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03May

Does Kenya’s Digital Health Act Mark A New Era for Data Governance and Regulation?

Author CIPESA Posted on

By Edrine Wanyama |

In October 2023, Kenya enacted the Digital Health Act which seeks to promote the safe, efficient and effective use of technology for healthcare and to enhance privacy, confidentiality and security of health data. It also provides for the safe transfer of personal, identifiable health data and medical records to and from health facilities within and outside Kenya, and the development of standards for provision of m-Health, telemedicine, and e-learning.

While Kenya enacted the Data Protection Act earlier in 2019, the dedicated digital health law is a positive step towards addressing the potential data privacy challenges related to health data. The law could deliver dividends for the e-health sector by leveraging data and technology to devise interventions and solutions that improve health services delivery.

In a recent brief, CIPESA analyses the Digital Health Act and what it portends for health data governance in Kenya. As the brief notes, if rightly implemented, the law will offer lessons in proper health data governance, while ensuring the rights of data subjects and the principles of data protection are respected and promoted.

The new law is the latest addition to Kenya’s policy and legal initiatives that aim to buttress the health care system including through technology and improved data governance. Others include the National eHealth Policy 2016-2030 and the Guidance Note on the Processing of Health Data developed by the data protection authority.

The Digital Health Act presents an opportunity for strengthening patient data protection while making strides in addressing privacy challenges by emphasising the need to comply with the Data Protection Act, 2019. The law has set the pace for health data governance in Africa as it deals with data related to medical insurance, physician notes and diagnosis, medical records on current and past health history, and health data governance. Appropriate data governance will provide safeguards against breaches and misuse such as in disease surveillance, research and innovation.

Section 4 of the Act emphasises the data principles to be applied to health data: treating health data as a strategic national asset; safeguarding privacy, confidentiality and security of health data for information sharing and use; facilitating data sharing and use for informed decision-making at all levels; and using the digital health eco-system to serve the health sector and to facilitate, in a progressive and equitable manner, the highest attainable standard of health.

Data, including health data, requires specialised agencies to guarantee its protection. The Digital Health Act establishes a Digital Health Agency which is charged with establishing and managing an integrated health information system. The system will ensure quality assurance in the health sector, since it will be guided by data protection principles, scalability and interoperability, efficiency and effectiveness, simplicity and accessibility, and consistency. The Digital Health Agency will potentially promote accountability and transparency in the health sector.

While integrated data and information management systems offer numerous benefits, they also pose risks of abuse and privacy violations, especially during pandemics such as Covid-19, when there was surveillance on individuals based on health data. During the surge of Covid-19, several countries such as Kenya and Uganda adopted measures to contain the virus but with adverse impacts on data protection and privacy. It is imperative therefore that the Digital Health Agency takes all necessary measures to ensure that the Integrated Health Information System robustly guards against unauthorised access, processing, use and transfer of individuals’ private health information within the country as well as across its borders. 

Section 45 on e-Waste Management offers indications in the right direction for the management of e-waste in the health sector. It also provides pointers to promoting the use of sustainable models for e-waste management through public-private partnerships. Nevertheless, in promoting reuse and lifetime extension of e-waste in health data, the law potentially creates opportunities where e-health data may be used unfairly by unscrupulous individuals.

The Digital Health Act is a progressive move towards appropriate regulation of digital health services in Kenya. It points to the relevance of technology in enhancing health care amidst the growing significance of personal data, its protection, management and governance. Other countries in the region could borrow from Kenya’s example to enact similar legislation on digital health and health data governance.

Read the full brief here.

25Apr

Advancing Sustainable Cross-border Data Transfer Policies and Practices in Africa

Author CIPESA Posted on

By Paul Kimumwe |

Over the years, several African governments have enacted laws and policies that limit cross-border data flows, citing the need to protect national security, promote the local digital economy, and safeguard users’ privacy. The limitations range from complete bans on cross-border transfers of all data to conditional cross-border transfer of specific data, with authorization sought from relevant government bodies.

The legal provisions prohibiting cross-border data transfers are scattered in different legal frameworks in countries such as Ethiopia, Nigeria, Rwanda, and Uganda, whose limitations are contained in their financial services and cybersecurity laws. In Rwanda, for example, Article 3 of Regulation No. 02/2018 of 24/01/2018 on cyber security provides that any bank licensed by the Central Bank must maintain its primary data within the territory of Rwanda. In Uganda, Article 68 of Uganda’s National Payment Systems Act 2020 requires all electronic money issuers to establish and maintain their primary data centre in relation to payment system services in Uganda.

For other countries such as Kenya, Nigeria, South Africa, Tunisia, and Uganda, the limitations are contained within their data protection laws. For example, sections 48 and 49 of Kenya’s Data Protection Act 2019 prohibit cross-border transfer of personal data to a country

lacking appropriate data security safeguards. South Africa’s 2013 Protection of Personal Information Act prohibits cross-border data transfers without the data subject’s consent or unless the foreign country is believed to have adequate safeguards. In Nigeria, sections 41-43 of the 2023 Data Protection Act sets conditions under which cross-border data transfers may occur, such as the requirement for the destination country to have data protection safeguards and consent from the data subject, among other conditions.

Critics of these data localization provisions and practices have often argued that the current data localisation policies and practices are not pro-people as they do not mitigate any genuine cybersecurity or online targeting but instead serve to undermine personal data privacy by facilitating government agencies’ unrestricted access to citizens’ personal data, including for purposes of conducting state surveillance.

These practices do not also conform to the key provisions of the 2019 African Commission on Human and Peoples’ Rights (ACHPR) Declaration of Principles on Freedom of Expression and Access to Information in Africa, which prohibits countries from adopting laws and other measures that criminalize and encryption practices, including backdoors, key escrows, and data localisation requirements unless such measures are justifiable and compatible with international human rights law.

The legal data localization requirements have been identified as the most restrictive and disruptive barriers to international trade, pushing foreign registered businesses to incur extra and unnecessary costs of establishing multiple infrastructures such as local data centres and in each of their countries of operation as opposed to having one center in their country of choice. In addition, the “limited policy and regulatory reforms to facilitate the interconnection of networks across borders, including national and commercial backbones, or supervisory frameworks for data protection, data storage/processing/handling” were identified as additional weaknesses in achieving Africa’s economic potential.

The success of several initiatives, such as the African Continental Free Trade Area (ACFTA) whose mandate is to create “a single continental market with a population of about 1.3 billion people and a combined GDP of approximately US$ 3.4 trillion,” hinges on eliminating trade barriers and the harmonization of cross-border transfers through the amendment of restrictive data localisation policies and practices.

In addition, under the African Union’s Digital Transformation Strategy for Africa (2020-2030), countries are called upon to “promote open data policies that can ensure the mandate and sustainability of data exchange platforms or initiatives to enable new local business models, while ensuring data protection and cyber resilience to protect citizens from misuse of data and businesses from cybercrime.”

On the other hand, the AU Data Policy Framework requires countries to create an enabling legal environment that would achieve and maximize the benefits of a data-driven economy by encouraging private and public investments necessary to support data-driven value creation and innovation. The framework offers guidance on policy interventions to optimise cross-border data flows and harmonise data governance frameworks. In terms of cross-border data governance and transfers, Principle 14(6)(a) of the African Union Convention on Cyber Security and Personal Data Protection prohibits data controllers from transferring “personal data to a non-Member State of the AU unless such a State ensures an adequate level of protection of the privacy, freedoms, and fundamental rights of persons whose data are being or are likely to be processed.”

A critical challenge for the continent is how to translate and localise these initiatives into workable solutions. Most autocratic governments are reluctant to amend their laws to be more open to cross-border data transfers. The reluctance is based on unfounded fears that sending their citizens’ data abroad could increase citizens’ vulnerability to serious security and privacy threats from foreign actors. On the other hand, civil society actors lack the requisite skills and knowledge to proactively engage in strategic advocacy both at national and regional levels. In addition, there is a paucity of evidence-based research on the key issues around data localization, particularly how various countries are implementing their data localisation policies as guided by the AU Data Policy Framework and Digital Transformation Strategy.

Lessons from previous policy advocacy engagements show that national governments are open to progressive policy reforms, as evidenced by the rapid adoption of data protection laws, particularly if they trust that such measures will not injure their national interests.

Key Interventions

Even with this promise and the abundance of international and regional frameworks to guide the adoption and implementation of progressive national data governance frameworks, interventions would require the adoption and implementation of multiple and mutually reinforcing strategies such as (a) building research and advocacy capacity of digital rights and data rights actors; (b) undertaking research and policy analysis; and (c) engaging in national and regional policy processes on data governance regulation, particularly that related to cross-border data flows and harmonisation of data governance frameworks.

Building on the success of her previous work on data governance and engagement with the AU Union Data Policy Framework, under the current project, the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) is continuing with regional engagements as well as working in our countries – Cameroon, Ghana, South Africa, and Uganda, to build the capacity of country-based research partners as well as generate evidence that addresses fears that informs states’ restrictive regulatory stances, shows benefits of free data flows and policy harmonisation.

1. Capacity Building in Research and Advocacy

Central to CIPESA’s interventions is the need to generate a critical mass of engaged actors that understand the cross-play of national and regional policy frameworks on data regulation and their implication for data policy harmonisation and national policy and practice. Further, these actors will need the skills to research and produce evidence to inform engagements with actors such as policymakers and to conduct effective, collaborative advocacy to inform policymaking.

2. Research and Policy Analysis

CIPESA also supports country-based research partners to produce and communicate research-based commentaries, briefs, policy analyses, and think pieces on data localisation regulation and cross-border data policies and advocate for flexible cross-border data flows and respect for data privacy. These outputs will inform engagements with policymakers at national and regional levels and with multilateral treaty bodies that mandate data protection and monitor privacy and data rights.

3. National and Regional Advocacy and Engagement

The third strand involves strategic deployment of the published commentaries, analyses, and think pieces to attract the attention of state and non-state actors and form the basis of deliberations on how to improve the policy and practice around data governance in the region, notably on cross-border data flows, data harmonisation, and the need to embrace the AU Data Policy Framework. The advocacy will target national actors, such as data regulators, telecom regulators, and policymakers, as well as regional entities, such as the African Union, the African Commission on Human and People’s Rights, and regional regulators’ and telecom operators’ associations such as Compassionate Rural Association for Social Action (CRASA) and East African Communication Organisations (EACO).

By building on pivotal and live continental initiatives such as the AU Data Policy Framework, the Digital Transformation Strategy for Africa, and the African Continental Free Trade Area (ACFTA), and working at regional and four-country levels through a multi-sector network of actors, CIPESA hopes to generate evidence that demystifies the unfounded fears used by states to engage in restrictive cross-border data regulatory policies and practices while demonstrating the benefits of free data flows and proposing harmonisation measures.

The article was first published by CIPESA’s partner NIYEL on April 22, 2024.

28Mar

Online Activism is Moving the Dial on Social Accountability in Uganda

Author CIPESA Posted on

By Peter G. Mwesige |

The viral #UgandaParliamentExhibition hashtag campaign on X on the excesses of the Ugandan parliament has once again put digital media at the centre of debate on citizen agency in the demand for transparency and accountability from duty bearers.

Fifteen years or so ago, the jury was still out on whether digital platforms including social media were a boon to citizen participation or the bane of meaningful political action. Even more recently, “hashtag activism” or what some called “slacktivism” was still being dismissed as “performative activism” that inhibited offline participation or created the illusion of participation.

The debate remains unsettled, but there is no denying that social media platforms have “democratised access to information” and offered alternative avenues for citizens to amplify their voice in the demand for accountability from those that hold power.    

The Ugandan online exhibitions were started last year by Dr. Jimmy Spire Ssentongo, an academic, cartoonist, and social commentator. He has described them as “an open invitation to the public, to whoever has an issue about a particular institution or sector to come out … a public initiative to demand for accountability; to showcase things (people) are not happy about; to showcase their pain.”

From the #UgandaPotholeExhibition, the #UgandaHealthExhibition, the #UgandaNGOExhibition (where the activists appeared to devour their own), the #UgandaLabourExhibition, the #UgandaSecurityExhibition and so on, activists have been joined by Ugandans from all walks of life to shine the torchlight on pressing public concerns.

The #UgandaParliamentExhibition is slightly different. It has been organised under the AGORA Centre for Research, the brainchild of journalist and lawyer Agather Atuhaire, who recently won the U.S. State Department International Women of Courage Award (and last year won the European Union’s Human Rights Defenders’ Award in Uganda), fellow lawyer Godwin Toko, and others. Sharing evidence from official records, highlighting standout posts on digital flyers, throwing in the occasional handwritten satirical stingers from Ssentongo, and complementing tweeting with X Spaces, AGORA has flooded the zone with evidence of abuse of public funds at parliament. The vociferous Anthony Natif of Public Square and exiled activist and author Kakwenza Rukirabasaija have also lit up the exhibition.

In a space of about two weeks the #UgandaParliamentExhibition laid bare the scope of the abuse of public funds in the August House as well as blatant nepotism and favouritism in recruitment of staff.  The exhibition laid this at the door of the Speaker of Parliament Anita Among and the Parliamentary Commission that she heads, whose members include the Prime Minister, the Minister of Finance, the Leader of the Opposition (LoP) and a few Members of Parliament (MPs) representing both the ruling party and the opposition.

At the heart of the expose is the billions of shillings that have been spent in travel allowances, and the so-called corporate social responsibility by the Speaker, as well as the “service awards” that were passed as “personal to holder” for the former LoP Mathias Mpuuga and Commissioners Solomon Silwany, Prossy Akampurira Mbabazi, and Esther Afoyochan, all representing the ruling National Resistance Movement. Mpuuga bagged Uganda Shillings (UGX) 500 million, equivalent to 130,000 US Dollars (USD) while three Commissioners received UGX 400 million each.

The service award for the former LoP has already caused a storm in his party, the National Unity Platform, which has asked him to resign from the Commission. Other interest groups, such as the Uganda Law Society, have also weighed in, saying by participating in a meeting that passed awards which would benefit them personally, Mpuuga and the other commissioners violated the Leadership Code. 

The Speaker has refused to entertain any debate on what has been exposed by the #UgandaParliamentExhibition despite calls by a number of MPs that the institution should be held accountable in the same way it holds other government agencies to account. She remained adamant last week when new LoP Joel Ssenyonyi condemned the “deafening silence” by parliament on the issues raised on social media and the ruling party “rebel MP” Theodore Ssekikubo demanded a response to the “grave allegations” of impropriety and profligacy. “Me to answer you on hearsay, on things you have cooked on social media because I have said no to bum-shafting, I will not,” Among responded.

“Bum-shafting” was a derogatory reference to homosexuality, which is outlawed in Uganda. Under Among’s stewardship, parliament last year passed the Anti-Homosexuality Act, 2023, attracting backlash from the international community that has seen Uganda lose development funding.

Interestingly, Speaker Among had previously commended the online exhibitions. During the #UgandaHealthExhibition last year, she “urge(d) both public servants and political leaders to take feedback from the public in good faith and use it to improve further.”

President Yoweri Museveni had earlier responded to the #KampalaPotholeExhibition by directing the Ministry of Finance to release UGX 6 billion for emergency road repairs in the city. He has this time joined the Speaker to condemn the online activists. “How can you talk so much about Anita Among? (What) about those working for foreigners? We are going to expose those traitors,” Museveni said on March 23, 2024, after commissioning the Speaker’s Bukedea Teaching Hospital and College of Health Sciences in her home district. 

Clearly, online activism has moved the dial on social accountability. The government and others who have been the subject of the exhibitions may not always be responsive, but they can’t claim they haven’t heard the voice of the people.

One can argue that the traction of online social justice campaigns makes the riskier street protests unnecessary. Indeed, in a country where public demonstrations on hot button issues have been criminalised in complete disregard of the constitutional right of citizens to protest and petition the government, the alternative offered by digital platforms should be embraced.

But the digital warriors leading these campaigns still face the same risks that the street activists before them confronted – such as surveillance, online smear attacks, threats of arrests and other forms of intimidation. Accordingly, online activism should not be seen as a replacement of traditional forms of protest. As Dr. Ssentongo argued when he appeared on Robert Kabushenga’s #360Mentor X Space in April last year, it should not be an either-or-question. “Those who can organise online should and those who can organise (through) other means should (also do so),” he said.

The other issue that has been raised quite a lot especially during the #UgandaParliamentExhibition is the failure of the traditional news media (newspapers, radio, and television) to uncover the corruption in parliament.

The credibility of the journalists who cover parliament has taken a major knock, but this does not mean social media should replace mainstream media as our only sources of news as some have suggested.

In defence of the journalists who are still passionate about public affairs reporting, the gatekeeping bar for what gets to be published in the major media houses is much higher. On social media, anything goes, although to AGORA’s credit, most of the information they have released about parliament has been verified.

But it would be unrealistic to expect citizen-driven online campaigns to bring the same “discipline of verification” parliament’s Director of Communication and Public Affairs Chris Obore, a former journalist, seems to demand. Social media will always be messy. Just like democracy, some would say.

We need a multiplicity of platforms (both digital/social media as well as credible mainstream media) to provide information about what is happening in parliament and other public sectors, provide the public with platforms for debate, and hold duty bearers accountable.  

And we need sustained pressure both online and offline to continue driving the demand for accountability and meaningful change. In a democracy, what has been exposed through Uganda’s online exhibitions would have been enough to drive action and change. But in a country where leaders are openly contemptuous of public opinion, and where the public cannot count on free and fair elections to kick out those who abuse their trust, online activists and other social justice actors still have their work cut out.

About the author: Dr. Peter G. Mwesige is Chief of Party of the USAID Your Rights Activity led by CIPESA.

25Mar

2024 the Year of Democracy: African Electoral Authorities Release Guidelines for Social Media Use

Author CIPESA Posted on

By CIPESA Writer |

Over the last couple of years, digital and social media have come to play a central role in elections in Africa. That role has many bright sides, such as enabling swift voter education by electoral bodies, efficient campaigns by candidates, as well as monitoring and reporting malpractice. For the bigger part, in many African countries, the focus has centred on the negative impacts of digital platforms that often threaten social cohesion and electoral integrity, so much so that social media and sometimes all of the internet have been blocked at crucial times of the electoral cycle.

Concerns about ‘not throwing out the baby with the bathwater’, as some countries have appeared to do with drastic measures such as network disruptions, elicited a need for guidelines on how digital platforms, including social networking sites and private messaging applications, should be utilised during elections. Such guidelines would nurture the great potential that these media can deliver to candidates, political parties, and Election Management Bodies (EMBs), and to electoral integrity, while combating disinformation, hate speech, Technology-Facilitated gender-based violence (TFGBV), and other harms that they can enable.

This is the spirit behind the development of the Principles and Guidelines for the Use of Digital and Social Media in Elections in Africa, which were launched in South Africa on  February 27-29, 2024 at an event where the country’s deputy president, Paul Mashatile, was guest of honour. The Guidelines are the brainchild of the Association of African Election Authorities (AAEA), whose General Assembly endorsed them in November 2023 in Cotonou, Benin. The Electoral Commission of South Africa (IEC) coordinated the development of the Guidelines, with support from the African Union Commission, the United Nations Electoral Assistance Division (EAD), the United Nations Development Programme (UNDP), the United Nations Educational, Scientific and Cultural Organization (UNESCO) and various African experts and civil society groups including the Collaboration on International ICT Policy for East and Southern Africa (CIPESA).

The stated objective of the Guidelines is to enhance the capacities of EMBs and other relevant electoral stakeholders to harness the advantages of social media and tackle the adverse effects of new and emerging digital technologies.

The Guidelines could help to stem the growing use of social media, including by state officials, opposition parties and “paid influencers” to sow disinformation and undermine electoral integrity, prompt platforms to do more to moderate harmful content, pave way for regulating political advertising, hopefully deter such antics as Cambridge Analytica played in elections in Kenya and Nigeria, and discourage internet disruptions that create an information vacuum and undermine electoral credibility.

Launching the Guidelines represents a major step in developing a crucial normative framework which entities around the continent should embrace. Indeed, in this crucial year in which up to 16 African countries will hold national/presidential elections, electoral authorities and other stakeholders would do well to adopt the use of the guidelines. Popularising the Guidelines will be critical for their uptake.

The adoption of the Principles and Guidelines signalled a new era for EMBs in the quest to reap the benefits of digital and social media while also investigating ways to mitigate the inherent harms that could jeopardise the credibility of electoral processes. Paul Mashatile, South Africa’s Deputy President.

The Guidelines encourage African EMBs to develop a clear and comprehensive plan for responsible social media use during election campaigns. They also lay down guidelines for various stakeholders, including the media and civil society organisations.

Furthemore, as noted by the IEC, they encourage African member states and regulatory authorities to refrain from imposing measures that might disrupt access to the internet, and to digital and social media. They call on social media operators to treat political parties and candidates equitably and ensure that their online messaging, including that of their supporters, does not undermine electoral integrity or contravene human rights.

On Responsibilities of Social Media Companies: In line with the United Nations’ Guiding Principles on Business and Human Rights (UNGPs), digital and social media must put in place processes for human rights due diligence and human rights impact assessment to identify, prevent, mitigate and account for how they address their impacts on human rights during the electoral cycle, and disclose these processes for transparency and accountability.

In sum, these timely guidelines, if implemented, could help combat digital harms and enhance electoral integrity across the continent.

13Mar

Webinar: How African Women in Politics Are Pushing Back Against Tech-Facilitated Gender-Based Violence

Author CIPESA Posted on

Event |

Gender diversity in political leadership is critical for promoting equity, inclusion, and economic benefits. However, gender disparities in political participation still exist globally, particularly in Africa. Digital technologies can assist in solving this disparity given their ability to give voice and civic agency to different political actors, especially women, and space for political engagement. As enshrined in Sustainable Development Goal 5 on Gender Equality, digital technologies have the potential to increase women’s inclusion, participation, and engagement in politics, providing them with a platform to have their voices heard. Indeed, women in politics are increasingly leveraging the power of various digital tools, and in particular social media platforms, to connect with their constituencies. 

Despite this reliance on online social platforms, women in politics have also become the targets of online threats and abuse. These attacks are heightened during election periods and when women voice dissenting opinions. This technology-facilitated gender-based violence (TFGBV) not only impedes women’s equitable and meaningful participation in public offices but also their long-term willingness to engage in public life. Further, it negatively influences the broader spectrum of women consuming or engaging with their content and consequently undermines the realization of the Sustainable Development Goals. 

Addressing these challenges is essential to ensure that digital technologies become true enablers for the enhancement of women’s participation in democracy and good governance, including in politics, rather than exacerbating existing disparities in Africa. 

This month, we join the global community in celebrating women under the themes of #InspireInclusion, which encourages the realisation of a gender-equal world free of bias, stereotypes and discrimination. However, amidst the global celebration, it is crucial to spotlight the  persistent TFGBV faced by African women in politics and the need to increase investment into addressing these concerns as highlighted by the United Nations campaign themed #InvestInWomen.

In an upcoming webinar, the Collaboration in International ICT Policy for East and Southern Africa (CIPESA) will focus on the importance of increased political inclusion of women in politics. The role of active online engagement will be highlighted as a key driver in enabling the needs of women in politics in various African countries and as a tool to meaningfully participate in the information society.  More importantly, the webinar will cast a spotlight on how women in active politics in various African countries are pushing back against the violence and negative narratives online and the role that legal frameworks and platforms have to play in addressing TFGBV associated with political spaces and discourse.  

Webinar details

Date:  March 15, 2024

Time: 14:00-15:00 (Nairobi Time).

Register to participate in the webinar here. 

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