Abstract
The right to protection of personal data is derived from the individual right to privacy. Tanzania has had a difficulty history in protection of the right to privacy; from evading its inclusion in the Bill of Rights after her independence to unsuccessful enactment of the right to privacy and data protection in the draft Freedom of Information Bill in 2006. In 2013, Tanzania decided to reform her framework for the protection of personal data and individual privacy. This chapter explores the background to the protection of privacy in Tanzania and the recent reforms. The chapter also takes a look at social attitude to privacy and the legal framework that supports the individual claims and protection to one’s privacy in Tanzania. This overview provides for the background upon which the present Draft Personal Data Protection Bill emanates. This is followed with a textual analysis of the Draft Bill which describes the weaknesses of the Draft Bills from simply omitting one condition for processing and adding a condition to Commissioner’s duties which are not usually found in data protection codes.
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Notes
- 1.
See Maina, C.P and Othman, H. 2006, p. 2.
- 2.
These powers are provided by the Constitution of United Republic of Tanzania under article 4(1)(2) and articles of Union between United Republic of Tanzania and People’s Republic of Zanzibar of 1964 article 111 (a).
- 3.
Nchalla, B. M in Mbondenyi, M. K and Ojiende, T., (eds) 2013, p. 15.
- 4.
Articles 64(4) (a) 6 and (5) Constitution of United Republic of Tanzania, 1977 (as amended); Article 132 (1) (2) Constitution of Zanzibar Revolutionary Government, 1984 (as amended).
- 5.
Union Constitution is the Acts of Union- The treaty which united Tanganyika and Zanzibar. This treaty was translated into domestic laws in Tanganyika the enacted law is the Union of Tanganyika and Zanzibar Act of 1964 (Act 22 of 1964) and for Zanzibar is the Union of Zanzibar and Tanganyika Law 1964. The two laws constitute Constitution of the Union.
- 6.
Tedre, M and Chachage, B. 2008.
- 7.
Ibid.
- 8.
ibid
- 9.
See TCRA, 2013A; TCRA, 2013B; also on The Guardian, 2010, pp. 1–2; and The Citizen, 2010, p. 2.
- 10.
The justification offered for the obligation to register SIM is the suppression and detention of criminal activities, including transborder crimes such as terrorism and regulating inflammatory and hate speech being spread through SMS. The government says that the SIM registration will also enable identification of consumers for purposes of value added services, enhance national security and enable operators to promote the ‘know your customer’. See The Guardian (October 17, 2010); Mwachang’a, D.; IPP Media (21 February 2013); Makulilo, A.B, Vol No. 17 No. 2, p. 48; and Hemeson, C. J.
- 11.
Kelly, T and Minges, M., (eds) 2012 Cited in Donovan, K. and Martin, A.
- 12.
Donovan, K. and Martin, A, supra note 11.
- 13.
Makulilo, supra, note 10, p. 12; see also Boshe, P., Vol. 20 No. 3, 2014.
- 14.
Sato, N. 2013.
- 15.
Vodafone Law Enforcement Disclosure Report 2014.
- 16.
Business Times, Friday, 27 June 2014, ‘Phone interception: Tanzania to Land in Court?, by Mnaku Mbani.
- 17.
Cap 47 [RE:2002].
- 18.
Cap 19 of 2002.
- 19.
See also section 42 of the Prevention of Terrorism Act.
- 20.
Cap 15 of 1996.
- 21.
Section 98(2) and 99 EPOCA.
- 22.
EPOCA (Telecommunications Traffic monitoring System) Regulation 2013.
- 23.
Section 121 (b) (i) (ii) EPOCA.
- 24.
Section 21.
- 25.
Section 38 (1) CCA.
- 26.
Allen, K.
- 27.
APC and Hivos.
- 28.
Nalwoga, L., 2014, p. 243.
- 29.
The Executive Agencies Act Cap 245 of 2010.
- 30.
World Bank. 2002.
- 31.
Mbote, K. 2013.
- 32.
This was through Act no. 43 of 1964.
- 33.
Amendment was done through Interim Constitution of Tanzania (amendment) Act of 1975.
- 34.
This is the current Constitution although several amendments have been made to it since its adoption to accommodate socio-political and economic changes.
- 35.
Heyns. C. 1999, p. 284.
- 36.
Widner, J., 2005.
- 37.
This was through Act No. 15 of 1984.
- 38.
Heyns. C., supra note 35, p. 282.
- 39.
See Article 16 (2) and 15 (2) of the Constitution of United Republic of Tanzania and Constitution of Revolutionary government of Zanzibar respectively.
- 40.
Act No. 33 of 1995.
- 41.
Parallel to this provision, the Constitution of Revolutionary Government of Zanzibar provides, under article 25A, procedure for enforcement of the basic rights and duties in Zanzibar.
- 42.
Section 10.
- 43.
Section 5.
- 44.
Section 4.
- 45.
section 13(2).
- 46.
In 1998 the Court of Appeal of Tanzania, stated the section 13 (2) of the Basic Rights and Duties Enforcement Act seek to circumscribe the powers of the High Court in dealing with issues of fundamental rights and duties. The Court departed from section 13 (2), despite their duty to give effect to plain words, The Court opined that it would be meaningless for the Courts to refrain from declaring laws or actions that goes against human rights as void or unconstitutional. Further, enforcing of this provision is a contravention to article 107A (2) (b) of the Constitution of United Republic of Tanzania. See also Adam Mwaibabila v. The Republic, High Court of Tanzania at Dar es salaam, Miscellaneous Criminal Case No. 1 of 1997, unreported; see also A.G v. Christopher Mtikila [1995] T.L.R 3.
- 47.
One such instance was featured in Arusha Times with headline ‘SIM card registration now viewed as spying move’. The Citizen also published a complaint letter from a reader titled, ‘Airtel are bothering me with unwanted text msgs’. The reader being annoyed by promotional text msgs said the telecom company is invading his privacy urging the company to provide an ‘opt in/opt-out’ choice to avoid annoying their customers (More on m-marketing article)…. Other publications on concerns over privacy breaches include ‘the Big Brother is Watching You’ in Daily news of 12th February 2009.
- 48.
Section 3.
- 49.
In the National Report on Tanzania Human Rights Institutions submitted to the Human Rights Council for Universal Periodic Review, the Commission is shown to have dealt mainly with maladministration issues than personal rights. [see UNGA., Reports of 2011].
- 50.
UNGA, National Report Submitted in according with para 15(a) of the Annex to the Human Rights Council Resolution 5/1- United Republic of Tanzania, Geneva, 3–14 October 2011, p. 5.
- 51.
UNGA, Summary Prepared by the Office of the High Commission for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council Resolution 5/1, Geneva, 3–14, 2011.
- 52.
Makulilo, A. B. 2012, p. 534.
- 53.
Siah Dominic Nyange v. Mwananchi Communications Ltd, Civil Case No. 155 of 2005, the Resident Magistrate Court of Dar es salaam at Kisutu (unreported).
- 54.
Conciliation Case No. 1 of 2005, 1997–2007, MCT 111. The Resident Magistrate Court of Dar es salaam at Kisutu (unreported): A complainant instituted a claim against Risasi newspaper for publishing her semi-nude photographs. The article concerned alleged that the complainant was involved in an adulterous act against her husband. The complainant who is a University lecturer was concerned of the photographs which were published as being invasive of her privacy and damaging to her reputation. The Council conclusion was that the allegations were false and in violation of privacy and code of ethics for media professionals. The Council explained further that, even to public figures, it is only acceptable to intrude into ones privacy when it is absolutely necessary for public interest. The Council then ordered the editor of the newspaper to retract the story, apologize to the complainants and pay the costs of the case incurred by the complainants. Sadly, the council decision and orders were ignored. Perhaps because the Council is only a voluntary, self-regulatory body without powers to issue legal binding decisions. It has only reconciliatory powers.
- 55.
URT, 2003; Paragraph 3.5.
- 56.
Act No. 3 of 2002.
- 57.
URT, Proposal for Enacting Cyber Laws in Tanzania, Dar es salaam, January 2013, p. 3.
- 58.
The Support for the Harmonisation of the ICT Policies in Sub-Saharan Africa project.
- 59.
ITU., 2013.
- 60.
Ministry of Communications, Science and Technology, 2013.
- 61.
Section 4 Act no. 11 of 1980 [RE:2002].
- 62.
The selected stakeholders includes the President’s Office – Planning Commission, the Ministry of Constitutional Affairs and Justice, the Ministry of Finance-Mainland, the Ministry of Finance Zanzibar, the Ministry of Science and Technology, the Ministry of Communication and Transportation, the Ministry of East African Community Cooperation, the Tanzania Bankers Associations (TBA), Commercial Banks, Mobile Network Operators (Vodacom, Airtel, Tigo, Zantel), Savings and Credit Cooperatives Union League of Tanzania (SCULLT), Tanzania Association of Micro Finance Institutions (TAMFI), The Fair Competition Commission (FCC), Tanzania Consumer Advocacy Society, Tanzania Revenue Authority (TRA), Tanzania Communication Regulatory Authority (TCRA), and the Financial Intelligence Unit. See the Ministry of Communications, Science and Technology Report, supra note 60.
- 63.
Section 2 (1) (3).
- 64.
See section 4.
- 65.
Section 82.
- 66.
Section 79 (2) (a) (b).
- 67.
Section 79 (1)(2).
- 68.
Section 82 required that public authority to process data only when such data is complete, accurate, up to date, relevant and not misleading.
- 69.
Section 85 (a) required public authority to impose reasonable security measures against loss, unauthorized access, use, modification, disclosure or misuse.
- 70.
Section 87 (1) allowing data subject to access/insect personal data and request for correction, or updating data to suit the purpose for which the data is held.
- 71.
Section 86.
- 72.
Section 81 (3).
- 73.
Section 100 (4).
- 74.
Section 105.
- 75.
Section 102.
- 76.
See further section 58 on the functions of the Media Standards Board.
- 77.
Ministry of Communications, Science and Technology, Supra note 60, p. 9.
- 78.
Section 5 (4).
- 79.
Section 4.
- 80.
Section 4 defines identifiable person as, ‘identifiable person” is an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity. To determine whether a person is identifiable, account should be taken of all the means reasonably likely to be used either by the controller or by any other person to identify the said person’.
- 81.
Section 4.
- 82.
Section 6.
- 83.
Section 9.
- 84.
Sections 10 and 11.
- 85.
Section 8.
- 86.
Sections 7 and 14.
- 87.
Sections 12 and 13.
- 88.
Section 15.
- 89.
Section 7 (2) (a) (b) (c).
- 90.
Section 9.
- 91.
Article 7 of the Directive states, ‘Member States shall provide that personal data may be processed only if: (a) the data subject has unambiguously given his consent….’. Again Recital 30 to the Directive states, ‘Whereas, in order to be lawful, the processing of personal data must in addition be carried out with the consent of the data subject….’
- 92.
Section 4 of the Draft Bill provides categorizes sensitive data into two categories; first category includes genetic data, data related to children, data related to offences, criminal sentences or security measure, biometric data as well as, if they are processed for what they reveal, personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, affiliation, trade-union membership, gender and data concerning health or sex life. The second category comprises of any personal data otherwise considered by Tanzanian law as presenting a major risk to the rights and interests of the data subject, in particular unlawful or arbitrary discrimination.
- 93.
Section 16 (2).
- 94.
Section 17.
- 95.
See section 4 (1) (2) and schedule II.
- 96.
Section 3 (1) and Schedule I.
- 97.
Regulation 6 (2).
- 98.
Regulation 7 (4).
- 99.
Section 15.
- 100.
Section 45.
- 101.
Section 14 (1) (2) and Schedule II.
- 102.
Section 14 (3).
- 103.
Bygrave, L. A., Vol. 6, No. 3, 1998, p. 253.
- 104.
Boshe, P., supra note 13, p. 4.
- 105.
Section 20.
- 106.
See sections 21 (1) (b) and 36 (1) (2).
- 107.
Sections 41, 21 (1) (p).
- 108.
Articles 18–19 EU Directive.
- 109.
Section 30 (3).
- 110.
Section 54 (3).
- 111.
Section 54 (5).
- 112.
Section 55 (2).
- 113.
Section 55 (5).
- 114.
00195/06/EN Working Paper 117.
- 115.
Sections 21 (1), 36 (1).
- 116.
Section 39 (1).
- 117.
Section 29 (2).
- 118.
Section 52 (2).
- 119.
Section 53 the Protection of Personal Data Bill 2014.
- 120.
Greenleaf, G., Vol. 2, No. 2 2012.
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Boshe, P. (2016). Data Privacy Law Reforms in Tanzania. In: Makulilo, A. (eds) African Data Privacy Laws. Law, Governance and Technology Series(), vol 33. Springer, Cham. https://doi.org/10.1007/978-3-319-47317-8_8
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