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Independent newspaper takes government to court over controversial media law

(MISA/IFEX) - After suffering a government ban for three months for allegedly tarnishing the name of the head of state in October 2008, and personal attacks that left its editor, Saed Kubenea, almost blind in January 2008, the "Mwanahalisi" newspaper, a small but vibrant publication and leading crusader against corruption in Tanzanian society has now challenged the constitutionality of the Newspapers Act. This law was used to ban the newspaper and the Jakaya Kikwete led government has been prevaricating on calls from civil society to repeal the colonial law.

In court papers filed on 30 June 2009 by Kubenea, representing the publisher of "Mwanahalisi," the newspaper argues its closure on 13 October 2008 was unconstitutional and a violation of free expression rights. The courts papers read that:

"The rights of the petitioner have been infringed by the applicability of Section 25 (1) and (2) of the Newspapers Act to it whereby their newspaper "Mwanahalisi" was closed and suspended for a period of three months from 13 October 2008 to 12 January 2009. The said closure and suspension infringed the petitioner's right to freedom of expression contrary to Article 18 (1) and (2) of the Constitution, right to life and livelihood of the petitioner's shareholders and employees contrary to Article 14 of the Constitution and right to work contrary to Article 22 (1) and (2) of the Constitution."

Secondly, "the right of freedom of expression of the petitioner is likely to be infringed in future if the respondent at any time decides to apply Sections 25, 31 and 32 of the Newspapers Act by inter alia charging the petitioner and its officers in a Criminal Court for the purported crime known as sedition, confiscating its equipment and machines and closing or suspending indefinitely the newspaper if the petitioner will publish news unpalatable to the respondents."

Furthermore, "the said Sections 25, 30 and 31 are unconstitutional ab initio in that they are arbitrary, unreasonable unproportional and oppressive in their nature in that they entitle the respondents to pounce on the petitioner close their newspaper, impound their equipment charge them in a criminal Court, in the process infringing their right of freedom of expression and by extension right to livelihood and right to work. There are no safeguards within the Act to prevent the arbitrary use of the provisions herein above cited. The specific provisions of the constitution that your humble petitioners submit that have been and are about to be infringed are articles 14, 18 (1) and (2) and 22 (1) and (2) of the Constitution of the United Republic of Tanzania, 1977 as amended."

At a court appearance the newspapers said it is seeking that the court finds that the closure of "Mwanahalisi" newspaper infringed the petitioner's right and was therefore unconstitutional.

"A declaratory order by the court that the provisions of Sections 25, 30 and 31 of the Newspapers Act, inclusive of their subsections are unconstitutional in that their applicability may infringe the basic rights of the petitioner and other persons generally, that is rights provided under Articles 14, 18 (1), (2) and 22 (1), (2) of the Constitution and are therefore null and void."

The newspapers also wants a court declaration confirming that "sections 25,30 and 31 of the Newspapers Act are not saved by the provision of Article 30 (2) of the Constitution as they are unreasonable, arbitrary unproportional and without any safeguards."

The newspaper is represented by Marando, Mnyele & Co. Advocates.

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