Article/ Feature
22/October/2010
What is the Actual Limit of Freedom of Expression?
By: Clarence KIPOBOTA (Advocate)*
Obviously, anything which is too much could be harmful. Hence, moderate rate is important. That is to say, to put a limit to every desire. However, what should be the limit and basing on what criteria needs not only explanations but also justification.
In the midst of very high political pressure towards the Election Day, the government comes out with tough warnings. The respondents are two local newspapers and one outspoken rights group.
The two newspapers are collectively alleged to publish seditious and disloyal stories which are calculated to instigate unrest and undermine the progress made by the government. In short, they do not ‘appreciating’ the positive side of the government.
The human right group is warned because its activism is seen to have been outstretching its statutory limit, which is to speak about women rights in media arena only. Generally, the trio is warned because they criticize certain issues done or omitted to be done by the government.
Let us start to consider the legal limits of the right to freedom of expression and opinion along unfavorable critics one can speak as part of enjoying his or her right to freedom of expression, information and opinion. The balance between the two sides mostly depends on the aptitude of each side. That is why do one give critic and why do the other side dislike the criticism.
It should be noted that, very few politicians can endure and take public critics positively because they prefer positive manifestation always. I mean, they life in ‘political profession’ depends on how fame they are. A notorious recognition is disastrous as it undermine popularity for future reelections.
But few others can like and appreciate critics. For instance, the first constitutional Prime Minister of the then Russian Empire in early 1900, Mr. Count Witte, ordered his secretary to draw up a list of the writers who had written against him in the newspapers. A list of thousand journalists was duly presented to the Prime Minister. He then ordered the secretary to select the most abusive and personal of the unfavorable critics. This was also done.
Then, the secretary asked the Premier if he could handle the names to the public prosecutor. Mr. Witte refused and asked ‘why, to take actions against these according to the laws of the press?!” He said further, “No, that is not what I wanted, rather, select from these journalists my most aggressive critic and make my advocate and spokesman. I shall offer him the editorship of my paper,” said the Prime Minister. The Premier was also quoted that, experience had taught him that, the best champion and most faithful defender is the man who has been bitterest assailant.
To him, criticisms no matter how they are, were good lessons for change. They are mirrors for him to see and rectify mistakes for better performance. Therefore, any limit set by law, was for those who could not wish to be changed by critics because they want people to see bad things out of them through good manifestation even if the situation is not pleasant. In short, they like those who can pretend that all is well while the opposite could be the true. I mean, the hypocrites.
Therefore, the first limit to critics, which is actually a part of the enjoyment of the freedom of expression and opinion is actually the character of a leader himself and not necessarily the law. The law usually set minimum standards, which a positive thinker can actually widen it to allow people thinking outside the box.
May be, as we move on, the alternative question should be that, why over-praising of something is not an offence even if it could be incorrect information?
The international and national legal frameworks recognize the freedom of expression and opinion as ones of the most fundamental rights for every human being.
Article 19 of the International Covenant for Civil and Political Rights of 1966 (ICCPR), which is the same as Article 19 of the Universal Declaration of Human Rights of 1948 states that, every person has the right to freedom of opinion and expression, and to seek, receive and impart or disseminate information and ideas through any media regardless of national frontiers and also the right of freedom from interference with his communications.
At the national level, this right is guaranteed under the provisions of the Constitution of the United Republic of Tanzania of 1977. For instance, Article 18(a) of this constitution states that, “kila mtu anao uhuru wa kuwa na maoni na kueleza fikra zake,” which is basically a quote of what Article 19 of the said international instruments said. The subjection of this right to other normal laws, was removed in 2005 following the 14th Constitutional amendments.
So what are these warnings for and what legal basis do they have? As for the two newspapers, their warnings are issued under the Newspapers Act of 1976. Section 3 of this law creates the office of the Registrar of Newspapers to assist the Minister in the registration and management of the operation of the newspapers.
The law gives the Minister and registrar wide discretionary powers to register, or suspend or ban on or close down any newspaper which seems to have violated the law, mostly on the basis of ‘public interest’ or for the ‘interest of peace and good order’ (Section 25 of the said law) which are not defined in the law. The two main offences mentioned in the law are ‘seditious offences’ and ‘incitement to violence.’
That is fine, but do the ‘mtazamo hasi’ (negative attitude) or aggressive critics amount to the said offences? Does the expression of njama za kuiba kura (tricks to steal votes) one of the said offences under this law?
Section 31 of the newspaper law defines seditious intention to, inter alia, mean “to bring into hatred or contempt or to excite disaffection against the lawful authority.” The incitement to violence is defined under Section 37 to mean publication of statement without lawful excuse, which indicating or calculated to bring death or destruction of property.
Do the critics and opinion by those newspapers fit in the parameters of the provisions of the law? Obviously, not the case. It is just over sensitivity may be because of the election pressure, in which, each sides of the contestants in election want the public to believe all is well for its side. I mean to win confident.
However, gone are those days, in which people were to be induced to believe whatever the politicians said. Today, they are elite and therefore aware, to ask, question and in that way suggest areas for further improvement.
The government report on the status of the implementation of the said ICCPR, which was submitted to the United Nations Human Rights Committee last year in July indicated that, the government through Information and Broadcasting Policy amended number of laws and enacted new pieces of legislation in order to widen the enjoyment of the freedom of expression, information and opinion.
The government stated that, some of the laws amended included the Newspapers Act and the Broadcasting Services Act. It also proudly reported to the said UN committee that, the effect of this development enabled private owned newspapers, television and radio stations and media institutions professional training to be established. This includes also presence of the Media Council of Tanzania.
The interplay of private media means bringing alternative views which in most cases against the government. It is the cost of freedom and liberalization. Otherwise, the amendment is meaningless if all media outlets have to speak of the same tune. The important point to emphasis should be the reliability, validity, truth, accuracy and usefulness of the information and not otherwise.
One of the ethical guidelines of the Media Council of Tanzania (MCT) - Professional Code of Ethics for Journalists) requires a journalist to always provide a truthful and comprehensive account of events in a fair and honest manner. It is this observation that speaking against the will someone all the times amount to ‘unfair and dishonest’ manner. It is all matters of choice of what the public should know after filtering the information to see if it meets what is said above.
Another important point to score here is the role of media. As it has already said by MCT (‘Journalism on the Move, State of the Media Report 2008’), the very nature of the media profession (and major business) is to be the watchdog of the government in office, to point out its mistakes and other shortcomings.
I think the rights groups are correct in holding that, the orders and warning issued by the government against Mwananchi and MwanaHalisi were calculated to squeeze the freedom of speech and the role of media. We can learn from the former Prime Minister of Russia, Mr. Count Witte who loved critics because they changed his powers to the better ways.
The analysis of the laws, media code of conduct and practice suggest that nothing is wrong to state that someone is not doing well unless that person wants to be flattered with cheap popularities. It should be understood that freedom belongs to the people and not to the wish or the few public leaders or the outdated law.
It is not correct at all to manipulate media to praise everything even if mischievous. This was not the intension of the limit set by the law. Why can’t we just accept critics and rectify the situation?
Transparency is one of the core pillars for good governance. We need to vote for leaders who learn through the critics and not for those who hide the truth in order to make fool of the people. 31st of October should make us decide on this as well through the ballot box.
* Clarence KIPOBOTA holds Bachelor of Laws Degree (LL.B (Hons)), Masters of Community Economic Development (Msc. CED) and Certificates in Human Rights and UN Treaty Monitoring Bodies. He is an Advocate of the High Court of Tanzania, currently working as Legal Consultant with LEGAL AND DEVELOPMENT CONSULTANTS LIMITED (LEDECO). He is also Human Rights Activist. Email: kipobota@yahoo.com Tel: +255 762776281/ +255 222700695.
