Rights and Digital Rights for the Internet Users. They state that digital rights are the
fundamental rights and freedoms enjoyed on the Internet. We are saying so because Article
18 of the CURT grants such right regardless of technology environment. In other words, the
provisions of the CURT are technology neutral.
The aforesaid right is equally recognised in international conventions (UDR; ICCPR;
and ACHPR). The access to the Clubhouse is part and parcel of exercising of human rights.
That means the government has an obligation to support the availability of the Internet and
the Clubhouse and other applications in the country. That is why there is the TCRA Act
(imposing
obligation
on
the
regulator to
ensure
that there
is communication,
interconnection, and interoperability); the Universal Communication Service Access Fund
(UCSAF), the Electronic and Postal Communications Act (EPOCA) and its regulations too
must support communication availability, interconnection, and interoperability. In addition,
the government by virtue of Article 18 of the CURT is barred from unduly restrictions,
throttling, or blocking of communication apps, platforms, networks such as Internet access,
and social media including the Clubhouse.
We are mindful of the fact that these fundamental rights and freedoms are not
without limits. This Court held so in Raymond Paul Kanegene and Another v. The
Attorney General, Consolidated Misc. Civil Cause No. 15 of 2019 and No. 5 of 2020
[2020] TZHC 4032 (26 November 2020) at page 15; Julius Francis Ndyanabo v.
Attorney General [2004] TLR 14. The fundamental rights and freedom can legitimately
and under the three-step test be restricted. That is the limitations are lawful, with
legitimate purpose, and necessary and proportionate to the purpose sought to be achieved
in democratic society . The fundamental rights are thus subject to limitations as stated in
Articles 29(5) and 30(a) of the CURT, that the limitation must be provided for by the law,
necessary, and proportionate. They should aim at protecting the freedom and rights of
others, security, morality, public interest and common interest of the society.
12
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