Laws Archives – Page 2 of 2 – Collaboration on International ICT Policy for East and Southern Africa (CIPESA)

By Edrine Wanyama |

The Collaboration on International ICT Policy for East and Southern Africa (CIPESA) has made a submission on the proposed amendments to Tanzania’s controversial Electronic and Postal Communications (Online Content) Regulations, 2020 that regulate online content service providers, internet service providers, application services licensees, and online content users.

On August 24, 2021, the government made a public call for comments on proposals to amend the 2020 Regulations, which entrenched the licencing and taxation of bloggers, online discussion forums, radio and television webcasters, and repressed online speech, privacy and access to information. The move towards amending the Regulations follows a series of concerns expressed in 2017, 2018 and 2020 over the regressive and repressive nature of online content regulation in the country, and its detrimental effect on freedom of expression, access to information, and the right of establishment of media.

The proposed 2021 regulations largely reflect the previously issued regulations. While they have some positive elements, they largely fail to address the threats posed to human rights defenders, political dissidents, journalists, academics, civil society organisations and actors.

On a positive note, the proposed regulations reduce licence application fees, as well as annual and renewal fees charged for online media content services and online content aggregators. Thus, online media content service providers will pay application fees of TZS 50,000 (USD 22) down from TZS 100,000 (USD43), initial licence fees of USD 217 from USD 433, annual licence fees of USD 217 from USD 433 and renewal fees of USD 43 from USD217.

The regulations also remove some ambiguous specification of obligations of service providers, such as the proposed deletion of the current regulation 9 (d) which potentially censors a broad variety of content by imposing on service providers the obligation to filter what is considered “prohibited content.” Regulation 9 (d) of the EPOCA Regulations of 2020 requires online content service providers to, “use moderating tools to filter prohibited content.”

Furthermore, under regulation 3, some level of certainty in the scope of definitions is provided especially for “online media content services” and “online content aggregators”, which are lacking in the current regulations. The proposed regulations also make attempts to define and narrow the scope of categories of licences by removing all fees that were earlier imposed on online content relating to education and religion, and fees chargeable for the provision of Online Content Service Licence Category B (Simulcasting radio and television).

However, the proposed regulation maintains broad and vague definitions, such as of “hate speech”, which could potentially be misused against individuals, media and private sector players.

Moreover, the licensing requirements under Part II of the EPOCA regulations of 2020, which have not been proposed for amendment, are still prohibitive with very heavy penalties of not less than five million shillings (USD 2,157) or 12 months imprisonment, or both, for operating without a license from the Tanzania Communications Regulatory Authority (TCRA).

Further, the process of applying for a licence under regulation 6 remains tedious, requiring the applicant to furnish TCRA with extensive information including personal information. This comprises certified copies of certificate of incorporation or certificate of registration, tax identification number, tax clearance certificate, national identity cards, and list of owners and management teams, curriculum vitae of staff, editorial policy guidelines and any other documents required by the authority.

The proposed amendments do not make any attempt to address the wanton restrictions laid down in the Third Schedule to regulation 16 on prohibited content. This includes content in paragraph 1 on sexuality and decency, content on personal privacy and respect for human dignity which extends to insults, slander and defamation or exposes news related to a person’s privacy under Paragraph 2(b).

Further, there are restrictions on content on public security, violence and national security (Paragraph 3), content that is considered to be disrespectful of religion and personal beliefs (paragraph 7), public information that may cause public havoc and disorder (paragraph 8), use of bad languages and disparaging words (paragraph 9) and false, untrue and misleading content (paragraph 10).

The scope of prohibited content under the Third Schedule is wide and ambiguous, and the provisions facilitate curtailment of freedom of expression and access to information.

Additionally, the schedule prohibits publication of “content with information with regards to the outbreak of a deadly or contagious disease in the country or elsewhere without the approval of the respective authorities.” The penalty for breach of regulations is a fine of not less than five million Tanzanian shillings (USD 2,174), imprisonment for not less than 12 months, or both. This prohibition undermines freedom of expression and access to health information as it provides room for suspension of content.

Regulation 9(g) maintains the status quo of the obligations of online content service providers to ensure that prohibited content is removed immediately upon being ordered by TCRA. This ultimately means the sweeping powers of the authority to determine what content is available for public consumption are still on the statute books. Such powers are also a potential tool for censorship of content and hinder free expression and access to information.

The proposed amendments to the regulations come a few months after the death of Tanzania’s former president, John Magufuli. His reign was characterised by systematic clampdown and curtailment of freedoms including of expression, access to information, assembly and associations. The period before Magufuli’s death was also characterised by a lacklustre response to the Covid-19 pandemic.

The analysis concludes that the proposed amendments provide some ray of hope especially in providing some degree of certainty in definition of key terms and reduction of application and licensing fees. However, the proposals are not sufficient to tackle the deep concerns in the 2020 regulations.

You can read the full submission here.

By Tusi Fokane |

As South Africa prepares to hold local government elections in 2021, parliament’s Portfolio Committee on Home Affairs has rejected two proposals contained in the Electoral Laws Amendment Bill, which could have seen the introduction of electronic voting in the country.

The rejected proposals were contained in clause 14, which suggested that the country’s Independent Electoral Commission (IEC) “may prescribe a different voting method” under the 1998 Electoral Act and clause 21 which sought to make a similar amendment to the Local Government: Municipal Electoral Act, 2000. The electoral body had intended to use these amendments to progressively introduce e-voting.

A report adopted by the Committee on December 1, 2020 notes that the introduction of different voting methods is a policy matter that “cannot be left to the IEC alone to decide” and emphasised that “explicit clarity must be given to the effect that the amendments do not authorise e-voting upon signing of the bill into law.”

The proposals were part of the Electoral Laws Amendment Bill which was introduced in September 2020 to amend legislation governing national, provincial and local government elections, including the forthcoming 2021 local government elections. Local government elections are set to take place between August 4 and November 1, 2021, although the final date is yet to be gazetted by the Minister of Cooperative Governance and Traditional Affairs.

The proposed amendments under the Bill seek to align three key pieces of electoral legislation, namely the Electoral Commission Act, the Electoral Act and the Local Government: Municipal Electoral Act. Besides proposals related to methods of voting, the other proposed amendments relate to procedures regarding the registration of parties, the submissions of candidate lists by parties, the casting of votes in a district where a voter is not registered, and the protection of voters’ personal data against disclosure pursuant to the Protection of Personal Information Act.

Proposals for electronic voting were first tabled by the IEC back in July 2020, when it indicated that electronic voting considerations were still in early stages and would first be trialled as a pilot. The Commission stated that electronic voting would help increase efficiencies in the existing system including counting and capturing of election results. There is currently no provision for online or postal voting in South Africa, as its prevailing electoral laws provide that voters must vote in person at their voting station.

The decision of the Portfolio Committee on Home Affairs to reject alternative methods of voting proposals followed complaints from various stakeholders. Consultations by the Portfolio Committee via the Dear South Africa platform received over 12,000 submissions from the general public and civil society. Many of the submissions received were against the adoption of the Electoral Laws Amendment Bill, citing constitutional concerns over the introduction of the electronic voting method. Members of the public took exception to the powers delegated to the electoral commission to change electoral policy without proper public participation and parliamentary oversight. Some commentators also criticised the short time-frame given for public input – two weeks – from mid to end October 2020, although this was subsequently extended to November 6, 2020.

Submissions also raised concerns on the possibility of electoral fraud, hacking and the rigging of election results. There were also concerns raised about the costs of an e-voting system, given South Africa’s current fiscal constraints, as well as exclusion of communities who may not have access to digital technologies. As at January 2020, internet penetration in South Africa was estimated at 62%.

In response to concerns raised by members of the Committee regarding the public submissions, the IEC has argued that the proposed amendments were intended to create a framework for the piloting of electronic voting, as opposed to rolling it out fully in the country.

Whereas the Portfolio Committee acknowledged the beneficial role of technology in enhancing the electoral process, it cautioned against deploying technology without considering the necessary legal and constitutional implications. The Chairperson of the Committee noted that:

The truth of the matter is that technology is upon us and preparation must be started to ensure that we have both the legal framework and the technical experience that will ensure that elections are secure if a decision to vote through e-voting is taken..

In its statement, the Portfolio Committee on Home Affairs requested the IEC to return to Parliament with case studies on the implementation, challenges and successes of electronic voting in other countries.

In the 2009 general elections, the IEC introduced technological solutions to assist with processing of ballots. Four years later in 2013, the electoral body convened a seminar on Electronic Voting and Counting Technologies to assess the feasibility of electronic voting in South Africa. The then Chairperson of the IEC, Advocate Pansy Tlakula, noted that the country had not formally adopted a position on e-voting and that whilst e-voting presented some benefits such as speed and accuracy in vote counting, it would be expensive to monitor and could reduce transparency in the voting process. She also noted that there was no global standard for the verification and auditing of e-voting systems.

Electronic voting was once again put on the national agenda following the outcome of the ruling party’s June 2020 National Working Committee meeting. The African National Congress (ANC) reported that it had discussed “alternative methods of conducting elections, including the use of electronic voting” in light of the Covid-19 pandemic. This was followed by media reports that the IEC was considering launching an e-voting pilot in July, without providing any details on the roll-out. Shortly thereafter, in September, the IEC indicated that it had scrapped its planned pilot due to a lack of budget.

While the matter is on hold pending a detailed report on international case studies, implications, challenges and successes of e-voting, it is important for the IEC to address the issues raised by stakeholders. These include ensuring the security and transparency of the processing and verification of votes, as well as ensuring that rural voters have access to reliable internet, electricity and networks to cast their e-ballots. Costs of financing the e-voting system also require careful consideration.

Another critical prerequisite is the need to ensure adequate public participation in amendments to laws governing the electoral system. This can be overcome by allowing Parliament to exercise its legislative role and ensuring members of the public are afforded the opportunity to deliberate on and make substantive inputs to proposed changes to electoral policy.

Tusi Fokane is a 2020 CIPESA Fellow focussing on the availability and use of digital technologies to combat the spread of Covid-19 in South Africa. She is also studying the country’s readiness for electronic voting to comply with social distancing and other movement restrictions during the upcoming local government elections.

Tag Archives: Laws

CIPESA Submits Comments on Tanzania’s Proposed Amendment to The Online Content Regulations 2021

South Africa’s Parliament Rejects Plan to Introduce e-Voting