One Step Forward: Tanzania’s journey towards decriminalization of media offenses

When the Media Services Act was enacted in 2016 during the late John Pombe Magufuli’s presidency, many were surprised at the potential harm the act posed to media freedom in Tanzania. Multiple resources and a lot of time had already gone into lobbying efforts to amend the restrictive Newspaper Act of 1976. So, when the Government of the Republic of Tanzania enacted the Media Services Act, alongside The Cybercrimes Act of 2015, The Statistics Act of 2015, and The Access to Information Act of 2015, (all of which controlled the freedom and regulation of media in the country) it was evident that journalists, human rights defenders, and even the opposition, would be facing the threat of censorship.

From 2015 to 2021, the Tanzanian government used these laws to persecute and prosecute critics. Suspension of media houses, physical attacks, and threats against journalists were frequent during this period. A cartoonist was detained arbitrarily for two weeks in 2021 because of a drawing showing the president under the influence of a predecessor. Investigative reporter Erick Kabendera spent seven months in jail in 2019 after writing critically about the country’s economy, governance, and corruption. The authorities displayed absolutely no concern about Azory Gwanda, a journalist who disappeared in November 2017 while investigating the murders of local officials in a coastal region. The Government of Tanzania became increasingly intolerant of critical voices. Attacks against media and journalists and the passage of restrictive laws resulted in reduced democratic freedoms and increased self-censorship by media and civil society. A widespread culture of silence appeared.

The 2016 Media Services Act places onerous regulations and registration/accreditation costs on media outlets and journalists. The Act provides the Information Minister arbitrary powers to punish media houses and journalists. It gives the government a direct say on private media content, on issues that the government deems to be of national importance, then wields this section to punish such media houses. It also prohibits the publication of Cabinet issues regardless of whether the information is rightfully obtained. Based on this, and the gagging effects the media was beginning to experience, activists pushed back and jointly filed a lawsuit at the East African Court of Justice (EACJ), a treaty-based judicial body of the East African Community (EAC) to which Tanzania is a signatory. The court ruled in favour of the applicants, directing the United Republic of Tanzania to ensure compliance where there were clauses in violation of the treaty.

While the Government was under scrutiny regarding the matter, civil society was having problems of its own.

After the death of President Magufuli in March 2021, Samia Suluhu Hassan’s rise to power brought hopeful signs. Immediately after swearing-in, the new president allowed media outlets banned under her predecessor’s administration to resume operations. She lifted the ban on four newspapers, online TVs, and some blogs. She pledged to improve human rights and talked openly about the need to engage media and civil society differently.

As such, local media support organizations started to lobby the government and train media practitioners to advocate for legal reforms. Majority of the players had been acting on their own, knocking on government doors one after the other, often making the same proposals. Their efforts appeared disjointed and uncoordinated. Tanzania Editors Forum Chairman, Mr. Deodatus Balile, recalls a particular instance where he was walking into a meeting with the Minister of Information and a colleague representing a different lobby group was just walking out. In the middle of his presentation to the team, the Minister wondered why the two, and others, would not come together and present their proposals to the government in one voice. “We needed to come together, we needed to speak the same voice, and time was of the essence,” said Mr. Balile. As a result, the civic space and stakeholders in the media fraternity quickly organized themselves into a coalition to push for media law reforms. Some of the stakeholders brought together by the Coalition on the Right to Information (CoRI) included the Tanzania Editors Forum (TEF), the Legal and Human Rights Centre of Tanzania (LHRC), and the Media Council of Tanzania (MCT) – long-time Internews’ partners in Tanzania.

Significant progress was made in 2022 when the Hassan-led Government accepted to amend the Media Services Act. After several months of discussions, local organizations submitted proposed reforms to the Government including the replacement of the contentious clause ‘criminal defamation’ in the MSA 2016 with civil defamation. The proposed amendments were scheduled to be tabled to the Mainland Parliament in early 2023.

On the 13th of June 2023, the Media Services Act, 2016 amendments, brought before the Parliament of the United Republic of Tanzania through Written Laws (Miscellaneous Amendment) Act No. 1, 2023 was eventually passed. Despite several delays before getting to this point, actors involved agree that the regime of the day, under President Samia Suluhu, has been supportive of the journey towards media law reforms.

Credit: AFP/Getty Images

The amendments are seen to be advantageous, especially to the print media, as defamation cases will now be tried as civil cases rather than criminal cases, thus lifting the fear of being criminalized when publishing sensitive cases involving government representatives. Additionally, private media will now have access to advertisements from government institutions and local government authorities thus increasing their income. Third, the powers previously given to the courts to confiscate media equipment were withdrawn. Lastly, the amendments have ensured strengthened self-regulation mechanisms by empowering the Independent Media Council of Tanzania (IMC). Previously, media regulation complaints would be instituted in a court of law, sometimes even at the lowest levels of the courts. Now, all complaints will have to go through the IMC first, and those not satisfied by its decision can only appeal to the High Court of Tanzania.

While these amendments indicate a step forward in improving Tanzania’s media landscape, the sentiment of local actors is that much remains to be done. “There may have been some improvements with these amendments, but it is not entirely what we expected as stakeholders. For example, the clause still presents in the Act that requires the annual licensing of newspapers, as opposed to registration, poses a danger of Government suspending these licenses. We must understand that the effects of the act are far-reaching and ultimately lead to self-censorship of media houses, the quality of journalism produced, and the independence of information available to the reader,” said Mr. Fulgence Massawe of the Legal and Human Rights Centre of Tanzania (LHRC).

Other proposed amendments that were left out include the removal of the section requiring private media houses to broadcast or publish news or issues of national importance as the Government may direct, as this interferes with editorial independence; and the definition of the term “seditious intention” as the role of journalists is to inform the public and raise attention to prejudicial practice performed by an actor including government, an act that would cause contempt and be defined as seditious. Additionally, stakeholders had proposed the merger of three independent bodies established in the act namely the Accreditation Board, Independent Media Council, and Media Fund into one body that will handle and uphold all issues regarding the profession and be in conformity with established standards and requirements for professional bodies around the world.

When asked what was next for the civic space and media stakeholders after these amendments, local actors under CORI agreed that the journey has begun, and more effort towards media reform is needed. Further, there is a need for the review of other existing laws such as the Electronic and Postal Communications Act (EPOCA), and the Cyber Security and Cyber Crimes Act to eliminate provisions incompatible with the effective protection of Freedom of Expression. The government, through the Minister of Information, Communication and Information Technology, Nape Nnauye, has clearly stated the plan to consolidate all the Media Services Act and Electronic and Postal Communication Act 2010 (MSA 2016 and EPOCA 2010) into one law and to bring effective sector coordination and bring unity among stakeholders in print, electronic and social media. In addition, the government plans to merge legislation pertaining to media and broadcasting issues. Media stakeholders will align the advocacy agenda to make significant changes to the reform agenda. They also urged media development partners to ensure they support initiatives that sustain advocacy efforts for improved media laws.

 “Of course, the challenge of implementing the changes persists, but we will keep advocacy efforts to ensure that media freedom is achieved, despite the position of whichever regime may be in power, whether friendly to the media or not. We are already looking into how we can put in our own resources, as we continue to fundraise and mobilize for advocacy towards pushing for an independent media.”  – Fulgence Massawe (LHRC).