Facts:
Hali Halisi Publishers Ltd., the applicant, owns Mwanahalisi Newspaper, which was banned for 24 months by the Deputy Minister for Information Culture Arts and Sports (the first respondent) in September 2017. The ban was imposed due to the publication of three allegedly offending stories, culminating in an issue published from September 18 to 24, 2017. The applicant contended that the first respondent acted beyond his authority (ultra vires) under section 58 of the Media Services Act No. 12 of 2016 and that no charges were brought against the applicant nor was the applicant given the right to be heard. The applicant sought leave to file for judicial review, seeking prerogative orders of certiorari, mandamus, and prohibition.
The application was supported by affidavits and submissions from the applicant's counsel, Dr. Lugemeleza Nshallah and Mr. Nashon Nkungu. The respondents filed a joint counter affidavit and submissions from Mr. Haruni Matagane, Senior State Attorney, defending the ban and asserting the Deputy Minister's authority under section 4 of the Interpretation of Laws Act, Cap 1.
Issue:
Whether the applicant should be granted leave to file for judicial review of the decision to ban Mwanahalisi Newspaper.
Rule:
Applications for leave to file for judicial review are governed by Rule 5 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Judicial Review Procedure and Fees Rules, 2014, and sections 18(1) & 19(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310, R.E 2002.
Analysis:
The applicant argued that the Deputy Minister did not have the authority to impose the ban under section 58 of the Media Services Act No. 12 of 2016. The respondents contended that the Deputy Minister had the authority under section 4 of the Interpretation of Laws Act, Cap 1, which includes a Deputy Minister in the definition of a Minister. The applicant further argued that the letters from the second respondent demanding apologies were unauthorized and that no right to a hearing was given.
The respondents argued that the applicant was given a chance to be heard and had submitted a letter of apology. They also argued that the second respondent, as part of the Ministry's secretariat, had the mandate to communicate with the applicant.
The court focused on whether the applicant met the requirements for leave to file for judicial review, noting that the merits of the main application should not be assessed at this stage. The court agreed with the applicant's argument that at this stage, it was only necessary to determine if there was a prima facie case for judicial review and not to delve into the substantive issues of the ban's legality. The court found that the applicant had made a sufficient case to warrant further investigation into the legality of the Deputy Minister's actions and the procedural fairness of the ban.
Conclusion:
The court granted the application for leave to file for judicial review, allowing the applicant 30 days to file the main application.