Research Question
On the evening of Wednesday, 17th March, 2021, the then vice president and now President Samia Suluhu Hassan announced the demise of Tanzania’s President John Pombe Magufuli. She attributed the death to a long standing heart condition. However, speculations quickly arose that the president had succumbed to Covid-19 which he vehemently denied its existence in Tanzania. This was after his regime had declared Tanzania Covid-19 free and had stopped releasing and updating its numbers of Corona virus infections. This brought about a series of serious questions and concerns about the country’s right of access to information.
This papers seeks to strike a comparison of Tanzania’s and Kenya’s legal provisions, interpretation and application of the right of access to information as both countries derive pride in identifying themselves as constitutional democracies, though very much debatable.
Legal Norm (major premise)
The Constitution of Kenya 2010 expressly provides for the right of access to information. Article 35(1) stipulates that the state is indebted in providing information to its citizens. This therefore means that the right can only be enjoyed by Kenyan citizens . In the while, the constitution of the United Republic of Tanzania provides for this right in Article 18. It states that persons have a right to be informed of vital societal events and activities. Both countries have exclusive legislations on the right of access to information known in both countries as the Access to Information Act.
International and regional conventions.
Kenya and Tanzania are part of international and regional conventions that cover the right at a wider legal scope. Article 19 of the Universal Declaration of Human Rights clearly states that everyone has a right to form opinion, receive and impart information.
Similarly, both countries have ratified the International Covenant on Civil and Political Rights (ICCPR) which provides for the same under Article 19 (2). This is regardless of whether it is done orally, in writing or in print form.
The African Charter on Human and Peoples Rights also captures extensively this right under Article 9 recognising its importance for the health of a democracy and as a means of protecting other socio-economic rights. The article goes to further lay out emphatically that state parties align their constitutional frameworks with the principles of access to Information. The ratification of these conventions by both countries shows the desire to comply with the principles embodied in the Model law and other set international standards.
ii. The multi-fascism of the Right of Access to Information.
The right of Access of Access to Information under the Constitution of Kenya, 2010 is divided into four facets. In Tanzania however, the right has surface provision that barely explains it in its entirety. It is also important to note that the Constitution of Kenya urges the government to be proactive when releasing vital information to the nation which is not the case with Tanzania.
Access to Information as an Instrument from which other rights flow.
The right of access to information is vital to the survival of a country’s constitutional democracy. It is hence recognised as an essential human right from which other rights flow. The right hence roots other rights and freedoms such as freedom of expression and freedom of the media.
The freedom of expression is important since otherwise, individuals in a free society cannot critique or raise their preferences for fair consideration in a society thereby contributing to collective judgements in a society. Article 33(1) of the Constitution of Kenya, 2010 downright provides for it. On the other hand, Tanzania covers this freedom under Article 18 of their Constitution. This shows that both countries have attempted to enfold the latest international and regional principles of the protection of freedom of speech in their laws.
Freedom of the media is by far an extension of freedom of expression. It is covered under Article 34 of the Constitution of Kenya, 2010. On the other hand, the constitution of the United Republic of Tanzania has not expressly provided for the freedom of the media. This is hence a vague constitutional guarantee.
Minor premise
On 16th March, 2020, Tanzania announced its first case of Covid-19. The government took the necessary measures as laid out by the World Health Organisation in combating the virus. However, the then president, Magufuli changed his approach and downplayed the threat posed by the pandemic and encouraged the use of locally made herbs and concoctions. This was followed by a national proclamation that the country was ‘covid free’. Tanzania hence suspended the release and update of corona virus data in the country. Later on, there was an appointment of a new deputy Health Minister. Tanzania Communications Regulatory Authority released a number and an email address urging Tanzanians to report anyone spreading information about Corona virus.
Differently, Kenya took a more hands on approach by engaging numerous stakeholders from the onset. Kenya reported its first case of corona virus in 12th march 2020. The president then put in place numerous public health measures including curfew, closure of schools and places of worship and mass testing. There was also an update of data in relation to the virus on a daily basis.
The government of Tanzania dismissed claims that the president was ill and insisted that he was busy. This was after the death of Chief Secretary, John Kikazi, Vice president of Zanzibar, Seif Sharif Hamad and Namibia’s 3rd secretary to Tanzania, Selina Tjihero all speculated to be as a result of Corona virus. The then president, while admitting the existence of a flu, still insisted on the absence of the virus. A report by Amnesty International states that the government censored journalists reporting on corona virus and even had others hounded. On 17th March, 2021, the then vice president Samia Suluhu announced the death of the then president, John Pombe Magufuli. She attributed his death to a long standing heart condition. An undated newspaper clip was circulated around social media showing the late Magufuli, as a student undergoing heart surgery in Britain.
However in Kenya, the death announcement did not come as shocking news. This is because the story surrounding his illness and even his death was being freely discussed in social media platforms. Tundu Lissu while speaking on Kenya’s KTN News TV, stated that the avowed Covid-19 sceptic had succumbed to corona virus. Furthermore, Citizen TV, was forced to do an apology for one week after citizen TV was reportedly switched off in Tanzania. This was after airing a report on Magufulis defiance in the fight against corona virus.
Application
In as much as freedom of the media has not been expressly provided for in the constitution of Tanzania, Article 18 of the constitution of the United Republic of Tanzania generally encompasses their freedom of expression and right of access to information. However, several limitations stand in the way of enjoyment of these rights by the citizens. While in Kenya, these fundamentals rights are prioritised over other laws in situations of conflict, in Tanzania, other existing laws take precedence. These include; the Newspaper Act of 1976, the National Security Act, 1970 and the Public Service Act of 1972. The Newspaper Act has been used severally to suppress the freedom of expression and hence the media. In 2012, Mwanahalisi newspaper was banned indefinitely under Section 25 of the Act while Mwananchi newspaper was suspended for a period of 90 days. In Kenya however, minimal statutes limit these rights and freedoms with the limitations adhering to the principles of legality, legitimacy and necessity. In Nation Media Group Limited & 6 others v Attorney General & 9 others, the High Court held that Section 3(2) of the media council Act an unjustifiable limitation to the freedom of expression and freedom of the media.
Furthermore, in Tanzania, the penalty for information holders who act in contravention of the Access to Information Act discourages the release of information. Whilst the penalty for wrongful release of information is 3-5 years, there is no penalty for withholding information hence rendering it safer to do so. In Kenya, when such information is withheld, one can make out a case as long as he/she states what the right is, what information is needed and hoe that information would help in exercising or protecting that right.
Furthermore, the Constitution of the United Republic of Tanzania does not expressly provide for the freedom of the media in its constitution. This in its entirety exposes the media to suppression from the government and its agencies. Moreover, information available in the Open government portal, Tanzania government portal and e-Governmental portal is often not updated and in non-reusable formats hence not meeting the needs of the people. The Constitution of Kenya, 2010 not only provides for freedom of the media but also takes a proactive approach in regards to information under the custody of the state . Information in government portals is also regularly updated and of use to the public.
Conclusion
The full realisation and respect of the multi-faceted right of access to Information is yet to be achieved in both countries. However, as discussed above, Kenya is a mile ahead in both its legal provisions and application as compared to Tanzania as discussed above.
Outlook
It is important to note that the protection of the right of access to information is vital in achieving constitutional democracy in a country.it is hence important for Kenya and Tanzania to ensure the protection of this fundamental right as a whole.
In light of the foregoing discussion, Tanzania should either amend or repeal legislations that undermine and suppress the enjoyment of the discussed right and freedoms. Legislations such as the Newspaper Act, which are very old, could be replaced by legislations which conform to the current international human rights standards. In doing so, all charges against journalists and media outlets under these laws should thereafter be dropped.
Kenya and Tanzania should both start or increase their social media platforms and act in a proactive manner to ensure that the public is updated on various areas of governance. Existing data on government portals should also be updated regularly for efficiency.
Finally, there should be advanced civil society advocacy efforts in ensuring that these fundamental rights and freedoms are being respected.
2021-4-6-1617701601