tanzania audio visual distributors association others vs honourable attorney general others 2018 tzhc 2938 27 march 2018

IN THE HIGH COURT OF TANZANIA (M A IN R E G IS T R Y )

A T D A R ES S A L A A M (KADURI, BONGOLE AND MW ANDAM BO, JJ) CONSTITUTIONAL PETITION NO. 10 OF 2014

THE TANZANIA AUDIO VISUAL DISTRIBUTORS ASSOCIATION.................. ................................... ... 1st PETITIONER SHIRIKA i_A KUTETEA HAKI ZA WASANII TANZANIA.............................. ....... 2nd PETITIONER

JACKLINE ARINGO ODHIAMBO alias JACK AKINYI...................... ......................... ,. 3rd PETITIONER

VERSUS HONOURABLE ATTORNEY GENERAL.................. . 1st RESPONDENT COPYRIGHT SOCIETY OF TANZANIA.................. 2nd RESPONDENT TANZANIA REVENUE AUTHORITY.............................. 3rd RESPONDENT

JU D GM EN T This petition seeks to challenge the constitutionality of the Films and M usic P ro d u cts (Tax Stam ps) Regulations, Government Notice No. 244 of 2013 (hereinafter referred to as the Regulations). 11 if Respondi'iiK who are represented by the Hon. Attorney General denies the Petitioners' have been infringed rights in the manner contended and pray that lhe Court dismisses the petition for being baseless. According to the amended petition, the first and second Petitioners are registered entities having the objectives of protecting interests of artists and distributors of artistic works in Tanzania. The two Petitioners boast themselves as defenders of artists and artistic works in Tanzania. In particular, the 1st Petitioner claims to be a company limited by guarantee orawing_.its membership from artists in Tanzania. The 3rd Petitioner describes herself as an artist/musician claiming to have been affected by the acts of the 2nd Respondent through the 3rd Respondent in the course of enforcement of the Regulations. By and large, the basis of the petition is founded on the enforcement of the Regulations by the 3rd Respondent. In accordance with Regulation 4 (1) and 23 of the Regulations, it is a mandatory requirement for all persons engaged in the importation, exportation, production or distribution of films or music products to register and obtain an approval from

licensing any of the prescribed activities. In accordance with Regulation 4(1), the licencing authority is the 2nd Respondent who is mandated to issue certificates of approval to dealers who include duty registered producers, authors, distributors, importers or exporters of films and music products which must be furnished to an authorized officer of the 3rd Respondent before issuing of tax stamps as required by Regulation 23. The Petitioners contend that in " process of carrying out statutory duties in accordancc with the la.d ogulations, the 2 - Respondent com pels persons who approach her fo, certificates o f approval to register with her as members contrary to their wishes. It is contended further that the requirement to register as m em bers against their wishes violates Article 20 (4) of the Constitution of the United Republic of Tanzania, 1977 (as amended) [hereinafter to be referred to as the Constitution] which bars am ongst others, compulsory registration of any association organization or political party. The Petitioners claim further that by reason of compulsory membership with jthe-Z^Respoodent^he-dealer-s-faiUo-obtain^eftificates-otappfwal^fldjn- consequence fail to obtain tax stamps and hence the inability to do business. It is the Petitioners' contention that failure to do business by reason o f the 2nd Respondent's acts infringes upon the dealers' right to w ork

w hich is protected by Article 22 (1) and receive just remuneration guaranteed by Article 23 (1) and (2) of the Constitution. The Petitioners' case does not end there. They complain further that the acts of the 2nd and 3rd R espond ents offend the provisions of Article 29(5) of the Constitution which im po ses a duty on all persons to conduct themselves in a manner that does not infringe upon the rights and freedoms of others. Finally, the Petitioners argue that the manner in which the 2ntt and 3J Respondents treat international audio visual works in the same footing is ultra vires the provisions of section 3 (1) of the Copyrights and N eighbouring Rights Act, Cap 218 [R. E 2002]. As to the direct effect on the alleged infringem ent by the 2nd and 3rd Respondents, it is contended that: the 1st and 2,ld Petitioners' m em berships have significantly dropped from 3,000 in the year 2011 hn cnn trend ,s on rh " rS m Decembcr 2013 and the 15 °n the increase. As indicated earlier on, the Respondents' reply is a complete denial of all of the complaints in the petition. The Respondents have, in consequence invited the Court to dismiss the petition in its entirety. Consistent with Rule 13 of the Basic Rights and Duties Enforcement (Practice an d Procedure) Rules, GN No. 304 of 2014 (the Rules) Counsel filed their respective written submissions for and against the petition within sch e d

u le . P u p tr> supervening evpnts aftpr the filing o f t-hp cnhmiccinn^ anrj th e interlocutory application in between, judgment has taken longer than usual to be com posed and delivered. Mr. Stephen Mosha learned Advocate fo r the Petitioners submitted with significant force against the 2na R e sp o n d e n t for compelling members of the 1st Petitioner to register with her as m em bers as a condition for obtaining licences before being issued w ith tax stam ps. The learned Advocate criticized the 2nd Respondent's ap proach as unconstitutional for violating the Petitioners' right to freedom o f association guaranteed under Article 20 (4) of the Constitution. On the o th er hand, the learned Advocate submitted that by reason of the T 1 R espond en t's acts, the '-1st Petitioner's members have been dented ap p rova ls and in turn failed to obtain tax stamps from the 3rd Respondent and distribute their artistic w orks to earn a living. According to the learned Advocate, the act w as violative of the right to work guaranteed by Article 22 (1) and 23 (1) and (2) of the Constitution. In another breath, the learned A dvocate challenged the 2nd Respondent's acts as ultra vires the provisions of section 47 nf t-ho r~ Copyright and Neighbouring Rights Act W "StS 'tS fu“ - n e of them relates to recruitment o. mem bers ,n collaboration with the 3 - Respondent. On the

foregoing submissions, the learned Advocate invited the Court to allow the petition and grant the reliefs set out therein. Ms. Sylvia Matiku learned Principal State Attorney kicked off her submissions by providing a background and objectives behind the promulgation o f the Regulations made under section 122 of the Excise Managem ent and T ariff Act, Cap 147 (R.E 2002). In essence, the learned -£ancipal -State■JUtom ey^ argued that contrary -to-the -submissions- -by - the learned Advocate for the Petitioners there is nothing in Regulation 4(1) com pelling m em bers of the 1st Petitioner to register with the second Respondent. Subm itting in relation to the bond between the 2rtd and 3rd Respondents, Ms. Matiku impressed upon the Court to find that the same was healthy aim ed at preventing issuing tax stam ps to distributors/artists w ithout copyrights. According to the learned Principal State Attorney, the bond fell w ithin th e functions of the 2nd Respondent for the promotion and protection o f all artists both foreign and local within the ambit of the Copyright and N eighbouring Act supplemented by Berne Convention for the Protection o f Literary and Artistic works of 1886 to whc1; Tanzania is a sig n a to ry together with the Agreem en t on Trade Related Aspects on Intellectual Rights 1999. Expounding on the said convention, th e learned Principal State A ttorney referred the

Court to a decision of the S u p re m e Court of Canada in Circle Film Enterprises Inc. V. Canada B ro a d ca stin g Corporation [1957] S.C.R 602 to reinforce com pulsorynie< J iS PGrmiSSiVe rathw certificate of its registration7 ° f 'tS ownershiP a holder of a State Attn r° m Sa'd d0Cision' the learned Principal State Attorney urged the Court to hold that more requirement T * copyright registrator, and in turn issue of tax stamps to its owner had othmg to do with compelling anybody to become a member of the 2 - Respondent neither did it infringe upon artists'/distributors' right to work and receive just remuneration guaranteed Lin d e r Article 23 (1) a n d (2) of the Constitution. - in rebuttal, the learned Advocate_for tne Petitioners reiterated "his submissions In chief maintaining that the artists'/ distributors' duty to obtain tax stamps from the 3* Respondent was conditional on o n ly one requirem ent that is to say; registration of their artistic works with the 2 r ~ Respondent rather than being compelled to become its members which was w hat the 2nd Respondent was doing in practice. The leaned Advocate argued that in so far as registration is not com pulsory, there was no need to require artists/distributors to register with the 2nd Respondent before being issued with tax stamps by the 3rd Respondent because the international conventions to which Tanzania is a

signatory have done away with registration formalities as a means of protection of copyrights. We have examined the petition, reply thereto and the subm issions for and against in the light of the constitutional provisions on the basis which we are asked to peg to determine the petition. We think it is necessary to state at this juncture that in determining a petition such as this one, th e court d requires the Court to a d ^ a T 913''3^ PrinCipleS' 0ne of such Principles fundamental rights and freed e " er° US approach to the interpretation of - • .. J L z z z z z r , *- O thers V. M inister of E d u c a f PP6a »• - Zakana Kamwe'a and 126 G eneral, Civil Appeal No 3 of 2012^ Traini" 9 a " d the Atto'ney position the court f * 35 ^ LR 198' Reiteratin9 that P sition, the Court of Appeal expressed in no uncertain terms that: "Each and even, person In Tanzania has the rig h t to enjoy the undam ental rights engraved under p a rt II, BASIC r ig h t s a n d ^W W o v m d T o T u m e rm ic Ie 12 to 28... "(atpage 13) To the extent relevant to this judgment, the right to work and receive just remuneration is a fundamental right guaranteed under Article 23 (1) and (2) of the Constitution. The other principle we find important to m ention is the presumption of constitutionality of legislation until a co n trary is proved expressed In J u liu s Ishengoma Francis Ndyanabo V. A tto rn e y G

eneral [2004J TLR 14. It is glaring that the Petition6rs cause of action is founded on the alle g e d co m p u lso ry registration o f mem bership with the 2nd Respondent as a cond ition fo r obtaining approvals to artistsydistributorsf works before being issued with tax stam p s by the 3rd Respondent. T he 2tld Respondent d e n ie s having com pelled m em b ers of the 2nd Petitioner to register with her as m e m be rs let alone the 3rd Petitioner. There is no gainsaying that any p ro visio n in a statu te or regulation requiring any person to become a 7 member of an = » m " « » « ' W ™ »u, cou rt dM „ „ : r “ - « . 9 as unc°nstitutional. Regulation 4( n aft h- k Reg. 4 (l)A n y person who is engaged in o r intends to import, export, produce o r distribute film s and, or m usic p ro d u ct p re scrib e d by the Regulations sh a ll register and issued approval by the Licencing Authorities before importing, exporting, p ro du cin g o r distributing the sam e as the case m av be. Reg. 23, The dealer shall furnish a certificate o f approval and any other relevant documents from the licencing authority to an authorised officer and when the authorised officer is satisfied th a t a ll requirements have been complied with shall issue tax stam ps to the dealer" Our exam ination of Regulation 4 ( 1 ) and 23 Of G.N. No. 244 of 2013 has not resulted in any conclusion that they or any of

them impost any requirem ent for compulsory registration with the 2nd Respondent thereby infringing upon the right to freedom of association guaranteed by Article 22 (1) o f the Constitution neither do we agree that the requirement to require dealers to furnish certificates of approval and any relevant docum ents from licencing authorities, the 2,hJ Respondent m particular as violating the right to work and earn just remuneration engraved in Article 23 (1) and (2) of the Constitution. Indeed, Mr. Mosha learned Advocate conceded in his submissions that compulsory registration is not a Respondent in the course f * * ^ by the 2'"' d.stributors/dea s“ : t ^ *“ « 3 rd R e s ' p h rtlStlC WOrkS bef0re 0 b ta ™ 9 tax Stamps fron, the ent. In the circumstances, since the alleged violation is not sane loned by any regulation, upholding the petition in the manner the Petitioners have asked us to do would require them furnishing sufficient particulars to prove compulsory registration as a requirement for obtaining certificates of approval and ultimately the tax stamps. It is glaring that the Petitioners have not gone beyond making allegations of compulsory -tegi stratio n . They—have—not—annexed—any—document—to -back- - up- -the com plaint on compulsory membership neither has the 3rd Petitioner who has specifically made that allegation under para 13 of the amended petition has

furnished any particulars. W hilst we take cognizance of the matters to be contained in a petition per section 6 of the Basic Rights and Duties Enforcement Act, Cap 3 [R.E 2002] (hereinafter referred to as BRDEA), we do not think the restriction imposed by that provision against facts relied on by the Petitioners was intended to mean that a petitioner need only make allegations on the infringement in support of his rights without giving sufficient particulars in support the complaint. We say so because it is our considered view that in the absence such particulars, it will be asking too much by the Petitioners and expect the court to uphold their complaint alleging as they do that the 2,ld Respondent compels artists/distributors 10 become its members in the course of its licencing duties for the purposes issuing certificates for presentation to the 3rci Respondent for the purposes O f Obtaining tax stamps. We establishing that the Petitioners' r' l° ^ ^ m 8 r i t t h e comP|aint within the meaning of section 3 of L T mfringed' ‘° ^ w antina i and ^ ^ f° re9° 'n9 reasons we find the Petition 9 substance and we accordingly dismiss it. Since th e re is nothing on record to indicate that the petition was brought for a purpose other ^ an ^e e ^'n^ enf ° rcem ent a fundamental right, we order that each p a rty £ a rs his own costs. It is so ordered. D ated at Dar es salaam this.^ jjLMarch, 2Q18 L.K. N KADURI

JUDGE

JUDGE