Promoting Effective and Inclusive ICT Policy in Africa

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14Apr

Digital Democracy in Africa: What Has the Law Got to Do With It?

Author CIPESA Posted on

By Edrine Wanyama |

With digital freedoms continuing to take a hit amidst a wider democratic regression across Africa, the role of laws in curing what ails democracy in the region warrants scrutiny. In a number of countries, the laws that regulate how citizens use digital platforms and exercise their digital rights are retrogressive and fail to offer sufficient protection to citizens. Many of them are broadly worded, give extensive powers to state agencies to interpret the laws and to interfere with citizens’ rights.

In turn, the legal and regulatory framework has become central in shaping digital rights and digital democracy in Africa. Governments have enacted regressive and draconian laws that variously empower state agencies to limit the digital civic space. As a result, rights such as freedom of expression, access to information, and data privacy continue to come under threat due to the high-handed and often excessive control measures. 

In many countries laws have been weaponised to silence critics, notably those that use digital and social media to organise or express opinions critical of governments and state officials. Various laws are being used to arrest, persecute, detain and prosecute individuals over online communication, as have been witnessed in the Democratic Republic of Congo (DRC), Mozambique, Kenya, Rwanda, South Sudan, Tanzania, Uganda, Zambia, Zimbabwe and several other countries. These measures curtail press freedom and other digital rights that are at the root of democratic participation.

Laws that regulate state surveillance are among those that have a profound chilling effect on digital rights and citizen participation. Anonymous communication in the digital domain is crucial for citizens, journalists and political actors to operate without fear of reprisals, particularly in authoritarian countries. Yet the conduct of surveillance in the region is enabled by laws that give broad powers to state agencies to conduct surveillance amidst limited oversight and transparency, and strenuous demands on intermediaries to facilitate communications monitoring and interception.

Equally concerning is that various governments have weaponised disinformation laws to silence critical voices, rather than utilising them to counter the ills of disinformation. Similar to the purposes that state surveillance often serves, laws on countering disinformation have in many cases been used to target political critics.

In turn, those laws (which tend to be vague and ambiguous and fail to distinguish between disinformation or falsified information, making their enforcement open to the subjective interpretation of law enforcement agencies) are being used to stifle legitimate expression and to hamper access to critical and pluralistic information. This has been common in countries like Burkina Faso, Ethiopia, Kenya, Nigeria, Tanzania and Uganda where laws criminalising disinformation and false news, such as  those on computer misuse, are often deployed to silence government critics.

Governments have also relied on different laws to order internet disruptions, which create information blackouts, deny citizens their right to access information, associate and express themselves. Mostly ordered during elections and public protests, the network disruptions also undermine electoral credibility and hinder the ability of citizens to record and disseminate incidents of rights violations by security agencies and other actors.

Many observers around the continent, as well as the United Nations, have repeatedly urged states to refrain from ordering shutdowns, which they say are often not necessary or proportionate to address the threats that prompt governments to order them. However, such network disruptions continue unabated in parts of Africa, with governments and communications regulators citing various laws to justify them. According to the KeepItOn coalition, at least four of the region’s nine shutdowns during 2022 took place alongside reported human rights abuses, both in the context of violent crackdowns on protests and active conflict.

There are other ways still in which the law is undermining the protection of freedom of expression and access to information and data privacy. Many African countries have enacted access to information laws to facilitate public access to information in possession of the state. They include Kenya (enacted in 2016), Rwanda (2013), South Sudan (2013), Tanzania (2016), Uganda (2005), Malawi (2017), Mozambique (2014), and Zimbabwe (2020). On the other hand, countries like the DRC, Burundi, and Zambia do not have specific laws on access to information.

However, many of the existing laws have wide exemptions and limitations to the kinds of information that citizens can access. These limitations are primarily based on national security, official secrecy laws, individual privacy and confidentiality justifications. Proactive disclosure of information is rare in most countries, and information of vital importance to citizens is in short supply online. This undermines accountability and transparency of governments, which are key ingredients for citizen participation in democracy. 

At another level, proliferation of technology has led to a need to protect individual privacy. Previously, countries collected personal data in absence of enabling legislation, for such purposes as immigration, issuance of driving permits and SIM card registration. This has, in turn, necessitated the adoption of laws to protect privacy: Uganda (2019), Kenya (2019), Rwanda (2021), Tanzania (2022), South Africa (2013), Zambia (2021) and Zimbabwe (2021). Still, countries like South Sudan, DRC, Malawi, and Mozambique are yet to enact specific laws. 

Despite the adoption of laws, they generally fall short of the ideal practices. Many countries do not have independent data protection authorities and there is inadequate oversight and enforcement of personal data protection standards and mechanisms. Moreover, only 13 of Africa’s 55 countries have ratified the African Convention on Cyber Security and Personal Data protection. These are Algeria, Cape Verde, Congo Brazzaville, Ghana, Guinea, Mozambique, Mauritius, Namibia, Niger, Rwanda Senegal, Togo and Zambia. Reluctance to endorse this lead guiding instrument on data protection, privacy and cyber security is telling of countries’ commitment to respecting privacy.

Meanwhile, numerous data protection laws facilitate governments’ access to personal data without adequate safeguards, thereby enabling undue surveillance and interception of communications and unlawful use of private information. They fail to adequately regulate the mass collection of individuals’ personal data, including biometrics, for issuance of national identity cards, immigration documents, voters’ cards and driving permits. Furthermore, the laws often restrict the transfer of personal data outside national borders but do not put sufficient checks on governments’ access to this data.

Indeed, the place of the legal and regulatory framework in promoting and protecting fundamental freedoms was in focus at a regional convening on March 13-14, 2023, by the International Senior Lawyers Project (ISLP) in partnership with the Media Institute of Southern Africa (MISA) and Southern African Institute for Policy and Research (SAIPAR) in Harare, Zimbabwe. 

The workshop identified advocacy, capacity building, analysis of laws and proposed legislation, engagements with parliaments on law reform, and litigation at national and regional courts, as key to promoting the digital civic space. Yet, as CIPESA noted at the meeting, political interference, long periods taken to determine cases, and non-compliance of states with decisions of regional courts have hampered the effectiveness of litigation.

The convening made recommendations to governments, civil society, and the private sector:

  1. Governments
  • Sign and ratify key international human rights instruments on data protection and privacy especially the African Union Convention on Cyber Security and Personal Data Protection.
  • Ensure a favourable environment for the exercise and enjoyment of digital rights and freedoms by among others enacting progressive laws and repealing draconian legislation.
  • Promote accountability and transparency by proactively disclosing information in a timely manner and expeditiously responding to information requests from citizens.
  1. Civil Society, the Private Sector and Tech Communities
  • Jointly push for the amendment of regressive laws that undermine digital rights, and contribute to law-making processes by analysing bills and making proposals for reform, repeal or amendment. 
  • Advocate for compliance with the United Nations Guiding Principles on Business and Human Rights to ensure that violations of human rights are minimised in the course of doing business.
  • Engage in strategic and collaborative litigation to challenge all measures by governments which curtail digital rights and undermine digital democracy. 
  • Build capacity of stakeholders including the media and the general public to protect and promote digital rights and to demand accountability and transparency from governments and their agencies.
  • Use human rights monitoring mechanisms such as the Universal Periodic Review (UPR) to hold their states to account.
  • Advocate for states to ratify key human rights instruments such as the AU Convention on Cyber Security and Personal Data Protection.
29Mar

Court Admits Expert Views from CIPESA, Access Now and Article 19 on Uganda’s Digital ID 

Author CIPESA Posted on

By CIPESA Writer |

On March 24, 2023, the High Court of Uganda at Kampala ruled to allow experts from Access Now, ARTICLE 19, and the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) to offer their opinions on the human rights red flags around the country’s digital identification (ID) system. 

The ruling followed an application by the three organisations for admission as “Friends of Court” in a case which challenges the use of the National Identification Register as the sole data source and primary means of identification prior to accessing various social services. Uganda’s national digital ID, also known as Ndaga Muntu, is a mandatory scheme for accessing various socio-economic services.

The court admitted the amicus brief submission by the trio despite objections from the Attorney General and the National Identification Registration Authority (NIRA) on grounds that the application was facilitated by bias and partiality of the applicants. The respondents further argued that the applications introduced new, inadmissible evidence – an assertion the court did not agree with. The court, in fact, noted the significance of the arguments raised  by Access Now, ARTICLE 19 and CIPESA, particularly on data protection, digital inclusion, surveillance, and the sufficiency of protection measures and their impact on the right to privacy.

The admission means that the court will consider the opinions of the three organisations in determining the case challenging Uganda’s digital ID system. In his ruling, Justice  Boniface Wamala noted that the matters the three organisations raised did not constitute evidence. Rather, they “constitute legal concepts that are new, unfamiliar, unusual or unique. Such aspects constitute the quality of novelty.”

The organisations made the application as neutral parties and experts to assist the court to be better abreast with novel areas that potentially contribute to the development of the law. 

The joint brief seeks to help court fully grasp the potential impact of the national digital ID program on online and offline rights including the right to privacy, the right to freedom of expression, as well as intersecting economic, social, and cultural rights by providing expert evidence at national, sub regional, regional, and international levels. It also explains how the digital identity system might contribute to excluding citizens from basic access to services, thereby leaving them in a vulnerable state.  

The case challenging the ID system was filed by the Initiative for Social and Economic Rights,  Unwanted Witness, and Health Equity and Policy Initiative, against the Ugandan Attorney General and the NIRA. The NIRA is the body charged with creating and managing the National Identification Register by registering births, deaths, citizens and non-citizens. 

In its affidavit in support of the amicus application, CIPESA argued that as an expert in  advancing internet freedom and governance, civic participation, and data governance, it saw the need to intervene as a friend of court, in public interest and the interest of justice, to promote and protect human rights.

According to CIPESA’s Legal Officer, Edrine Wanyama, the ruling to hear the opinions of the expert organisations could help in shaping new and emerging areas of the law in Uganda on the need to respect privacy and other rights in the deployment of digital technologies in public digitalisation programmes, including initiatives like the Digital ID.

“This is a demonstration of the commitment of the courts to remain open to new and emerging knowledge and jurisprudence and to receive expert opinions on how to protect citizens from potential harms associated with the use of technology,” said Wanyama. 

CIPESA anticipates that the court will draw considerable knowledge from the amicus submissions and reach a decision that ensures that the roll-out of the digital ID system does not serve as a tool for exclusion but as an inclusion tool for all persons in accessing social and economic services.

Access Now, ARTICLE 19, and CIPESA aim to continue offering the court expert views that could help to ensure that the digital ID system is implemented in a manner that respects minimum human rights standards and promotes and protects rights and freedoms.

06Feb

CIPESA, DefyHateNow Support Fact-Checking in South Sudan

Author CIPESA Posted on

By Emmanuel Bida Thomas |

Disinformation thrives in conflict situations and in the world’s youngest nation, South Sudan, years of political uncertainty have cultivated a severe information disorder. In the face of another postponement of elections, community peace building including through debunking disinformation is critical to the country being able to stave off hate speech and incitement to violence.

According to the United Nations Development Programme (UNDP), word-of-mouth remains the most prevalent source of information for the masses in South Sudan. However, with increased mobile and internet penetration, an explosion of user-generated content has created an environment where rumours fueled on social media take hold offline and become difficult to counter.

With support from the Africa Digital Rights Fund (ADRF), an initiative of the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), DefyHateNow has recently concluded a six-months knowledge and skills building project on countering disinformation and hate speech, complemented with digital rights and cybersecurity advocacy in South Sudan.

Leveraging the 211 Check and SafetyComm South Sudan platforms, monthly trainings on fact-checking, rights and safety online benefitted 98 content creators and civic actors.

“I loved it. We would like it to be regular; it should be a module in South Sudanese schools like universities and training for professionals,” said a trainee.

Select training beneficiaries were awarded fellowships through which they received more in-depth training and applied the acquired fact-checking and digital rights advocacy skills as part of placements within 211 Check and SafetyComm teams.

“The network that I have created as a result of this fellowship, both locally within the country and internationally, will help me to remain relevant and focused on fact-checking and digital rights.” –  A fellow and Program Manager at Junub Youth Action Network (JYAN).

“The fellowship has empowered and equipped me a lot in fact-checking, both theoretically and practically, with hands-on tools. It has shaped and broadened my ability to confidently take on the tasks of fact-checking and research in the mis/disinformation paradigm.” – A fellow and student at the University of Juba.

In addition to the training and fellowships, four radio talk shows on Advance Youth Radio and two virtual meetups were hosted to raise wider awareness about disinformation and hate speech. Among the meetup guest speakers was an analyst from the National Communications Authority who presented on government efforts to establish a Computer Emergency Response Team (CERT). Discussions also explored the challenges related to the Computer Misuse Order 2021, with a representative from the telecom services provider MTN speaking about the company’s efforts to uphold data privacy and overcome fraud.

Moreover, together with Junub Open Space, a local National Nongovernmental Organisation (NNGO) in Juba, DefyHateNow hosted five editions of “Salaam Fi Bet” (Peace at Home), a community-centred discussion on trust circles for information verification. Up to 107 individuals (62% women) from five neighbourhoods in Juba attended the discussions.

DefyHateNow’s ADRF-supported project builds on initiatives spearheaded by UNDP to tackle Covid-19 related misinformation and the Sentinel Project, which addressed hate speech and misinformation at the peak of the civil war in the East African country. As the perpetrators, pathways and effects of false news and information manipulation online evolve, the need for continued education and empowerment remains preeminent. This project demonstrates that collaborative efforts in knowledge and skills building can contribute to equipping people with the tools and resources to keep communities safe.

12Jan

A Section of Uganda’s Computer Misuse Act Outlawed! But, the Greater Part of the Law Remains Thorny

Author CIPESA Posted on

By Juliet Nanfuka |

The Collaboration on International ICT Policy for East and Southern Africa (CIPESA) welcomes the ruling by Uganda’s Constitutional Court that section 25 of the Computer Misuse Act of 2011, which penalises “offensive communication”, is null and void. This section has severally been used by state authorities to silence dissent, and CIPESA has for long supported efforts to expunge it from the eastern African country’s key internet law.

On January 10, 2023, Uganda’s constitutional court ruled that section 25 of the Computer Misuse Act is inconsistent with the country’s constitution and called for an immediate halt to its enforcement, including for all cases being prosecuted or investigated. The court’s decision could bring to an end the utilisation of this problematic provision that has for a decade been weaponised to silence critics, political opponents and dissidents. The government can appeal the constitutional court’s decision to the Supreme Court within 14 days.

This week’s ruling is the result of a 2016 petition in which the litigants argued that section 25 was vague, violated civil liberties, and contravened constitutional guarantees. 

The law on computer misuse defines offensive communication as the “willful and repeated use of electronic communication to disturb or attempt to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication whether or not a conversation ensues.” The offence is punishable by a fine not exceeding USD 130 or imprisonment not exceeding one year, or both. 

However, opponents of the law have argued that this provision is vague, overly broad and ambiguous. Further, they contended that the provision does not give a fair warning regarding what conduct is deemed illegal under the right and freedom of speech and expression pursuant to article 29(1)(a) of Uganda’s constitution.

In this week’s ruling, Justice Kenneth Kakuru, who wrote the lead judgement, stated that he  had determined that the words used under section 25 were “vague, overly broad and ambiguous.” According to the judge, what constitutes an offence is “unpredictable” and this gives the law enforcer the discretion to choose what qualifies as offensive. Justice Kakuru added that the provision “gives law enforcement unfettered discretion to punish unpopular or critical protected expression.” 

Section 25 of the Computer Misuse Act has severally been invoked to issue threats, effect arrests, detention, and prosecution of individuals over their online communications. 

The Computer Misuse Act has been previously used to suppress digital rights including free expression and access to information. For instance, academic and social critic Dr. Stella Nyanzi was arrested for insulting the president in a social media post. In 2019, she was convicted of cyber harassment contrary to section 24 of the Act but acquitted of offensive communications, which is proscribed under section 25. Other individuals who have suffered the wrath of the same law include former presidential aspirant Henry Tumukunde who was arrested over alleged treasonable utterances in radio and television interviews, the Bizonto comedy group who were arrested over alleged offensive and sectarian posts, and author Kakwenza Rukirabashaija who was arrested, detained and prosecuted over offensive communication against the president and his son. (Source: CIPESA Submits Comments on the Computer Misuse (Amendment) Bill, 2022 to Parliament )

Despite this progressive decision by the Constitutional court, the Computer Misuse Act will remain a key impediment to free expression and the enjoyment of digital rights, notably because of amendments made to the law in late 2022. Those amendments ambiguously prohibit the “misuse of social media,” sending or sharing of unsolicited information through a computer, and sending, sharing or transmission of malicious information about or relating to any person. These prohibitions, whose introduction was condemned by wide sections of Ugandan civil society, human rights defenders and some government officials, present a key curtailment of freedom of expression and access to information. 

Promoters of the amendments argued that existing laws did not “specifically address the regulation of information sharing on social media” or were “not adequate to deter the vice”. However, critics argued that efforts should instead have focused on addressing the existing retrogressive provisions in the law, notably those on “cyber harassment” and “offensive communication”. 

Accordingly, CIPESA alongside 13 civil society organisations and individuals filed a petition challenging those amendments. This followed CIPESA’s submission of comments and presentation of concerns before the Parliamentary Committee on Information and Communication Technology ahead of the enactment of the amendments. In those submissions, CIPESA argued that since its enactment, the Computer Misuse Act had been used to suppress digital rights including free expression and access to information and the proposed amendment would present a further blow to online civil liberties.

In its ruling, the constitutional court noted that, “In a democratic and free society, prosecuting people for the content of their communication is a violation of what falls within guarantees of freedom of expression in a democratic society.” The ruling is a step in the right direction in combating wanton limitations to digital rights in Uganda, where a flurry of technology-related laws were enacted in the wake of the 2010 Arab Spring during which users leveraged digital platforms and social media to build movements and mobilise public protests against their autocratic governments.

Besides the Computer Misuse Act, other laws enacted in Uganda during this time include the Regulation of Interception of Communications Act, 2010, the Electronic Signatures Act, 2011, and the Electronic Transactions Act, 2011, all of which variously interfere with digital rights including data privacy, access to information, and freedom of expression.

02Jan

Move Fast and Fix Policy: African Digital Rights Advocacy in an Era of Rapid Policy Change

Author CIPESA Posted on

By CIPESA Staff Writer |

Across Africa, the fast-evolving technology landscape has created pressure to adopt appropriate legislation to keep up with the pace of technological development. However, these efforts are being shackled by numerous challenges, including silo approaches to policy development, limited citizens’ inclusion in policy formulation, failure to harmonise stakeholder positions, ad hoc advocacy efforts by Civil Society Organisations (CSOs), and the failure to leverage the influence of private sector actors.

At the Forum on Internet Freedom in Africa 2022 (FIFAfrica22), digital rights activists and policymakers examined how existing processes and mechanisms that provide input into digital policies can be improved. In a panel session organised by the Centre for International Private Enterprise (CIPE), participants explored experiences and practical tips for policy engagement that upholds democratic values.

A key concern was that, on the one hand, Africa’s digital rights landscape has for years remained unregulated, leading to resistance to efforts to regulate it, and yet the absence of laws creates room for violation of rights online and abuse by state and non-state actors. On the other hand, where laws have been enacted, implementation and enforcement have been weaponised to target critics and dissent, as reflected in the continued infringement of rights online. This creates the need for proactive multi-stakeholder efforts in pushing back against regressive developments.

“While we should be [engaged] at the beginning of the process, we are ignored and when we enact a law, CSOs come to challenge it, yet if they involve us early enough, we would all be in agreement,” said Neema Lugangira, Member of Parliament from Tanzania and Chair of the African Parliamentary Network on Internet Governance (APNIG).

She noted that with a negative attitude towards each other, many parliamentarians question the motives of CSOs in pushing certain agendas and called for a change in approach. “I want to champion issues in which I have been involved. How do we make your agenda my agenda? You can scream whatever you want but you cannot get legislative change without working with Parliament,” said Lugangira. 

Indeed, Boye Adegoke from Paradigm Initiative reiterated that one of the pitfalls of policy advocacy was to adopt the angel/devil relationship approach. He added that many CSOs lack  adequate knowledge and skills to engage in policy processes. In turn, he called for more proactive efforts in tracking parliamentary debates and business related to digital policy and undertaking research to inform policy advocacy. 

Building alliances, including with the local business and the tech community, was also cited as critical to strategic support for policy influence. “When they [business and tech community] speak, they tend to be listened to and governments tend to respect their views,” said Nashilongo Gervasius, a Namibian technology policy researcher and founder of NamTshuwe Media.

Equally emphasised was the need to leverage the power and influence of private sector players  at international level, where the quality of policy negotiations by some African governments remains wanting,  as noted by Ayaan Khalif, the Co-Founder of Digital Shelter, a digital rights group in Somalia. Citing the example of the 15% tax agreement between OECD countries and multinational companies, Ayaan stated that African countries and CSOs must bring the continent’s big market potential to the “negotiating table” in order to tap into the multinationals’ revenue.

Away from negotiations, the need to increase inclusive participation in public policy processes was also stressed. As Khalif stated, “Holistic stakeholder involvement should clearly define those being involved, ensure that they are actually given the opportunity to make meaningful input and outline the issues being addressed”.

Ultimately, context remains paramount given that most countries on the continent are at different levels of democracy and what is possible in one may not be tenable in another. What is important is to understand the policy making ecosystem and respond appropriately. “Policy advocacy is about incremental wins. If you are not invited to the table you can bring your own chair to the table, or you can set up your own table and bring people to it,” concluded Adegoke.

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