SALC stands with the appellants in their continued fight to protect freedom of expression online in East Africa
The Southern Africa Litigation Centre (SALC) welcomes the decision of the Legal and Human Rights Centre (LHRC), the Tanzania Human Rights Defenders Coalition (THRDC), the Media Council of Tanzania (MCT) and the Centre for Strategic Litigation (CSL) to appeal the judgment of the First Instance Division of the East African Court of Justice (EACJ) delivered on 31 March 2026 in Reference No. 30 of 2020.
The Notice of Appeal, filed on 13 March 2026 through counsel Jebra Kambole of Law Guards Advocates, challenges the whole decision, proceedings, and orders of the First Instance Division, which dismissed a constitutional-style challenge to the Electronic and Postal Communications (Online Content) Regulations, 2020 (“the Regulations”).
Background to the Reference
Reference No. 30 of 2020 was filed at the EACJ on 15 September 2020. The Applicants challenged a sweeping set of provisions in Tanzania’s Online Content Regulations, including mandatory registration and licensing of online radio, online television, bloggers and social media users; wide discretionary powers granted to the Tanzania Communications Regulatory Authority (TCRA) to issue, suspend and revoke licences; vague and open-ended categories of “prohibited content”; and criminal penalties of a minimum fine of five million Tanzanian shillings or imprisonment for at least twelve months, or both.
The Applicants contended that these Regulations violate freedom of expression and, by extension, the fundamental and operational principles of the East African Community codified in Articles 6(d), 7(2), and 8(1)(c) of the Treaty for the Establishment of the East African Community.
The First Instance Division’s judgment
In its 31 March 2026 judgment, the First Instance Division – composed of Hon. Justice Yohane B. Masara (PJ), Hon. Justice Richard Wabwire Wejuli (DPJ), Hon. Justice Richard Muhumuza, Hon. Justice Dr Leonard Gacuko, and Hon. Justice Kayembe Ignace Rene Kasanda – dismissed the Reference in its entirety and ordered that each party bear its own costs.
Applying the three-part test developed in its earlier jurisprudence (including Media Council of Tanzania & 2 Others v Attorney General of the United Republic of Tanzania and Burundi Journalists Union v Attorney General of the Republic of Burundi), the Court held that the impugned Regulations were prescribed by law, pursued legitimate objectives, and were proportionate. Among other findings, the Court concluded that:
- Regulation 3, which defines key terms including “hate speech”, “hate material”, and “indecent material”, is merely an interpretation section and cannot itself be subjected to the three-tier test;
- The mandatory licensing of online radio, online television, and bloggers under Regulations 4, 5, and 6 amounts to a “purely technical and administrative registration procedure” that does not violate freedom of expression;
- The absence of an appeal mechanism within the Regulations themselves is cured by the right of appeal to the Fair Competition Tribunal under section 39(1) of the Tanzania Communications Regulatory Authority Act, Cap. 172;
- The term “prohibited content” is sufficiently clarified by the Second Schedule to the Regulations;
- The criminal penalties under Regulation 21, including the minimum fine of five million shillings or twelve months’ imprisonment, are proportionate to the gravity of the offence; and
- The Minister for Information, Culture, Arts and Sports acted within the powers conferred by section 103(1) of the Electronic and Postal Communications Act in making Regulations.
SALC’s concerns with the judgment
SALC respectfully considers that the First Instance Division’s judgment raises several issues of continental significance that merit reconsideration by the Appellate Division.
First, the holding that a definition section is immune from the three-tier test risks insulating from scrutiny the very provisions that determine the scope of what speech is prohibited. Where imprecise definitions of terms such as “hate material”, “indecent material” and “prohibited content” drive criminal liability, their clarity is not a peripheral drafting question but a core element of the legality requirement under international human rights law.
Second, characterising the mandatory licensing of bloggers and ordinary social media users as a “purely technical and administrative registration procedure” understates its real-world impact. Registration fees, discretionary approval powers and the threat of licence revocation are well-documented drivers of self-censorship, and they bear little resemblance to the broadcasting-licence regimes contemplated by comparative instruments such as Article 10(1) of the European Convention on Human Rights.
Third, the Court’s reliance on an appeal route located in a separate statute (the Tanzania Communications Regulatory Authority Act) does not address the Applicants’ core concern that the Regulations themselves fail to provide adequate safeguards against arbitrary suspension or revocation of licences.
Fourth, the judgment departs, in substance if not in form, from the trajectory set by the African Court on Human and Peoples’ Rights in Lohé Issa Konaté v Burkina Faso and by this very Court in Media Council of Tanzania, which have consistently cautioned against disproportionate restrictions on, and criminalisation of expression.
“The impact of this case reaches beyond Tanzania. Member states of the East African Community and, equally, the Southern African Development Community are legislating at speed on online content, and the Appellate Division’s ruling will set the floor for digital rights in the region and across Africa for years to come. That floor must be drawn at the level the Treaty demands – laws that are clear, restrictions that are necessary and penalties that are proportionate. Mandatory licensing of ordinary social media users and criminal sanctions triggered by undefined categories of ‘prohibited content’ meet none of those standards, and we are confident the Appellate Division will agree.”
– Anneke Meerkotter, Executive Director, Southern Africa Litigation Centre
The appeal and what is at stake
By their Notice of Appeal dated 13 March 2026, the Appellants signal their intention to challenge the judgment in its entirety. The appeal will ask the Appellate Division to reaffirm that the freedom of expression guaranteed by the EAC Treaty, the African Charter on Human and Peoples’ Rights, and the International Covenant on Civil and Political Rights extends fully to the online sphere, and that restrictions on that freedom – particularly criminal restrictions – must be narrowly drawn, clearly defined, and strictly proportionate.
The outcome of this appeal will have implications well beyond Tanzania. Partner States across the East African Community and the wider region are actively legislating in the area of online content, and the Appellate Division’s guidance will shape the permissible boundaries of such regulation for years to come.