CONCEPT OF INFORMATION AND ACCESS TO INFORMATION

Information means any material which communicates facts, opinions, data or any other matter relating to the management, administration, operations or decisions of the information holder, regardless of its form or characteristics.[1] Access to information is ability for an individual to seek, receive and impart information effectively. This includes open internet, availability of data and preservation of digital heritage.

Access to information is guaranteed by access to information Act which was enacted in 2016, with the aim enabling citizens to access information as their right under article 18 of the Constitution if the United Republic of Tanzania. Apart from the said law the government enacted Media Service Act[2], however this is to meet the objectives set out in the provision of Universal Communication Service Act 2016.

1.3 WHETHER TANZANIA HAS AN ACESS TO INFORMATION

As it was stipulated clearly in provision of article 18 of the Constitution of the United Republic of Tanzania,[3] as to whether Tanzania has right access to information, the right to access information is partial in Tanzania because the restrictions of media freedom and freedom of speech have automatically affected the right to information, which is a component of freedom of expression.[4] Sanctions imposed in laws and regulations such as Cyber Crimes Act, Media Services Act and newly expressing themselves and sharing information. Limited access to information is detrimental to personal and state development and may deny citizens and the state an opportunity to make informed decisions.[5] A study conducted by Tanzania in 2016 indicated that 80% of respondents believed giving citizens more access to information would help to reduce corruption.

In Tanzania, some the legislations on access to information, such as the Cyber crimes Act and the Online Content Regulations 2020, restrict access to information though online. These laws have been said to contribute to decline of Internet freedom by criminalizing freedom of expression online, including though introduction of licensing requirements for Internet users, including bloggers and citizen journalists.[6] The online content Regulations 2018 (have since been replaced by the online Content Regulations 2020) which do not meet international standards on freedom of expression, were used to justify arrest and punishment of at least four Internet users for publishing content without obtaining license and sharing information on social media platforms ( especially on Covid 19) which are ‘ false or unofficial. As discussed above, these Regulations were replaced by the Online Content Regulations 2020, which also fall short of international human rights standards, and consequently contribute to decline of Internet freedom.[7]

In the late October 2020 up to the first week of November 2020, there were reported disruptions of Internet in different parts of Tanzania as the Internet slowed down and people could not access some of the digital platforms such as Twitter, Facebook, WhatsApp and Instagram. This situation disrupted acess to information and affected economic activities conducted though digital platforms.[8] In this regard, small traders who rely on the Internet and digital platforms to sell their products were among the major victims of slow Internet and limited access to digital platforms.[9]

1.4PRACTICAL CONFORMITY WITH UNIVERSAL COMMUNICATION ACCESS ACT

The purposes of enacting Universal Communication Service access Act was to establish Universal Communication Service Access Fund for enabling accessibility and participation by communication operators in the provision of Communication services, with a view to promoting social, education and economic development of the rural and urban under-served areas and to provide for availability of communication services by establishing a legal framework for universal service providers to meet the communication needs of consumers.

Therefore section 4 established a Fund to be known as the Universal Communication Service Access Fund,[10] The objectives set out under section 5 of the Act as follows

1.3.1 Availability of Communication Services in Rural and Urban Areas

The objectives set out under section 5(a) of the Universal Communication Access Act where this objective was met by up to July 2021 94 percentage have been reached by telecommunications.[11]Thisobjective proofaffirmativewheretheexecutiveofficercontendedthatduringSabasabaexhibitionwastoinformthepublicaboutthegovermenteffortsthoughUniversalCommunicationAccessFundtoensurebettercommunicationforallpeople. The Universal Communication Service Act stipulates communication for all. Currently, most mobile phone users in the country have phones using 3G or 4G technology.[12] So 3G technology is the average standard satisfying most mobile users in the country at the moment.[13]

“Before the beginning of UCSAF projects the percentage of Tanzanians – covered by telecommunication services was below 80 per cent but now, it has risen to about 90 per cent,” Mr Ulanga said in his presentation to the Deputy Minister for Works, Transport and Communications, Mr Atashasta Nditiye, who visited UCSAF offices yesterday.

First phase project started in 2012 and according to Mr Ulanga, it has so far connected 2,000 villages across 444 wards. Work in other 120 wards was still in progress.

In his remarks, Mr Nditiye asked UCSAF to ensure that its services reach the neglected parts of the country.

1.3.2 Participation of the Public and Private Sector In Provision of Universal Service

This objective is provide under section 5(b) of the Universal Communication Acess Act though the fund the Universal Communications Service Access Fund (UCSAF) has spent a total of Sh85 billion during the past five years that have helped some four million Tanzanians to get access to telecommunication services.[14]

The UCSAF chief executive officer, Mr Peter Ulanga said in Dar es Salaam yesterday that the money, plus what private investors have contributed, has helped the country to extend the network coverage of telecommunication services by 150,000 kilometres, covering about 16 per cent of Tanzania’s population

1.3.3 Socio-Economic Development of Rural and Urban

In Morogoro South lawmaker Hamisi Taletale said that

“Our people are often depriving themselves of the privacy of communication while others spend too much time travelling to an area where they can have access to a communication network,” said Taletale.[15]

Apart from Matuli Village, neighbouring villages of Kwaba, Dibuzi, Lilongwa, Lubumo, Magela, Selegeti A, Selegeti B and Visaraka will also benefit.

UCSAF procurement head John Mukondya said the government has been at the forefront at ensuring that most parts of the country have access to telecommunication services and especially rural areas. “When you are assured of communication access, farmers are able to access the price of their products in the market. On the day the prices are good then they can take their produce to market,” he said.[16]

He said that this makes it convenient because it reduces the waste of the farmer’s time of moving from one buyer to another in search of a good price for their farm produce.[17]

According to Mr Mmbando, one of Airtel’s strategies was to continue supporting the government’s efforts in collaboration with UCSAF to provide good communication services to Tanzanians, especially in rural areas.[18]

1.3.4 Open and Efficient Access And Use Of Communication

This has been achieve because have made to make sure there is availability of communication in border areas. Up to June 2021 the Universal Communication Acess Fund has call for 34 areas to invite investors to invest so as to ensure there is availability of communication in those areas.

Also improvement of mobile communication; before 2015 the availability of Internet service was only accessible via 2G but though the Fund made9

1.3.5 Widespread Provision of Quality Services at Affordable Rates

Universal Communication Access Act provides this under section 5 (e) as this objective met where aim to promote widespread provision of a quality Services at affordable rates and ensure that, rural and urban have access to Communication and information services at reasonable and affordable prices. The access to information Act introduces access fees and gives information holder mandate to charge such fees before for production of requested information.[19]

1.3.6 Participation of Private Sector in Provision Of Communication

The Universal Communication Fund has spent 85 Billion for ensuring an access to information and four million of Tanzania has benefits from the fund. The reported published by UCAF though the official websites indicate that most of Tanzanians benefit from the investment made by the Fund. Also Access to information in conform with universal communication Access Act provide the access to information held by Public Authorities and Private Bodies utilizing public Funds. The Act provide for the right to access information held by public authorities and registered private bodies which utilize public funds or are in possession of information which is of significant public interest.[20] However, the provision does not stipulate how the fees are to be calculated and charged, leaving this exclusively to the information holder to delay information, deny information or turn giving access to information into business. The Media service Act criminalizes any statements rumors or report that is published that may cause fear and claim to the public or disturb the public peace.[21] Like other common offence stipulated in the Act, the offence comes a heavy penalty of jail term and 1.

1.4 NON CONFORMITY WITH ACCESS TO INFORMATION

The Media Service Act of 2016 is highly criticized due to increased restrictions on media freedom, the right of access to information is jeopardized.[22] This is caused by fear among media outlets and journalists, given the strict provisions and regulations of media freedom laws and regulations, particularly the highly criticized Media Services Act f 206 and online Content Regulations 2020. As indicated above, these laws and regulations give government authorities vested with media regulation too much power, contain ambiguous and vague provisions, carry hefty fines for violation and provide strict penalties.

Currently, the major obstacle in effective realization of access to information in Tanzania is the introduction of different pieces of legislation and amendments which affected the joining and media Houses to provide information leading to increased self-censorship and fear of severe punishment for failure to abide by the existing laws and regulations. Section 5(a) of the Universal Communication Access Act requires access to information for all. The existence of these laws revealed failure to meet the standard set out under section 5 of the Universal Communication Access Act. These laws include Media Service Act 2016, the Cyber Crimes Act of 2015 and the Electronic and Postal Communication (Online Content) Regulations of 2020.

In 2017 the Media Council of Tanzania (MCT), Legal and Human Rights Centre (LHRC) and Tanzania Human Rights Defenders Coalition (THRDC), filed a petition before the East African Court of Justice challenging restrictive sections of the Media Service Act, 2016. On 28th March 2019, the EACJ issued its judgment on this landmark case.[23] The EACJ found sections 7(3)(a), (b), (c) , (f), (g) , (h), (i) and (j) m; section 19, 20 and 21; section 35, 36, 37 38 and 40; section 50 and 54; section 52 and 53 violates article 6(d) and 7(2) of the Treaty for the Establishment of the East Africa Community. The Court Directed that the government takes such measures as are necessary, to bring the Media Services Act into companies with Treaty for the Establishment of the East Africa Community. Aggrieved by the decision of the Court, the Government of Tanzania sought an appeal on April 2019 but failed to comply with appeal procedure, hence the EAC application striking out the notice of appeal on 9th June 2020 . Restrictive laws and regulations have played a big role in reducing civic space in Tanzania. The restrictions imposed by these laws have largely failed to meet the three parts test under the international Covenant on Civil and Political Rights (ICCPR) of 1966, as well as other international and regional human rights Instruments. Vague provisions which are open to Interpretation and abuse, and severe penalties are among key concerns with regards to these restrictive laws.

The use of Internet a major role as one of the objective of Universal CommunicationAccess Act and the UN clearly stipulated that same rights that people have offline must be protected online, apart from effort made by Universal Communication Service fund to set up 3G and 4G however there still some areas especially rural areas faced this challenge.

The Africa Declaration on the Internet Rights and Freedoms, emphasizes that Internet is ab enabling space resource for the realization of access to information. The declaration also emphasizes that the Internet is particularly relevant to social, economic and human development in Africa and affirms in order to fully benefit from its development potential, the Internet must be accessible, available and affordable for all persons in Africa.[24]

However unexplained Internet slowdown and difficulties in access some of the digital platforms for over ten days constitutes violation of access to information though online and affected other human rights, including right to work. Additionally, existence of laws which impose undue restrictions on Internet freedom fosters a culture of self censorship and fear which in turn hinders effective realization of freedom of expression.

The enactment of Access to information Act does not fully protect the right to acess information as contained number f restrictions as:

(a) Access to information Limited to Tanzania Citizens

The Act only provides for the right to access information for Tanzanians.[25] It leave aside non-citizens, legal persons, societies and international organizations, contrary to international principles and standards on the right to access information.

(b) Narrow Scope of Information Required to be Published

The Act confers upon for the information holders an obligation to publish descriptions of its structure.[26] However, the scope of information is considered to be narrow and as such other information such as budgets or financial arrangement, and contracts with third parties have been suggested to be included in the list of information that should be published.

Under the information Act holders is a given a time limit of thirty days upon receiving request for information, to notify the person requesting it if such information exists.[27]The time frame is too long as some information may be needed for immediate use, hence delayed access to information.

(d) Government Control over Content to be published by Media Houses

The Act impose mandatory provision for the Government to direct private media Houses to broadcast or publish news or issues that it deems of national importance. Again, this restricts media freedom and contravenes constitutionally guaranteed freedom of expression, which is also protected under the ACHPR and ICCPR. This is because editorial independence of the Media Houses can be jeopardized in direct contravention of its commitment to encourage a diverse, independent private broadcasting sector under the AU Declaration of Principles on Freedom of Expression of 2002.

1.5 CONCLUSION

The government should take into consideration and review all the restrictive provisions which provide the access to information and ensure that are conformity with objectives set out under section 5 of the Universal Communication Access Act. Also it recommended that the Ministry of Constitutional and Legal Affairs should amend the restrictive laws restricting freedoms of expression, association and assembly.

BIBLIOGRAPHY

LEGISLATION

The Cyber Crimes Act, Act No.14 of 2015

The Constitution of the United Republic of Tanzania, 1977

The Electronic and Postal Communications Act, Act No.3 of 2010

The Access to Information Act, Act No.9 of 2016

The Media Service Act, Act No.15 of 2016

REPORTS

The Tanzania Human Rights Report 2016

The Tanzania Human Rights Report 2017

The Tanzania Human Rights Report 2018

The Tanzania Human Rights Report 2019

The Tanzania Human Rights Report 2020

CASES

Media Council of Tanzania (MCT), Legal and Human Rights Centre (LHRC) and Tanzania Human Rights Defenders Coalition (THRDC v Attorney General of Tanzania

WEBSITES

[1]Section 3 of the Access to information Act, Act No.9 of 2016

[2]The Media Service Act, Act No.15 of 2016

[3]Article 18 of the Constitution of the United Republic of Tanzania (Cap 2 as amended from time to time)

[4]Tanzania Human Right Report, 2019

[5]Ibid, 36

[6]Tanzania Human Rights Report, 2020

[7]Idem

[8]Idem

[9]Ibid

[10]Section 4 of the Universal Communication Service Access Act, Act No.11 of 2006

[11] https://dailynews.co.tz/news/2021-07-1260ebfc2f16c11.aspx (access 27th February 2022)

[12]The Digital Program March 2021

[13]Ibid

[14]https://www.thecitizen.co.tz/News/Sh85bn-spent-on-linking-four-million-Tanzanians/1840340-4217920-format-xhtml-e9k6nx/index.html

[15] https://www.thecitizen.co.tz/tanzania/news/business/-relief-as-morogoro-village-set-to-get-phone-coverage-3417000

[16]Ibid

[17]Ibid

[18]Ibid

[19]Section 21 of the Access to Information Act, Act No.6 of 2016

[20]Section 2(2) of the Access to Information Act, Act No.6 of 2016

[21]Section 54(1) of the Media Service Act

[22]The Tanzania Human Right Report 2017

[23]The Tanzania Human Rights Report 2020

[24]Tanzania Human Rights Report 2020

[25]Section 2(2 ) of the Media Services Act

[26]Section 9(1) of the Access to Information Act

[27]Section 11 of the Access to Information Act