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03Mar

Litigating Internet Disruptions in Africa: Lessons from Sudan

Author CIPESA Posted on

By CIPESA Writer |

Internet disruptions continue to be registered across Africa, despite efforts by local and international actors to demonstrate to telecommunications regulators and governments that it is counterproductive to human rights, the economy and democracy to disrupt digital communication networks.

In 2021, up to 12 African countries experienced state-ordered internet disruptions. These included Burkina Faso (November), Chad (February), Republic of Congo (March), eSwatini (June), Ethiopia (various), Niger (February), Nigeria (June), Senegal (March), South Sudan (August), Sudan (June and October), Uganda (January), and Zambia (August).

As internet disruptions have become more prevalent on the continent, strategic litigation against governments that order themand intermediaries, such as telecom operators and internet service providers (ISPs), that effect them, has gained recognition as a push back tool. Strategic litigation can lead to significant legal precedents by publicly uncovering inequalities and highlighting human rights violations, raising awareness, and bringing about reforms in legislation, policy, and practice.

However, as this brief argues, there are several obstacles to the successful litigation of internet disruption cases, including weaknesses among groups and individuals that submit applications, and case backlogs that impede timely adjudication of cases. Indeed, few cases of strategic litigation on internet disruptions have succeeded. Cases in Cameroon, Chad, and Uganda have been dismissed. In Zimbabwe, while the court in 2019 declared that an internet shutdown ordered during protests that year was illegal, the case was decided on procedural grounds without addressing the litigants’ grounds, such as rights violations due to the shutdown.

A notable progressive decision was the June 2020 ruling by the court of justice of the Economic Community of West African States (ECOWAS), which held that an internet shutdown ordered by the Togolese government during protests in 2017 was unlawful and violated the applicant’s right to freedom of expression. The court also ordered the Togolese government to pay two million CFA francs (USD 3,400) compensation to the applicants for the violation of their rights.

Litigating against shutdowns in Sudan

Perhaps more than any other African country, Sudan has made legal precedents arising from litigation against disruptions. Of note too, is that Sudan is only perhaps rivalled by Ethiopia in the number of shutdowns it has experienced in the last three years. Since 2019, the north African country has experienced six internet disruptions.

Former president Omar al-Bashir’s regime initiated internet disruptions during public protests calling for his overthrow, but the government that succeeded him has been more prolific in utilising shutdowns in response to criticism and protests. The longest disruption was recorded in 2019 and lasted 37 days, during which the country lost an estimated USD 1.9 billion. Over 100 protesters were reportedly killed during the time the shutdown was initiated. The latest shutdown started on October 25, 2021 and lasted 25 days. It was instituted after the military declared a state of emergency in the country and seized control of the government. The shutdown was ended by a court order.

The 2019 and 2021 disruptions were both challenged in court. In June 2019, Sudanese lawyer Abdelazim Hassan lodged a lawsuit against the internet shutdown that had been instituted earlier that month. Within two weeks of filing the case, court on June 23 ordered his service provider, Zain, to restore his internet service, which the ISP promptly did. However, service was only restored for the litigant’s SIM card, with the block on access maintained for the rest of Zain’s customers. This was because Hassan had filed the case in a personal capacity as a Zain customer.

Hassan then launched a class action suit, and on July 9, 2019 the court ordered MTN, Sudani and Zain to restore services for all their customers. The telecom providers complied promptly. In September 2019, court ordered Sudani and MTN to apologise to customers for disrupting access to their networks at the behest of the military authorities in June of that year.

Another win for litigants against internet disruptions came on November 11, 2021, when the general court of Khartoum ordered ISPs to restore internet services to all subscribers in response to a lawsuit raised by the Sudanese Consumer Protection Organisation. On the same day, the Telecommunication and Post Regulatory Authority (TPRA) insisted on maintaining the shutdown despite the court order, citing “national security” and a “State of Emergency” as justification. The authority argued that it was necessary to maintain the shutdown as ordered by “the higher leadership”, provided the state of emergency and threats to national security persisted.

The TPRA decision declining to restore internet connectivity cited article 6(j) and article 7(1) and article 7(2)(a) of the law of TPRA of 2018. Article 6(j) provides that one of TPRA’s mandate is “protecting the national security and the higher interests of Sudan in the field of Telecommunication, Post and ICT”. Articles 7(1) and 7(2)(a) state that among the powers of the TPRA is to protect the state’s obligations and requirements in the field of national security and defence, and national, regional and international policies, in coordination with the competent authorities and licensees.

The judge dismissed that argument and issued an arrest warrant for the chief executive officers of the telecom companies for not restoring internet access. On November 18, 2021, the telecom companies restored internet access for all subscribers. The various restoration orders and arrest warrants bring to four the key decisions taken by courts in Sudan that held the regulator, ISPs and the government to account. Further, unlike the Togo case which was adjudicated in the aftermath of the disruption, in Sudan the court issued orders during the disruption and brought it to an end.

Lessons from Sudan’s experience

  • Leaders of telecom companies can and should be held individually liable for actions of their companies. In Sudan’s case, an arrest warrant against leaders of telecom companies yielded compliance with a restoration order in spite of the telecom regulator’s directive to maintain the shutdown.
  • Powers of telecom regulators, who often cite vague grounds of national security in ordering disruptions, can be challenged in court even if the regulators cite the law in ordering an internet disruption.
  • It is essential for courts of law to adjudicate swiftly on internet shutdown cases. In Sudan’s case, it took two weeks of filing a case for court to order restoration of service to the litigant. In another two weeks, the court had ordered service providers to restore services to all customers.
  • Litigation’s target actions and actors need to be well-defined. Sudan has lessons on litigation that benefits individuals and others that benefit groups of users. Further, the targets of litigation action are varied, to include the regulator, a particular ISP or all ISPs, and other state bodies.
  • Intermediaries have appeared helpless in the face of government orders and have acquiesced to government orders even when their lawfulness is questionable. Holding them liable for losses to customers, such as the order by the Sudanese court that they apologise to customers, could make them think twice before implementing shutdown directives.
02Mar

Call for Applications: Researching and Communicating Digital Rights in Africa

Author CIPESA Posted on

Call for Applications |

The Collaboration on International ICT Policy for East and Southern Africa (CIPESA) is calling for applications from individuals interested in learning, researching and communicating digital rights for a two-day virtual training.

The training seeks to equip participants with requisite skills as well as serve as a space to build a community of interdisciplinary digital rights researchers and advocates of digital rights in Africa.

The training, scheduled for 24-25 March, 2022 targets human rights defenders, academics, media, activists, technologists, and private sector actors from Lesotho, Mozambique, Tanzania, Uganda, Zambia, and Zimbabwe.

Topics to be covered will include:

  • Key issues shaping the digital rights landscape in Africa
  • Legal and policy frameworks governing digital rights in Africa.
  • Legal research for Internet policy and digital rights analysis
  • Survey methods in digital rights research
  • Monitoring surveillance, internet shutdowns and targeted malware
  • Strategic Communication, Visuals, and Using Research for Advocacy
  • Complete this  application form
  • Deadline for application is Friday, March 17, 2022
  • Successful applicants will be notified on Monday, March 21, 2022

CIPESA will cover participants’ internet connectivity costs.

21Feb

How the MTN Group Can Improve its Digital Human Rights Policy and Reporting

Author CIPESA Posted on

CIPESA Writer |

These proposals are made to the MTN Group in respect of its Digital Human Rights Policy. The proposals commend the positive elements of the Policy including the proclamation to respect the rights of users including in privacy, communication, access and sharing information in a free and responsible manner. The submission points to areas where the telecoms group can further improve its role in the protection of human rights.

The United Nations Guiding Principles on Business and Human Rights (UNGPs) enjoin corporate entities to act with due diligence to avoid infringements on human rights. They also provide ways through which adverse impacts on human rights can be addressed. It is therefore commendable that MTN developed a Digital Human Rights Policy and is open to commentary and suggestions for  strengthening its implementation. It is imperative that MTN takes proactive and consistent measures to comply with international human rights instruments such as the UNGPs, the leading global framework focused on business responsibility and accountability for human rights, which were unanimously endorsed by States at the United Nations in 2011.

Some of the Principles that MTN needs to pay close attention to include the following:

 Principle 11: Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.

Principle 13: The responsibility to respect human rights requires that business enterprises (a) Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Principle 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including:

(a) A policy commitment to meet their responsibility to respect human rights;

(b) A human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights;

(c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.

Principle 23:  In all contexts, business enterprises should:

  1. Comply with all applicable laws and respect internationally recognised human rights, wherever they operate;
  2. Seek ways to honour the principles of internationally recognised human rights when faced with conflicting requirements;
  3. Treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue wherever they operate.

Respect for digital rights is also stipulated in the Declaration of Principles on Freedom of Expression and Access to Information in Africa of 2019 which MTN needs to be cognisant of as part of efforts to ensure that it upholds respect for human rights.

CIPESA Proposals to the MTN Group
The MTN Group is a market leader in various service areas in several countries where it has operations. It is also a key employer and tax payer, and by facilitating the operations of other sectors,  MTN is a key contributor to the Gross Domestic Product (GDP) and to the health of the respective countries’ economies. It is crucial that the company develops and effects a robust Digital Human Rights Policy. Notably, MTN has trailed other operators, such as Orange, Millicom and Vodafone in rolling out a digital rights policy, and in transparency reporting.

While MTN last year issued its inaugural transparency report as part of its annual reporting, there are areas of concern for which we make the following recommendations:

  1. Provide more granular and disaggregated data about the number and nature of requests MTN receives from government agencies. At present, it is not clear how many of those requests relate to the release of users’ identifying data, how many were on metadata, and how many were on rendering support to communication monitoring and interception. Besides providing such a breakdown, MTN should also explain how many requests, if any, were not adhered to and why. Further, the report should indicate which particular government departments made the requests and whether all their requests were backed by a court order.
  2. Provide more nuanced information in reporting on the Digital Human Rights Policy to enable the contextualisation of country-specific explanations of government requests. In the last report, for instance, it is difficult to comprehend the information on government requests from Uganda. Given that Uganda is one of the countries where MTN has the largest number of subscribers, and given that country’s human rights record, the numbers are inexplicably few (12 in total) compared to Congo Brazzaville (1,600), eSwatini (3,661), Ghana (1,642), Guinea Conakry (6,480), Ivory Coast (4,215), Nigeria (4,751), Rwanda (602), South Africa (15,903), South Sudan (1,748), Sudan (5,105), and Zambia (8,294).
  3. In its transparency reporting on implementation of its Digital Human Rights Policy, MTN should reflect on the role of local laws and regulations in enabling or hampering the realisation of digital human rights. What elements are supportive and which ones are retrogressive? Which grey areas need clarification or call for repeal of laws?
  4. Include in the MTN transparency report a detailed and analytical section on network disruptions, as these are highly controversial and have wide-ranging economic, public service and human rights impacts yet they are becoming endemic in many of the countries where MTN operates. Further, MTN should include information on whether it received (or demanded – as we propose it should) written justifications from regulators (or government officials and bodies who issue shutdown orders) for the shutdown orders, including citation of the specific laws and provisions under which they are issued and the situation that warranted invoking the disruption. Additionally, the MTN Group should commit to scrutinise each demand, order or request and challenge them if they are not clear, specific, written, valid or do comply with national laws. It should also keep a written record of such demands, orders or requests.
  5. The MTN Policy and reporting should have a section and actions dedicated to inclusion of marginalised groups, a key area being enabling access and accessibility for persons with disabilities. Research conducted by CIPESA showed that, in countries where it operated, MTN had not taken any deliberate efforts to make its services more accessible to persons with disabilities. Beyond the additional section, MTN should appoint / designate Inclusion and Human Rights Ambassadors, and build the capacity of internal teams to facilitate engagement and compliance with digital accessibility obligations.
  6. MTN should take a proactive stance in making its Digital Human Rights Policy, including country-specific transparency information, well publicised among users, civil society and government officials in the respective countries. This will aid the growth of knowledge about MTN policies, inspire other companies to respect human rights, and draw feedback on how MTN can further improve its human rights policies and practices.
  7. MTN should develop relationships with, and have proactive and sustained engagements with civil society, consumer groups and governments on the implementation of its Digital Human Rights Policy. Such engagements should not only be post-mortem after-the-fact reviews of reports after their publication but should be continuous and feed into the annual reporting. This engagement should also include external experts and stakeholders in the conduct of regular human rights due diligence as envisaged by Principle 15 of the UNGPs. Such engagements could also relate to raising concern on the national laws, policies and measures which pose a risk to digital rights.
  8. As part of due diligence, MTN should periodically assess and examine the impact of its enforcement of its terms and service, policies and practices to ensure they do not pose risks to individual human rights, and the extent to which they comply with the UNGPs and are consistent with its Digital Human Rights Policy. Such assessments are essential to determining the right course of action when faced with government requests and other potential human rights harms.
  9. MTN should add to its Policy and make public its position on network disruptions and outline a clear policy and the procedures detailing how it handles information requests, interception assistance requests, and disruption orders from governments.
  10. Support initiatives that work to grow access, affordability, and secure use of digital technologies, and speak out about any licensing obligations and government practices that undermine digital rights.
  11. Join key platforms that collaboratively advance a free and open internet and respect for human rights in the telecommunications sector, such as the Global Network Initiative (GNI), endorse the GSMA Principles for Driving Digital Inclusion for Persons with Disabilities, and align with local actors on corporate accountability (such as the Uganda Consortium on Corporate Accountability).
  12. MTN should at a minimum, provide simple and clear terms of service, promptly notify users of decisions made affecting them, and provide accessible redress mechanisms and effective remedies.
  13. MTN should institutionalise its commitment to digital rights by putting in place a governance structure at the country level with oversight at a senior level, train its employees on the policy, and create awareness among its customers to ensure the realisation of the policy.

CIPESA stands ready to continue to engage with MTN on ways to improve and effect its Digital Human Rights Policy. We can be contacted at [email protected].

23Dec

Sudan’s Bad Laws, Internet Censorship and Repressed Civil Liberties

Author CIPESA Posted on

By Khattab Hamad and CIPESA Writer | 

On December 19, 2021, the third anniversary of the start of the uprising that overthrew former Sudanese strongman Omar al-Bashir, protests against the current military rulers rocked the capital Khartoum. Yet these demonstrations are only a small part of the north African country’s challenges, as it remains saddled with a slew of repressive laws that undermine civil liberties, with the digital civic space particularly under attack.

Sudan’s 2019 constitution grants citizens the right to privacy (article 55) and to free expression (article 57) and “the right to access the internet” (article 57(2)). As of December 2020, Sudan had 34.2 million mobile subscriptions while internet subscriptions stood at 13.7 million, representing a penetration of 31%. Sudan has the most affordable mobile internet in Africa and is ranked among the five least expensive countries for mobile internet globally.

Despite the constitutional guarantees and proliferation of technology, a new briefing paper by the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) shows that the state of digital rights remains precarious, with the cybercrimes law enabling the military rulers to harass dissenters and critics under the guise of fighting false information online. 

Frequent internet shutdowns remain a constant reminder that the government will go to great lengths to control access to and use of digital technologies for mobilisation. In the last three years, six internet disruptions have been recorded, mostly ordered to thwart public protests against bad governance. The disruptions have had significant economic implications and only ended following the intervention of the courts. 

The brief explores the repressive elements of media and technology-related laws and how they have been used to undermine freedom of expression, access to information and press freedom in the aftermath of al-Bashir’s overthrow. Overall, while there have been some improvements since al-Bashir’s ouster, the current government continues to institute regressive measures such as news website blockages and censorship. The latest power machinations that saw the military stage a coup on October 25, 2021 are making matters worse. 

The Sudanese Professionals’ Association (SPA), which spearheaded the uprising that overthrew al-Bashir, extensively used digital technologies to disseminate news about the uprising and to mobilise citizens to attend protests. The military rulers that succeeded Bashir seem to have realised the power of technology in mobilisation and embarked on continuous disruption of the internet, in addition to instituting other measures to curtail online organising, freedom of expression, and the free flow of information online.

Bashir’s dictatorship initiated internet disruptions in view of public protests calling for his overthrow, but the government that succeeded him has been more prolific in utilising shutdowns to try and shut off criticism and protests. 

The longest internet disruption in Sudan’s history was recorded in 2019 and lasted 37 days. During protests around the time the shutdown was initiated, more than 100 protesters were killed. The latest shutdown started on October 25, 2021 and lasted 25 days. It was instituted after Lt. Gen. Abdel Fattah al-Burhan seized control of the government. The shutdown was ended by a court order on November 11.

In July 2021, Sudanese authorities blocked more than 30 local news websites in the run up to protests demanding the resignation of the government, a move that severely undermined the right to expression and access to information.

Meanwhile, the cybercrime law of 2020 punishes publishing “lies” and “fake news” online with a heavy penalty of four years imprisonment, or flogging, or both. This law has been used by the military to silence activists and critical state officials. Even Lt. Gen. Burhan has this year invoked it to bring a suit against a prominent critic. The Press and Publications Law of 2009 equally has repressive provisions and was last August controversially invoked to suspendAlitibaha and Alsayha newspapers.

In 2020, Sudan issued the National security law amendment of 2020, article 25 of which leaves latitude for staff of intelligence agencies to violate citizens’ privacy by giving the Sudanese General Intelligence Service “the right to request information, data, documents or things from anyone to check it or take it” without a court order. Last October, military forces that staged a coup appeared to use this provision to search people’s phones in the streets to delete documentation of human rights violations perpetuated by security forces.

See the policy brief for further details on Sudan’s Bad Laws, Internet Censorship and Repressed Civil Liberties.

14Dec

CIPESA Job Opportunity: Technology Officer

Author CIPESA Posted on

Call for Applications |

Job title: Technology Officer

Location: Can be Remote, or based at CIPESA offices in Kampala

Application Deadline: December 27, 2021 at 18.00 East African Time (EAST)

Contract: Fixed-term contract (Jan. 1, 2022-Dec. 31, 2022), Full-time

Annual Salary: USD 50,000

About CIPESA CIPESA works to enable various African stakeholders to use ICT to improve governance and livelihoods. We do this through research and contributing to the availability of information on the policy, legislative and practice environment affecting ICT in Africa; advocacy and awareness raising on threats to free speech, access to information, privacy and security online; spurring multi-stakeholder conversations on protecting and promoting internet rights; and knowledge and skills development in digital rights policy engagement, digital literacy, digital security, social accountability and human rights monitoring.

Position overview An assessment we conducted in 2020 indicated a need to bolster capacity, organisational practices, and implementation of security and safety measures for CIPESA and for partner social justice organisations and their staff. Meanwhile, as part of digital resilience support efforts by CIPESA to other civil society groups, several organisations reported losing access to their digital assets, and experienced hacking and harassment on digital platforms. Overall, skills and protections are inadequate among many of our partner human rights defender (HRD) organisations. Accordingly, we need an individual to build CIPESA’s digital resilience and that of our partner organisations. The individual will primarily contribute to the limb of our work concerned with knowledge and skills development in digital literacy, digital security, and digital rights threats modelling – supporting both CIPESA and our network of partners including grantees of the Africa Digital Rights Fund (ADRF). The Technology Officer will contribute to our campaigns on safety and security; develop a pool of resources on secure use of communications (e.g. in censored environments for circumvention, and to beat network disruptions); develop curriculum and offer training on effective and secure use of digital communication (including for public communication, advocacy, remote working, virtual conferencing).

Must-Have Skills

  • Digital security skills (including developing policies, conducting organisational assessments, offering digital security training to partner organisations, conducting Training of Trainers).
  • Proficiency with anti-censorship or secure communications tools.
  • Infrastructure security – determining front and back-end features, user policies, multi-device optimisation.
  • Ability to develop training and capacity building resources (e.g. curriculum, toolkits).

Nice-to-Have SKills

  • Ability to contribute to analysis of laws, policies and technical measures that affect a free, secure and open internet.
  • Conducting open source investigations online.
  • Supporting digital advocacy campaigns.
  • Data visualisation.
  • Experience working with human rights defenders.

Level of experience Proficient with more than three years’ experience and requiring little-to-no guidance. They should possess at least a Bachelors degree in a relevant field.

Language English is a must. Knowledge of other languages widely spoken in the region, i.e. French and Swahili, would be useful.

Location: The position can be based in Kampala, Uganda, or remotely based, preferably in a time zone close to East African Standard Time (EAST) and Southern African Standard Time (SAST).

Start and end dates for the position January 1, 2022- December 31, 2022 with a possibility for renewal.

Salary US$50,000 per annum

Benefits Medical insurance, flexible hours and workplace, paid time off, out of station allowances and connection to a diverse group of happy staff and partners.

Application requirements Kindly send applications to [email protected] latest

December 27, 2021 at 18:00 East African Time (EAST), including a cover letter outlining how you fit the job requirements and your areas of expertise; a CV; two writing samples (or alternative samples of your work); names and contacts of two referees.

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