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12Aug

Are Malawians Sleep-Walking into a Surveillance State?

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By Jimmy Kainja |
In the last three years, the Malawi government has passed a lot of legislation, among these, is the National Registration and Identification System (NRIS), which according to the National Registration Bureau, is aimed at addressing the lack of universal and compulsory registration – the NRIS allows Malawians to have a national ID.
According to UNDP, one of the main funders of the exercise, 9 million Malawians have registered as of October 2019. This shows that Malawians have generally welcomed the exercise. Meanwhile, the registration in on going all District Offices where anyone turning 16 years can register and have their ID card issued.
Reasons for the general acceptability of the ID registration differ and in absence of any survey it is difficult to generalise the reasons but it can be speculated that among the reasons is that the majority of Malawians lacked any form of ID to do daily transactions. Majority Malawians do not have a passport or driver’s license and yet advance in technology, mobile banking for example, has increased demand for IDs in the country.
Following the NRIS exercise, the national ID has become increasingly become the only form of identification for most public transactions and registrations. In 2018 Malawi government through its telecoms regulator, MACRA, rolled out mandatory SIM Card registration, this is provided for in PART XI of Communications Act, 2016. The voter registration for 2019 tripartite elections required the national ID as a form of identification; and now commercial banks in the country have rolled out what they are calling “know your customer” (KYC) exercise, in which clients have to update their personal information with the banks. This time the banks are only accepting the national ID as a form of identity for Malawians, and passport for none Malawians.
This means that in a very short space of time Malawians have given away a lot of their personal data to both private and public institutions. All the data is tied to one’s national ID. This includes our communication data through our SIM Card enabled communication – internet, text messages and voice calls. But who how safe is this personal data? During the voter registration exercise did we not hear of Malawi Electoral Commission found abandoned in Mozambique? How do we ensure that our personal data is safe? How can we be sure that no third parties have access to our personal data? Who should be held accountable in case of any data breach?
These are legitimate questions, especially as any breach of personal data has implications on personal privacy. Privacy is inviolable right and it is constitutionally provided for under article 21 of Malawi constitution. Often people argue that you should not worry about privacy if you have nothing to hide. Yet, privacy does not mean that you have something to hide.
Journalist, Glenn Greenwald observes that privacy is important because we all need places where we can go to explore the issue without the judgmental eyes of other people being cast upon us. He argues that their people have all kinds of things they want to keep a secret that has nothing to do with criminality. He adds:
“only in a realm where we’re not being watched can we really test the limits of who we want to be. It’s really in the private realm where dissent, creativity and personal exploration lie… When we think we’re being watched, we make behaviour choices that we believe other people want us to make … it’s a natural human desire to avoid societal condemnation. That’s why every state loves surveillance — it breeds a conformist population.”
In the wake of mass personal data collection, Malawi needs personal data protection legislation, and this legislation should have been in place before the NRIS and what has followed that exercise. Data protection is important in order to prevent third parties from accessing personal data and also stopping the authorities abusing personal data they collected in good faith.
Personal data protection is crucial for freedom of choice and freedom of expression. People are unable to express themselves freely in the presence of watchful eye on everything that you are doing, browsing on the Internet for example. Inevitably, this has a chilling effect on activists, human rights defenders and other vulnerable communities as these groups can easily be targeted by both state and non-state actors.
The mass collection of personal data in the absence of data protection law should be of concern to all Malawians as it has the capacity to allow state surveillance. Furthermore, the mandatory SIM card registration in the absence of data protection laws means that our private communication, online and offline can easily be violated by both state and non-state actors. As with the mandatory SIM card registration, governments usually use security to introduce laws and policies. But you cannot protect people on one hand while violating other rights and freedoms on the other. Security and civil liberties can and do coexist and it is the obligation of the state to balance the two.
*Note: this article is informed by Internet freedom and digital rights training for CSOs I coordinated and co-facilitated in Lilongwe (30-31st July 2019) on behalf of The Collaboration on International ICT Policy in East and Southern Africa (CIPESA).
This article was originally published in The Nation

04Mar

DataCon Africa

DataCon Africa, established as a spin-off event of CDAO (Chief Data & Analytics Officer) will see international and local industry experts from various industries discuss challenges within data governance such as data remediation, enrichment, breaking down the silos, data security and more. Culture Change and Change Management is becoming of utmost importance as organisations are looking to become data-driven before they are left behind and DataCon Africa will host workshops on these subjects.
For more information on this event, please click here.

06Aug

Challenges and Prospects of the General Data Protection Regulation (GDPR) in Africa

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Policy Brief |
Privacy is a fundamental human right guaranteed by international human rights instruments including the Universal Declaration of Human Rights in its article 12 and the International Covenant on Civil and Political Rights, in its article 17. Further, these provisions have been embedded in different jurisdictions in national constitutions and in acts of Parliament.
In Africa, regional bodies have invested efforts in ensuring that data protection and privacy are prioritised by Member States. For instance, in 2014 the African Union (AU) adopted the Convention on Cybersecurity and Personal Data Protection. In 2010, the Southern African Development Community (SADC) developed a model law on data protection which it adopted in 2013. Also in 2010, the Economic Community of West African States (ECOWAS) adopted the Supplementary Act A/SA.1/01/10 on Personal Data Protection Within ECOWAS. The East African Community, in 2008, developed a Framework for Cyberlaws. Notwithstanding these efforts, many countries on the continent are still grappling with enacting specific legislation to regulate the collection, control and processing of individuals’ data.
On May 25, 2018, the European Union’s General Data Protection Regulation (GDPR) came into effect. The GDPR is likely to force African countries, especially those with strong trade ties to the EU, to prioritise data privacy and to more decisively meet their duties and obligations to ensure compliance.
See this brief on the Challenges and Prospects of the General Data Protection Regulation (GDPR) in Africa, where we explore the consequences of GDPR for African states and business entities.

30May

Sections of Kenya’s Computer Misuse and Cybercrimes Act, 2018 Temporarily Suspended

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By Juliet Nanfuka |
Barely two weeks after the presidential assent to the Computer Misuse and Cybercrimes Act, 2018, a High Court judge has issued a conservatory order suspending the entry into force of 26 sections of Kenya’s contentious Computer Misuse and Cybercrimes Act, 2018. The order by Judge Chacha Mwita, suspending the sections until July 18, follows a petition filed by the Bloggers Association of Kenya (BAKE), which challenged the law for contravening constitutional provisions on freedom of opinion, freedom of expression, freedom of the media, freedom and security of the person, right to privacy, right to property and the right to a fair hearing.
In the order issued on May 29, the judge certified BAKE’s petition as urgent, and stated that  respondents (who include the Attorney General, the Speaker of the National Assembly, the head of the National Police Service, and the Director of Public Prosecutions) be served immediately. The respondents would have seven days from receipt to file written submissions. Hearing of the petition is scheduled for July 18, 2018.
Although the conservatory order only stalls the enforcement and could be lifted or maintained thereafter, it nonetheless represents a win for digital rights advocates in Kenya, as they have in the interim satisfied the judge that there is an arguable case to be made against the constitutionality of the recently enacted law. The order also marks another landmark ruling in the litigation towards respect and realisation of digital rights across Africa.

According to the  order, the suspended sections are: 5, 16, 17, 22, 23, 24, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 48, 49, 50, 51, 52 & 53.


Various organisations criticised the bill prior to its assent on May 16, 2018 calling it unconstitutional. Among the organisations were the Kenya ICT Action Network (KICTANET), Article 19 Eastern Africa, BAKE and the Centre to Protect Journalists (CPJ) who deemed numerous sections unconstitutional and detrimental to Kenyan citizens’ digital rights. They said it infringed on the privacy of individuals, freedom of expression, speech, opinion and access to information online.
Kenya already has a history of stifling online critics of the state and state actors, as echoed by James Wamathai, the Director of Partnerships at BAKE. In a statement, he said: “In the past several years, there have been attempts by the government to clamp down on the freedom of expression online. This Act is a testament of these efforts, especially after other sections were declared unconstitutional by the courts.
Among the prevailing concerns on the law is the use of vague language on issues such as “false” or “fictitious” content and false publications in Section 22 and 23, accompanied with heavy obligations on users to verify truthfulness or untruthfulness of information before disseminating. As per section 12, failure to comply would result in a fine of five million Kenyan shilling (USD 50,000), up to two years in prison, or both.
The  court order comes on the heels of the two judgments (Okiya Omtatah Okoiti v The Communication Authority of Kenya and 3 others Constitutional Petition No. 53 of 2017 and Kenya Human Rights Commission v Communications Authority of Kenya and 3 others no. 86 of 2017) by the Kenya High Court in which the petitioners successfully challenged the installation on mobile phone networks of a communication surveillance system dubbed Device Management System (DMS), by the Communications Authority (CA) Kenya (CA). The petitioners argued that, through this system, the authority would have undue access to the communications of citizens.
As more countries in Sub-Saharan Africa develop technology related laws, it is fundamental that the laws uphold human rights standards prescribed at global and regional levels, including in the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples Rights (ACHPR), and African Union Convention on Cybersecurity and Personal Data Protection. However, recent developments such as has been witnessed in East Africa appear to prioritise the criminalisation and penalisation of internet use rather than encourage its adoption as a tool for greater access to information, and for expanding free expression and civic engagement.
Kenya’s neighbours Tanzania and Uganda have this year taken actions detrimental to digital rights. In Uganda, social media taxes that could be introduced in July 2018 threaten internet access and affordability while in in Tanzania, online content producers will have to pay over USD 900 to register with the state for permissions to maintain their platforms, according to new regulations.
 

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