Africans Want Cross-Border Data Access Reform, But They Might Get Left Out

By Mailyn Fidler |
At the first session of the 2016 Forum on Internet Freedom in Africa, questions about cross-border data access—usually a dry topic—took center stage. The moderator and participants grilled representatives from Google and Facebook about the fairness of limited African access to African data held by U.S. companies, invoking the need for greater “internet sovereignty.” These remarks contrasted with one year ago, when I could find no one at this forum talking about African data access problems. Africans are now thinking about this issue, but the U.S. government is not really considering Africa as it debates the future of cross-border data requests. The standards outlined in the Obama administration’s draft proposal will be most easily met by favored U.S. partners; the United Kingdom appears to be first in line for a deal. Left-out countries will have few viable options for accessing data and may turn to damaging alternatives.
Background: A Year of MLAT Reform
The past year brought cross-border data access into the limelight. Countries have grown frustrated with the primary mechanism for accessing data held by U.S. tech companies: Mutual Legal Assistance Treaties (MLATs). As communications increasingly depend on U.S. tech companies, data needed for run-of-the-mill criminal investigations often resides in the United States, and countries turn to MLATs for access. MLATs with the United States generally require countries to meet U.S. legal standards when seeking data stored in the United States.
The MLAT process is usually slow and opaque, frustrating countries using it. It can take six weeks to ten months to process requests, depending on the request’s complexity and compliance with U.S. legal standards. Countries also take issue with U.S. law essentially dictating global practices. Countries have sought other troubling means of accessing data, with the UK seeking extraterritorial powers, Russia exploring data localization, and Brazil threatening companies with legal action.
Over the past year, efforts to reform cross-border data access have progressed. The United States and the United Kingdom have negotiated a proposed agreement, and the Department of Justice released draft legislation to make such agreements possible for approved countries. (The legislation is unlikely up for consideration until after the U.S. election.)
Africans Want Improved Data Access
Although Africa currently has low levels of internet penetration, it also has some of the highest internet use growth rates. Internet policy issues are increasingly important to Africans, and African internet policy wonks are joining the call for cross-border data access reform. Tefo Mohapi, the moderator of the opening panel, asked company representatives about building mirror datasets in African countries to allow African countries greater access to data held by U.S. companies, a form of data localization. “It all goes back to internet sovereignty,” Mohapi argued. “You operate with legal impunity without regard for state sovereignty.”
Participants continued to criticize the United States, adding that, “America has ceased to be the shining jewel of internet freedom” post-Snowden. African countries are often portrayed as untrustworthy and undeserving of data, even by the company representatives at this conference. Post-Snowden, African countries “want the discourse to expand beyond bad African governments, with the kind United States coming to save us.” African governments should have the same access as the now-untrustworthy United States, participants argued.
The company representatives responded to these criticisms by highlighting ongoing cross-border data access reform efforts. They emphasized that existing cross-border data access procedures are burdensome, and that they are in conversation with governments to change the process. They eagerly pointed out that ultimate responsibility for fixing this problem rests with governments, not companies.
Only two African countries, South Africa and Egypt, currently have MLATs with the United States. The proposed U.S. legislation could allow countries without MLATs to gain legal access to data (see Section 4), in theory addressing African concerns. In practice, however, it could be difficult for some African countries to meet the legislation’s legal standards. The United States must determine that a country has an independent judiciary, adequate substantial and procedural cyber laws, and adequate international human rights practices. The lack of adequate cyber laws alone would be enough to thwart most African data access agreements with the United States. More generally, the United States will likely not consider countries without MLATs a priority for new data access agreements. African countries’ general lack of political pull could considerably slow or reduce new African data access agreements.
Left Out of MLAT Reform: Potential Consequences
Cross-border data access reform is generally portrayed as the solution to the data localization laws, prosecutions of tech companies, and extraterritorial application of laws that countries have pursued when frustrated with MLATs. Most countries who have been turning to these methods, however, at least have MLATs, while African countries do not. African countries will likely be last in line for new data access agreements. Being shut out of both data access options means African countries will be twice marginalized.
African countries lacking an MLAT and a data access agreement with the United States will have few options for pursuing data. Countries can submit emergency requests to companies or ask for a joint investigation with the United States. African countries are already sensitive to concerns that they lack autonomy, and autonomy-constrained states are often most motivated to protect their autonomy. African countries might respond to their double marginalization by enacting data mirroring requirements, as the moderator at the forum suggested. Another forum participant suggested that African governments might increase internet shutdowns if they lack post-hoc data access, as a way of preemptive control. Ironically, U.S. efforts to allow countries greater access to data in the United States may result in African citizens having less access to the internet.
Cross-border data access should not be extended without qualification. Still, current reform plans seem likely to place African countries in a difficult position on a policy area that is increasingly important to them. If the United States really seeks to limit the proliferation of damaging data-access workarounds, it should think about what will happen to those who are left out of cross-border data access reform.
Mailyn Fidler is a fellow at the Berkman Klein Center for Internet and Society at Harvard University. You can follow her @mailynfidler. This article was first published at Council on Foreign Relations on October 26, 2016.

Uganda District Officials Trained on Access to Information Tool

By Moses Odokonyero |

Local government officials from the northern Uganda districts of Gulu, Amuru and Nwoya were recently trained in the use of the online freedom of information portal Ask Your Government (AYG).  The officials have said the platform, which is accessed at, will be useful in improving the flow and exchange of information between their districts and the public. The training organised by the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) in partnership with Northern Uganda Media Club (NUMEC) and was held August 31 in Gulu, Uganda. Participants at the training included Information Officers, Community Development Officers, Natural Resources Officers and an Assistant Chief Administrative Officer from the administrations of the three districts in the Acholi sub region.
The training aimed to promote the release of public information held by the state through the use of online tools but with a specific focus on the AYG portal. The portal was launched in 2014 by the Uganda Office of the Prime Minister in partnership with the Africa Freedom Information Centre (AFIC) and CIPESA and is aimed at supporting the Access to Information Act (2005) by enabling citizens to request and receive public information from government authorities.
“I was unaware of the website before the training. But I now know how to use it. I think it will be useful in the sharing of information between us in the local governments and the public,” said Anthony Onen, the Amuru District Population Officer. He added, “But we need more of our colleagues in other departments also trained on how to use the website … because these departments hold information that is important for the public.’’
Meanwhile, Santa Odwa, an Assistant Chief Administrative Officer (CAO) with the Gulu district local government, remarked: “The training on how to use this website will help improve sharing of information with the public but the public must also be sensitised on how to use it and what kind of information can be asked for and not asked for from us.”
The district officials were also taken through different laws in Uganda that govern citizens right to access information, particularly the Access to Information Act, 2005. The Act aims, among others, to promote transparency and accountability in organs of the state by providing the public with information, and to empower the public to scrutinise and participate in government decisions that affect them.
In the context of northern Uganda, transparency and accountability by public authorities and the involvement of the public in the scrutiny of the public organs is particularly important. In the last decade, the region has seen several post-conflict recovery projects funded by both the government of Uganda and donors aimed at rehabilitating the region following years of conflict.  Most of these projects have been implemented under the framework of the Peace, Recovery, and Development Programme (PRDP).
Due to a lack of public scrutiny and limited information available to the public about projects under the PRDP, substandard work and corruption impeded delivery of public services under PRDP. In 2012, the Auditor General uncovered the swindling of over 50 billion shillings (US$14.7 million) by officials, which may have been exacerbated by a lack of transparency in the operations of the programme.
In September, 2016, the government launched a UGX 233 billion (US$68.5 million) —Project Restoration of Livelihoods in Northern Uganda (PRELNOR). The seven-year project aims to improve livelihoods and construct community roads to link local communities in nine districts in the Acholi region to markets. This type of project underscores the continued need for the public to have access to information to empower them so they are in position to hold public organs and officials accountable.
According to the communications regulator, as of March 2016, there were approximately 21 million mobile phone subscriptions while 38.9% of Ugandans had access to the internet. These figures pose a great opportunity for citizens to find innovative ways to shape democratic governance, including to monitor government transparency. The AYG portal and other online platforms are increasingly gaining influence and becoming important channels to disseminate information, promote accountability and cause public debate around public service delivery issues in Uganda.
The training is part of activities by CIPESA, NUMEC and local partner radio stations to promote the right to information as a catalyst for service delivery monitoring in northern Uganda and in supported by the Indigo Trust.

Uganda Marks Decade of Access to Information Law

By Esther Nakkazi |
On September 28, 2015, the International Right to Know Day  was commemorated in Uganda at an event that also marked the 10th Anniversary of the enactment of the country’s Access to Information Act (ATIA).
During the celebrations held alongside the 2015 Forum on Internet Freedom in East Africa, stakeholders discussed experiences, lessons and challenges relating to ATIA, which was passed in 2005. The event also served as the launch of the 2015 report on the State of the Right to Information in Africa.
The celebrations were hosted by the Africa Freedom of Information Centre (AFIC) and the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) together with the Ministry of Information and National Guidance (MING) in the- Office of the Prime Minister (OPM).
Uganda was the first country in East Africa to adopt an access to information law. It was followed by Rwanda in 2013, making the two land-locked nations the only ones among the five member states of the East African Community (EAC) with access to information laws.
Implementation of the ATIA in Uganda has been slow, partly because  regulations to give effect to the law were passed in 2011, six years after the Act was enacted.
Proactive release of information remains low to-date, while the culture of secrecy and fear of reprisal remains prevalent. According to Gilbert Sendugwa, the Executive Director of  AFIC, “many Ugandans still do not understand what it means to have the Access to Information Act”. Sendugwa added that building awareness and demand for information among citizens as well as  creating responsiveness from public agencies, were required in order to improve implementation of the ATIA.
Silvia Birahwa from the Directorate of Information and National Guidance noted that as a result of the delay in passing ATIA’s regulations, there were different levels of compliance by government ministries, departments and agencies (MDAs). Some government officials were compliant while others made little or no responses to requests for information, she said.
Birahwa said Information officers of various MDAs reported a lack of capacity, including limited access to the internet and a lack of interest amongst staff, as barriers to the release of information. Accordingly, the government communication strategy is aimed to better equip Chief Information Officers within the MDAs to better respond to information requests and to aid the progress of the ATIA.
The Ministry of Lands, Housing and Urban Development (MLHUD) received an award for their consistent and prompt release of information using the Ask Your Government (  website. Dennis Obbo, the Principal Information Scientist at MLHUD, received the award on behalf of the ministry.
In order to encourage more citizens to exercise their right to information, in August last year, the OPM through the Ministry of Information and in partnership with AFIC and CIPESA launched to enable citizens to directly request public agencies information.

Promoting Access to Information and Digital Safety Awareness among Tanzanian Journalists For Upcoming Elections

By Gasirigwa G.S |
As the 25 October general election draws closer in Tanzania, journalists have been urged to be impartial in their reporting. Many have also taken steps to ensure that their digital communication is not compromised particularly when seeking information during the electioneering period.
In August, the Media Institute of Southern Africa (MISA) Tanzania Chapter, in partnership with the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) organized two training workshops on access to information with special focus on digital safety for Media practitioners in Tanzania. A total of 40 journalists (13 women and 27 men) from Geita, Mara, Mwanza and Dar es Salaam received practical digital safety skills against a backdrop of discussion on the Access to Information and Media Services bills as well as the recently passed Cybercrime Act 2015 and Statistics Act, also of 2015..
The objective of the workshops was to enhance knowledge and skills of selected media personnel in various outlets in order to enable them to access relevant information, cover and report  factually and responsibly during the 2015 general election.
Participants most of whom had no prior knowledge of what the proposed and enacted laws entailed had the chance to discuss and deliberate on how safely they can cover the ongoing campaigns and the October elections without falling on the wrong side of the laws.
In February, the government of Tanzania attempted to table and pass the Access to Information (ATI) and Media Services bills under certificate of urgency. The attempt was blocked by media and access to information activists under the Coalition of Right to Information (CORI) with support from Members of Parliament.  Tabling the bills under certificate of urgency meant that they would be passed into law without stakeholders review and input. CORI argued that the bills were draconian and shouldn’t be passed without earnest consultations with stakeholders.
The proposed access to information bill contains a number of provisions which are contrary to the country’s 1977 Constitution. Section 2 (4) of the bill states: “Nothing in this Act shall limit or otherwise restrict any other legislative requirement for a public authority to disclose information.” Under this provision public authorities could continue to withhold information despite the fact that the law is aimed at promoting information availability in the public domain.
The Bill further exempts the disclosure of certain information, placing vague restrictions on information which may: undermine national security; is likely to impede due process of law or endanger safety of life of any person; undermine lawful investigations being conducted by law enforcements agencies; and “significantly” undermine the operations of Tanzania Broadcasting Corporation (Section 6).
Other proposed provisions carry even wider violation of right to information. For example, Section 18(1) of the Bill states that “Information obtained by a person requesting from the information holder shall not be for public use”. Any person who contravenes this provision commits an offence and shall, upon conviction, be liable to imprisonment for a term not less than five years.
In a separate move, the government tabled and passed into law the Cybercrime Act and Statistics Act under certificates of urgency, making them operational as of September 1, 2015.
For its part, the Cybercrimes Act among many other things, criminalizes and penalizes the publication of “information, data or facts presented in a picture, texts, symbol or any other form in a computer system where such information, data or fact is false, deceptive, misleading or inaccurate”. Offenders are liable for at least six-months imprisonment and/or a fine of Tanzania Shillings (TZS)3 million (USD 1,380). The law also provides for at least three years in prison and/or a fine of at least TZS 10 million (USD 4,600) for publication of materials that incite, deny, minimize or justify acts that constitute genocide or crimes against humanity.
Regarding the initiation of transmission or re-transmission of unsolicited messages, the Cybercrimes Act provides for at least one year in prison and/or a fine of TZS3 million (USD 1,380) or three times the value of any undue advantage gained, whichever is higher.
The workshops were eye openers for many who stated they were not aware that several programmes and news items being run could potentially violate new laws. An editor expressed concern on content previously published which might be in contravention to the Cybercrimes and Statistics Acts and “could get us into trouble with the law.”
Moreover, the government through Tanzania Communication Regulatory Authority (TCRA) introduced the Subsidiary Legislation known as the political broadcasting services Code of 2015. The Code was gazetted in June this year and communicated to media owners in a seminar organized by TCRA. The code, which is not available in softcopy has serious implications on electronic media (Radio, TV and Social Media) during reporting of election issues.
The workshops served as opportunities to familiarise journalists with the recently passed laws and tabled bills. During the proceedings, journalists were also reminded that although the Media Services and Access to Information bills were not passed by parliament, the Newspaper Act of 1976 remained operational and media practitioners remain bound by it.
“I didn’t not know about this Broadcasting Code, TCRA summoned us bloggers to a meeting and made us sign a document that we were told was just guidelines for media and online users. They never told us we were signing our own jail warrants”, added Geofrey Adroph, photographer and blogger.
In light of the new and existing laws, the workshops and interactions made participants revisit ethical considerations and reporting guidelines in the run up to, during and after the elections.

Advancing Open Data Implementation in Africa

By Ashnah Kalemera |
The push for open data that contributes to government transparency and accountability in service delivery and promotes citizens’ right to information and innovation in the Information and Communication Technology (ICT) sector continues to gain prominence globally. Indeed, open data has been recognised as a key pillar of sustainable development. However, implementation of open data by African governments, civil society and the private sector is mostly in its infant stages, with some countries recording more success than others.
The demand and supply of open data in Africa is faced with numerous challenges including lack of complete data, authoritarian regimes, multiple fragmented actors, limited technical skills and capacity, inadequate infrastructure and low literacy rates.
On September 4-5, 2015, the government of Tanzania and the World Bank hosted the first Open Data Conference in Africa, that brought together the emerging open data community in Africa to showcase innovations and discuss opportunities and challenges to open data implementation.
Country representatives from Kenya, Tanzania, Burkina Faso, Rwanda, Ghana, Sierra Leone, Liberia, and Ethiopia, among others shared experiences of national open data initiatives aimed at improved governance and better service delivery in the key sectors of education, water, health and transport. They highlighted the policy, financing, supply, demand, technology, and institutions driving these initiatives.
From civil society and the private sector, the innovations and practical applications showcased included Open Street Map Data in Dar es Salaam, Open Schools Kenya, open data for agriculture and nutrition, complex data visualized in Nigeria, open data for citizen engagement, energy and extractives among others.
Bella Bird, World Bank Country Director for Tanzania, told the conference that data is no longer for statisticians but governments that want to measure progress and democratic achievements. According to Ms. Bird, open data was “nowhere more relevant” than in Africa which is experiencing the fastest changes in population, urbanisation, and economic development compared to other continents.
She said that advancing open data in Africa was not just about making data accessible but making good data available and user friendly. “Without [data] evidence, planning and strategy is difficult and less likely to succeed,” she said.
The World Bank has supported over 30 countries around the world (including some in Africa) in the evaluation, design and implementation of open data initiatives. But few African countries are leveraging the potential of open data compared to their global counterparts.
In 2011, the Open Government Partnership (OGP) was launched as a multilateral initiative “to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance”. To-date, only eight of the continent’s 54 countries have joined the partnership that works to increase government openness in budget transparency, access to information, asset disclosure by politicians and officials, and citizen engagement. The OGP has 58 other member states across the world.
Meanwhile, in 2014, the Global Open Data Index which measures and benchmarks the openness of data in 97 countries around the world ranked South Africa highest among 19 African countries surveyed, at position 36. Burkina Faso followed in 59th position and Senegal in 63rd. Among the lowest ranked countries were Guinea (97), Mali (96) and Sierra Leone (94).
Figure 1: African Countries 2014 Open Data Index ranking (Source: Global Open Data Index)
However, as noted by Frannie Leautier, a managing partner with the Fezembat Group in France argued that it did not matter where African countries are ranked in the index or the partnerships they belong to. Focus should be on what stakeholders in each country can do with open data to improve livelihoods.
South Africa’s Statistician General, Pali Lehohla, noted that in translating open data into valuable outcomes in Africa, the issue of intellectual property should not be ignored. He said intellectual property particularly around algorithms used in data analysis must also be open for the full potential of open data to be realised in Africa.
Meanwhile, the World Wide Web Foundation’s Nnenna Nwakanma suggested that open data use on the continent should not only be about the accountability of governments but also about giving citizens the opportunity to plan, invest, and gain financially to better their lives.
“The problem in Africa is not money itself but how best to invest money. If we have the right information and data, the one billion citizens will start investing accordingly,” she said.
Participants at the conference which was held in Dar es Salaam widely recognised the key role of national statistics agencies in actualising the potential and impact of data. They also recognised the need to set up the right infrastructure and skills building to fill the existing gaps. Civil registration for birth, deaths, and marriages was recommended to ensure vital statistics are not always based on estimates. Other recommendations included advancing partnerships between the various actors to share experiences and avoid reinventing the wheel.
To read more about the conference proceedings, see #africaopendata.