Although the witness is entitled to credence as per Goodluck Kyando v. Republic [2006]
TLR 363 unless there is reason to doubt his credibility. We think it is unsafe to assume that
the Clubhouse is accessible via VPN in the absence of a demonstration to assist the court to
visualise and confirm the same. In lieu of our observation hereinabove the Petitioner has
failed to discharge his burdens of proof. There is no proof that the Clubhouse is being blocked
or restricted in Tanzania. The OONI report has failed to convince us that it is a conclusive
proof of alleged restriction of Clubhouse in the country.
The Petitioner's view that Clubhouse is available upon using VPNs in Tanzania has
neither been disputed nor contradicted by the Respondents, however, that does not prove
the allegation in the absence of credible evidence. We have held that the restriction and
access through VPN were not demonstrated. It is not clear whether that was left
to the court on its own to test the accessibility of Clubhouse through VPN. This
was a fit case for the Petitioner to demonstrate before the court how this
technology works. What is more, is that even if it would have been demonstrated
that does not prove that there are restrictions done by the 2nd Respondent. The
Respondents have commented that VPNs used must be registered to address illegal content
in cyberspace. We do not think that the fact that the Respondents have failed to properly
respond to this allegation means that the same has been proved. The Petitioner has not
demonstrated that
Clubhouse is accessible only via VPN. Further to that, the court has
declared the OONI report to be incredible as it is loaded with suspicion of restriction of
Clubhouse. A case cannot be decided based on suspicion.
Having regard to the fact that the evidence of the Petitioner regarding ongoing
restrictions has not been contradicted in any material respect is n o t a clear indicator
that the Petitioner has discharged his burden of proof. Even in absence of contradictory
evidence from the opponent (in this case the Respondents) this Court cannot abdicate its
duty to subject evidence to analysis and consider its credibility. We have held that the
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