ARTICLE 19 is disappointed by the High Court of Tanzania’s decision to declare Sections 32 and 38 of the Cybercrimes Act constitutional. The constitutional petition against the provisions was filed by Jamii Media in March 2016, following the passage of the controversial law in June 2015.
The Cybercrimes Act violates international human rights law on freedom of expression and contradicts democratic values. ARTICLE 19 continues to urge its repeal.
“Section 32 of the Cybercrimes Act does not make it mandatory for the investigating police officer to seek judicial oversight while engaging in surveillance, and thus provides leeway for the abuse of surveillance powers.” said Henry Maina, Director of ARTICLE 19 Eastern Africa
“Section 38 on the other hand prevents a person to effectively challenge a government’s interference with his or her privacy given that request for surveillance is done ex parte. The High Court has failed to acknowledge that these provisions are clearly in violation of international standards on privacy and freedom of expression, and must be reformed“, continued Maina.
In delivering the judgement, the Tanzania High Court affirmed that Tanzania’s police have unfettered power in investigating cybercrimes. This judgement violates both Article 16 of Tanzania’s constitution and the International Covenant on Civil and Political Rights in that it allows the state to infringe on citizens’ right to privacy without much needed judicial oversight.
Article 16(2) of the Tanzanian Constitution provides that:
“For the purpose of preserving the person’s right in accordance with this Article, the state authority shall lay down legal procedures regarding the circumstances, manner and extent to which the right to privacy, security of his person, his property and residence may be encroached upon without prejudice to the provisions of this Article.”
The provisions are also in contravention of the International Principles on the Application of Human Rights to Communications Surveillance, specifically the principles of User notification, Competent judicial authority and Due process, which were drafted by an international coalition of civil society including ARTICLE 19. These principles require that all decisions relating to communications surveillance be made by a competent judicial authority acting independently of the government and in accordance with due process of law, and that those whose communications are under surveillance should be notified of a decision authorising communications surveillance with enough time and information to enable them to challenge the decision or seek other remedies and should have access to the materials presented in support of the application for authorisation.
ARTICLE 19 calls upon the government to respect and uphold media freedom and the right to freedom of expression and information as recognised in the Tanzanian Constitution, as well as in international law. We urge the government to initiate the process of reforming the unjustifiable limit on freedom of expression created by these provisions of the Cybercrimes Act.
We also call on the government to review the Penal Code, the Cybercrimes Act and the Media Services Act as it promised during the London Summit of the Open Government Partnership (OGP).