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Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR-ES-SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 9085 OF 2024 IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA 1977 - AS AMENDED FROM TIME TO TIME AND IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT [CAP. 3 R.E 2019 AS AMENDED AND IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT (PRACTICE AND PROCEDURE) RULES, 2014 AND IN THE MATTER OF A PETITION CHALLENGING THE CONSTITUTIONALITY OF PROVISIONS OF THE ELECTRONIC AND POSTAL COMMUNICATION (ONLINE CONTENT) REGULATIONS, 2020 AMENDED BY THE ELECTRONIC AND POSTAL COMMUNICATIONS (ONLINE CONTENT) (AMENDMENT) REGULATIONS 2022 BETWEEN DEUS VALENTINE RWEYMEMU ................................. . ............ PETITIONER VERSUS THE HONOURABLE ATTONREY GENERAL ..................... 1 st RESPONDENT MINISTER FOR INFORMATION, COMMUNICAITON AND INFORMATION TECHNOLOGY .............................. 2 nd RESPONDENT l JUDGMENT S.M. MAGHIMBI. 3;. P.P. NGUNYALE. 3; & O.F. BWEGOGE. 3; On 17th July, 2020, the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2020, repealed the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2018. The amendments were made for various reasons, including to improve freedom of expression and press freedom as per the Constitution of the United Republic of Tanzania, 1977 (as amended) and international standards. On March 18, 2022, the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022, were officially communicated to the public through an official gazette, specifically designated as Government Notice No. 136. This amended certain provisions of the Electronic and Postal Communications (Online Content) Regulations, 2020, which seem to have aggrieved the petitioner. He therefore invoked the provisions of Articles 26(2) and 30(2) of the Constitution of the United Republic of Tanzania of 1977, as amended (hereafter to be referred to as the Constitution); and by way of originating summons supported by an affidavit, the petitioner has moved this Court seeking the following declaratory orders; 2 1. That, the provisions of Regulation 8 of the Electronic and Postal Communications (Online Content) Regulations, 2020 violates the right to a fair hearing under Article 13 (6) (a) and freedom of expression under Article 18(a), (b), (c), & (d) of the Constitution of the United Republic of Tanzania of 1977 as amended and therefore unconstitutional. 2. That, the provisions of regulations 11, 14, 15, 19 and 21 of the Electronic and Postal Communications (Online Content) Regulations, 2020 restrict freedom of expression under Article 18(a), (b), (c), & (d) of the Constitution of the United Republic of Tanzania of 1977, as amended and therefore unconstitutional. 3. That, the provisions of regulation 17 of the Electronic and Postal Communications (Online Content) Regulations, 2020 contains provisions that violate the right to privacy and freedom of expression as stipulated under Article 16 and 18(a), (b), (c), & (d) Constitution of United Republic of Tanzania of 1977, and therefore null and void to the extent of its inconsistency. 4. That, the provisions of regulations 3, 5, 7, 9 and 12 of the Electronic and Postal Communications (Online Content) Regulations, 2020 as 3 amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 violate the right to freedom of expression under Article 18(a), (b), (c ), & (d) of the Constitution of the United Republic of Tanzania of 1977, as amended and therefore null and void to the extent of their inconsistencies. That, the provisions of regulation 4, 6 and second schedule of the Electronic and Postal Communications (Online Content) Regulations, 2020 as amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 infringe on freedom of expression and the right to work as envisaged in Article 18 (a), (b), (c), & (d) and Article 22 of the Constitution of the United Republic of Tanzania of 1977, as amended and therefore null and void to the extent of their inconsistencies. That, the provisions of Regulation 20 of the Electronic and Postal Communications (Online Content) Regulations, 2020 as amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 and Regulation 11 of the Electronic and Postal Communications (Online Content) Regulations, 2020 violate the right to freedom of expression under Article 18 (a), (b), ( c ), & (d) of the Constitution of the United Republic of Tanzania of 1977, as amended and therefore null and void to the extent of their inconsistencies. The grounds upon which the orders are sought are that: a) Regulation 3 of the Electronic and Postal Communications (Online Content) Regulations, 2020 as amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 and regulation 8 of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 contains unclear, subjective and ambiguous definitions of several words which may lead to a non-uniform interpretation of the law which restricts freedom of expression as provided under Article 18 of the constitution. b) Regulation 4, 5 and 6 of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 and Regulation 8 of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 unjustifiably restricts the enjoyment of the right to freedom of expression by requiring a license to provide online media services. This limitation on who can disseminate information online, with exemptions for mainstream media licensees in certain cases, is inconsistent with Article 18 of the Constitution. c) Regulation 4,6 and the second schedule of the Electronic and Postal Communications (Online Content) Regulations, 2020, amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022, violate the right to work and is inconsistent with Article 22 of the Constitution. d) Regulation 7 of the Electronic and Postal the Electronic and Postal Communications (Online Content) regulations, 2020 amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 and Regulation 8 of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 gives unfettered and wide powers without safeguards against abuse as far as issuance of licences, suspension and revocation of licences to the Tanzania Communications Regulatory Authority which may lead to violation e and restriction of freedom of expression under Article 18 of the Constitution. e) Regulation 8 of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 gives unfettered and wide powers without safeguards against abuse as far as issuance of licences, suspension and revocation of licences to the Tanzania Communications Regulatory Authority, which limit the right to fair hearing under Article 13(6)(a) of the Constitution. f) Regulation 9(a) to (k), and 12 of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 and Regulation 11 of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 stipulate wide, ambiguous, general, unreasonable and impracticable obligations to an online content service providers and applicant service licensee thus restricting the enjoyment of freedom of expression as envisaged in Article 18 of the Constitution. 7 g) Regulation 14 of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 provides obligations to online content users which are too wide, ambiguous and unclear and thus violates freedom of expression as provided under Article 18 of the Constitution. h) Regulation 15 of the Electronic and Postal Communications (Online Content) Regulations, 2020 provides for obligations to host online which are too wide and unclear and thus violate freedom of expression as provided under Article 18 of the Constitution. i) Regulation 16 and the third schedule of the Electronic and Postal Communications (Online Content) Regulations, 2020 stipulate what is termed as prohibited content, which is too wide, ambiguous and prone to subjective interpretation and thus violates freedom of expression as stipulated under Article 18 of the Constitution. j) Regulation 17 of the Electronic and Postal Communications (Online Content) Regulations, 2020 provides a mandate for disclosure of third-party information by the Authority or its officers without safeguards against abuse, thus violating the right to privacy and freedom of expression as stipulated under Articles 16 and 18 of the Constitution. k) Regulation 19 (a), (b) of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 and regulation 20 of the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 as amended by the Electronic and Postal Communications (Online Content) (Amendment) Regulations, 2022 provides the Tanzania Communication Regulatory Authority with powers to take action against noncompliance, licence and complaint handling which are too wide and prone to abuse without safeguards against abuse which is likely to violate freedom of expression as provided under Article 18 of the Constitution. I) Regulation 21 of the Electronic and Postal Communications (Online Content) Regulations, 2020 provides for criminal penalties which are excessive and unjustifiable, and creates general offence for contravention of the whole of the regulations with a subjective general application and thereby restricts freedom of expression as provided under Article 18 of the Constitution. 9 m) Items 2,3,4,5,6,7, 8,9 and 10 of the third schedule the Electronic and Postal the Electronic and Postal Communications (Online Content) Regulations, 2020 contain provisions that are unclear, subjective, wide and ambiguous which may lead to subjective interpretation of the law which restricts freedom of expression as provided under Article 18 of the constitution. On their part, the respondents opposed the petition by a counter- affidavit sworn by Ms. Honorina Stanslaus Munishi, the learned state attorney. Hearing of the petition was, at the instance of both parties, by way of written submissions. The respondent's submissions were drawn and filed by Ms. Narindwa Sekimanga, learned State Attorney, while the petitioner's submissions were drawn and filed by Mr. Jeremiah Mtobesya, learned Counsel. In his submissions to support his petition, Mr. Mtobesya prayed to adopt the contents of the originating summons and the supporting affidavit to form part of this submission. He then informed the court that the petitioner abandons grounds number (g), (h) and (j) as they appear on the originating summons. As for the merits of the petition, he introduced the petitioner as a human rights activist and advocate for freedom of expression, 10 rule of law, access to justice, good governance, social justice, democracy, and human and peoples' rights. He is affected by the operation of the 2020 Regulations and the 2022 Amendments thereto, both as a publisher of online content and as a defender and promoter of the rule of law, access to justice, good governance, social justice, democracy, and fundamental human rights in the United Republic of Tanzania. He elaborated that the Constitution provides for the right to freedom of expression, the right to work and the right to a fair hearing and as such, no law or regulation should limit the enjoyment of that beyond the constitutional standards. That the impugned provisions of the 2020 Regulations and 2022 Amendments are inconsistent with and in contravention of provisions of the Constitution. Elaborating on the grounds of the petition, he commenced with Regulation 3 of the 2020 Regulations as amended by the 2022 Amendments. His argument was that the amended regulation contains unclear, subjective and ambiguous definitions of several words, which may lead to a non-uniform interpretation of the law, which restricts freedom of expression as provided under Article 18 of the constitution. Mr. Mtobesya then elaborated that regulation 3 of the 2020 Regulations, as amended by the 2022 Amendments, contains words whose ii definition is unclear, subjective and ambiguous, thus susceptible to non interpretation. Definitions of such terms as "hate material" "hate speech" and "indecent material", and the like, are unclear and therefore subject to arbitrary use which may in turn be used subjectively to suppress freedom of expression. The subjective interpretation may be used to suppress and silence online users exercising their right to freedom of expression as provided for under Article 18 of the URT Constitution, thereby violating their right to freedom of expression. He concluded that the provisions of Regulation 3 of the 2020 Regulations, as amended contravenes the provisions of Article 18 of the Constitution, therefore unconstitutional. In reply, Ms Sekimanga submitted that these terms are defined clearly and simply as the language used is plain, and there is no any ambiguity. Further, these terms are not foreign enough in our statute books to create misinterpretation. She elaborated that hate speech and indecency have been outlawed by the Penal Code under sections 63C and 138A, respectively; therefore, the Petitioner's claim that these terms are ambiguous is meritless. She concluded that regulation 3 is in accordance with Article 18 of the Constitution, adding that this court is vested with powers to interpret the law and give guidance on matter which has ambiguity. This safeguard is 12 sufficient to protect the public against arbitrary abuse of their freedom of speech. The petitioners are also challenging the provisions of regulations 4 and 6 of the 2020 Regulations amended by the 2022 Amendments, and regulation 8 of the 2020 Regulations, which he alleges they unjustifiably restrict the enjoyment of the right to freedom of expression by requiring a licence to provide online media services. He argued that the limitation on who can disseminate information online, with exemptions for mainstream media licensees in certain cases, is inconsistent with Article 18 of the Constitution. Starting with Regulation 4(1) of the 2020 Regulations, the counsel argued that the relevant provision makes it mandatory for all online content services to obtain a licence from the Tanzania Communications Regulatory Authority (hereinafter referred to as "the Authority") while Regulation 4(2) makes it an offence for anyone who operates without such a licence. Regulation 6 of the 2020 Regulations and the 2n d Schedule to the Regulations provide for licence fees. The cumulative effect of these two regulations is to limit freedom of expression by restricting the free dissemination of information contrary to the provisions of Article 18 of the URT Constitution 13 that guarantees the dissemination of information. He hence argued that the provisions of regulation 4(1) and (2) of the 2020 Regulations contravene the provisions of Article 18 of the URT Constitution, and therefore are unconstitutional. There was also a complaint that regulation 4, 6 and the 2n d Schedule of the 2020 Regulations, amended by the 2022 Amendments, violate the right to work and is inconsistent with Article 22 of the Constitution. Mr. Mtobesya then submitted that, the provisions of Regulation 4 of 2020 Regulations make it mandatory for online service providers to first seek and obtain a license before starting an online business, and make it an offence to operate without such a license. He submitted further that regulation 6 of the same Regulations read together with the 2n d Schedule thereto provides for license fees. The requirement for obtaining a license and payment of the said fees violates an individual's right to work as provided for under Article 22 of the Constitution, to the extent that an individual whose source of income is online media may fail to work because of the high fees involved. It is therefore his submission that the provisions of regulation 4 of the 2020 Regulations contravene the provisions of Article 22 of the Constitution, therefore unconstitutional. 14 He went on to submit that regulation 7 of the 2020 Regulations, as amended by the 2022 Amendments, and regulation 8 of the 2020 Regulations, gives unfettered and wide powers without safeguards against abuse as far as issuance of licences, suspension and revocation of licences, to the Authority which may lead to violation and restriction of freedom of expression under Article 18 of the Constitution. Regulation 7 of the 2020 Regulations gives the Authority the power to issue the license mentioned in Regulation 4 above. Regulation 7 does not provide the time within which the Authority has to issue the license. These unfettered powers might be misused to unnecessarily and unjustifiably withhold issuance of the sought license, thereby infringing the applicant's right to freedom of expression, which right is provided for and protected under Article 18 of the Constitution. As for Regulation 8 of the 2020 Regulations, he submitted that the same gives unfettered and wide powers without safeguards against abuse as far as the issuance of licences, suspension and revocation of licences to the Authority. He argued that these unfettered powers without safeguards threaten an online user's right to freedom of expression as provided for under Article 18 of the Constitution. He concluded that the provisions of regulations 7 and 8 of the 2020 Regulations, as amended, contravene the 15 provisions of Article 18 of the Constitution, therefore unconstitutional. Further, regulation 8 of the 2020 Regulations gives unfettered and wide powers without safeguards against abuse as far as issuance of licences, suspension and revocation of licences to the Authority, which limit the right to fair hearing under Article 13(6)(a) of the Constitution. The next Regulation challenged are the provision of Regulation 9(a), 9(b), (c), 9(d), 9(e), 9(f), 9(g), 9(h), 9(i), 9(k) and 12 of the 2020 amended by the 2022 Amendments, and Regulation 11 of the 2020 Regulations. Mr. Mtobesya's submissions are that the regulations stipulate wide, ambiguous, general, unreasonable and impracticable obligations to online content service providers and applicant service licensee thus restricting the enjoyment of freedom of expression as envisaged in Article 18 of the Constitution. He pointed out that Regulations 9(a) to 9(k) of the 2020 Regulations provide for general obligations for a licensee to comply with; these obligations are in tandem with license terms and conditions. His argument was that these obligations are wide, ambiguous, general, unreasonable and impracticable to an online content service provider and a licensee, to the extent of infringing an individual's right to freedom of expression. That the provisions go contrary to the provisions of Article 18 of the Constitution that guarantees an individual's right to freedom of expression. His conclusion was that the provisions of Regulation 9(a) to 9(k) of the 2020 Regulations contravene the provisions of Article 18 of the URT Constitution, thus unconstitutional. Concerning regulation 16 and the 3rd Schedule of the 2020 Regulations, Mr. Mtobesya submitted that the provisions define prohibited content in wide and ambiguous terms, making it prone to subjective interpretation and thus violating freedom of expression as stipulated under Article 18 of the Constitution. The term prohibited content as stated under regulation 16 and defined in the 3rd Schedule to the 2020 Regulations, provides a very wide and ambiguous definition capable of being subject to subjective interpretation and arbitrary use. He elaborated that subjective interpretation and arbitrary use of the said definition can be used to limit an individual's right to freedom of expression by censoring free speech. This possibility violates the right to one's right to freedom of expression as provided for under Article 18 of the Constitution. It is thus his submission that the provisions of Regulation 16 and the 3rd Schedule to the 2020 Regulations contravene the provisions of Article 18 of the Constitution, thus unconstitutional. 17 Moving to regulation 19 (b) and 20 (1) of the 2020 Regulations, which provides the Authority with powers to take action against non-compliance, licence and complaints handling, his submission was that the provisions are too wide and prone to abuse without safeguards against abuse, which is likely to violate freedom of expression as provided under Article 18 of the Constitution. That regulation 19(b) of the 2020 Regulations vests the Authority with powers to take action against non-compliance with the Regulations, including to order the removal of or bar access to prohibited content. Further, Regulation 20(1) of the 2020 Regulations, on the other hand, provides for the time within which a service provider has to resolve a request for the take-down of prohibited content (cannot be left open-ended). Given the fact that, as submitted above, he pointed, the term prohibited content is a vaguely defined terminology, giving the Authority powers to take action against non-compliance without putting in place safeguards, like giving the service provider the right to be heard before action is taken. That it would make the said power susceptible to arbitrary use and abuse, thus threatening an online user's right to freedom of expression. This, therefore, violates the provisions of Article 18 of the Constitution, which guarantees freedom of 18 expression. He hence concluded that the two Regulations are unconstitutional. As for regulation 21, which provides for criminal penalties, Mr. Mtobesya's argument was that the penalties are excessive and unjustifiable, and creates general offence for contravention of the whole of the regulations with an effect of a subjective general application, thereby restricting freedom of expression as provided under Article 18 of the Constitution. He then submitted that the regulation 21 sanctions contravention of the Regulations by criminal liability; upon conviction, a person can be sentenced to a payment of fine of not less than TZS 5,000,000/= (Five Million Shillings Only) of imprisonment for a term not less than 12 months, or both fine and imprisonment. It was his argument that the penalties are excessive and unjustifiable, susceptible to arbitrary use, thereby restricting one's freedom of expression as provided for under Article 18 of the Constitution. He concluded that the provisions of regulation 21 thus contravene the provisions of Article 18 of the Constitution, therefore unconstitutional. As for items 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the 3rd Schedule to the Regulation, he submitted that the items contain provisions that are unclear, subjective, wide and ambiguous, which may lead to subjective interpretation 19 of the law, which restricts freedom of expression as provided under Article 18 of the Constitution. That the provisions of items 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the 3rd Schedule to the 2020 Regulation, in very wide terms tries to define prohibited content, which definition is unclear, subjective, wide and ambiguous. He pointed out that the definitions are susceptible to subjective interpretation and arbitrary use; thus, threatening freedom of expression, as provided for under Article 18 of the Constitution. That the provisions of items 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the 3rd Schedule to the 2020 Regulation contravene the provisions of Article 18 of the Constitution, therefore unconstitutional. In conclusion, he submitted that based on the foregoing submissions, it is clear that the impugned provisions in the 2020 Regulations and 2022 Amendments contravene three specific fundamental human rights enshrined in the Constitution: The right to freedom of expression, the right to be heard, and the right to work. That freedom of expression, which encompasses the right to information, is a fundamental right as well as an enabler of other human rights and a guardian of democratic values. That it is a necessary condition for the realisation of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of 20 human rights. He supported his submission by citing the Zimbabwean Constitutional Court in Madanhire and another vs. Attorney General, (Judgement No. 2/14, Zimbabwean Constitutional Court), wherein it was pointed out that: "Freedom o f expression, coupled with the corollary right to receive and Im part inform ation, isa co re value o fany dem ocratic society deserving o f the utm ost legalprotection." He then elaborated that this value has been recognized and protected in a number of international and regional instruments including the Universal Declaration of Human Rights (1948) (UDHR), the International Convention on Civil and Political Rights (ICCPR) (1966), the African Charter on Human and Peoples' Rights (African Charter) (1981), Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019) (DPFEAI Africa), just to mention a few. However, the counsel conceded that the freedom of expression is not without restrictions; it is not absolute, and even Article 19(3) of the Convention on Civil and Political Rights acknowledges that by stating: 21 "The exercise o f the rights provided fo r in paragraph 2 o f this article carries with it special duties and responsibilities, and it may therefore be subject to certain restrictions." Mr. Mtobesya submitted further that the restrictions will only be allowed if they have been (a) provided for by the law, (b) serve a legitimate aim, (c) necessary for the protection or promotion of the legitimate aim, and (d) are necessary in a democratic society. That the restrictions shall be considered herein below. He then took the court to the decisions of the Court of Appeal of Tanzania, whereby the same restrictions were dealt with in two leading cases, the DPP vs. Daudi Pete, [1993] T.L.R 22 and Kukutia Ole Pumbun vs. the AG, [1993] T.L.R 159, wherein the court allowed the application while testing the constitutional validity of a piece of legislation. He then submitted that the restrictions under Article 19(3) of the Convention on Civil and Political Rights are akin to those formulated by the Court of Appeal in the two above-cited cases. That the first restriction is the restriction under scrutiny which should be provided by the law. However, he argued, it is not enough simply to have a law; the law must also meet certain standards of clarity and accessibility. That if restrictions are unduly vague, or otherwise grant excessively discretionary powers of application to the authorities, they 22 fail to limit the power to restrict freedom of expression to the legislature. Unduly vague rules may also be interpreted in a manner which gives them a wide range of different meanings. That it would be inconsistent with democracy to give officials the power to make up the rules as they go, and this would also not be fair to individuals, who should be given reasonable notice of exactly what is prohibited. He concluded that not only do vague laws bypass democratic legislative control, but they can also result in a 'chilling effect', where individuals steer far clear of controversial topics because there is uncertainty about what is permitted and what is not. That laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not. He referred to the UN Human Rights Committee (UNHRC), which stated in General Comment No. 34; "Fora norm to be characterised as a taw " it m ust be form ulated with sufficient precision to enable an individual to regulate his or her conduct accordingly, and it m ust be made accessible to the public." 23 On the second limb of his submission, he was of the view that the restriction under scrutiny must serve a legitimate aim. That legitimate aims are set out under Article 19(3) of the ICCPR, which include (a) respect for the rights and reputations of others, and (b) protection of national security, public order, public health or morals. The UNHRC has made it clear that the above list is exclusive, so that restrictions which do not serve one of the listed, the aims are not valid. Further, restrictions are not allowed on grounds not specified above, even if such grounds would justify restrictions to other rights protected in the ICCPR. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated. He supported his submission by citing the case of Free Press of Namibia vs. The Cabinet for the Interim Government of South Africa, SWA 614 (1987), p. 625, the South West Africa High Court held that: "...because people (ora section thereof) may hold their government in contempt does not mean that a situation exists which constitutes a danger to the security o f the state or to the maintenance o f public order. In fact, to 24 stifle ju st criticism could as iikeiy lead to those undesirable situations." On the third and last limb, he submitted that the restriction under scrutiny must be necessary for the protection or promotion of the legitimate aim. That the necessity element of the test presents a high standard to be overcome by the State seeking to justify the interference, apparent from the following quotation, cited repeatedly by the European Court of Human Rights (ECHR): Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established. That to determine if a restriction is necessary, courts have identified four aspects of this part of the test. First, there must be a pressing or substantial need for the restriction; minor threats to legitimate aims do not pass a threshold test for restricting freedom of expression. Second, the approach taken must be the least intrusive manner of protecting the legitimate aim. That if there is an alternative measure which would accomplish the same goal in a way which is less intrusive, the measure chosen is clearly not necessary. Third, the restriction must impair the right as little as possible in the sense that it is not'overbroad'; while it is legitimate 25 to prohibit defamatory statements, these rules should be limited to speech which illegitimately undermines reputations. Banning all speech which was critical would be overbroad since much critical speech is true or otherwise reasonable. He went on submitting that the fourth condition is that a restriction must be proportionate; it involves weighing the likely effect on freedom of expression against the benefits of the restriction in terms of the legitimate aim which is sought to be protected. That where the harm to freedom of expression outweighs the benefits, a restriction cannot be justified, keeping in mind that the right to freedom of expression is a fundamental human right. Turning to the regulations, he submitted that all the impugned provisions under the 2020 Regulations and 2022 Amendments that contravene Article 18 of the URT Constitution to the extent demonstrated, fail to pass the three-part test demonstrated in the foregoing paragraphs. That the impugned provisions are vague, ambiguous, susceptible to subjective interpretation and arbitrary use, which makes them unconstitutional. That the three-part test, as discussed above, is akin to Article 30(2) of the Constitution, which allows derogation from the basic 26 human rights, but if, and only if, they pass the tests set forth in Daudi Pete and Kukutia (supra). Further, in Kukutia (supra), the Court of Appeal observed that: "... a law which seeks to lim it or derogate from the basic right o f the individual on grounds o f public interest w ill have special requirem ents; first, such a law m ust be law ful in the sense that it is not arbitrary. It should make adequate safeguards against arbitrary decisions, and provide effective controls against abuse by those in authority when using the law. Secondly, the lim itation im posed by such law m ust not be more than is reasonably necessary to achieve the legitim ate object. This is what is also known as the principle o f proportionality. The principle requires that such a law m ust not be drafted too w idely so as to m eet everyone, including even the untargeted members o f the society. I f the law which infringes a basic right does not m eet both requirem ents, such law is not saved by article 30(2) o f the Constitution, it is n u ll and void." He then argued that the impugned provisions of the 2020 Regulations, as amended, cannot be saved by the provisions of Article 30(2), for they fall 27 short of the standards set in the cited case, which makes them unconstitutional, that the impugned regulations are vague, ambiguous, susceptible to subjective interpretation and arbitrary use, which makes them unconstitutional. In the upshot, he submitted that the Petitioner has been able to demonstrate, with authorities, how the impugned provisions of the 2020 Regulations and the 2022 Amendments contravene the provisions of Articles 13(6)(a), 18 and 22 of the URT Constitution. On the strength of the contents of the originating summons and supporting Affidavit, these submissions and cited authorities, it was the petitioner's prayer that this Court finds merits in this Petition and grant all the orders sought in the originating summons. In reply, Ms. Sekimanga submitted that the rationale of regulating online media by requiring a license is to safeguard society against degrading, harmful, false information, which could be catastrophic to the Public. That the averment by the Petitioner that regulation 4(1) of the 2020 Regulation makes it mandatory for online service providers to first obtain a license before starting an online business is false. This is because regulation 4(1) of the Online Contents Regulations of 2020 was amended by the Online Content Amendment Regulation of 2022. Based on the amendments, online service 28 providers do not require licences, except those that provide online media services. This provision, as amended, also exempts the mainstream media from the requirement of obtaining a licence. Submitting on Regulation 6, as amended, she was of the view that the same provides for the procedure of application of the licence for online media service and the necessary documents to be attached during the application. While the 2n d Schedule provides for online media service licence fees. She hence argued that the Petitioner's contention that the regulation of the media violates freedom of speech is absurd, as the media has been regulated since its beginning and is being regulated to date. She went on submitting that the media service Regulations read together with the Media Service (Amendment) Regulations, 2024, for instance regulates print media by requiring print media providers to apply for the licence and pay for license fees (see regulations 8 to 13 together with the 1st schedule). That the consequences of not regulating media services, whether online or traditional, are catastrophic. Further that media can be a tool for hate-based harassment, contribute to terror attacks, cause discord among people and threaten community welfare with false information and so forth. 29 On the allegation of excessive fees provided under the 2n d Schedule, firstly, she argued that the Petitioner is not in a position to comment on whether license fees are excessive or not, as he is not a media service provider. That he has no data or experience to make such an assumption, and moreover, the 2022 Online Content Amendments substantially reduce the online media Services Licence fees, which includes removal of initial licence fees and material reduction of application, annual and renewal fees. She therefore concluded that the provision is reasonable and in accordance with Articles 18 and 22 of the Constitution. Ms. Sekimanga went on submitting that the petitioner is also challenging regulation 7 of the 2020 online Content Regulations, on the ground that it does not provide the time within which the Authority has to issue the license. She argued that the Authority notifies the licensee within 14 days of the application for the licence. Further, if there is any unreasonable delay, the licensee can challenge the Act of the Authority by way of Judicial review and that there is enough safeguard to guard a licensee against unnecessary and unjustifiable delays. On regulation 8 of the 2020 Regulations, her reply was that the Authority under regulation 7 is required to state reasons for refusal or license 30 and is also required to notify the licensee with reasons of any suspension or revocation of license pursuant to regulation 8(3). She then pointed out that if the Licensee is aggrieved, he has a remedy under the Law to subject the Authority before this High Court. Therefore, this provision does not contravene Article 13(6)(a) of the Constitution as alleged. Regarding challenging regulation 9(a) to (k) as containing obligations that are wide, ambiguous, general, unreasonable and impracticable. Ms. Sekimanga submitted that the Petitioner has not indicated specifically which obligations are wide and why he perceives them as such. She then submitted that the general obligations under regulation 9(a) to (k) are proper and in accordance with the Constitution, particularly Article 18. That if, at all, there is any ambiguity, this court has the power to interpret the said obligations to ensure the right to freedom of expression is not violated. The regulation makes it clear that the licensee has to observe his obligation in ensuring that the rights and freedoms of other persons are not jeopardised by the enjoyment of their rights and freedoms of other persons in online content platforms. On the challenge of regulation 16 and the 3rd Schedule of the 2020 Regulations, which define prohibited content in wide and ambiguous terms, 31 making it prone to subjective interpretation. She also submitted that she has failed to know exactly what prohibited contents the Petitioner is referring to as ambiguous and in what way he perceives them as such. Ms. Sekimanga went on to submit that the prohibited contents under the 3rd Schedule include content that promotes Child pornography, actual pornography, explicit sex acts, nudity, homosexuality, rape, adultery and prostitution. Content that interferes with personal privacy, insults, slanders and defames others. Content that promotes espionage, data theft and witchcraft. Content against public security, violence and national safety. Content that promotes criminal activities or illegal trade activities. Content which promotes offending, defaming or ridiculing any religion. Content that promotes discrimination and provokes hate speech. And Content that promotes public havoc and disorder. She then expressed that she had failed to see how the above prohibited contents are ambiguous. Ms. Sekimanga submitted further that this conduct is known and is already outlawed under the Penal Code. Thus, she opined that regulation 16 and the 3rd schedule are important and they aim to protect and safeguard society against hate, chaos and inhumanity. That the impugned items of the third schedule do not restrict freedom of expression as provided under Article 32 18 of the Constitution, but rather aim at protecting third parties from being affected by users and hosts of online content platforms. Further, regulation 16 and the 3rdschedule are both in accordance with the Constitution, hence there is no ambiguity of terms, and the prohibited conducts have been provided in plain language and is clearly understandable. Submitting on regulations 19(b) and 20(1) of the 2020 Regulations, which give the authority power to order the removal of prohibited content. Based on the extreme need to regulate online content, she submitted that the Authority's power to order the removal of prohibited content is crucial and in accordance with the Constitution. Based on the nature of prohibited content as outlined above, if left on the internet will impact society in a negative way and cause more harm. Further, eliminating the power of the Authority to order such content to be brought down defeats the whole purpose of the of the respective regulation. She elaborated further that the impugned regulation aims at protecting third parties from being affected by users and hosts of online content platforms. They place a duty of accountability on both the online content users and hosts of online content to take action where there is content affecting other persons' rights, including the right to personal privacy. 33 Regulation 20(1) of the 2020 regulations, which provides for the time within which a service provider has to resolve a request for take-down of prohibited content, is also in line with the Constitution and does not violate Article 18 thereof. On challenging regulation 21 of the 2020 Regulations, which creates general offences as excessive, unjustifiable and susceptible to arbitrary use and therefore restricting freedom of expression. Her reply submission was that regulation 21 does not infringe or violate Article 22 of the Constitution. That the likelihood of a provision being misused arbitrarily does not make it unconstitutional, and that the Regulation provides a remedy for any aggrieved person to subject his grievances to the Court of law. She submitted further that the right to freedom of expression is not absolute; it must be exercised in accordance with the laws of the land and the Constitution of the United Republic of Tanzania. As rightly stated by the Petitioner, she continued, freedom of expression, like every other right, is subject to limitations in accordance with Article 30(2) of the Constitution and other laws of the land. That Regulation of Online Content is necessary as it serves a legitimate purpose and protects society while enhancing protection of other rights, including the right to privacy. Through the impugned 34 provisions, she submitted, the public is guaranteed the right to receive truthful information which does not incite chaos in society. Regulation of online content ensures that one will not use his right to freedom of speech to harm another in any way whatsoever. The regulation protects children online and promotes user responsibility and digital security practices. On what she termed as the Petitioner's attempt to move the Court to erase the impugned regulations, she argued that he is doing so without proposing a recourse to what will happen after the same regulations are voided. She was of the strong assertion that this will bring about a lawless state in so far as the Online Content Regulations are concerned. In other words. She submitted that the Petitioner is seeking the Court to void the regulations which will result in the proliferation of unregulated freedom on the part of online content users, arguing that if the impugned regulations are voided, the lawlessness state will invite danger to the society as the consequences of leaving the main source of information in the current world of science and technology unregulated will be detrimental. That the powers given to the Authority to regulate online content, including through registration of users and platforms, and taking action against non- compliance with the obligations, such as ordering removal of prohibited 35 content, are reasonable and in accordance with the laws of the land. Further, there is a safeguard through this Court in case of any grievances arising from the conduct of the Authority. She supported that line of argument by urging the court to find inspiration from the case of Legal and Human Rights Centre & Others vs Minister for Information, Culture and Sports & Others (Misc. Civil Cause 25 of 2018) [2019] TZHC 2032 (9 January 2019) page 23., when dealing with an application challenging the Online Content Regulation, this Court held that cost cannot be a factor that may affect the legality of the regulation and the authorities have the discretion to require what documents to be supplied. She then submitted that since there is a presumption of constitutionality of a legislation, the onus is upon the Petitioner to rebut the presumption, supporting her argument by citing the decision of this court in the case of Jebra Kambole vs Attorney General, Misc Civil Cause No 27 of 2017, where the same position was held at page 10. In conclusion, she submitted that the Petitioner has clearly failed to prove his case, as evidence on record shows that the allegations in this Petition are not backed up by any evidence or substantial arguments to 36 support the same. That since the Petitioner has failed to discharge the onus of proof required, her prayer was that this Petition be dismissed for lack of merit. In rejoinder, Mr. Mtobesya reiterated his submissions in chief, and he made a brief rejoinder. On Ms. Sekimanga's contention that the complained infringement of the right to freedom of expression can be checked by this Court whenever such an issue is brought before it for determination, that this Court can rightly interpret the impugned terms and provide the necessary safeguards. His reply was that the petitioner does not have any issue with the powers conferred under this Court to interpret provisions of the law, their issue is that until such time when one comes before this Court seeking interpretation of the impugned terms, there is a possibility that other institutions charged with the powers to as well interpret the terms, like law enforcement agencies, would have given such terminologies their own subjective and selective interpretation to the detriment of individual's rights to freedom of expression. That such a possibility is what the Petitioner seeks to check through this petition, by asking this Court to declare the said terminologies unconstitutional for offending Article 18 of the URT Constitution. 37 On the regulations 4, 6 and 8 of the 2020 Regulations, whereby Ms Sekimanga maintained that the mandatory license and payment of fees is nothing but a way to regulate online services; that it is nothing new, for the same has been the case even before enactment of the impugned Regulations. Mr. Mtobesya submitted that this submission is non-meritorious and should be given less weight by this Court; our reasons shall be provided below. That requiring all online service providers to register and obtain a license after payment of fees is nothing but an infringement of Article 18 of the Constitution, for it restricts an individual's right to receive and disseminate information. Just by the mere fact that the Authority has the discretion to grant licenses also means that the Authority may refuse to grant the said license. Such a refusal, if it occurs, is thus an infringement to one's right to freedom of expression as provided for under Article 18 of the Constitution. On the Respondents submission that the Petitioner is not in any position to comment on the excessiveness of the license fees, for he is not in the media business and therefore not versed with the proper data to warrant him to make such a comment. His argument was that the submission is also devoid of merit; for the fees in question are provided for under the 38 law thus a matter of public knowledge (Tshs. 50,000/= as application fees and Tshs. 500,000/= as annual license fees), and fact that the same are excessive in more a farfetched conclusion for one to arrive at given the fact that a common Tanzania citizen would find it difficult to make the forementioned payments just to enjoy a fundamental right provided for under the Constitution. That the Petitioner is justified in making such conclusions without even being experienced in the media business. And if anything, the right to freedom of expression as provided for under Article 18 of the Constitution is not a reserve for those in the media business but is supposed to be enjoyed by every citizen of this country, including the Petitioner. On Regulation 7 of the 2020 Regulations, his reply was that the submission that the Authority has 14 days to act is an assumption that is not provided for by the impugned provision; the provision is quite silent on that aspect, thus taking such an assumption against a clear provision of the law is a misdirection that this Court should not condone. That the submission that an applicant for a license should handle his/her grievance through judicial review applications is also a misdirection because that avenue is not provided for by the law, thus another sweeping assumption against clear 39 provisions of the law that should not be entertained by this Court. That the Regulation does not provide for a time limit within which the Authority has to exercise its discretion whether or not to grant a license, and it does not provide for any remedy to challenge the exercise of those powers in any event of dissatisfaction with a decision by the Authority. He argued that the unfettered powers might be misused to unnecessarily and unjustifiably withhold issuance of the sought license, thereby infringing the applicant's right to freedom of expression, which right is provided for and protected under Article 18 of the Constitution. Rejoining on regulation 8 of the 2020 Regulations, he submitted that the decision to issue, suspend or revoke a license as provided under regulation 8 of the 2020 Regulations allows unilateral decision-making by the Authority without affording the applicant/license holder the right to be heard. This is contrary to the provisions of Article 13(6) (a) of the Constitution, which guarantees the right to a fair hearing and the right to seek redress against any dissatisfaction with a decision affecting one's rights. On the argument that the Petitioner in his submission in-chief does not offer a recourse to the challenged provisions, Mr. Mtobesya's reply was that the only recourse after this Court is satisfied that the impugned provisions 40 are violative of the mentioned articles of the Constitution, is to declare them unconstitutional and strike them out of the statute book. That recourse has been followed by both this Court and the Court of Appeal in such circumstances; he hence asked this Court to follow suit. On the submission that the Petitioner was duty-bound to prove the above-mentioned infringement by evidence, citing the case of Jebra Kambole vs. Attorney General, Misc. Civil Cause No. 27 of 2017. He submitted that not all allegations of an infringement of a fundamental right have to be proved by adducing evidence, as the Respondent would want this Court to believe; there are instances where only legal arguments, as the Petitioner has done in this case, would suffice to justify the said allegations of infringement. To support his argument, he quoted a passage in the case of Julius Ishengoma Francis Ndyanabo vs Attorney General [2004] TLR 14, wherein at page 29 of the reported case, the Court of Appeal stated that; "U ntil the contrary is proved, a legislation is proved to be constitutional ... since there is a presum ption o f the constitutionality o f a legislation ... the onus is upon those who 41 challenge the constitutionality o f the legislation; they have to rebut the presum ption." That after stating that principle, the Court of Appeal went further to test that principle against arguments advanced by the appellant in the case before them; there was no factual evidence put before the Court of Appeal, but rather legal arguments to support the alleged violations. And it the said arguments that in the end moved the Court of Appeal to declare the impugned provisions unconstitutional, he then turned to this petition and submitted that the Petitioner has tried to show in his petition and submission in-chief and this rejoinder is to extent to which, through legal arguments, the impugned Regulations are violative of Articles 13(6)(a), 18 and 22 of the Constitution. That as the Court of Appeal in the above-cited Ndyanabo's case did, he moved the court to assess the constitutionality of the impugned provisions as against the arguments and statements of said violations found in the Affidavit in support of this petition, and find merit in the same; and consequently, grant the orders sought in the Originating Summons. On the cited case of Legal and Human Rights Centre and Others vs. The Minister for Information, Culture and Sports and Others, Misc. Civil Cause No. 25 of 2018 [2019] TZHC 2032 (9th January 2019], he 42 submitted that this Court, while assessing the validity of such restrictions to be guided with the standards set by the Court of Appeal in several of its decisions, including Daudi Pete and Kukutia cited in submission in-chief and that the standards set in the above cited cases by the Court of Appeal are still good law to date because the Court of Appeal has not departed from the said standards. In the upshot, he concluded that the humble Petitioner has been able to demonstrate, with authorities, how the impugned provisions of the 2020 Regulations and the 2022 Amendments contravene the provisions of Articles 13(6)(a), 18 and 22 of the URT Constitution. That on the strength of the contents of the Originating Summons and supporting Affidavit, submission in chief, this rejoinder and cited authorities, he prayed for this Court to find merits in this Petition and grant all the orders sought in the Originating Summons. On our part, we shall start with regulation 3 of the impugned regulations. We have gone through the relevant regulation to see whether any of the definitions therein are ambiguous. We have noted that Counsel Mtobesya has used the phrase "and the like". We remind the Counsel to be specific and precise as to which words he is actually moving the court to 43 declare unambiguous. For that reason, since the court is not here to assume what litigants want, we will only determine those words which were expressed by the learned Counsel, that is "hate material", "hate speech" and indecent material". We. shall also be as brief as he was; notably, he did not tell the court how ambiguous these words can be, he just submitted that they are unclear and subject to arbitrary use. We have looked at the definitions, and for the interest of clarence, we reproduce the definitions: "hate m aterial" means content which advocates o r prom otes genocide or hatred against an identifiable group o fpeople; "hate speech"m eans any portrayal in words, speech, pictures, etc., which denigrates, defames or otherwise devalues a person or group on the basis o f race, ethnicity, religion or disability; "indecent m aterial" means m aterial which is offensive, m orally im proper and against current standards o f accepted behavior which includes nudity and sex; On this point, we agree with Ms. Sekimanga that these terms are defined clearly and simply. There is no ambiguity in the language that is used, which is plain language. The state cannot allow content which 44 promotes hatred and genocide against an identifiable group in the country. The portrayal in words, speech and pictures that degrade or defame a person or even devalue a person is something in our society that has to be prohibited. The same is our view with respect to the definition of indecent material; those which are offensive, morally improper or against the current standard of accepted behaviour, including nudity and sex. Therefore, we find that the definition is plain and straightforward. Afterall, as submitted by Ms. Sekimanga, any ambiguity may be cleared by the court at the time of happening of an event, the cure cannot be by removing those words in the regulations and exposing innocent people to cyber bullying. This ground, therefore, fails as the definitions do not violate the provisions of Article 18 of the Constitution. It is likewise important to note that the terms hate speech and indecency have been outlawed by sections 63C and 138A of the Penal Code [Cap. 16 R.E 2023]. Next, we shall determine the arguments on the impugned provisions of Regulations 4, 5, 6, 7, 1 6 ,19(a)&(b), 21, 2n d Schedule and item 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the 3rd Schedule to the Regulations which allegedly contravenes the provisions of Article 18 of the Constitution, therefore 45 unconstitutional. For reasons that shall soon be apparent, regulation 8 will be discussed separately. The argument is that the impugned provisions in the 2020 Regulations and 2022 Amendments contravene three specific fundamental human rights enshrined in the Constitution: The right to freedom of expression, the right to be heard and the right to work. We do recognise and agree with Mr. Mtobesya that freedom of expression, which encompasses the right to information, is a fundamental right as well as an enabler of other human rights and a guardian of democratic values, which is a necessary condition. We also recognise that freedom of expression is key in the realisation of the principles of transparency and accountability and a catalyst for the promotion and protection of human rights. However, much as we agree to these essentials of the freedom of expression, right to be heard and right to work, our task still remains the same, whether the impugned provisions violate such rights. A close scrutiny of the provisions, we are inclined to believe that the petitioner has not captured the contextual aspect of the impugned provisions. While licencee reserves their right to freedoms of expression, right to be heard and right to work, these freedoms are not absolute but 46 qualified. Much as the freedoms and rights are guaranteed, they are also subject to reasonable restrictions by the state for purpose of ensuring public order, safety, morality, and protecting the rights of others. At this point, we squarely subscribe to the cited Zimbabwean Constitutional Court in Madanhire and Another vs. Attorney General, (Judgement No. 2/14, Zimbabwean Constitutional Court) where it was pointed out that freedom of expression, and corollary right to receive and impart information, is a core value of any democratic society deserving of the utmost legal protection. We also subscribe to the cited case of Legal and Human Rights Centre & Others vs Minister for Information, Culture and Sports & Others (Misc. Civil Cause 25 of 2018) [2019] TZHC 2032 (9 January 2019) page 23., when dealing with an application challenging the Online Content Regulation, this Hon. Court held that, "People cannot be le ft to do whatever they want In the name o f freedom o f expression. In m y view, the Parliam ent empowered the 1st Respondent to make such regulations in order to control cyber content. Aside that, cost cannot be a factor that m ay affect the legality o f the regulation and the authorities have the discretion to require what documents to be supplied... the 47 Regulations adhere to the principles o f naturalju stice including an adequate right to be heard before im posing any o f the prescribed sanctions." From the above holding, we also recognise that man is not an island and there is co-existence between men such that the acts of one have to be controlled in the protection of the rights of the next person. Since the world is shrinking into the digital world, this co-existence has to be recognised even in the cyber world. While these rights and freedoms are fundamental to any democracy, hence enshrined under the constitution, they are not permanent or unconditional, but are subject to certain regulatory limitations in specific circumstances. The limitations aim to safeguard those who will be or are likely to be affected by the conduct of others while enjoying their freedoms. Otherwise, the results may be chaotic. Coming to the case at hand, looking at the impugned provisions for instance of items 2-10 of the 3rd schedule, they protect citizens from online licencees conducts which may impersonates or claims status of others for fraudulent purposes; those which insults, slanders and defames other persons, or exposes news, photos or comments related to a person's privacy, or publication of private information regardless of whether the information 48 is true where publishing the same may harm the person. The provisions further restricts contents that motivate or promote phone tapping, espionage, data theft, tracking, recording or intercepting communications or conversation without right; and that promote, motivates or encourage practices of witchcraft, enchantment, or sorcery. Therefore, the restrictions, as elaborated, are aimed at protecting other citizens from the conduct of the licensees or other probable abuse of the digital arena. Regulation 4 makes it a prior requirement that an online content services provider shall be licensed prior to providing online content. Licencing aims at obtaining a licence from the Authority. Since there is an obligation to obtain a licence, a remedy for non-compliance has been imposed in terms of the fine or imprisonment. This underscores the importance of licensing to protect public safety, ensure, and confirm that individuals or businesses meet established professional standards. It guarantees competence, provides legal permission to operate, and builds trust with consumers. Key reasons include preventing legal penalties, validating qualifications, and ensuring accountability. There is also a complaint that regulations 19(a)&(b) and Regulation 20 provide the Tanzania Communication Regulatory Authority with powers to 49 take action against non-compliance, licence and complaint handling, which are too wide and prone to abuse without safeguards against abuse, which is likely to violate freedom of expression as provided under Article 18 of the Constitution. We find this a misconstruction of the function and mandate of the TCRA. The Authority was established under Section 4 of the Tanzania Communication Regulatory Authority Act, Cap. 172 R.E 2023. The functions of the TCRA are listed under Section 6 of the Cap. 172. Of particular interest is Section 6(b), which outlines the functions of the authority, it provides: (b) subject to sector legislation (i) to issue, renew and cancel licences; ii) to establish standards fo r regulated goods and regulated services; (iff) to establish standards fo r the term s and conditions o fsupply o f the regulated goods and services; (iv) to regulate rates and charges; (v) to make rules for carrying out the purposes and provisions o f his A ct and the sector legislations. It is obvious that the issuance, renewal and cancellation of licences in the communications industry is vested with the TCRA; hence, the fact that 50 regulations 19(a)&(b) and regulation 20 confers to TCRA powers to take action against non-compliance. Licence and complaint handling cannot be too wide and prone to abuse without safeguards against abuse. We take the spirit of the Court of Appeal in the cited case of Jebra Kambole vs Attorney General, Misc Civil Cause No 27 of 2017, where at page 10 the Court held: "We are aware o f a settled principle o f taw that breach o f the Constitution is such a grave and serious m atter that cannot be established by mere Inference but beyond reasonable doubt. We are equally aware o f the principle o f presum ption o f constitutionality o f legislation or a statutory provision, which principle assigns onus o f proof upon those who challenge the constitutionality o f legislation or a statutory provision. We do not entertain any doubt that the above principles ca ll fo r evidence from the petitioner to prove the alleged com plaints o f violation o f the Constitution." In the spirit above, we expected the petitioner under the mouthpiece of Mr. Mtobesya to prove to us that the Regulations challenged are unconstitutional. We found no cogent arguments to convince us; to the 51 contrary, we find that the petitioner did not take sufficient time to read the regulations in their totality and might have missed some points which, if captured, the grounds under scrutiny would not have been raised. For instance, under the Regulations, the TCRA's decisions are subject to an appeal before the Fair Competition Tribunal established under Section 81 of the Fair Competition Act. This is expressly provided under the Regulations. It is therefore clear that a person aggrieved by the decision of the Authority may appeal to the Fair Competition Tribunal. The situation would have been different had there been a finality to the decision of the TCRA, which in any way may have been subject to a judicial review. The right of appeal gives an opportunity for scrutiny of the decisions of the TCRA to a higher authority. The decision of the 2n d respondent is also subject to judicial review; hence, we see no chances of any abuse as alleged by the petitioner. To declare the Regulations unconstitutional would therefore be absurd since a dear line of grievance handling and a provision for an appeal are available in the impugned regulations. In the cited case of Legal and Human Rights Centre & Others vs Minister for Information, Culture and Sports & Others (Misc. Civil Cause 25 of 2018) [2019] TZHC 2032 (9 January 2019) page 23., when 52 dealing with an application challenging the Online Content Regulation, like the one at hand, this Hon. Court held: "People cannot be le ft to do whatever they want in the name o f freedom o f expression. In m y view, the Parliam ent empowered the 1st Respondent to make such regulations in order to control cyber content. Aside that, cost cannot be a factor that m ay affect the leg ality o f the regulation and the authorities have the discretion to require what documents to be supplied... the Regulations adhere to the principles o f naturalju stice including an adequate righ t to be heard before im posing any o f the prescribed sanctions." In the same spirit and as we have elaborated above, we find the restrictions imposed in the impugned regulation as sufficient to safeguard the rights of other citizens, who may be victimized by the freedom imposed to the licencees. The complaints are mere speculation on a probable bad cause that may be taken by the authority. Contravention of the constitution should not be taken at the implementation level, where a human intervention may take the wrong route in implementing it. It should be taken as a whole 53 to see whether the provision, even in a perfect implementation mode, still violates the provisions of the Constitution. In totality, the grounds raised under all items, challenging Regulations 3, 4, 5, 6, 7,16, 19(a)&(b), 21, 2n d Schedule and item 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the 3rd Schedule to the Regulations (save for item (e) which shall be determined separately) in our view, do not violate the provisions of any Article in the constitution. The Petitioner's allegations are merely based on the likelihood of abuse of the provisions and not the content of the provision. We therefore dismiss the grounds raised in relation to regulations 3,4, 5,6, 7 ,1 6 ,19(a)&(b), 21, 2n d Schedule and items 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the 3rd Schedule to the Regulations. In tandem with the above, the petitioner's counsel alleges that regulation 9, 12, 14 and 15 of the Regulations, 2020 as amended, stipulate wide, ambiguous, general, unreasonable and impracticable obligations to an online content service providers and applicant service licensee thus restricting the enjoyment of freedom of expression as envisaged as envisaged in Article 18 of the Constitution. Upon scrutiny, we are of the view that though the counsel alleges ambiguous, general, unreasonable and impracticable obligations shouldered 54 to the online media content provider, failed to expound and/or substantiate why he hold such view. To the contrary, we find no such anomaly in the law. We equally find the obligations shouldered to the online media content provider clear and reasonable taking into consideration the likelihood of such service provider to abuse his right of expression to the detriment of others. Suffice it to say that we find no such ambiguity and/or unreasonable provisions in the impugned regulations. In the same we are at loss as to how the regulation 16 of the Regulations, 2020 pertaining to the term "prohibited content" is too wide, ambiguous and/or prone to subjective interpretation. The counsel likewise, failed to substantiate his allegation, (if possible the relevant definition be reproduced as we did on regulation 3) Going to regulation 8 of the 2020 Regulations, it was Mr. Mtobesya's submission that, as far as issuance of licenses, suspension and revocation of licenses to the Authority is concerned, the regulation gives unfettered and wide powers without safeguards against abuse. That it does not provide for any mechanism for the license holder to be heard before his license is suspended or revoked. Further, it does not even provide for the avenue for the license holder to challenge the decision in the event he is not satisfied with the same. He then submitted that the circumstances above is contrary to the provisions of Article 13(6)(a) of the Constitution, which guarantees an individual's right to a fair hearing and the right to challenge any decision affecting his rights where he feels unsatisfied with the decision. It was therefore his humble submission that the provisions of regulation 8 of the 2020 Regulations, as amended, contravene the provisions of Article 13(6)(a) of the Constitution, therefore unconstitutional. In reply, Ms. Sekimanga submitted that under regulation 7, the Authority is required to state reasons for refusal of license and to further notify the licensee of the reasons for any suspension or revocation of license pursuant to regulation 8(3). Further, if the Licensee is aggrieved, he has a remedy under the Law to subject the Authority before this Court. Therefore, he concluded, this provision does not contravene Article 13(6)(a) of the Constitution as alleged. In rejoinder, Mr. Mtobesya reiterated what he submitted in his submissions in chief and added that the respondents' response with regard to Petitioner's challenge against regulation 8 of the 2020 Regulations is also 56 non-meritorious. He argued that the decision to issue, suspend or revoke a license as provided under Regulation 8 of the 2020 Regulations allows unilateral decision-making by the Authority without affording the applicant/license holder the right to be heard. He was of the view that the regulation is contrary to the provisions of Article 13(6) (a) of the URT Constitution, which guarantees the right to a fair hearing and right to seek redress against any dissatisfaction with a decision affecting one's rights. On our part, having deliberated, this is our findings, which we shall start by reproducing the contested provisions of Regulation 8: 8 .-(l) The Authority may, upon satisfaction that the term s and conditions to which a licence was issued have been violated or breached, suspend or revoke the licence. (2) Subject to sub-regulation (1), the Authority shall, after revocation or suspension o f a licence, notify the licensee in w riting stating the reasons fo r the revocation or suspension. (3) Where a licence is revoked o r suspended, the licensee shall, within seven days after being served with the notice o f suspension o r revocation, as the case may be, surrender the licence to the Authority. Now, Ms. Sekimanga is of the view that under regulation 7, the Authority is required to state reasons for refusal of license and to further notify the licensee of the reasons for any suspension or revocation of license pursuant to regulation 8(3). However, we find that her argument is off the context for reasons we shall elaborate. To begin with, the obligation to state reasons for the decision of the authority is only found under Regulation 7, which deals with the refusal of the licence, meaning that the requirement stands in so far as the party is applying to be issued with a licence and not subsequent thereto after the licence has been issued. We therefore find the provision of Regulation 7 to be in place as reasons for refusal are communicated to the applicant. On the other hand, Regulation 8 confers powers to the Authority to revoke licence upon satisfaction that there is a violation or breach of the licence that was issued (Regulation 8(2)). The licensee is only given notification in writing stating the reasons for the revocation or suspension. This means by the time the licensee is notified of the reasons, the licence has already been revoked or suspended. It gets even worse, that after the notification, the only thing left to do for the licensee is to have the revoked or suspended licence surrendered to the 58 authority within seven days after being served with the notice of suspension or revocation, as the case may be (Regulation 8(3)). The procedure above is indeed in violation of Article 13(6)(a) of the Constitution which provides: (6) To ensure equality before the law, the state authority sh all make procedures which are appropriate or which take into account the follow ing principles, namely: (a) When the rights and duties o f any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right o f appeal or other legalremedy against the decision o f the court or o f the other agency concerned; It is the dictates of the law that before any decision is made by a judicial, quasi-judicial or administrative body, a party is afforded a right to be heard before such a decision is made. The constitution further ensures a party's right of appeal or other legal remedy against the decision she/he aggrieved with. The right to seek further legal remedies against a state authority provides checks and balances of the impugned decision in order to ensure the prevalence of law and eliminate arbitrary use of power to the detriment 59 of the citizen. Our duty to discharge now is as per the laid principle in cases where provisions of a statute, whether principal or subsidiary, are concerned. We have been clinging to the case of Attorney General vs Jeremia Mtobesya (Civil Appeal 65 of 2016) [2018] T7CA 347 (2 February 2018), at 47-48, the Court of Appeal cited the American case of US vs. Butler, where it held: "> 45 regards the duty o f the Court, we need to do no more than to borrow and adopt the persuasive wisdom o f the Supreme Court o f the United States o f America in U.S. vs. Butier, 297 U.S. 1 [1936], where it was expressed:- "When an A ct o f Congress is appropriately challenged in the courts as not conform ing to the constitutional mandate, the ju d icia l branch o f the governm ent has only one duty; to lay the article o f the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. AH the Court does, or can do, is to announce its considered judgm ent upon the question. The only pow er it has, if such it may be called, is the pow er o f judgm ent This Court neither approves nor condemns any 60 legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions o f the Constitution; and, having done that, its duty ends." In the same case, the court held at page 50: "From otherjurisdictions, it has also been persuasively held that in determ ining the constitutionality o f a statute, a court m ust be guided by the object and purpose o f the im pugned statute, which object and purpose can be discerned from the legislation itse lf." With that approach in mind, we have taken the provisions of Article 13(6)(b), which is alleged to be infringed and regulation 8 challenged. From both the purpose and effect of a statutory provision, our scrutiny of Regulation 8 reveals that, although not expressly provided, the effect of the provision is that the decision of the authority is final. In the case of Dickson Paulo Sanga vs. the Attorney General (Misc. Civil Cause 29 of 2019) [2020] TZHC 653 (20 May 2020), while analysing whether the provisions of Section 148(5) of the Criminal Procedure Act, then Cap. 20 R.E 2002, the court made the following observations: 61 'W e were sim ilarly aware o f the principle affirm ed in Attorney General vs Jeram ia 15 Mtobesya (supra) by the Court o f Appeal when it drew Inspiration from the decision o f Supreme Court o f Canada in R vs Big M Drug M art Ltd [1985] 1 S.C.R. 295 to the effect that both purpose and effect o f a statutory provision are relevant in determ ining its constitutionality for, either unconstitutionalpurpose or unconstitutional effect can invalidate the provision." On the same footing, we are of the firm view that for the purposive approach, the provision is completely silent on the remedial measures a party whose licence has been suspended or revoked has, meaning that the decision to revoke the licence is not appealable. Therefore, the purpose of the enactment of the impugned provision was that the authority's decision to revoke a license is final. The effect of the provision is that not only is the decision final, but there is no room for further redressal by an aggrieved party who was not afforded a right to be heard; hence, violate Article 13(6)(a) of the Constitution by denying licence right to be heard. Having so satisfied ourselves of the violation of the constitution, what are the remedies therein? This will be answered by looking at both the 62 provisions of Article 13(2) of the Constitution and the principle set in the cited case of Attorney General vs. Jeremia Mtobesya, our delicate and difficult office's duty is to ascertain whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and if so, make a declaration to that effect. The provisions of Article 13(2) of the Constitution are clear that: " No law enacted by any authority in the United Republic sh all make any provision that is discrim inatory either o f its e lf o r in its effect." As we have found, the Regulation is in denial of the rights enshrined under Article 13(6) of the Constitution. In the final findings, we make the following declaratory orders: 1. The Petition is partly sustained to the extent that regulation 8, which provides for the revocation of a license, is unconstitutional and violates Article 13(6)(a), which provides for the right to be heard. The Regulation also denies the licensee's right to further legal remedies. 2. We order that the impugned provision be amended by the responsible minister in order to give an opportunity to the licensee 63 to be heard and right to further legal remedies. The same shall be done within nine months from the date of this judgment. 3. All the remaining regulations challenged are found not to violate the Constitution. 4. Since this is a constitutional petition, we make no orders as to costs. Dated at Dar-es-salaam this 19th day of December, 2025.

Judgment

Deus Valentine Rweymemu vs Attorney General & Another (Miscellaneous Civil Cause No. 9085 of 2024) [2025] TZHC 8891 (19 December 2025)

Judgment

Discussion

Deus Valentine Rweymemu vs Attorney General & Another (Miscellaneous Civil Cause No. 9085 of 2024) [2025] TZHC 8891 (19 December 2025)

Judgment

Discussion