How the Covid-19 Fight Has Hurt Digital Rights in East Africa

By Paul Kimumwe |

The fight against the coronavirus (Covid-19) pandemic in Kenya, Tanzania, and Uganda has dealt a blow to the promotion and preservation of human rights in the region. The outbreak of Covid-19 could not have come at a worse time, as the countries were preparing for their respective general elections (October 2020 for Tanzania, January 2021 for  Uganda, and a potential referendum in 2021 and the August 2022 elections in Kenya).

Even before confirmation of Covid-19 cases in the region, the three East African countries had instituted Covid-19 mitigation measures, including the adoption of statutory instruments which quickly suspended constitutional guarantees without reasonable justification or meaningful stakeholder consultation. The measures were accompanied with a problematic onslaught on the media, the political opposition and ordinary citizens, which undermined the enjoyment of the rights to freedom of expression, assembly and association, and the right to access a variety of news and information, which was critical to informed decision-making particularly during electoral processes.

On March 18, 2020, Uganda instituted its first set of measures that included the closure of schools and a ban on all political, religious, and social gatherings. A week after the March 22, 2020 confirmation of the first case in the country, the Ministry of Health issued the Public Health (Control of Covid-19) (No. 2) Rules, 2020 that introduced further restrictions including a dusk-to-dawn curfew, the closure of institutions of learning and places of worship, the suspension of public gatherings, a ban on public transport and the closure of the country’s borders and the international airport to passenger traffic.

In Kenya, the government introduced several measures to curb the spread of Covid-19 that included the suspension of public gatherings and other social distancing requirements; limitation of travel into and outside the country; imposition of a dusk-to-dawn curfew under the Public Order Act, 2003; as well as inter-county travel bans between the capital, Nairobi, and three other high-risk counties of Mombasa, Kilifi and Kwale.

A day after the government confirmed its first coronavirus case, Tanzania introduced a series of measures that included the closure of schools and the suspension of sports events on March 17, 2020. Additional directives, including quarantining travelers from countries with confirmed cases of COVID-19 at the travelers’ own cost, were announced by President Pombe Magufuli.

While many of the restrictions such as the closure of international borders, schools and churches and prohibitions on public gatherings have since been relaxed, the long-term impact of these and other restrictions persist.

In this brief, the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) researched Covid-19 related censorship and surveillance practices and related regulatory responses in Kenya, Tanzania and Uganda that affected people’s’ digital rights, including the right to freedom of expression, access to information, and privacy. It shows that the different measures adopted by the three countries, including enactment and enforcement of repressive laws on misinformation/fake news, as well as intimidation, arrests, detentions, and suspension of media operations, have led to an erosion of civil liberties online and offline.

The brief recommends the amendment of all the Covid-19 legislation that restricts freedoms to bring it into conformity with international standards on the right to privacy, data collection and processing as well as freedom of expression and access to information. Further, it urges governments to improve the affordability of the internet by more citizens, ensure the respect of citizens’ rights; and be transparent, and accountable in the conduct of Covid-19 related data collection and surveillance.

Register for The Data Privacy Summit 2021

Online Event |

The Collaboration on International ICT Policy for East and Southern Africa (CIPESA) alongside Article 19, Facebook, FGI Benin are pleased to host the Data Privacy Summit 2021 (#DataPrivacySummit21) in commemoration of Data Privacy Day.

Data Privacy Day was launched by the Committee of Ministers of the Council of Europe on 26th April 2006, to be celebrated each year on 28th January; the anniversary of the signing of Convention 108 – the first legally binding international treaty on privacy and data protection. Since then, this day has come to represent international efforts to empower individuals and businesses to respect privacy, safeguard data and build trust.

Data Privacy Summit 2021, thus aims to raise awareness on contemporary privacy and data protection issues in Africa and the Middle East, as well as to inspire individuals, policymakers, organisations to take action and adopt best practices that protect privacy while promoting innovation in a manner that mitigates risks in the increasing use of digital technologies.

To see the lineup of sessions and speakers, register here.

How Uganda’s Fight Against Covid-19 is Hurting Digital Rights Amidst a Looming Election

By Apolo Kakaire |

The outbreak of coronavirus disease (Covid-19) could not have come at a worse time for Uganda, as the country prepares for what is being referred to as a “scientific election”, where physical rallies are severely restricted, with candidates advised to rely more on the media to canvass support.

Various measures adopted by the government to fight Covid-19 are hampering the enjoyment of various rights and freedoms, and the conduct of the election. The onslaught on the media, the political opposition and social media users has undermined citizens’ right to freely express themselves, and to access to a variety of news and information, which is critical to their informed decision making during this electoral process.

The right of individuals to peaceful assembly and association is linked to their ability to freely express their opinions, and to share and have access to information, both offline and online. However, in response to the pandemic, the government, adopted a series of statutory instruments which quickly suspended constitutional guarantees without reasonable justification or meaningful stakeholder consultation.

Uganda instituted the first set of measures to contain the spread of Covid-19 on March 18, 2020, which included the closure of schools and a ban on all political, religious and social gatherings. A week after the March 22, 2020 confirmation of the first case in the country, the ministry of health issued The Public Health (Control of COVID-19) (No. 2) Rules, 2020 that introduced further restrictions including a dusk-to-dawn curfew, the closure of institutions of learning and places of worship, the suspension of public gatherings, a ban on public transport and the closure of the country’s borders and international airport to passenger traffic.

Many of these measures, including the opening of the country’s international borders, easing of public transport, and allowing public gatherings of up to 200 people, have since been relaxed. However, in the run-up to the January 14, 2021 elections the state has  continued to invoke the repressive Covid-19-related laws and regulations, as well as those predating the pandemic, as a tool to intimidate, arrest, and detain persons, including critics and political opponents. Consequently, it is increasingly looking like Covid-19 has handed the government a ready excuse to trample citizens’ digital rights and hinder civic engagement and mobilisation by its opponents.

The January elections will pit the incumbent president Yoweri Museveni, who is seeking to extend his 35-year rule, against 10 other candidates.  

Curbing Freedom of Expression

Like many other countries, Uganda was hit by cases of Covid-19 related misinformation, and as early as February 2020, the Ministry of Health had moved to dispel reports that cases of Covid-19 had been confirmed in the country.

In March. the communication regulator, Uganda Communication Commission (UCC), issued a public advisory notice against individuals misusing digital platforms to publish, distribute and forward false, unverified, or misleading stories and reports. The regulator warned that any suspects would be prosecuted for offending the Computer Misuse Act 2011, the Data Protection and Privacy Act 2019 and Section 171 of the Penal Code Act Cap 120.

Also in March 2020, the UCC wrote to three media houses – BBS, NTV, and Spark TV – demanding that they show cause why regulatory sanctions should not be taken against them. The regulator accused the media houses of airing content that had the potential “to confuse, divert and mislead unsuspecting members of the public against complying with the guidelines issued by Government authorities on the coronavirus.”

In April 2020, Adam Obec of the Kampala Capital City Authority (KCCA) was arrested on allegations of “spreading false information regarding coronavirus.” According to the police, Obec had circulated information on social media claiming that Uganda had recorded its first Covid-19 death, an action that had purportedly triggered fear and panic in the public and undermined government’s efforts to contain the pandemic.

In the same month, Pastor Augustine Yiga (now deceased) of Revival Church in Kampala was arrested and charged for uttering false information and spreading harmful propaganda in relation to Covid-19. He was later released on a non-cash bail pending trial.

On April 21, the Ugandan military arrested and detained Kakwenza Rukirabashaija, a writer, over an April 6 Facebook post that allegedly urged the public not to comply with  Covid-19 public health guidelines. The post suggested that the president needed to “be serious” about enforcing directives, and that “if the country plunges into the abyss of famine … never blame Coronavirus but yourself and [your] bigoted methods.” The author was charged with committing an act likely to spread a disease, contrary to section 171 of the Penal Code Act and transferred to civil detention on remand. He was later released on a non-cash bail.

Increased Surveillance and Processing of Personal Data

The on-set of Covid-19 led to an increase in incidents of personal data collection and processing as the government traced suspected Covid-19 patients and their contacts. As part of efforts to Covid-19, the government passed various statutory instruments that can be interpreted to be the legal basis for contact tracing. These included the Public Health (Control of COVID-19) Rules, 2020 under the Public Health Act, which gave powers to a medical officer or a health inspector to enter any premises in order to search for any cases of Covid-19 or inquire whether there is or has been on the premises, any cases of Covid-19. Additionally, section 5 of the rules empowers the medical officer to order the quarantine or isolation of all contacts of the suspected Covid-19 patients.

Also introduced was the Public Health (Prevention of COVID-19) (Requirements and Conditions of Entry into Uganda) Order, 2020 that allows a medical officer to examine for Covid–19, any person arriving in Uganda. The medical officer may board any vehicle, aircraft or vessel arriving in Uganda and examine any person on board.

In the same month, the Ministry of Health also issued additional Guidelines on Quarantine of Individuals in the context of Covid-19 in Uganda, which required all quarantined persons to provide their name, physical address, and telephone contact to the healthy ministry monitoring team.

Earlier in March 2020, the government reportedly  struggled to trace and contact returnees for testing and possible quarantine, as many of them had chosen not to present themselves to the authorities. However, the ministry of health said that it was in possession of the contact details of all returnees, which it was using to trace them.

However, in what appears to be a breach of individual privacy, there were reports of some Ugandans using online platforms, mainly Facebook and WhatsApp to share personal contact details of the suspected returnees, with threats of further exposure should they fail to report for testing.

It remains unclear how the public got access to the personal details of the suspected individual returnees that led to some targeted physical attack and threats of eviction and online exposure that breached the right to personal privacy of these individuals as provided for in the Data Protection and Privacy Act, 2019.

Clampdown on Opposition Rallies and Meetings

In October 2020, Uganda’s Electoral Commission (EC) issued campaign guidelines requiring candidates to ensure that their rallies do not exceed 70 attendees and to ensure they maintain a two metres distance, so as to contain the spread of the coronavirus. The number was later revised to a maximum of 200 people. Contestants were also encouraged to use the media as a primary campaign channel.

However, it has proved a challenge for contestants to adhere to the electoral body’s guidelines on the numbers of attendees. Worse still is that security agents have been accused of breaking up opposition meetings and rallies with less numbers than those prescribed in the guidelines, while turning a blind eye to the ruling National Resistance Movement (NRM) party, whose candidates’ rallies and processions often gather more than 200 people.

On November 18, 2020, the National Unity Platform (NUP) presidential candidate Robert Kyagulanyi a.k.a. Bobi Wine was arrested in Luuka District where he was scheduled to address his supporters. Police accused him of having more than 200 attendees. In ensuing protests, mostly in the capital Kampala, security forces shot more than 50 people and arrested over 800 people.

Under the guise of controlling the spread of the virus, opposition presidential candidates are regularly stopped from accessing major towns and are forced to  abandon their plans of campaigning in some districts, or  only hold meetings in low population centres with limited voter numbers. That leaves the mass media as their main means of spreading their messages and reaching voters.

As part of efforts to discourage mass rallies, the UCC in November 2020 issued the Guidelines on the Use of Media during the General Elections and Campaigns 2021. According to the guidelines, all media stations shall not discriminate against any political party or candidate, or subject any political party or candidate to any prejudice in the broadcasting of political adverts. Additionally, all state-owned media stations, in accordance with the Presidential Elections Act, 2005, and the Parliamentary Elections Act, are required to schedule meetings with nominated presidential candidates, parliamentary candidates and other political contenders or their representatives to agree on the schedule or timetable for campaigns, and how it can be shared equitably among the contenders.

On the other hand, all private media stations are required to ensure that all their advertising space and air time is not bought out by one party. Moreover, all political parties, organisations and candidates must be given an opportunity to purchase airtime for political adverts or campaigning where they so request.

However, for several contestants, attempts to use broadcast media, especially radio talk-shows, have been frustrated as they have been denied access. In Soroti district, the FDC presidential candidate, Patrick Oboi Amuriat, was denied access to any of the radio stations. Amuriat said that radio stations including “Etop, Delta and Kyoga Veritas where he had booked for talk shows declined to host him citing intimidation from (the) government.” In Kotido, Amuriat was also denied airtime in any of the radio stations while in Agago, a radio station which was hosting him was switched off air for about 30 minutes during the show.

Kyagulanyi, another presidential candidate, was on November 25, 2020 told to leave Spice FM radio premises in Hoima City, where he was set to address residents of that area, a few minutes after his arrival. Last August, Kyagulanyi dragged the government to court for blocking his radio talk shows.

These patterns are not new. Dr. Kiiza Besigye, who contested against Museveni for the presidency in the last four presidential elections, was on multiple occasions denied access to radio airtime, with the radio stations often warned  not to host him.

In 2016, the state broadcaster UBC was found by the Supreme Court, in the presidential election petition  by then presidential candidate Amama Mbabazi, to have flouted Article 67(3) of the Constitution and Section 24(1) of the Presidential Elections Act. The provisions require that all presidential candidates be given equal time and space on state-owned media to present their programmes to the people.

Impact on Citizen Democratic Participation

With just a few weeks left until the January 14 election), the government of Uganda should restrain itself from further affronts on civil liberties, especially the rights to freedom of expression, access to information, assembly and association, the lifeblood of any democratic society. Efforts to combat and contain the pandemic should not be used as an excuse or tool to stifle democracy.

Regulating Freedom of Expression Amidst the Covid-19 Response in South Africa

By Tusi Fokane |

The global infodemic accelerated in part by the Covid-19 pandemic has raised important debates on how best to respond to the proliferation of false and misleading information online. The Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression addressed the critical issue of misinformation, noting that some actions undertaken by various governments to contain the spread of the coronavirus may fail to meet the test of legality, necessity and proportionality. The report cautioned against the introduction of vague and overly-broad laws to combat misinformation, proposing instead that governments provide reliable information to citizens.

Six months after a National State of Disaster was declared in South Africa, the government on September 16, 2020 eased the lockdown, removing “as many of the remaining restrictions on economic and social activity as it is reasonably safe to do.” One notable restriction still in place  is the criminalisation of the publication of “any statement through any medium including social media, with the intent to deceive,” pursuant to Regulation 11(5), under the Disaster Management Act, which was issued in March 2020. The offense is punishable with an unspecified fine, imprisonment of up to six months, or both.

The regulations were followed by directives from the Minister of Communications and Digital Technologies compelling communications service providers to “remove Covid-19 related fake news from their platforms immediately after it is identified as such”. Within days of its passing, several individuals were arrested for spreading false information about Covid-19. In one case relating to a Covid-19 interview, the Broadcasting Complaints Commission of South Africa fined two broadcasters South African Rand 10,000 (USD 660).

Whilst various activists initially raised their voices in support of   governments’ efforts to halt the spread of the disease, they also cautioned against overly restrictive conditions that limit human rights including  freedom of expression, access to information and public accountability.

Civil Society Reactions to the Regulations on “Fake News”

The debate about the impact of South Africa’s Covid-19 regulations on  free speech came into focus when a leading academic and member of the Covid-19 Ministerial Advisory Committee, Professor Glenda Gray made public comments about the effectiveness of the lockdown restrictions. The Minister of Health declared the academic’s views false and misleading. This prompted leading academics to conclude that “the government has repeatedly stressed that its primary goal in managing the pandemic is to save lives. But it needn’t kill speech to save lives.”

In April 2020, the Right2Know Campaign (R2K) wrote to the National Coronavirus Command Council regarding the “fake news” provisions of lockdown regulations. Whilst noting the potentially deleterious effects of false information, R2K made  proposals to amend the regulations to ensure the protection of the right to freedom of expression. Among the amendments proposed by R2K was the definition of “fake news”  to be clarified as the “dissemination of false information with the intention to deceive…”

Further, R2K noted that the “criminalisation of speech inevitably has a chilling effect on the right to freedom of expression.” It proposed administrative penalties, rather than criminal sanctions, for disseminating false information. Another key proposal was that the government should make provision for relevant defences that an offender could rely on when faced with a charge of spreading false information.

Other critics, such as the Free Market Foundation (FMF), rejected the fake news regulations outright, calling on the government to rely on existing common law and constitutional provisions rather than attempting to regulate expression through the introduction of additional regulations. The FMF argued that, “there is simply too much information circulating in society for any centralised body to be entrusted with deciding its accuracy. Instead, we must rely on the decentralised gatekeeping network known as ‘the market’ to assist us in judging what is true and what is false.”

Meanwhile, Media Monitoring Africa (MMA) stated in a statement in March that the regulations were narrowly defined, and proposed a high standard on the state to prove “intention to deceive.” The group  said the real challenge would be the government’s ability to implement and enforce the fake news regulations.

None of these proposals were taken into account and the current regulations remain in force under the extension of the state of national disaster, imposing undue restrictions on the right to freedom of expression.

Enforcement of the “Fake News” Regulations

As part of measures to enforce the regulations, the government established a multi-stakeholder monitoring and evaluation platform and Digital Complaints Committee to monitor and respond to misinformation and fake news related to Covid-19.  Then Acting Communications and Digital Technologies Minister, Jackson Mthembu, stated that the platform aims to assess misinformation complaints, take down fake news items, and submit cases to the police for investigation and prosecution.

According to MMA Director, William Bird, the task of combating fake news should not be left to government and platform providers. Since 2019, MMA has maintained Real411, an independent digital platform for reporting suspected misinformations. Thandi Smith, MMA’s Head of Programmes, explains that complaints are assessed by a team of three voluntary reviewers with legal, technology, and media expertise. The reviewers then make a recommendation to a five-member secretariat based on a set of assessment criteria.

Upon completion of an investigation, the secretariat recommends a range of actions which may include issuing a take-down notice, fact-checking verification, and publishing a counter-narrative infographic. Bird said the secretariat reports hate speech cases to the South African Human Rights Commission for further action. Extreme cases of misinformation would be reported to the South African police, but to-date no complaints warranting police investigation have been received. Complaints about the media and editorial content are referred to the relevant regulatory authority. Smith noted that there is an appeal process headed up by a retired Constitutional Court judge.

 Assessing the Effectiveness of Criminalising Misinformation

It may be difficult to assess the effectiveness of fake news regulations on Covid-19 given the rapid spread of information in the digital environment. This raises philosophical and policy issues on whether free expression online should even be regulated at all, and by whom.

Indeed, Ghalib Galant, Deputy National Coordinator & Head of Advocacy for the R2K Campaign, maintains that the challenge with South Africa’s Covid-19 misinformation regulatory framework is that government’s response was to criminalise behaviour rather than focusing on educating and supporting South Africans to understand the impact of the pandemic. As he puts it, “Government policed people, rather than healing a health pandemic.”

Galant suggested that administrative penalties may be a better deterrent than criminal sanctions. This would ensure the protection of the right to freedom of expression whilst the country debates whether or not new rules are needed for regulating false information, or a “re-imagining of section 16 of the Constitution.” Galant suggests that perhaps this could be within the purview of a statutory institution such as the Information Regulator.

Section 16(1) of South Africa’s Constitution states that “Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.” Section 16(2) restricts speech related “to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

The head of legal, policy and research at the FMF, Martin van Staden, said fake news regulations have not been effective as they are difficult to enforce. From his perspective, any prohibition on freedom of expression beyond Section 16(2) Constitutional limitations would amount to censorship. He stated: “The Constitution is unequivocal about the scope of the right to freedom of expression, and it does not include a provision that only ‘factual’ expression is allowed. This means that misinformation is constitutionally protected expression in South Africa, and must be left alone.”

He recommends that the government should instead provide accurate and reliable information, and develop a strong counter-narrative strategy, which would enable South African citizens to reach their own conclusions on the veracity of any information they receive.

Van Staden cautioned against the state’s “paternalism” and future attempts to introduce legislation aimed at ensuring the truthfulness of information that is disseminated. “The right to freedom of expression is meant to protect the uncomfortable, the unpopular, and the offensive,” he said.

Threats to Freedom of Expression Beyond Covid-19 Regulations

There is uncertainty on whether the National State of Disaster will be extended again beyond December 15, 2020, given concerns of a second wave of Covid-19 infections in the country. Freedom of expression experts have warned that whilst fake news may be decriminalised by a declaration of the end of the State of Disaster,  the government may attempt to use impending legislation to further regulate free speech online.

For example, in July 2020, the Minister of Communications and Digital Technologies released a call for comments on the gazetted draft Film and Publications amendment regulations, (commonly known as the internet censorship bill), which introduces a requirement for pre-classification of online content with the Film and Publications Board.

Another key piece of legislation in the pipeline is the Prevention and Combating of Hate Crimes and Hate Speech Bill, which lapsed and is currently on hold, pending judgment on the Qwelane hate speech Constitutional Court challenge which was heard on  September 22, 2020.

Qwelane contends that the prohibited grounds listed in section 10(1) of the Promotion of Equality and Protection of Unfair Discrimination Act (Equality Act) are overly broad, go far beyond the limitations set out in section 16(2) of the Constitution, and unjustifiably limit the right to freedom of expression.

The outcome of the Qwelane case will be important in clarifying the limitations on free speech for South Africans given ongoing debates on the regulation of freedom of expression both online and offline. This is particularly important in setting clear parameters for free speech and false and misleading information in South Africa. This will assist in ensuring that unprotected speech is very narrowly defined and does not unjustifiably limit the Constitutional right to freedom of expression.

Tusi Fokane is a 2020 CIPESA Fellow focussing on the the availability and use of digital technologies to combat the spread of Covid-19 in South Africa. She is also  studying the country’s readiness for electronic voting to comply with social distancing and other movement restrictions during the upcoming local government elections.

African Civic Tech and COVID-19: Five Emerging Trends

By Melissa Zisengwe |

Africa has a growing civic tech community that focuses on issues such as accountability and transparency, data journalism, citizen participation, and public services monitoring. Since the outbreak of COVID-19, various technologies have been deployed by citizens, civil society organisation, start-ups, private companies, universities and governments to aid the fight against COVID-19.  Specifically, the civic tech community has created several innovations or adapted and repurposed existing resources to confront the COVID-19 pandemic.

The findings resulting from interviews conducted with civic tech innovations from Kenya, Nigeria, South Africa and Uganda indicate that the potential for technology to facilitate the fight against COVID-19 is clear. Across the continent, the emerging trends include contact tracing, instant messaging, digital governance, information dashboards and predictions and debunking misinformation.

For instance, platforms leveraging instant messaging applications such as GovChat and Grassroot in South Africa, as well as Uganda’s Ministry of Health Chatbot have supported remote government-citizen interactions, community organising and access to information, respectively in compliance with national COVID-19 standard operating procedures. Similarly, there has been a shift in governments’ adoption and use of technology, with many operations such as  the judiciary in Kenya and emergency services in Uganda moving online.

Further, the use of data mining and spatial analysis techniques to aid analysis into  the spread of the virus at provincial level in South Africa, and functioning of health centres in Burkina Faso indicates that the civic tech community, along with the private sector and the government, appreciate the importance of access to information in a pandemic.

While dashboards are keeping citizens updated on Coronavirus related news, some organisations are taking it a step further to ensure that citizens receive the accurate information and stop the spread of the disinfodemic, which is the spread of unverified, untrue information about the disease. This is being achieved through virtual games in Uganda and live guides among others.

 In several countries, organisations, governments and companies are reported to have employed digital contact tracing measures. Although the extent of this trend is unknown, common practices include contact tracing apps, CCTV surveillance, and cell phone location data tracking.

While these contact tracing apps and efforts could indeed aid the countries in their fight against COVID-19, they present some concerns over data privacy and surveillance. Tracking via mobile technology means personal information such as an individual’s location and movements, and their COVID-19 status could be disclosed without consent and oversight mechanisms for protection and accountability.

The trends above show that the civic tech community in Africa is willing to do their part in society and that innovation is not always a shiny new app or product; rather, sometimes it is existing tools and methodologies which can be repurposed to respond to  emerging needs. While these tools have been instrumental in shaping the fight against COVID-19, user sensitisation towards increased adoption during and in the aftermath of the pandemic remains crucial.

Read the full brief here.

Melissa Zisengwe is a 2020 CIPESA Fellow focussing on the area of civic technology in Africa.