Conviction of Mr. Maxence Melo, Executive Director of the NGO JamiiForums

TZA 001 / 0617 / OBS 060.1

Conviction /

Judicial harassment
Tanzania

April 14, 2020

The Observatory for the Protection of Human Rights Defenders, a partnership of FIDH and the World Organisation Against Torture (OMCT), has received new information and requests your urgent intervention in the following situation in Tanzania.

New information:

The Observatory has been informed by reliable sources about the conviction of Mr. Maxence Melo, founder and Executive Director of the non-governmental organisation JamiiForums, which advocates and promotes civil and digital rights, social justice, accountability, democracy and good governance. The NGO also hosts a whistle-blowing website JamiiForums.com, which ensures the privacy of citizens who seek to engage in online discussions on current affairs and human rights issues in Tanzania.

According to the information received, on April 8, 2020, Resident Magistrates Court of Dar es Salaam at Kisutu convicted Mr. Maxence Melo on charge of “obstruction of a police investigation” (under Section 22(1) of the Cyber Crimes Act, 2015) in case No. 456 of 2016. The Court convicted him to one year in prison or a fine of 3,000,000 Tshs (approximately 1,200 Euros). The judgement in this case had been postponed five times since November 26, 2019. Mr. Melo paid the fine and filed a notice of intent to appeal the court’s decision before the High Court of Tanzania[1].

The charges stemmed from Mr. Maxence Melo’s alleged refusal to disclose the identities of whistle-blowers on his JamiiForums platform. This case, which was delayed many times, is one of the three “obstruction” allegations against him, dating from 2016, when authorities arrested Mr. Melo and raided JamiiForums offices. In June 2018, Mr. Melo was acquitted of the charge of “not complying with an order of disclosure of data” and the third case, over the charge of “managing a domain not registered in Tanzania”, is still pending in court (see background information).

The Observatory expresses its utmost concern over the conviction and the ongoing judicial harassment of Mr. Maxence Melo, which seem to be only aimed at punishing him for his legitimate defence of freedom of expression.

The Observatory urges the Tanzanian authorities to put an end to any act of harassment, including at the judicial level, against Mr. Maxence Melo and all human rights defenders in Tanzania.

Background information:

Since 2010, the government of Tanzania has enacted several laws putting additional barriers to online freedom of expression and to the work of human rights defenders[2]. Among these new laws, the Cybercrimes Act, which came into force in September 2015, has been used as a tool to censor dissent voices and journalists and to further restrict the right to freedom of expression[3]. The country does not have any personal data protection law.

On December 13, 2016, Mr. Maxence Melo was arrested by the Tanzania police force and further held in custody on allegations of complaints from people claiming to be affected by some posts and discussions held on JamiiForums. The Tanzania police force then asked Mr. Melo to provide them with data of online users who had engaged in so-called “controversial debates” over several alleged “corruption deals” on the JamiiForums website between May 10, 2015 and December 13, 2016 (basis for court case No. 456) and between April 1, 2016 and December 13, 2016 (basis for court case No. 457). Mr. Melo refused to provide such information, arguing that it would run counter digital privacy and confidentiality laws, and in particular Article 18 of the Constitution of Tanzania, guaranteeing the right to privacy.

On December 15, 2016, the police searched both the premises of the organisation and Mr. Maxence Melo’s home without any warrant. Furthermore, the police interrogated some staff members at their office premises in Mikocheni, Dar es Salaam, and later at the Central Police Station.

The police kept Mr. Melo in custody for more than 48 hours without interrogation and in absence of charges against him, in violation of Tanzanian legislation which sets a four-hour limit for police interrogation without charges[4].

On December 16, 2016, the Resident Magistrate Court of Dar-es-Salaam at Kisutu indicted Mr. Maxence Melo under three sets of charges: “obstruction of a police investigation” under the 2015 Cyber Crimes Act; “not complying with an order of disclosure of data” (cases No. 456 and 457); as well as “managing a domain not registered in Tanzania” in contravention of Section 79(c) of the Electronics and Postal Communications (2010) Act (case No. 458). Mr. Maxence Melo was eventually granted bail on December 19, 2016 pending trial.

On May 2, 2017, during a hearing in case No. 456, the Senior State Attorney brought as a witness a Deputy Zonal Crime Officer (ZCO), who had received one of the complaints against information[5] posted on JamiiForums. The witness related that after receiving the complaint, the ZCO opened a file to investigate allegations of defamatory/false information posted on JamiiForums. The witness further alleged that on February 23, 2017, the police department sent a letter to JamiiForums requesting the disclosure of the IP address of the user who posted the investigated information. In response, JamiiForums lawyers asked for the provision which would enable the police to request such private data as well as details on the alleged offence(s) committed. The witness then pointed out that since JamiiForums did not provide the information requested, the ZCO proceeded with the arrest of Mr. Maxence Melo on December 13 2016, and added another shareholder of JamiiForums to the case-file, Mr. Mike William, on February 9, 2017, under accusations of “intentionally and unlawfully refusing to provide information required for a criminal investigation”.

Through the cross-examination, the witness admitted that there was no mention of the Cybercrimes Act in the letters sent from the police department under the ZCO supervision which were requesting information on JamiiForums. The witness also admitted that according to the Cybercrimes Act, when the police does not obtain the requested data, it needs to seek a remedy in Court before proceeding to any arrest. The hearing was postponed to the next day, when the defence counsel was able to perform a cross-examination of the witness. On that day, defence counsel pointed out that Mr. Maxence Melo’s arrest was illegal, and questioned why Mr. Mike William was added to the case. The hearing was postponed to May 8, 2017 and again to June 6, 2017.

Besides, on May 3, 2017, during a hearing in case No. 458 under which Messrs. Maxence Melo and Mike William were facing charges of “management of a domain not registered in Tanzania” under the 2010 Electronics and Postal Communications, the Manager of the Tanzania Network Information Center (tzNIC)[6] admitted that JamiiForums is registered twice under the institution database, and that the registration met the requirements of the Tanzanian web domain “.tz” (dots-tz), but that they were “not using the domain in the actual sense”, without providing any more explanations. The witness further admitted that no law makes it mandatory for companies such as JamiiForums to use the registered domain (.tz) instead of a generic (.com) domain.

On June 1, 2018, Kisutu Court in Dar es Salaam acquitted Mr. Maxence Melo and Mr. Mike William of the charge of “not complying with an order of disclosure of data” under case No. 457 of 2016.

Actions requested:

Please write to the authorities of Tanzania asking them to:

i. Guarantee in all circumstances the physical and psychological integrity of Mr. Maxence Melo as well as of all human rights defenders in Tanzania;

ii. End of all forms of harassment, including at the judicial level, against Mr. Melo as well as against all human rights defenders in Tanzania, and ensure in all circumstances that they are able to carry out their work without any hindrance or fear of reprisals;

iii. Comply with all the provisions of the UN Declaration on Human Rights Defenders, adopted by the United Nations General Assembly on December 9, 1998, in particular with its Articles 1, 6 and 12.2;

iv. More generally, ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international and regional human rights instruments ratified by Tanzania.

Addresses:

· President of Tanzania, Hon. Dr. John Pombe Joseph Magufuli Fax: +255 22 2113425; E-mail: ikulu@ikulu.go.tz

· Prime Minister of Tanzania, Rt. Hon. Kassim Majaliwa Fax: +255 22 2112850; E-mail: ps@pmo.go.tz

· Ministry of Foreign Affairs and East African Cooperation, Hon. Dkt. Augustine Mahiga Fax: +255 (0)22 226600

· Embassy of Tanzania in Brussels, Belgium, Fax (0032) (0) 2 646 80 26; Email: tanzania@skynet.be

· Permanent Representative of the United Republic of Tanzania to the United Nations, Geneva and Vienna, Fax: +41 22 732 82 55; Email: mission.tanzania@ties.itu.int.

Please also write to the diplomatic representations of Tanzania in your respective countries.

***

Paris-Geneva, April 14, 2020

Kindly inform us of any action undertaken quoting the code of this appeal in your reply.

The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and OMCT. The objective of this programme is to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.

[1] See : https://www.jamiiforums.com/threads/hukumu-dhidi-yangu-shukrani-kwa-watanzania-maxence-melo.1712418/

[2] See International ICT Policy for East and Southern Africa (CIPESA), Report on the State of Internet Freedom in Africa, 2016: http://cipesa.org/?wpfb_dl=225.

[3] On March 5, 2016, Mr. Maxence Melo filed a lawsuit before the High Court of Tanzania demanding the review of Section 32 and 38 of the Cybercrimes Act which respectively do not make it mandatory for the investigating police officer to seek judicial oversight while engaging in surveillance and prevent a person to effectively challenge a government’s interference with his or her privacy given that request for surveillance is done ex parte. In March 2017, the High Court declared both provisions constitutional.

[4] Section 50 (b) of the Tanzania Constitution and Criminal Procedures Acts.

[5] The post in context was related to oil company OILCOM’s alleged tax-evasion and oil leaked in Dar-el-Salaam’s port. OILCOM’s salesperson had complained to ZCO about what he said was defamatory and false information posted on JamiiForums.

[6] TzNIC is a public entity that makes sure all business entities are registered under domain dot-tz.