restrict a website or app used for accessing content that violates intellectual property rights or
enable access to prohibited content. Here we wanted to demonstrate that the TCRA is
capable of blocking or restricting access to apps including Clubhouse. Despite this fact, the
Petitioner has failed to prove that the 2nd Respondent indeed restricted access to the
Clubhouse.
As stated above, it is a trite law under Section 110 of the Evidence Act [Cap 6 R.E.
2019] that he who alleges must prove. The OONI report (annexture CH 01 to the counter
affidavit) has failed to convince this Court that the 2nd Respondent restricted the access to the
Clubhouse in Tanzania. The Petitioner has failed to discharge his burden of proof. The OONI
report is a manifestation of suspicion that cannot be used to find the 2nd Respondent liable for
restriction of the Clubhouse. We expected that the Petitioner should lead evidence of some
sort showing how the Clubhouse blocking is done. It is unfortunate that even the affidavit of
the OONI experts detailing how the Clubhouse restriction is done by the 2nd Respondent was
not tendered. The OONI report attached to the counter affidavit of the Petitioner is clear that
it suggests that Tanzania has started blocking the access to Clubhouse. We have explained
the index used. The OONI report has not confirmed the alleged restrictions. In the absence of
evidence to prove restrictions of the Clubhouse in Tanzania, the allegations remain
speculations if not suspicions that cannot be acted upon by this court.
The counsel for the Petitioner boasts that the Petitioner has discharged his burden of
demonstrating that there exists some unexplainable restrictions within the Tanzania
cyberspace on accessing Clubhouse, which suggests that the burden has now shifted to the
Respondents; and more particularly, the 2nd Respondent as it has a moral and statutory duty
as the regulator and controller of the cyberspace to explain to the Petitioner and the Court
why there exists restrictions which impair fundamental rights of the Petitioners. We have
disposed this issue that the petitioner has failed to prove the restrictions of the Clubhouse in
Tanzania. It is thus unsubstantiated allegation.
22
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