Facts
Paul Kisabo, the petitioner, filed a case against the Minister of Information, Communication and Information Technology, the Tanzania Communications Regulatory Authority (TCRA), and the Attorney General. Kisabo challenged the restriction of access to the social audio platform Clubhouse in Tanzania, claiming it infringed his constitutional rights under the Constitution of the United Republic of Tanzania, 1977, and various international treaties. He argued that the restrictions violated his rights to freedom of opinion, expression, and access to information.
Issue
Whether the government of Tanzania uses Clubhouse as an official communication platform.
Whether access to Clubhouse is a fundamental right of the petitioner.
Whether the TCRA has restricted access to Clubhouse in Tanzania.
Whether such restrictions, if any, are justifiable.
Rule
Article 18(1) and 18(2) of the Tanzanian Constitution: Guarantees freedom of opinion and expression, and the right to seek, receive, and impart information.
International Treaties: Universal Declaration of Human Rights (UDHR) Article 19, International Covenant on Civil and Political Rights (ICCPR) Article 19, and the African Charter on Human and Peoples' Rights (ACHPR) Article 9, which provide similar protections.
Evidence Act, Section 110: Burden of proof lies on the party asserting a claim.
Analysis
Use of Clubhouse by Government: The court found that the Tanzanian government, through the Chief Government Spokesperson, used Clubhouse to communicate with the public. However, there was no formal sanctioning of Clubhouse as an official communication platform.
Fundamental Right to Access Clubhouse: The court affirmed that access to Clubhouse is part of the fundamental rights to seek, receive, and impart information under Article 18 of the Constitution. These rights are also protected by international treaties ratified by Tanzania. However, these rights are not absolute and can be subject to lawful restrictions.
Restrictions by TCRA: The petitioner argued that TCRA had restricted access to Clubhouse, which was supported by a report from the Open Observatory of Network Interference (OONI). However, the court found the OONI report inconclusive and insufficient to prove that TCRA had blocked Clubhouse. The report's credibility was questioned due to lack of direct evidence from its makers.
Justifiability of Restrictions: The court reiterated that any restriction on fundamental rights must be prescribed by law, pursue a legitimate aim, and be necessary and proportionate. However, since the petitioner failed to prove the restrictions, the issue of justifiability was rendered moot.
Conclusion
The court concluded that while the petitioner had a fundamental right to access Clubhouse, he failed to prove that TCRA or any government agency had restricted access to the platform. Therefore, the petition was dismissed for lack of evidence.