This case was brought about against the Provision of Electronic and Postal Communication (Online Content) Regulations, 2018 by the Ministry for Information, Culture, Arts and Sports Versus Legal Human Rights Centre of Tanzania & Others.

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IN THE HIGH COURT OF TANZANIA
(MTWARA DISTRICT REGISTRY)
AT MTWARA
MISC. CIVIL APPLICATION NO. 11 OF 2018
LEGAL AND HUMAN RIGHTS CENTRE ………………........... 1ST
APPLICANT
TANZANIA HUMAN RIGHTS DEFENDERS COALITION …. 2ND
APPLICANT
REGD. TRUSTEES OF MEDIA COUNCIL OF TANZANIA …. 3RD
APPLICANT
TANZANIA MEDIA WOMEN’S ASSOCIATION ……….…….. 4TH
APPLICANT
TANZANIA EDITORS FORUM ……..................................... 5TH
APPLICANT
JAMII MEDIA LIMITED ……............................................. 6TH
APPLICANT
VERSUS
THE MINISTER FOR INFORMATION,
CULTURE, ARTS AND SPORTS ……………………………. 1ST
RESPONDENT
THE TANZANIA COMMUNICATIONS
REGULATORY AUTHORITY ………………………………… 2ND
RESPONDENT
THE ATTORNEY GENERAL ........................................... 3RD
RESPONDENT
04/05/2018 & 10/05/2018
REASONS FOR ORDER
Twaib, J:
On 3 May 2018, I heard submissions from learned counsel Fulgence Massawe,
advocate for the applicants, and Ladislaus Komanya, learned Senior State Attorney
for the respondents, on the former’s application for interim injunctive orders. The

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next day (4 May 2018), I gave an order determining the issues that arose from
counsel’s submissions.
However, I reserved my reasons for my Order. I promised to supply them today,
and I now proceed to do so.
The case from which the present application arises is Misc. Civil Application No.
12 of 2018 in which the applicants are seeking leave of this court to file an
application for the prerogative orders of certiorari, mandamus and prohibition
against the respondents. The application is for interim orders, made under rule
7(5) of the Law Reform (Fatal Accidents and Miscellaneous Provisions)
(Procedure and Fees) Rules, 2014 (“the Judicial Review Rules”), pending
hearing and determination of the intended application (subject to leave). The
application for leave is brought under section 2(3) of the Judicature and
Application of Laws Act [Cap. 3 R.E 2002] and rules 5(2) and 7(5) of the Judicial
Review Rules.
The application was supported by identical affidavits of Hellen Kijo-Bisimba,
Onesmo Ole Ngurumwa, Kajubi Mukajanga, Maxens Mello, Edda Sanga and
Deodatus Balile, who are, respectively, principal officers of the applicants. In
the chamber summons, the applicants want this court to:
…be pleased to grant an interim injunction prohibiting the 1st and 2nd respondents,
their agents, representatives or workmen from enforcing the provisions of the
Electronic and Postal Communications (Online Content) Regulations, 2018 pending
final determination of this application.
This prayer was further explained by Mr. Massawe in his submissions. He stated
that by the term “this application”, the applicants meant the intended

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application for prerogative orders, and that the interim injunction against
enforcement being sought is limited in the favour of the applicants only.
Mr. Massawe explained the urgency giving rise to the need for the grant of
interim orders as the fact that the impugned Regulations were already in force
and a notice issued by the 2nd
respondent (titled “MAENDELEO YA USAJILI WA
WATOA HUDUMA ZA MAUDHUI KWA NJIA YA MTANDAO” dated 2 May 2018)
had set the deadline for complying with registration requirement under the
Regulations, which was then only two days away (namely, 5 May, 2018).
Mr. Massawe sought to impress upon the court that it was impracticable for the
applicants to comply with the requirements of the Regulations in two days’ time.
He also submitted that there was no remedy provided under the Regulations
which could have provided an avenue for those who failed to comply with
registration requirements. Since it was the applicants’ belief that the
Regulations were arbitrary and ambiguous, and the 1st
respondent had acted
in excess of his powers, he concluded that it was in the interests of justice for
the court to grant the interim orders of injunction that his clients were seeking.
Responding to these submissions, Mr. Komanya did not address the merits of
the application for interim orders. Instead, he focused his attack on the manner
in which the applicants seek to challenge the Regulations in the application for
leave—by way of judicial review, instead of what he considered the proper
mode, namely, a constitutional petition. The learned Senior State Attorney’s
main argument seemed to be that the applicants’ desire in the intended
application for judicial review to secure an order impugning a legislation which
was already in force, and the mode they have chosen to pursue legal remedy

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towards that end, was wrong. There were “other modes”, he submitted, that
they could pursue, and not through the prerogative orders of certiorari,
mandamus and prohibition. In his view, prerogative orders are sought against
decisions and not against a law.
Learned counsel further explained that the court’s powers under the Law
Reform (Fatal Accidents and Miscellaneous Provisions) Act cannot be invoked
to challenge a legislation—be it principal or subsidiary. Rather, the applicable
law was, in his opinion, the Basic Rights and Duties Enforcement Act. He
contended that, where the subsidiary legislation is already in force (as is the
case herein), such legislation cannot be challenged by way of prerogative
orders. The same argument, he said, applies to the deadline notice issued by
the 2nd
respondent because it is “only a mere public notice….It is not a decision
of a public body which can lay the foundation for such an application”.
The learned Senior State Attorney thus concluded that the applicants should
have brought their application under the Basic Rights and Duties Enforcement
Act, particularly section 4 of the Act. He beseeched the court not to grant the
interim orders.
Mr. Massawe’s brief rejoinder was to the effect that the applicants are not
challenging an Act of Parliament, but Regulations made under the Electronic
and Postal Communications Act (commonly known as “EPOCA”). Section 103(1)
of the Act vests the Minister for Information (the 1st
respondent) with powers
to make Regulations. The Minister has exercised that power by enacting the
2018 Regulations, which are the ones being challenged herein. Mr. Massawe
did not cite any authority for his proposition, but only said that “there are ‘a lot

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of authorities, both case law and literature’, on how a subsidiary legislation can
be challenged”.
In my order of 4 May 2018, I agreed with Mr. Massawe’s argument on this
point, and held that:
…the Electronic and Postal Communications (Online Content) Regulations, 2018,
promulgated by the first respondent through General Notice No. 133 of 16th March
2018 (“the Regulations”), being subsidiary legislation, are amenable to a challenge by
way of judicial review through the prerogative orders of certiorari, mandamus and
prohibition under the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act
[Cap. 310 R.E. 2002], and not necessarily, in the circumstances of this case, by way
of a constitutional petition under the Basic Rights and Duties Enforcement Act [Cap.
3 R.E. 2002], which deals with matters falling under Part III of the Constitution of the
United Republic of Tanzania.
My reason for this holding could be explained by reference to a number of
authorities. Foremost among these is the basic law of the land: The Constitution
of the United Republic of Tanzania, 1977. Article 34(1) of the Constitution vests
all executive powers over matters concerning the United Republic in the
Government of the United Republic. Sub-article (3) of that Article vests “all
authority of the Government of the United Republic over all union matters and
all other matters concerning Mainland Tanzania in the President of the United
Republic”.
Article 64 (2) of the Constitution vests supreme legislative powers over all Union
matters and those concerning Mainland Tanzania in the Parliament of the
United Republic. However, of moment here is that under Article 96 of the

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Constitution, these powers may be delegated to other State organs, persons
and institutions. Article 96 states:
The provisions of this Article or Article 64 of this Constitution shall not prevent
Parliament from enacting laws making provisions conferring on any person or
department of Government the power to make regulations having the force of law
or conferring the force of law on any regulations made by any person, or any
department of Government.
It is on the basis of these constitutional provisions that our law derives the
principle that the exercise of any legislative powers by any person or authority
outside Parliament is considered an act of a delegate, and the law so enacted
a “subsidiary” or delegated” legislation. Such powers can only be so exercised
with the express authority of a law enacted by the supreme law-making organ,
namely, the Parliament.
Furthermore, Article 107 of the Constitution recognises the Judiciary as “the
authority with final decision in dispensation of justice in the United Republic”.
Within this structure, in order to ensure that the exercise of delegated
legislation is carried out within the four corners of the enabling legislation and
other principles of law, such legislation has become subject to the control of
the Judiciary by way of judicial review. We have had occasion to comment on
the importance of this power elsewhere when dealing with a constitutional
petition, and likened the task with the exercise of the powers of judicial review.
It was in Saed Kubenea v Attorney General, Misc. Civil Cause No. 28 of 2014
(HCT, Dar es Salaam Main Registry), reported in (2006) TLS LR 293. We said:
[The power of judicial review] represents, in our respectful opinion, the most
fundamental constitutional reason for the existence of the Judiciary. It is the tool

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that enables the Judiciary to counter-balance the exercise of the powers of the
State and ensure that all that is done by the various State bodies and public
officials is within the parameters of the law and the Constitution.
To be more specific, the Judiciary’s powers of judicial review are derived from
the provisions of section 17 of the Law Reform (Fatal Accidents and Miscellaneous
Provisions) Act [Cap. 310 R.E. 2002] (“Cap. 310”). Subsection (2) of the section
vests in the High Court the powers to issue orders of certiorari, mandamus and
prohibition (hitherto known as “writs”, which were abolished by subsection (1)
of the same section). In the case at hand, the issue raised by Mr. Komanya is
whether delegated legislation is amenable to judicial review in terms of section
17(2) of Cap. 310. He placed subsidiary legislation (otherwise known as
delegated legislation), at the same level as a law enacted by Parliament itself,
and argued that it could only be challenged by way of an action brought under
the Basic Rights and Duties Enforcement Act [Cap. 3 R.E. 2002].
With due respect, I am unable to agree with this contention—even though,
once enacted, a subsidiary (or delegated) legislation becomes part of the
principal legislation and has to be obeyed just like any other law. This is what
one reads in sections 41 and 57 of the Interpretation of Laws Act [Cap. 1 R.E.
2002]. Delegated legislation is nonetheless inferior and subordinate to principal
legislation. An obvious way of arriving at this conclusion is by considering the
principle that any delegated legislation which is inconsistent with the enabling
principal legislation (or any Act of the Parliament, for that matter), is to the
extent of such inconsistency, null and void: See section 36 (1) of Cap. 1.
The function of judicial review as a mode of controlling the exercise of
delegated powers of legislation has been known in the common law world for

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centuries. In his treatise, Law and Orders: An Inquiry into the Nature and Scope
of Delegated Legislation and Executive Powers in English Law, 3rd
ed., (2012)
Universal Law Publishing, New Delhi (2012), C.K. Allen, a Professor of
Jurisprudence at the University of Oxford, put it more succinctly:
The ‘power’ of sovereign Parliament is, in theory at least, unlimited; but when we
speak of ‘powers’ in law, and especially in administrative law, we nearly always
mean delegated powers, the delegation being by statute, with the possibilities of
sub-delegation….On the threshold of many cases lies the question whether
subordinate powers which have either been exercised, or are in contemplation, fall
within the area authorised, directly or indirectly, by Parliament. This is, of course,
a matter of interpretation, and it is in the nature of review rather than appeal,
being concerned not with the general merits of the instant case, but with only one
aspect of it—whether it falls within, or misinterprets or exceeds, or abuses, its
authorised scope.
The position in India, a common law jurisdiction that is similar to ours in many
respects, was well stated by Professor I.P. Massey. In his Administrative Law
(2008), 7th
ed., Eastern Book Co., Delhi, at pp. 141-142, Prof. Massey wrote:
Judicial review of administrative rule-making is subject to normal rules governing
the review of administrative action. Nevertheless, the principles on which the
constitutionality of a statute is judged and that of subordinate legislation are
different. A subordinate legislation could not enjoy the same degree of immunity
as a legislative Act would. [Citing State of Kerala v Unni (2007) 2 SCC 365].
The learned author went on to state, relying, among other authorities, on the
decision of the Supreme Court of India in the case of The State of Kerala v
K.M.C. Abdulla & Co., (1965) AIR SC 1585, that this judicial review of

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administrative rule-making cannot be foreclosed in any manner by the enabling
Act.
The grounds upon which a challenge against delegated legislation can be
mounted are many. In their Statement, filed together with the chamber
summons in respect of the application for leave, the applicants have grouped
their grounds for bringing the present action into two: That the 1st
respondent
has acted in excess of jurisdiction (ultra vires); and that the Regulations are
unreasonable, arbitrary and ambiguous. These two grounds are among those
that the law recognises, if successfully pursued, for the issuance of the orders
of judicial review. A few examples of court decisions will suffice.
With regard to the ground of being in excess of jurisdiction granted by the
principal Act, the cases of Kanji v. Tanga Township Authority (1940) 1 TLR 339,
and Koinage Mbiu v. R (1951) 24 (2) KLR 130 are examples. In the cases of
Remtulla Gulamani v. R. (1936) 1 TLR (R) 203 and Heridas v. Kericho U.D.C
1965 EA 370 the issue was on a delegated legislation made by an unauthorised
person or body. The cases of Kruse v. Johnson (1898) 2 QB 91 and R. v.
Hermitte (1938) 18 KLR 55, dealt with the issue of a delegated legislation which
was unreasonable, uncertain or ambiguous, and where the power to make a
delegated legislation is exercised in mala fides (bad faith).
What comes out from the above is that the mode employed by the applicants
in seeking redress against what they consider a subsidiary legislation that was
in contravention of principles underpinning delegated legislation was proper in
law. They needed not bring a constitutional petition, in the circumstances, to
get the redress they are seeking.

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I trust the foregoing discussion offers sufficient reasons for the court’s first
holding of 4 May 2018.
Before discussing the reasons for my second and third holdings of 4 May 2018,
I deem it convenient to begin with a definition of the term “interim order”.
Simply put, an interim order is an order that is issued by a court during the
pendency of the case for purposes of maintaining the status quo pending
determination of the matter or until a certain stage of the case is reached. The
rationale for interim orders stems from the Latin maxim "Actus curiae neminem
gravabit". When translated into English, the maxim stands for the principle "an
act of the court shall prejudice no one". It thus guarantees that the interests of
the parties to the litigation (or some of the parties) are not injured while the
litigation is on-going. It has thus been held that court orders should be passed
to afford a safe and certain guide for the administration of justice [See
Application of Martini, 184 F. Supp. 395, 401-402 (S.D.N.Y. 1960)].
The nature of an interim order essentially depends on the direction the court
issued. An injunction, such as the one sought herein, is a restraining order. It
is issued primarily to prevent situations in which the party in favour of whom it
is issued may suffer harm because the other party did or continued an act which
was the matter or one of the matters in issue. In the present case, the
applicants request the court to restrain the 1st
and 2nd
respondents from
enforcing the Regulations because they believe that their continued application
would result in injury to them.
Counsel Massawe has placed emphasis on the fact that the 1st
respondent has
issued a notice, dated 2 May 2018 and titled “MAENDELEO YA USAJILI WA
WATOA HUDUMA ZA MAUDHUI KWA NJIA YA MTANDAO” in which it sets the

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deadline for compliance with the requirement of registration for bloggers, online
forums, radios and televisions at 5 May 2018. This is what prompted them to
file this application for interim orders, under a certificate of urgency, “pending
hearing and determination of the applicants’ application for leave to apply for
orders of certiorari, mandamus and prohibition.”
The applicants asserted that the enforcement of the Regulations, particularly
the deadline set for compliance with the registration requirement, would
adversely affect them, and since, as they claim, the Regulations are ultra vires,
unreasonable and arbitrary, their continued enforcement should be restrained
pending the determination of their intended application for prerogative orders
(assuming that leave will be granted for filing the same).
In his reply submissions, Senior State Attorney Komanya chose not to respond
to Mr. Massawe’s submissions on the urgency of the prayers being granted. He
also did not address the merits thereof. His decision not to make submissions
thereon would mean, I suppose, that he saw no need of seriously contesting
the same. Instead, as we have seen, he concentrated his opposition to the
application on the procedure of filing an application for judicial review adopted
by the applicants, instead of a constitutional petition. I have already held that
it was open to the applicants to approach the court by way of judicial review.
Hence, I will consider the merits of the applicants’ application for interim orders
without the benefit of the respondents’ submissions thereon.
Going through the five identical affidavits in support of the application, it is clear
that the main worry visiting all the applicants in this case is stated in paragraphs
7, 8, 9 and 10 of the affidavits where each of them states the following, with
reference to their respective organisations:

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7. That, as an organization we run various online platforms for the education and
information of our members the regulations therefore render our fate as far as
running of those platforms unknown;
8. That, the 1st and 2nd respondents have set the deadline of registration of
bloggers, online radio and television and social media deadline on the 5th May
2018, a time which is so short to comply with the requirements of the regulation;
9. That, in the event the 2nd respondent proceeds with the measures intended, a
reasonable number of blogs and online content owners will be affected as well
as members of the public.
10. That unless the order for injunction is made there is a likelihood that the people
will suffer tremendously as a result of the suspension of the blogs and online
content providers.
The granting of such orders, while it is now specifically provided for by law (rule
5 (7) of the 2014 Rules), is not entirely virgin territory. This court has travelled
that path before. In V.G. Chavda v Director of Immigration Services & Another
[1995] TLR 125, also an application for prerogative remedies, Samatta, J.K (as
he then was), held, among other things:
Except to autocrats, it must be intolerable that, in a democratic society like ours,
courts should be impotent to grant a temporary injunction in favour of an individual
who complains or unwarranted or oppressive use of statutory powers by a
government minister or official.
Having laid the jurisprudential background to the issues the subject of the second
and third findings and orders of 4 May 2018, I would now proceed the explain my
reasons therefor. My second finding ran thus:

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That it is neither necessary nor judicious, at this stage, for this court to issue an
omnibus interim injunction prohibiting the first and second respondents from
enforcing the provisions of the entire Regulations pending final determination of
the intended application for judicial review.
The court was compelled to make this holding because the applicants had prayed
for an omnibus relief where the court would grant an interim order restraining the
1st
and 2nd
respondents from enforcing the provisions of the impugned Regulations
pending final determination of the intended application for judicial review. I had
reservation on two aspects of this prayer: The restraint on the enforcement of the
whole legislation, which enforcement had already begun by the registration of
those required to be registered under the Regulations, while, it would appear, the
applicants’ main concern at that moment was the effect of the enforcement of
the deadline of 5 May 2018.
It seemed to me that it was not necessary, and neither was it fair or reasonable,
for the court to prohibit, for instance, the registration process, from going on
until the matter was decided one way or the other. That was why I decided to
restrict my finding to the deadline, which had the potential, if implemented, of
resulting in some kind of injury to the applicants, especially given the penalties,
including criminal action, prescribed for non-compliance under regulation 19 of
the Regulations.
In addition, I did not think that it was necessary, fair or just, for the interim
injunctive order to extend to the determination of the intended application for
judicial review. At the stage the matter was (and still is), it was my view that
the justice of the matter would be sufficiently served if the interim order
extended, for present circumstances, only up to the next stage, i.e., the
determination of the application for leave to file the application for judicial

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review. The court may extend the order further, if it grants such leave, and if
it is so minded, under rule 7(5) of the Rules. So much for my second finding of
4 May 2018, which I hope I have adequately explained.
Whether or not the court should grant any interim relief, to the limited extent
as it appears just, was the issue that was answered by my third and last order,
in the affirmative. Having decided that as a subsidiary legislation, the
Regulations were amenable to judicial review, but that the circumstances of the
case did not require a wholesale injunctive order, it remained to be decided
whether an interim order should issue in favour of the applicants, and in what
terms. I was satisfied that it was necessary for an interim order to issue because
allowing the deadline to expire, which could mean, as the 2nd
respondent would
then be free to call in aid the application of regulation 19 of the Regulations,
that the applicants stood the risk of suffering the consequences of the
application of criminal sanctions prescribed in the regulation, which states:
Any person who contravenes the provisions of these Regulations, commits an
offence and shall, upon conviction be liable to a fine of not less than five million
Tanzanian shillings or to imprisonment for a term of not less than twelve months
or to both.
These sanctions are also subject to a challenge by the applicants in this case.
Allowing the deadline to expire would have exposed the applicants, assuming
they are subject to the Regulations (a matter whose decision will have to await
the appropriate stage of the proceedings), and thus to the criminal sanctions
provided in regulation 19, may render the reliefs sought in the application for
leave insignificant. In brief terms, therefore, I was satisfied that the
circumstances revealed sufficient grounds for this court to invoke the provisions

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of rule 7(5) of the Judicial Review Rules and grant the interim relief sought, but
limited as per the third order of the court, which ran thus:
That the first and second respondents, their agents or representatives, are hereby
restrained, in as far as the applicants herein are concerned, from enforcing the
deadline of 5th May 2018 prescribed in the notice titled “MAENDELEO YA USAJILI
WA WATOA HUDUMA ZA MAUDHUI KWA NJIA YA MTANDAO” dated 2nd May 2018,
issued by the second respondent, in respect of the registration of bloggers, online
forums, radios and televisions, pending hearing and determination of the
applicants’ application for leave to apply for orders of certiorari, mandamus and
prohibition.
It was for these reasons that I held and ordered as I did in my Order of 4 May
2018. Each party shall bear its own costs.
Dated and delivered at Mtwara this 10th
day of May, 2018.
F.A. TWAIB
JUDGE