THE Media Services Act, 2016 is put to another test on the validity of some provisions following a move by Media Council of Tanzania (MCT) and two other human rights bodies to seek the intervention of the East African Court of Justice (EACJ) Appeals Division.
This time around, MCT, the Legal and Human Rights Centre (LHRC) and the Tanzania Human Rights Defenders Coalition (THRDC)- the applicants-have requested the EACJ to reject a notice of appeal lodged by the Attorney General (AG), opposing the invalidation of the provisions of the Media Services Act, 2016.
A judgment was delivered by the EACJ First Instance Division, which declared some provisions under the Act infringing on Articles of the East African Treaty.
The AG-the respondent- was aggrieved by such a decision and filed the notice of appeal.
However, in yesterday’s hearing session conducted through a video conference from the EACJ’s seat in Arusha, the applicants’ counsel, while in Dar es Salaam, told the EACJ that the respondent had failed to take essential steps to lodge the appeal within the required 30 days.
The applicants’ counsel, Fulgence Massawe, Jebra Kambole and Mpale Mpoki, told the Court that the First Instance’s decision was given on March 28, 2019, while the respondent lodged the notice of appeal on April 11, 2019 and was required under the Rules to file a memorandum of appeal within 30 days.
“There is no evidence whatsoever to show that the respondent had filed the appeal within 30 days from April 11, 2019,” the lawyers told the Appeals Division composed of Justices, Dr Emmanuel Ugirashebuja-President, Liboire Nkurunzinza–Vice-President, Aaron Ringera, Geoffrey Kiryabwire and Sauda Mjasiri.
However, the respondent represented by Principal State Attorneys Alesia Mbuya and Abubakar Mlisha from the Solicitor General’s Office advanced a number of reasons for not doing so, notably the restructuring of the office of the Attorney General, leading to a misplacement of the file of the case.
The state lawyers submitted that the restructuring of the Office affected the litigation mandate that previous was enjoyed as the role of conducting civil litigation on behalf of the government was transferred to the newly established office of the Solicitor General.
“It is true the decision was made after the Office of Attorney General was restructured, but restructuring of the office in itself involved movements of files from one office to another, the transfer of personnel, including hiring of new ones for the new established office,” part of the submissions reads.
They submitted further that such a transfer affected office management and with missing files it was impossible for the Solicitor General to prepare the memorandum of appeal and records of appeal as required under Rule 86 of the EACJ Rules.
Nevertheless, while referring to available records, the lawyers for the applicants told the court that the Solicitor General’s Office was established by the United Republic of Tanzania Instrument dated February 13, 2018, while the decision sought to be challenged was given on March 28, 2019.
“On this day of judgment, the respondent entered appearance and the notice was lodged within time. The applicants herein are the decree holder and the only interest of the decree holder is to execute the decision of the court as awarded,” the advocate submitted.
As to the question of misplacement of the case file while the restructuring of the respondent’s office, the lawyers submitted that records show the reply-written submissions–were filed at the First Instance Division on June 29, 2018, the time which the Office of the Solicitor General was already in place.
“The presence of the notice of appeal has automatically acted as the bar to the applicants as the respondent has refused to implement the court’s decision on a ground that there is a pending appeal,” reads part of the submissions by the applicants’ lawyers.
After hearing both parties through the submissions made, the justices of the appeals court said they would deliver the ruling on the matter on June 9, 2020.
On March 28, 2019, the Court’s First Instance Division, composed of Justices Monica Mugenyi (Uganda), Faustin Ntezilyayo (Rwanda), Fakihi A. Jundu (Tanzania), Audace Ngiye (Burundi), and Charles Ayako Nyachae (Kenya), held that some provisions of the Act infringe Articles of the East African Treaty.
They declared the provisions of sections 7(3)(a),(b),(c),(f),(g),(i) and (j); sections 19, 20 and 21; sections 35, 36, 37, 38, 39 and 40; sections 50 and 54; sections 52 and 53; and sections 58 and 59 of the Act violate Articles 6(d) and 7(2) of the Treaty.
The justices directed the United Republic of Tanzania to take such measures as are necessary to bring the Act into compliance with the Treaty.
On January 11, 2017, the applicants filed a reference before the EACJ to challenge the Act. The Act was enacted by the Parliament of United Republic of Tanzania and came into force on February 3, 2017.
The Applicants claimed that the Act contained unjustifiable limitations that infringed on freedom of expression.