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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZNIA (MAIN REGISTRY) AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 27860 OF 2024 (CORAM: MANYANDA, J., AGATHO, J., AND RUMISHA, J.) PAUL KISABO............................................................PETITIONER VERSUS MINISTER OF INFORMATION, COMMUNICATION AND INFORMATION TECHNOLOGY....................... 1st RESPONDENT TANZANIA COMMUNICATIONS REGULATORY AUTHORITY.......................................................2nd RESPONDENT THE ATTORNEY GENERAL................................... 3rd RESPONDENT JUDGMENT Date of last order: 14.03.2024 Date of Judgement: 03.05.2024 AGATHO, J.: This case presents several novel issues of regulation of the cyberspace in Tanzania especially the allegation of restriction of access to a popular audio social media platform called Clubhouse. The Petitioner complains that the Respondents in particular, the 2nd Respondent in her capacity as the regulator and controller of Tanzania's cyberspace, has restricted access to and availability of Clubhouse. The Respondents have categorically denied the allegations. The Petitioner branded himself as a self-confessed regular user of Clubhouse. He claims that the denial of access to Clubhouse is an infringement of his fundamental constitutional rights enlisted in the Constitution of the United Republic of Tanzania of 1977 as amended (herein cited a CURT), and under various international treaties and conventions ratified by Tanzania. The rights and duties which he alleges to have been infringed upon include the right 1

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Paul Kisabo vs Minister of Information, Communication and Information Technology, Tanzania Communications Regulatory Authority, and Attorney General 2024

Case Law

Country

Tanzania

Country Location

Latitud: -6.422658237654706

Longitud: 36.0716826891688

Country Location (vinculado Case Law): Tanzania

Decision Date: 3 de may. de 2024

Case Status: Cerrado

Case Outcome (Procedural)

Motion Granted

Case Outcome (Disposition)

Blocking or Filtering of Information

Keywords

Constitution
Electronic Communications
Freedom of Expression

Court Name: IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZNIA (MAIN REGISTRY)

Case Number: MISC. CIVIL CAUSE NO. 27860 OF 2024

Case Summary: 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.

Case Significance: Affirmation of Digital Rights: The case reinforces the recognition of digital rights as part of fundamental human rights, aligning with international standards.

Burden of Proof in Constitutional Petitions: The decision underscores the importance of concrete evidence in proving allegations of rights violations in constitutional petitions.

Regulatory Oversight: It highlights the role of regulatory authorities like TCRA in managing digital platforms and the need for clear evidence when challenging such regulatory actions.

Source Name and URL: tanzlii.org

Related Law

Collection

CIPIT

Date Updated: 9 de jul. de 2024

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KISABO_v_MICIT_TCRA_AND_AG_-_JUDGMENT_-_FINAL_PDF_NEW.pdf
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