This reply to petition was recognized as the best and was selected by
the instructor for use in the general class moot court during the
Human Rights course (Cohort 35) in July 2022-2023. The instructor
chose it to represent moot court session.
It included a preliminary objection that was finally upheld, resulting in
the dismissal of the petition. However, the Court ordered hearing to
proceed on merit for the purpose of learning.
COURSE NAME: LEGAL AID & HUMAN RIGHTS ADVOCASY
COUSRE CODE: LS 110
NAME OF INSTRUCTOR: DR. LUGAZIYA
NATURE OF TASK: GROUP TASK
GROUP NUMBER: 4(3) STREAM A (MSEKWA)
S/N NAME RGISTRATION NO. SIGNATURE
1 ZAKARIA MASEKE LST/2022/35/014
2 KELVIN THOBIAS
3 PASCHAL JACKSON
4 LINDA G. SWAI
5 PENDO J. ATHANAS
6 RICHARD R. KALOKOLA
7 GAUDENCIA SHIJA
8 CECILIA J. BAKURI
9 HAPPY KIMARO
10 WINFRIDA LAURENCE
IN THE HIGH COURT OF THE UNITED REPUBLIC OF KAKAKUONA
(KAKAKUONA SUB REGISTRY)
AT KAKAKUONA
MISCELLANEOUS CIVIL CAUSE NO……………………OF 2022
AND
IN THE MATTER OF THE CONSTITUTION OF THE UNITED REBUBLIC OF KAKAKUONA
OF 1977 AS AMENDED FROM TIME TO TIME [CAP 2 R.E. 2002]
AND
IN THE MATTER OF THE BASIC RIGHTS AND DUTIES ENFORCEMENTS ACT [CAP 3 R.E.
2019]
AND
IN THE MATTER OF THE BASIC RIGHTS AND DUTIES ENFORCEMENT (PRACTICE AND
PROCEDURES) RULES OF 2014
AND
IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY OF THE
PROVISIONS OF SECTIONS 7(3) (a), (b), (c), (f) (g), (h), (i), (j), 35 and 59 OF THE
MEDIA FREEDOM ACT NO. 12 OF 2016
BETWEEN
KIBOSILE MEDIA COMPANY………………………………………… 1ST PETITIONER
THE MEDIA ASSOCIATION OF KAKAKUONA……….…...….……. 2ND PETITIONER
KAKAKUONA EDITORS’ PLATFORM…………………………..……. 3RD PETITIONER
VERSUS
MINISTER, MINISTRY OF INFORMATION, COMMUNICATION AND INFORMATION
TECHNOLOGY…………………………….…………………………..…1ST RESPONDENT
THE ATTORNEY GENERAL.……………………………………………...2ND RESPONDENT
SOLICITOR GENERAL ………………………………………………… 3RD RESPONDENT
NOTICE OF PRELIMINARY OBJECTION
NOTICE is hereby given that at on the first date fixed for hearing of this petition a
preliminary objection will be raised on points of law on the following grounds:
1. That the second and third petitioners have no locus standi to bring the
action before this Court for failure to show how they have personally or
directly been affected.
2. That petition is incompetent and bad in law for contravening the provisions
of Article 30(3) of the Constitution and Section 4(2) and (3) of the Basic
Rights and Duties Enforcement Act, 1994 [CAP. 3 R.E 2019] as amended by
Section 7 of the Written Laws (Miscellaneous Amendments Act (No. 3),
2020).
3. That the contents of paragraphs 5, 6 and 7 of the affidavits in support of the
petition is fatally defective for obtaining arguments, opinion and matters of
law.
4. That, the petition is both misconceived and unmaintainable in law for being
filed against wrong parties.
5. The petition is frivolous, vexatious and an abuse of court process contrary
to section 8(2) of the of the Basic Rights and Duties Enforcement Act, 1994
[CAP. 3 R.E 2019] which prevents the court to act on such matters.
WHEREFORE the Respondents shall pray that the petition be dismissed in its entirety.
REPLY TO PETITION
IN THE ALTERNATIVE BUT WITHOUT PREJUDICE TO THE AFORESAID the Respondents
above-named state that they have read and understood the contents of the
petition and wishes to reply and state as follows: -
1. That the basic rights under the Constitution, including the right to freedom
of expression under Article 18 of the Constitution are not absolute, they can
be limited in some circumstances by the Parliament as per the Constitution.
Therefore, the Media Freedom Act No. 12 of 2016, is a lawful law and it is
reasonably necessary and it is thus saved by the Constitution. The provisions
of sections 7(3) (a), (b), (c), (f) (g), (h), (i), (j), 35 and 59 of the Media
Freedom Act No. 12 of 2016 are not therefore unconstitutional.
2. That section 58 and 59 which empowers the Minister to prohibit and
sanctions certain publications is neither unjust nor does it restrict freedom of
expression, rather the power is clearly aimed at the promotion and
enhancement of public safety, public order and national cohesion. There
cannot be any such thing as absolute and uncontrolled liberty wholly
freedom of expression without restraint, for that would lead to anarchy and
disorder.
3. That no right to be heard was violated in the banning of Niambie
Newspaper. After all, if the petitioner is aggrieved, there is room to
challenge that action through other remedies and be heard on that
aspect.
4. That Section 50 and 54 which criminalize false news is not unjust. The
enjoyment of basic rights presupposes the existence of law and order;
hence the law criminalize false news to ensure that the rights and freedoms
of others or the public interest are not prejudiced by the misuse of the
individual rights and freedoms so there is no infringement of the
constitutional right to the freedom of expression.
5. That the petitioners have no right to be heard in this petition for failure to
show how they have personally been affected by the matter.
WHEREFORE, basing on the facts adduced above the Respondents pray that the
petition be dismissed in its entirety.
This reply to originating summons has been taken at the instance of the
Respondents and is supported by the counter affidavit of Zakaria Maseke.
GIVEN under my HAND and SEAL of the court this ________ day of ___________ 2022
____________________
REGISTRAR
Presented for filing this __________________ day of ______________________ 2022
____________________
REGISTRY OFFICER
DRAWN AND FILED BY:
ZAKARIA MASEKE, (STATE ATTORNEY),
THE OFFICE OF ATTORNEY GENERAL,
MTUMBA STREET,
PO.BOX 630,
KAKAKUONA.
0800110188
COPY TO BE SERVED UPON;
TUSHIKAMANE ATTORNEYS
LST BUILDINGS, 1ST FLOOR
P.O.BOX 1035,
DAR ES SALAAM
KAKAKUONA.
IN THE HIGH COURT OF THE UNITED REPUBLIC OF KAKAKUONA
(KAKAKUONA DISTRICT REGISTRY)
AT KAKAKUONA
MISCELLANEOUS CIVIL CAUSE NO……………………OF 2022
AND
IN THE MATTER OF THE CONSTITUTION OF THE UNITED REBUBLIC OF KAKAKUONA
OF 1977 AS AMENDED FROM TIME TO TIME [CAP 2 R.E. 2002]
AND
IN THE MATTER OF THE BASIC RIGHTS AND DUTIES ENFORCEMENTS ACT [CAP 3 R.E.
2019]
AND
IN THE MATTER OF THE BASIC RIGHTS AND DUTIES ENFORCEMENT (PRACTICE AND
PROCEDURES) RULES OF 2014
AND
IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY OF THE
PROVISIONS OF SECTIONS 7(3) (a), (b), (c), (f) (g), (h), (i), (j), 35 and 59 OF THE
MEDIA FREEDOM ACT NO. 12 OF 2016
BETWEEN
KIBOSILE MEDIA COMPANY………………………………………… 1ST PETITIONER
THE MEDIA ASSOCIATION OF KAKAKUONA……….…...………. 2ND PETITIONER
KAKAKUONA EDITORS’ PLATFORM………………………………. 3RD PETITIONER
VERSUS
MINISTER, MINISTRY OF INFORMATION, COMMUNICATION AND INFORMATION
TECHNOLOGY…………………………….…………1ST RESPONDENT
THE ATTORNEY GENERAL.…………………………………………...2ND RESPONDENT
SOLICITOR GENERAL………………………………………………….3RD RESPONDENT
COUNTER AFFIVIDAVIT
(Pursuant to Article 26(2) and 30(3) of the Constitution of the Republic of
Kakakuona of 1977 as amended from time to time; Section 4,5 and 6 of the
Basic Rights and Duties Enforcement Act, Cap 3 R.E. 2019 as amended; Rule 4 of
the Basic Rights and Duties (Practice and Procedure) Rules, GN, 304. of 2014) ?
I, ZAKARIA MASEKE, an Adult, Male, Christian and Resident of Kakakuona, DO
HEREBY SWEAR and STATE as follows:
1. That, I am the State Attorney working in the office of the Attorney General
at Kakakuona and by virtue of my employment I have been assigned to
deal with this matter, hence conversant with the facts I depose hereunder.
2. That, the contents of paragraph
3.
4.
5.
6.
Dated at Kakakuona this_______________ day of___________2022
_____________________________
DEPONENT
VERIFICATION
I, Zakaria Maseke, State Attorney do hereby verify that, what is stated in
paragraph 1, 2, 3, 4 and 5 herein above is true to the best of my knowledge.
Verified at Kakakuona this_________________ day of ______________________ 2022
______________________
DEPONENT
SWORN and SIGNED at Kakakuona by the Said
Zakaria Maseke, who is personally known to me/
……................ has been identified to me by ……..…………………..
the later being personally known to me DEPONENT
This_______ day of _________________2022.
BEFORE ME:
NAME: ___________________________________
ADDRESS: ________________________________
SIGNATURE: ____________________________
QUALIFICATION: _________________________
Presented for filing this ___________ day of___________________________ 2022.
__________________________
REGISTRY OFFICER
DRAWN AND FILED BY:
ZAKARIA MASEKE
THE OFFICE OF ATTORNEY GENERAL,
MTUMBA STREET,
PO.BOX 630,
KAKAKUONA.
0800110188
COPY TO BE SERVED UPON;
TUSHIKAMANE ATTORNEYS
LST BUILDINGS, 1ST FLOOR
P.O.BOX 1035,
DAR ES SALAAM,
KAKAKUONA.
