When Being ‘Offensive’ or ‘Morally Improper’ Online Carries an Indeterminate Jail Sentence in East Africa

• by Erick Kabendera (dar es salaam)
• Friday, August 24, 2018
• Inter Press Service

Across this East African nation, social commentators and celebrities have shut down their blogs as many cannot afford the hundreds of dollars required in licence fees to register them. And internet cafes may start closing down too as the new law requires them to install expensive security cameras.

A once-famous blogger in Dar es Salaam tells IPS he was forced to close down his blog because he couldn't afford paying USD 900 in licence fees to register it in compliance with the new regulation.

A minimum jail sentence of 12 months

In June many bloggers and content providers were contacted by the Tanzania Communications Regulatory Authority (TCRA) and asked to immediately shut down their services and apply for a license within four days.

It was the beginning of the enforcement of the country's Electronic and Postal Communications (Online Content) Regulations 2017. Civil society and digital rights activists have condemned the regulations as draconian.

This is what the law states:

• All blogs, online forums, content hosts and content producers must register online and pay licence fees of up to USD 900;
• Internet cafes must install surveillance cameras to monitor people online;
• Material deemed "offensive, morally improper" or that "causes annoyance," is prohibited and a minimum fine of USD2,230 or 12 months in jail as a minimum sentence is recommended for anyone found guilty;
• Social media comments are even subject to the new regulations.

The regulation, however, doesn't provide a maximum jail term, meaning a magistrate could send an offender to prison for an indeterminate period of time.

Terrified of saying something wrong online

The source, who wished to remain anonymous, tells IPS that other bloggers he met in recent weeks who have paid the licence fees and registered with the TCRA have complained that they are registering a low number of visitors to their blogs. In addition, visitors have stopped leaving comments as they are afraid of being arrested and taken to court.

"The ordinary people are scared to make comments on blog posts. They are scared because a single post could either land a blogger or their followers in the hands of authorities," Maxence Melo, one of the founders of JamiiForums, tells IPS. He adds that authorities are focused on implementing the law but have not educated bloggers about what is deemed "offensive, morally improper" or "causes annoyance".

In addition, people can be charged for not having passwords on their computers, laptops and smartphones.

A senior government attorney tells IPS on the condition of anonymity, because he wasn't authorised to speak on the matter, that this act will be used against people who post defamatory content or hate porn online but claim that a third party had access to their mobile phone or devices and posted the content without their consent.

Since the June implementation of the act, the impact has been far-reaching across the country.

The owner of a famous internet café in Tanzania's commercial capital says he has at least 50 customers a day but he wasn't aware of the new requirement for internet café operators to install CCTV cameras on their premises.

He tells IPS that one hour of computer use costs 35US cents, which is not enough to sustain his business. So he supplements this with a stationary business in the cafe.

"Installing CCTV cameras would cost about USD500, which is a lot for a small business like mine. So if the authorities come and ask me to do it, I will have to shut down the business," he tells IPS, requesting to remain anonymous.

A challenge to Tanzania's freedom of expression

These regulations together with other laws aimed at curtailing freedom of expression and press freedom are one of the reasons for Tanzania's poor performance in the latest Freedom Index rankings. The country ranks 93 out of 180 countries across the globe.

There is also the Cyber Crime Act, which can be used to arrest dissenting journalists and citizens and the Statistics Act, which limits the publication of data to the government's Bureau of Statistics. Both acts were passed before the 2015 elections and activists are worried that worse is yet to come as the country prepares for the 2019 local governments elections and the 2020 general elections.

Rugemeleza Nshala, a prominent Tanzanian lawyer, tells IPS that freedom of expression is facing the biggest challenge in recent times here.

"We have reached a point where former Ugandan president Idi Amin's famous quote when he said ‘there is freedom of speech, but I cannot guarantee freedom after speech' is becoming relevant in Tanzania.

"Newspapers are shutdown unconstitutionally, and citizens criticising the president are arrested and magistrates, who want to please the president, jail suspects without hesitation," Nshala tells IPS.

Last year alone, three newspapers were suspended:

• In June 2017, the Tanzania Information Services banned a weekly Swahili newspaper Raia Mwema for 90 days after it had published a story claiming that president John Magufuli would fail in his job as president;
• In September 2017, another weekly newspaper, MwanaHalisi, was suspended for 24 months;
• In June 2017, the Mawio newspaper was also banned for 24 months.

Nshala says that enforcement of the online content regulations has scared people from giving their opinion openly according to Article 18 of the Constitution of Tanzania, which grants citizens freedom of expression and opinion without interference.

And it seems that for now the online content laws have succeed in squashing the voice of JamiiForums.

Melo says that the impact of the country's new online content law, together with three cases JamiiForums is facing in court—which has resulted in them appearing 122 time in court over the last two years—has made them retrench 64 employees. They have only eight now, and are considering closing down their physical offices.

In the past JamiiForums has been threatened and forced to share user data with the regulator or the police. In one incident, the TCRA forced them to reveal the identity of users who had leaked details of mass corruption in the country's biggest port and the case has been pending since 2016.

That case, together with two other lawsuits that are pending against JamiiForums, made Melo cautious when the TCRA wrote requiring blogs to shut down before applying for a licence. Melo and his team decided to voluntarily shut down their website for 21 days and registered within four days. They have since had an opportunity to sit down with the regulator to express their concerns about the new law.

"We were concerned with sections of the law, which gives content providers only 12 hours to remove content deemed inappropriate from online. In one case, the regulator had submitted a letter to us at 5 pm asking us to take down content failing to do so could result in us ending up in court. The law doesn't give us a room to consult with the source of information and your lawyers before removing the content," Melo tells IPS.

Maria Sarungi, director of the social media citizen movement Tsehai, the Change Tanzania, tells IPS that prior to the enforcement of the regulations, the ability to freely post content online had liberated the media industry.

"Some online TV such as Millard Ayo started off as bloggers and have grown into full-fledged media houses because of the liberal policies for online content," Sarungi says.

Uganda just as repressive

However, Tanzania isn't alone in establishing such repressive legislation against freedom of expression. Its neighbour Uganda introduced a daily fee of USD0.5 to anyone accessing social media after its president Yoweri Museveni had suggested the introduction of the law to curb online gossiping.

However, activists and lawyers have challenged the law in court. Uganda's Prime Minister Ruhakana Rugunda said in parliament on Jul. 11 that the government was in the process of reviewing the tax, which is commonly referred to as the "gossip tax".

Rosebell Kagumire, a Ugandan blogger, says despite many young urban Ugandans using virtual private networks to avoid their location being detected and to bypass the tax, recent statistics show that Facebook usage went down by 75 percent in the first weeks.

She further says that apart from limiting access to information and freedom of expression, the tax has prevented young unemployed Ugandans from getting online in search of employment. In addition, small enterprises that have their base on social media have declined.

"Besides limiting access to information and expression, this tax is economically punishing the poor. Recent pressure against the legislation has seen the government come up with amendments but the fees (including the mobile money transfer tax) are anti-freedom of expression and hinder digital inclusion," Kagumire tells IPS.

In Tanzania, for Nshala, it is not all doom and gloom.

He says the constitution gives final say to citizens about how they want the government to be governed and therefore citizens have to stand firm to protect the country's democracy. He finally says political leaders must understand that they are servants of people and have to accept criticisms.

© Inter Press Service (2018) — All Rights ReservedOriginal source: Inter Press Service

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