LEGAL BARRIERS TO ACCESS

In Tanzania, there are a number of legal and other barriers that weaken citizen requests for environmental information and allow the government to withhold information from the public. For example, while the constitution provides the basis for freedom of information, it also limits that freedom in the form of "claw back" clauses that subordinate its provisions to other inferior laws. Article 18(1) of the constitution contains the qualifying phrase "subject to the laws of the land" (GOT, 1977). This type of subjugation makes the rights and obligations of the constitution open to interpretation and modification by subsequent legislation. Such a concept is contrary to the widely adopted principle of constitutional supremacy; in most legal systems, the constitution is considered superior to all other laws.

The Tanzanian National Environmental Policy, which provides a basis for public access to environmental information, does not provide any specific mechanisms through which the public can access information. Nor does the NEP state any sanctions that citizens or NGOs can invoke for the government's failure to involve the public fully (GOT, 1997). Furthermore, although the NEP addresses the issue of public education, no serious government efforts have been undertaken.

Perhaps the most problematic legislative "loophole" is the National Security Act, 1970, which gives the government sweeping discretionary powers to classify information and thereby regulate access to it (GOT, 1970). The lack of objective criteria in the National Security Act prevents any fair determination of what is truly in the national interest. Moreover, once information is classified, it is accessible to only a few government employees, "authorized officers." This one provision excludes virtually the entire citizenry and most government officers from access to classified information.

In practice, much of government information requested by citizens is classified on the pretext of guarding national security. A senior government officer complained to one author that almost every document he receives is classified. Classified information often makes it difficult for environmental and natural resource departments and government officials to meet their responsibilities. If an unauthorized officer needs to review a classified document to complete his work, he must either become authorized or have the document declassified, and both are long and complicated processes.

The Tanzanian Newspapers Act (GOT, 1976) also hinders public access to information. The Act defines sedition in Tanzania as action taken with the intent of bringing the government into hatred or contempt, or to excite disaffection against the lawful authority of the country or the government. Thus, publishing a document that paints the government in a bad light can be declared seditious even if the contents of that document are correct.

According to the Newspapers Act, a publication is seditious if it (GOT, 1976):

• intends to show that the government has been mislead or mistaken in any of its measures;
• points out errors or defects in the government, constitution, or any other law; or
• attempts to persuade inhabitants to procure by any lawful means the alteration of any matter in Tanzania.

Intent, as defined by the Act, is determined by the consequences that would follow from the conduct. The Act imposes a punishment of imprisonment for a term not to exceed two years, a fine not to exceed 2,000 Tanzanian shillings, or both for the publisher and anybody who is found to possess the publication.

Although some court decisions have ignored constitutional claw back clauses such as those in the National Security Act and the Tanzanian Newspapers Act, others have not. In the 1995 case of Rev. Christopher Mtikila v. Attorney General, the High Court declared the Police Force Ordinance unconstitutional for, among other reasons, violating the constitutional right of freedom of peaceful assembly and public expression (High Court of Tanzania, 1995). The judge ruled that "fundamental rights are not gifts from the state. They are inherent in a person by reason of his birth and therefore prior to state and other laws." He further stated that "the constitution is the paramount law of the land and cannot be overridden by any other law . . . where the enjoyment of a constitutional right is subject to the laws of the land, the necessary implication is that those laws must be lawful laws" (High Court of Tanzania, 1995).

More recently, a 1997 decision by the Tanzanian High Court in the case of Adam Mwaibabile v. Republic (High Court of Tanzania, 1997) reinforces the notion that the government should not be permitted to classify documents to deny citizens access to information. In lower court, Mwaibabile, a journalist, was alleged to have violated the National Security Act by possessing a classified government document -- a directive from a regional commissioner to the Regional Trade Officer to deny the renewal of Mwaibabile's journalist's license. The High Court held that the directive was not a government document as defined in the Act on the grounds that it is not the duty of the government to refuse the granting of business licenses to citizens.