the economy in each country as a background to understanding other constraints to media development and consumption, the status of information technology and prospects for their expansion in the sub-region and, finally, the status of journalists in terms of their opportunities for training and freedom to join voluntary professional and trade associations.
The report is divided into four sections. Section A looks at constitutional, legal, political and social obstacles to media freedom; section B discusses the economic climate and how the state of the economy of each country has impacted the structure of ownership and constricted the space for media expansion; section C looks at information technologies that are available in the region and their prospects for further diffusion; and section D reviews the status of journalists in each country and their professional or trade organizations. The final section presents brief conclusions and lessons that may be learnt from the experiences of each country.
OBSTACLES TO MEDIA FREEDOM: POLITICAL, SOCIAL AND LEGAL
1. Weaknesses in Constitutional Protections in Kenya The Kenyan Constitution contains a Bill of Rights providing safeguards guaranteeing a number of individual rights and freedoms. These include freedoms of conscience, expression, assembly, and from arbitrary search or entry, as well as the right to property. However, like in most democratic political systems, these rights are qualified in the interest of public safety, public order, public morality, and public health. They may also be suspended by the wide powers given in other statues to the police and other public officials.
In specific terms, section 79 (1) of the Kenyan Constitution states that “Except with his own consent, no person shall be hindered in enjoyment of his freedom of expression, that is to say freedom to hold opinions without interference, freedom to communicate ideas and information without interference…and freedom from interference with his correspondence.”1 Section 79(2)(a) limits these freedoms, however, to protect the reputations, rights and freedoms of other persons or the private lives of persons involved in legal proceedings and prohibits disclosure of information received in confidence, among other things. Section 79(2)(b) provides that restrictions so imposed on freedom of expression must be reasonably justifiable in a democratic society.
There is no specific reference to freedom of media, but it is generally believed that media freedoms derive from such individual freedoms, i.e., that even though the media have no specific institutional protection, in their day-to-day work the media will be treated as private persons with regard to enjoyment of such freedoms. However, case law in Kenya suggest two interpretations as to whether Section 79 protects freedom of the media, each of which reveals shortcomings in constitutional protections of media freedom and independence in the country. The first interpretation was offered by a former Chief Justice of Kenya, F.K. Apaloo, to the effect that though the Kenya Constitution confers the freedom of speech, which includes oral and written expression, it does not specifically expressly carter for freedom and independence of the media. Hence, the media are ultimately open to official and unofficial interference, controls and regulation. On the other hand a Court of Appeal Judge, S.E. Omolo, expressed what has come to be the most dominant view in Kenyan case law, i.e., that the Kenya Constitution “merely recognizes freedom of expression; it does not create it. The right to speak was given to man by God himself.” Hence, media freedom resides in a legal and policy netherworld where it is precariously exposed to political machinations and predatory practices of capitalist competition.
The most often expressed criticism of the constitutional guarantees (Bill of Rights protections) is that they are often ignored in the process of administration of the law, particularly with respect to matters pertaining to the mass media as institutions. Hence, while individual journalists may enjoy their rights and freedoms, the media institutions in which they work are expected to play their role as public watchdogs without any legally acknowledged rights other than those conferred under the Companies Act. Moreover, in contrast to the provisions of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), freedom of expression as provided for under the Kenyan Constitution does not include the right to seek or receive information. Yet, to play a watchdog role, the mass media as institutions have a perceived duty to seek, receive and disseminate information to the public. Consequently, media institutions may not be able to operate freely and independently and, as has been pointed out by others, Kenya now needs constitutional prohibition against promulgation of laws that derogate from the independence and freedom of the media, as well as protection against private enterprise interests that deny the widest access to media products by members of the public.
2. Judicial Reticence in Kenya: Protection of the Politically Connected The absence of constitutional protection against the promulgation of laws that derogate the spirit of freedom of the media has in turn led to reluctance of the judiciary to protect journalists and the media from those who would want to muzzle the media as essential components of democratic governance. The courts have not unequivocally established the supremacy of the Constitution over statutes that contradict its provisions. By virtue of Section 84(1) of the Kenyan Constitution, the High Court is vested with the jurisdiction of enforcing the guaranteed rights. Hence, complaints by those who fear that their rights and freedoms that are protected under sections 70 to 83 (the Bill of Rights) are being or are likely to be contravened may be referred to the High Court. Also, the High Court has jurisdiction over questions of interpretation of the Constitution that may arise.
Yet it has not always been clear that the High Court has been keen to question the powers and actions of state authorities when these contravene Bill of Rights guarantees of private individuals, journalists and media institutions. For instance, in January 1992, Kenya’s Attorney General moved to the High Court to stop the editors of Society magazine from publishing, distributing or selling an issue of the magazine whose cover had the portrait of the president holding his chin and the words “The Cost of Killing Ouko” and “Kibaki Wants Moi Out.”
The Attorney General submitted that the issue was replete with falsehoods and distortions aimed at bringing hatred or contempt or to excite disaffection against the person of the president and the Government of Kenya as by law established. He submitted that the magazine’s cover page sought to portray the president as a rejected and dejected leader and, therefore, sought relief of a permanent injunction. The editors of the magazine denied the accusations citing justification and freedom of expression as defence. In granting the Attorney General’s prayer, the High Court argued that the words published in Society were seditious and, hence, did not constitute an exception of freedom of expression as guaranteed under the Bill of Rights. In the process, the High Court in effect legitimised the use of a civil remedy of injunction for an alleged criminal offence of sedition, a move that has been criticized as demonstrating extreme deference of Kenyan courts to state authority.
Other recent case law decisions as illustrated by the following cases tend to reinforce the charge of deference to state authority—or judicial reticence, in effect, purchasing patronage by obsequious deference to the politically connected and the powerful:
In 1993 publishers and printers of three Kenyan publications, Society, Economic Review and Finance moved to the High Court to stop the Attorney General and the Commissioner of Police from interfering with their businesses and operations, entering their premises without search warrants or lawful justification, and infringing and contravening their rights under sections 75 to 82 of the Constitution of Kenya (i.e., under Bill of Rights protections). The Attorney General and the Commissioner of Police denied contravening the rights of the plaintiffs and justified their actions on the grounds that they were investigating a criminal offence whose trial was pending in a lower court against some of the plaintiffs, among other defences.
The court ruled that defendants (the A.G. and Police Commissioner) were justified under various provisions of the laws of Kenya and refused to grant an injunction as requested by the applicants. It argued that even though the court had jurisdiction provided for in the Constitution that no other statute could limit, the absence of rules in the relevant section of the Constitution (section 84) created a gap that could only create further hardships of interpretation. Hence, it was more convenient to rely on existing legislation, in this case on section 16(2) of the Government’s Proceedings Act dealing with circumstances under which injunctions may be granted as relief. It has been argued that this ruling effectively denied three of the respondents the enjoyment of their freedom of expression. Moreover, the court put more weight on upholding general legislation rather than the supremacy of the Constitution and, hence, failed to provide much needed guidance on how to proceed when constitutional rights protections are contradicted by other legislation, i.e., when fundamental rights clash with ordinary rights. The publications in question were known irritants to the political establishment in Kenya.
In 1996 East African Televisions Limited (EATN) was granted a license to operate radio and television services by the Minister of Information and Broadcasting following which in 1997 the Kenya Posts and Telecommunications Corporation (KPTC) granted it frequencies that were then held by Kenya Television Network (KTN) which EATN had acquired. At the same time, the Nation Media Group (NMG) was trying to obtain broadcasting frequencies for both radio and television. One of the shareholders of EATN would appear to have transferred his shareholding in EATN to his partner who in turn sold the whole to a company owned by Nation Media Group called Africa Broadcasting Limited (ABL). A dispute ensued between the two shareholders of EATN over the share transfers, causing the Minister of Information and Broadcasting to cancel EATN’s broadcasting license on the grounds that there was uncertainty over its ownership. The minister also urged KPTC to withhold broadcasting frequencies, which the corporation did.
The matter went to court in 1998 and the minister argued that EATN had an ownership dispute and had also contravened one of the conditions under which it was grated a license in the first place, namely, the transfer of shares to a subsidiary of NMG thereby violating relevant legislation on monopolies and mergers. A number of suits followed in the High Court seeking judicial review of the decisions of the minister and KPTC, many of which are yet to be determined. What seems clear, however, is that this saga had more to do with personalities and parties behind the various companies and their relationships with and connections to powerful people in the government. It is a case of the way political connections can influence how scarce national resources, in this case broadcast licences and frequencies, are allocated in Kenya—with grave consequences for media development and freedom.
In 1994 the Attorney General sought and obtained leave from the Court of Appeal to institute contempt proceedings against a reporter, the editor and publishers of The People for the contempt of scandalising the court. The case arose out of another one at the time before the Court of Appeal involving university lecturers who had moved to court seeking injunctions against some actions of their employer and about which the president had adversely commented at a public rally. The reporter of The People published a story headlined “Court of Appeal Ruling on Dons’ Case Reeked of State Interference” and in which the court ruling was linked to the president’s speech. The Attorney General sought committal to jail of the reporter and editor for scandalizing the court, which the court granted, even though the article in question quoted several leading lawyers who acknowledged that the president’s public utterances over a matter that was awaiting judgement before the court were calculated to influence the court’s decision and was illegal under the sub judice rule.
In a similar case, the Attorney General in 1999 moved to the Court of Appeal against the proprietor and editor of The Post on Sunday seeking to commit him to jail for scandalizing the court. This arose from a so-called grand expose in which the editor claimed that one of the parties who were involved in litigation before the same judges in another case had bribed one of them. The Attorney General also argued that the journalist had contravened the sub judice rule, which prohibits commentary on cases that are yet to be determined by court, and that the report was a scurrilous and an unjustified attack on the court and was calculated to bring into disrepute the administration of justice in Kenya. The journalist was convicted and jailed, with one of the judges warning that “it is the duty of the court to punish for contempt so as to prevent the interference with or obstruction of justice.”2 The other argued that “when someone, particularly a journalist, without proof and guided by motives other than fair, attacks the very integrity of the court, the power of contempt is the only weapon at the disposal of the court to put matters right.”3
In 1991 four people were charged with the criminal offence of sedition after they were found in a Nairobi suburb bar at night in possession of three publications entitled Kenya: Security Home Boys, Financial Review, and Beyond. The last two magazines had been prohibited earlier. The prosecution argued that the accused had seditious intentions because of the time and place of their meeting, even though they did not know the subject under discussion. All four were given long jail sentences, and the case has been cited as an attempt to give judicial respectability to political persecution and to curtail freedom of association.
These cases and more have been cited to show that the Kenyan judiciary is overly conservative and deferent to the state and leading politicians. Of late, however, critical observers of case law in Kenya have pointed out that there have been instances when some judges have stood up for fundamental rights of citizens, including freedom of expression. For instance, in 1998 a Kenya government minister filed a plaint in court4 seeking damages against Star Publishers Limited and its editor on the grounds that the editor had published an article to the effect that the minister had incited his ethnic group to take up arms; that the words published meant that he (the minister) was a tribalist, war monger, criminal, rascal and sectionalist. The minister also sought an injunction against sale, distribution or otherwise disseminating the said issue of The Star.
The defendants admitted publishing the offending article but argued that the words published were true and not malicious. They also raised the defence of qualified privilege in that the publication was made on a matter of public importance and interest. Thus, the judge’s task was to balance private against public interests with regard to media freedom. He ruled against granting an injunction to the minister thereby affirming the supremacy of public interest, a most heartening decision from the point of view of journalists and their editors.
3. Statutory Limitations to Freedom of Expression in Kenya As in many countries, Kenya retains in its statute books laws that restrict speech for various reasons. The most invidious of these statutes are:
The Books and Newspapers Act of 19625 that provides for the registration and deposit of books and newspapers and the execution of bonds by printers and publishers. It requires all publishers in Kenya to submit two copies of their newspapers to a registrar and make annual returns, and execute, register and deliver to the registrar a bond of Ksh. 10,000 (US$ 200) along with one or more sureties as security for any monetary penalty that may at any time be adjudged against the registrar. The Act further grants the police wide powers to seize any newspaper published in contravention of the Act without any search warrant or court order. In the process of executing such powers the police may also seize any other evidence of the commission of the offence under the Act.
The Defamation Act of 19726 as amended in 19927 introduced exceedingly high minimum amounts of damages that must be awarded for certain types of libel. For instance, for libel relating to offences punishable by death, the amount assessed shall not be less than Ksh. 1 million (US$ 20,000); where libel is in respect of an offence punishable by imprisonment, the penalty shall be a three-year jail term and a fine of Ksh. 400,000 (US$ 5,000). The fact that the amendment was introduced in 1992 just before multi-party elections has been interpreted to mean that they were politically motivated and intended to muzzle the media. Already a number of newspapers have suffered heavy fines under this law during the 1990s.
The Official Secrets Act of 1970, whose purpose is the preservation of state secrets and security, makes it an offence to obtain or retain government documents, sketches, notes, photographs or papers for purposes of communication to a foreign power or for any unauthorised purposes that may endanger the security interests of the state. Thus, the media are restricted in terms of which official documents they may access in their role as public watchdogs so as to ensure transparency and accountability in governance.
The Preservation of Public Security Act was enacted in 1987 under authority conferred upon the president by section 85 of the Kenya Constitution. It gives the president powers to censor, control or prohibit the communication of any ideas or information and dissemination of false reports. For instance, the Act was invoked from September 1993 to March 1994 to establish security zones in some parts of the Rift Valley Province of Kenya in the wake of ethnic conflicts.8 This move prohibited the publication of news and information from the security zones as and when the minister in charge of internal security deemed fit.
A number of public order statutes, such as The Public Order Act9 and Chief’s Authority Act10 confer wide powers on administrative officials to license public gatherings and monitor the attendance and conduct of such gatherings. Such powers are often used to justify the harassment of journalists who cover the meetings.
Incitement to disobedience: It is an offence in Kenya for anyone to utter or publish anything that indicates or implies that it is desirable to do or omit to do anything whose purpose is to defeat or prevent by violence or other unlawful means the execution or enforcement of any written law, or leads to disobedience of any law or lawful authority. Thus, under this provision, civil disobedience as an aspect of freedom of expression is outlawed.
Under the law on rumour mongering/publishing false statements,11 publication of any statement, rumour or report that maw cause fear and alarm to the public or disturb peace is outlawed. Such publication can only be made when one can show that he/she took all reasonable measures to ascertain the truth of the statement, rumour, or report.
The Film and Stage Plays Act prohibits the making of a film in Kenya for public exhibition or sale except so far as it accords with the terms and conditions of a licence issued by a licensing officer appointed by the minister in charge of information and broadcasting. Such an officer has the powers to refuse to grant a license. And under sections 11, 12, 16 and 17 of the Act, a film must be approved by a Board of Censors before public exhibition. At the same time, posters advertising a film must be approved by the Board, which has powers to alter or refuse public display of such posters. With regard to stage plays, it is an offence under the Act to present, direct, produce, take part in, assist in the direction or production of any public performance of a stage play without a license from a licensing officer, who may deny such a license.
Section 52 of the Penal Code empowers the minister in charge of information to prohibit the importation of any publication or past and future issues of a publication or all past and future publications by any person in the interest of public order, health or morality, the security of Kenya, the administration of justice, or the maintenance of the authority and impartiality of the judiciary. By granting the minister such wide powers, this law has been cited in case law as inherently capricious as it allows the prohibition for an alleged offence in a current issue of past and future issues of a publication thus denying freedom of the press.
Kenyan law provides for two kinds of contempt of court: criminal contempt and civil contempt. Civil contempt occurs when someone disobeys a court order. On the other hand, there are three types of criminal contempt of court, namely, publishing anything that may prejudice a pending trial, scandalising the court, and interfering with judicial proceedings or refusing to reveal sources of information to a court or tribunal. Many journalists and editors have come to grief in Kenya under the provisions of this law.
4. Other Obstacles to Freedom of the Media in Kenya Other obstacles to freedom of the media in Kenya are associated with political interference, patronage, and bribery of journalists by powerful personalities. To these may be added inadequate training and experience of many journalists. In fact, recent surveys have shown that up to 75 per cent of domestic news in Kenya’s three largest dailies are supplied by untrained and often unemployed correspondents that are paid by column inch. This practice, though economically facile for newspaper publishers, encourages sensationalism and inaccuracy and has landed some of the publishers and editors in expensive defamation suits in recent times.
On the whole, Kenyan Journalists enjoy considerable freedom to practice their profession without official interference. However, some journalists have come to grief in some areas of the country where political violence is endemic, e.g., North Rift, North Eastern Province, and parts of the Rift Valley. Violence against journalists also tends to be associated with police actions against unauthorised public gatherings organized by government critics and activists.
Following political pluralism since the 1992 general elections, hundreds of what have come to be called “alternative” publications have mushroomed in the streets of Nairobi and other towns. These publications are all privately owned, are relatively restricted in their outreach, concentrate mainly on political coverage (though many are religion or sex focussed), and tend to champion mainly the political causes of the ethnic groups to which their proprietors belong. They also take mainly the form of weekly or monthly newspapers or magazines.
A recent content analysis of three such publications12 found ethnic slanting of political stories to be their most salient characteristic. Moreover, national issues such as conflicts, public appointments, political debate, or the manner in which security forces handle crime were unnecessarily “tribe-tagged,” thereby creating the impression that there was always an ethnic motivation behind these events. These findings are consistent with another study13 which content analysed the nature of coverage of the 1997 general elections and found the managerial composition of Kenya’s three leading newspapers to be the most important determinant of the quality and quantity of coverage of presidential candidates and their political parties. The other important factor was the extent to which politicians were able to purchase personal influence among journalists working for these newspapers.
In view of such widespread unprofessional conduct, the government in 1993 established a Task Force on Press Law to inter alia: “make recommendations on Press Law providing for a comprehensive legal framework for the exercise of the freedom of the Press and the development of dynamic and responsible print and electronic media, making provision, inter alia, for free access to information and its dissemination; a code of professional and ethical standards; and ownership, development and licensing of the media.”14 But even as the task force was going on with its work, the Minister for Information and Broadcasting announced that the government had completed a Press Council Bill that was soon to be tabled in Parliament. In 1995 the Bills, respectively called Kenya Mass Media Commission Bill (1995) and Press Council Bill (1995), were leaked to the media and the Attorney General hastily withdrew them. But not before the true intent of the bills became clear to the public, i.e., the control of the media.
For instance, the Press Council of Kenya Bill (1995) provided for the establishment of a Press Council “for the conduct and discipline of journalists (sic) and the mass media.” The Bill also provided for the “registering and disciplining of journalists.” Moreover, membership of the Press Council was to be dominated by government appointees. The Bill made it an offence punishable by a fine of Ksh. 20,000 (US$ 250) or 12 months imprisonment to practice journalism without registration, which was to be renewed annually on payment of a fee; registration could also be denied. It has been suggested that the mere prospect of denial of registration is enough to force journalists into self-censorship.15 Clause 23 of The Kenya Mass Media Commission Bill (1995) empowered it to deregister a newspaper on the recommendation of the Press Council if its proprietor was found guilty of contravening the code of conduct set out in the schedule of the Press Council Bill. This notwithstanding the fact that the code of conduct was largely an ethical code setting out standards for the practice of journalism in Kenya.
Eventually the Task Force on Media Law submitted its report to the Attorney General in November 1998. The report recommended the creation of the Kenya Media Commission which would, among other functions, issue broadcast licences, allocate broadcast frequencies, and make regulations on issuance of licences and allocations of frequencies. The Commission was to be composed of 13 members appointed by the president after nomination through an “electoral college” composed of people picked by members of the public. The Task Force was particularly keen that neither media owners nor the government should dominate the Commission. Finally, the report contained a code of conduct for media and media practitioners (sic).
The government has not acted on the report of the Task Force, nor has it indicated whether the shelved Bills would be revised in accordance with the recommendations of the Task Force. Nonetheless, the media fraternity and civil society groups fear that Kenya will not remain without some form of media regulatory body or another for long. Indeed, it is feared that government may ambush Parliament with another Bill before the next general elections due in 2002.
Such apprehension has generated a flurry of activities among journalists and their organizations. For instance, the Kenya Union of Journalists in 1996 worked on a draft media bill, which they presented to the Attorney General for incorporation into any future legislation that the latter may contemplate. On their part, the Editors’ Guild of Kenya has published “The Code of Conduct and Practice of Journalism in Kenya” to be launched mid-March. The Guild is also working in collaboration with the Kenya Union of Journalists and Media Owners Association under the guidance of the School of Journalism at the University of Nairobi on a self-regulating media council to be announced soon thereafter. It is hoped that these efforts will discourage the government from introducing in Parliament legislation that will adulterate freedom of expression and media.
5. Weaknesses in Constitutional Protections in Tanzania Although mainland Tanzania’s constitution did not have a Bill of Rights at independence, amendments were introduced in 1984 that incorporated a Bill of Rights in the Constitution of the United Republic of Tanzania.16 Article 18(1) of the Constitution gives everyone “the right to freedom of opinion and expression and to seek, receive and impart or disseminate information and ideas through any media regardless of national frontiers, and also the right of freedom from interference with his communications.” Article 18(2) gives every citizen the “right to be informed at all times of various events in the country and the world at large which are of importance to the lives and activities of the people and also of issues of importance to society.”
The enjoyment of these rights is, however, granted on condition that they do not conflict with other laws, since the Bill of Rights contains the phrase “without prejudice to the laws of the land.” In addition, although Tanzania is a signatory to the International Convention on Civil and Political Rights as well as the African Charter on Human and People’s Rights, their applicability in Tanzanian courts is not automatic. This is because such international conventions have first to be incorporated into local legislation—which has not been done. Hence, the provisions of these conventions cannot guide Tanzanian courts. This, together with the primacy of the laws of the land makes the Tanzanian environment less than ideal for the promotion of the freedom of the media.
Also, the Tanzanian Bill of Rights, while having a general provision guaranteeing freedom of opinion and expression, does not provide specific guarantees for key aspects of media rights, e.g., media freedom, right to editorial independence of the media, and the right to confidentiality of journalists’ sources.
Article 30(4) of the Constitution provides that the determination for enforcement of basic rights lies with the High Court. Yet regular High Court sittings happen in only 8 out of 20 major urban centres in the mainland, implying that this recourse is practically unavailable to vast numbers of citizens. Moreover, Tanzania has just about 20 judges while such petitions, according to the Basic Rights and Duties Enforcement Act of 1994, must be heard by three judges, a state of affairs that seriously dims the prospects for successful litigation. Moreover, Article 30(1) provides that enjoyment of one’s human rights and freedoms must not interfere with the freedoms and rights of other people or the public interest.
Article 30(2) says that the provision setting out the basic human rights and freedoms does not invalidate any existing legislation, prohibit the enactment of any new legislation or any lawful act aimed at: (a) ensuring defence, public safety, public order, public health, etc.; (b) protecting the reputation, rights and freedoms of others or the privacy of persons involved in court proceedings, prohibiting the disclosure of confidential information, or safeguarding the dignity, authority and independence of the courts; and (c) enabling any other thing to be done which promotes or preserves the national interest in general. The article also authorises restriction of individual rights and freedoms during a state of emergency “provided that they are necessary and justifiable.” Clearly phrases such as “any other thing to be done which promotes the public interest” and “the national interest in general” allow the state and its functionaries a wide latitude for actions that can seriously limit media freedom.
6. Other Statutory Limitations in Tanzania
The Newspapers Act (1976) imposes a fine and imprisonment for up to four years on any person who publishes a newspaper without registration with the Registrar of Newspapers, or who furnishes the Registrar with false information about the newspaper’s particulars. The Registrar is an appointee of the minister in charge of information and enjoys wide discretionary powers over the registration process, including the power to refuse to register a newspaper which he/she thinks may be used for any purpose prejudicial to, or incompatible with, the maintenance of peace, order and good government.17 The Act also empowers the minister to require that a publisher deposits a bond of an unspecified amount against any possible monetary penalties or damages which the newspaper may incur. Non-payment of such a bond may result in a fine or imprisonment for up to two years.
The Act requires that publishers keep copies of all materials they publish for up to six moths or risk being fined or imprisoned for up to one year or both. Section 22 permits any police officer to seize any newspaper, wherever found, which has been printed or published in contravention of the Act. A magistrate can also authorise police officers of specified rank to enter and search “any place where it is reasonably suspected that any newspaper printed or published in contravention of this Act is being kept. The Act further gives the minister wide discretionary powers to ban or close down newspapers “in the public interest” or “in the interest of good order.”18 Failure to obey a ministerial ban on a newspaper is subject to a fine or imprisonment for up to four years or both.