Litigating Internet Disruptions in Africa: Lessons from Sudan

By CIPESA Writer |

Internet disruptions continue to be registered across Africa, despite efforts by local and international actors to demonstrate to telecommunications regulators and governments that it is counterproductive to human rights, the economy and democracy to disrupt digital communication networks.

In 2021, up to 12 African countries experienced state-ordered internet disruptions. These included Burkina Faso (November), Chad (February), Republic of Congo (March), eSwatini (June), Ethiopia (various), Niger (February), Nigeria (June), Senegal (March), South Sudan (August), Sudan (June and October), Uganda (January), and Zambia (August).

As internet disruptions have become more prevalent on the continent, strategic litigation against governments that order themand intermediaries, such as telecom operators and internet service providers (ISPs), that effect them, has gained recognition as a push back tool. Strategic litigation can lead to significant legal precedents by publicly uncovering inequalities and highlighting human rights violations, raising awareness, and bringing about reforms in legislation, policy, and practice.

However, as this brief argues, there are several obstacles to the successful litigation of internet disruption cases, including weaknesses among groups and individuals that submit applications, and case backlogs that impede timely adjudication of cases. Indeed, few cases of strategic litigation on internet disruptions have succeeded. Cases in Cameroon, Chad, and Uganda have been dismissed. In Zimbabwe, while the court in 2019 declared that an internet shutdown ordered during protests that year was illegal, the case was decided on procedural grounds without addressing the litigants’ grounds, such as rights violations due to the shutdown.

A notable progressive decision was the June 2020 ruling by the court of justice of the Economic Community of West African States (ECOWAS), which held that an internet shutdown ordered by the Togolese government during protests in 2017 was unlawful and violated the applicant’s right to freedom of expression. The court also ordered the Togolese government to pay two million CFA francs (USD 3,400) compensation to the applicants for the violation of their rights.

Litigating against shutdowns in Sudan

Perhaps more than any other African country, Sudan has made legal precedents arising from litigation against disruptions. Of note too, is that Sudan is only perhaps rivalled by Ethiopia in the number of shutdowns it has experienced in the last three years. Since 2019, the north African country has experienced six internet disruptions.

Former president Omar al-Bashir’s regime initiated internet disruptions during public protests calling for his overthrow, but the government that succeeded him has been more prolific in utilising shutdowns in response to criticism and protests. The longest disruption was recorded in 2019 and lasted 37 days, during which the country lost an estimated USD 1.9 billion. Over 100 protesters were reportedly killed during the time the shutdown was initiated. The latest shutdown started on October 25, 2021 and lasted 25 days. It was instituted after the military declared a state of emergency in the country and seized control of the government. The shutdown was ended by a court order.

The 2019 and 2021 disruptions were both challenged in court. In June 2019, Sudanese lawyer Abdelazim Hassan lodged a lawsuit against the internet shutdown that had been instituted earlier that month. Within two weeks of filing the case, court on June 23 ordered his service provider, Zain, to restore his internet service, which the ISP promptly did. However, service was only restored for the litigant’s SIM card, with the block on access maintained for the rest of Zain’s customers. This was because Hassan had filed the case in a personal capacity as a Zain customer.

Hassan then launched a class action suit, and on July 9, 2019 the court ordered MTN, Sudani and Zain to restore services for all their customers. The telecom providers complied promptly. In September 2019, court ordered Sudani and MTN to apologise to customers for disrupting access to their networks at the behest of the military authorities in June of that year.

Another win for litigants against internet disruptions came on November 11, 2021, when the general court of Khartoum ordered ISPs to restore internet services to all subscribers in response to a lawsuit raised by the Sudanese Consumer Protection Organisation. On the same day, the Telecommunication and Post Regulatory Authority (TPRA) insisted on maintaining the shutdown despite the court order, citing “national security” and a “State of Emergency” as justification. The authority argued that it was necessary to maintain the shutdown as ordered by “the higher leadership”, provided the state of emergency and threats to national security persisted.

The TPRA decision declining to restore internet connectivity cited article 6(j) and article 7(1) and article 7(2)(a) of the law of TPRA of 2018. Article 6(j) provides that one of TPRA’s mandate is “protecting the national security and the higher interests of Sudan in the field of Telecommunication, Post and ICT”. Articles 7(1) and 7(2)(a) state that among the powers of the TPRA is to protect the state’s obligations and requirements in the field of national security and defence, and national, regional and international policies, in coordination with the competent authorities and licensees.

The judge dismissed that argument and issued an arrest warrant for the chief executive officers of the telecom companies for not restoring internet access. On November 18, 2021, the telecom companies restored internet access for all subscribers. The various restoration orders and arrest warrants bring to four the key decisions taken by courts in Sudan that held the regulator, ISPs and the government to account. Further, unlike the Togo case which was adjudicated in the aftermath of the disruption, in Sudan the court issued orders during the disruption and brought it to an end.

Lessons from Sudan’s experience

  • Leaders of telecom companies can and should be held individually liable for actions of their companies. In Sudan’s case, an arrest warrant against leaders of telecom companies yielded compliance with a restoration order in spite of the telecom regulator’s directive to maintain the shutdown.
  • Powers of telecom regulators, who often cite vague grounds of national security in ordering disruptions, can be challenged in court even if the regulators cite the law in ordering an internet disruption.
  • It is essential for courts of law to adjudicate swiftly on internet shutdown cases. In Sudan’s case, it took two weeks of filing a case for court to order restoration of service to the litigant. In another two weeks, the court had ordered service providers to restore services to all customers.
  • Litigation’s target actions and actors need to be well-defined. Sudan has lessons on litigation that benefits individuals and others that benefit groups of users. Further, the targets of litigation action are varied, to include the regulator, a particular ISP or all ISPs, and other state bodies.
  • Intermediaries have appeared helpless in the face of government orders and have acquiesced to government orders even when their lawfulness is questionable. Holding them liable for losses to customers, such as the order by the Sudanese court that they apologise to customers, could make them think twice before implementing shutdown directives.

Apply for Data Driven Advocacy Sketchathon at FIFAfrica21

Call for Applications |

Do you want to use data for advocacy but you’re not sure where to start? Would you like to transform statistics into compelling stories? Are you passionate about a digital rights cause, and want to convince others to join your efforts?

In the lead up to the Forum on Internet Freedom in Africa 2021 (FIFAfrica21), the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) and Data4Change will host a virtual data sketchathon and series of critical discussions to get you thinking more about how to use data in digital rights advocacy. The sketchathon will take place on Monday 27 September 2021.

The schedule
Starting at 10am East African Time (EAT) and finishing at 5pm EAT, the sketchathon will entail a combination of live Zoom sessions and self-paced activities.

We’ll use the answers in your application forms to set an agenda for the group discussions as we explore themes like: data biases; representation, accessibility and ownership of data; and data inequalities. You’ll also have an opportunity to work in small groups to map your data advocacy aspirations and to tackle some of the data questions you’re grappling with as individuals or organisations.

Participants will also have an opportunity to create a data design using data from the #KeepItOn campaign Shutdown Tracker Optimisation Project.

Who should apply
There are no prerequisites, and literally anybody can apply. We are looking for people who are passionate about uncovering the potential of using numbers to drive forward emotive stories that have the power to advance digital rights preferably in Lesotho, Mozambique, Tanzania, Uganda, Zambia, and Zimbabwe.

A limited number of spaces are available for the workshop. We endeavour to create diverse and collaborative spaces and to foster a sense of community that lasts beyond the event and will strive to create a balanced representation of different geographies, abilities, and approaches among participants.

How to apply
Submit this form before 18.00 East African Time on Wednesday September 22, 2021.

Successful applicants will be notified by Friday September 24, 2021. A modest reimbursement will be provided for participants’ connectivity costs.

Charting the Link Between Disinformation, Disruptions, Diseases and the Diaspora in Cameroon and DR Congo

By Richard Ngamita |

Disinformation on social media has been a growing concern in global politics for several years, and it is now exploding across Sub-Saharan Africa, where social media-based disinformation campaigns are increasingly being deployed by foreign entities and governments  to influence narratives.

Several socio-political and economic factors provide fertile ground for disinformation to thrive in African countries. The exploding youth population – with many coming online for the first time through social media – growth in the use and availability of internet-enabled mobile phones, ethno-religious conflicts, and insecurity are some of the factors that have contributed to the large amount of information accessible via digital media and provided new, fast-moving channels for spreading and amplifying false information.

This growth in disinformation in the region has presented a new stress test for emerging internet policy and legislative responses. For instance, in March 2020, Ethiopia enacted the Hate Speech and Disinformation Prevention and Suppression Proclamation to address hate speech and disinformation, which have historically troubled the country. However, it has been argued that whereas government regulation is legitimate to control hate speech, Ethiopia’s new law poses a threat to freedom of expression and access to information online.

In Cameroon, under the Law Relating to Cyber Security and Cyber Criminality, it is an offense to publish and propagate information online “without being able to attest its veracity” or truthfulness. In a July 2020 press conference, Cameroon’s Communication Minister, René Emmanuel Sadi, expressed concerns over “irresponsible” use of social media to tarnish the image of public officials or sabotage government actions and warned that those who continued to propagate such information on social media platforms would face the heavy arm of the law.

Other countries like Zimbabwe and Tanzania have broader media laws that have been used to target fake news. The various laws have been criticised for posing a threat to digital rights, especially when deployed as tools against critical opinion, the media, and dissent in African countries with democratic deficits.

Many African countries, including Cameroon and the Democratic Republic of Congo (DR Congo), continue to grapple with disinformation, with a high risk of online activity resulting in offline harm. This report reviews the situation in these countries, where – despite relatively low connectivity levels – disinformation presents a considerable concern.

As of 2017, Cameroon had  19.7 million mobile phone subscribers  representing a penetration rate of 85%, while internet penetration was 35.6%. Meanwhile, as of December 2019, the DR Congo had an internet penetration rate of 19.2%, while mobile phone penetration was 42%.

Conflict Awareness and Disinformation

Citizens in Cameroon and the DR Congo rely on a wide range of traditional sources of information (including print and broadcast media), alongside online sources to keep abreast of social, economic and political issues. However, social media has come to play an increasing role on issues related to conflict because mainstream media is censored by their governments.

In Cameroon, tensions between Anglophone and Francophone regions date back to the country’s independence in 1961. Over the years, there have been fatal violence and protest action against the continued “francophonisation” and marginalisation of English speakers who say that the central government privileges the majority French-speaking population.

In 2015, a video showing two women and two children being shot dead by soldiers in the Far North town of Zelevet started to circulate on social media. According to a July 2018 BBC Africa Eye investigation, the government initially dismissed the video as fake news. However, Amnesty International revealed credible evidence that the Cameroon military was responsible, prompting the authorities to retract and state that the 10 soldiers depicted in the video had been arrested and would be prosecuted. Five years after the incident, a military court convicted and sentenced the soldiers to imprisonment.

Whereas the BBC Africa Eye investigation into the shooting incident revealed that several people did not like to spread hate speech and graphic violence content online, sometimes they recognised that such content could include safety information, especially for those who live in conflict areas.

cameroon
Source: Twitter

In the DR Congo, a history of armed conflict has left millions dead and the country destabilised, with continued violence perpetrated by several armed groups active in the region, including the Allied Democratic Forces (ADF), the Democratic Forces for the Liberation of Rwanda (FDLR), and numerous militias. The United Nations Organization Stabilization Mission in the DR Congo (MONUSCO) has operated in the region since 1999 and is the largest UN peacekeeping mission in the world.

During the 2018 elections that had been long awaited, there were reports of widespread election irregularities, with competing political parties claiming to be in the lead as several unofficial tallies started to circulate on social media. Sponsored content from Google and Facebook falsely alleged that former President Joseph Kabila’s surrogate, Emmanuel Ramazani Shadary, had won the elections. The ads were published before the official results announcement by the Electoral Commission, which had been delayed. There were internet shutdowns in key cities, which made it even harder for fact checkers to verify any information related to the elections.

RDC
Source : Twitter

Considering the elections had been postponed from November 2016 to December 2017, and then to April 2018, the circulation of false election results could have prolonged the cycle of instability.

 Role of the Diaspora Community

The diaspora community is a huge contributor to the inflaming of tensions online in both countries, often through fake accounts that regularly share hateful and inciting content against rival political factions.

During the 2018 elections in Cameroon, there were several instances of social media posts from the diaspora claiming that long-serving President Paul Biya had died. Biya went on to win the disputed elections, and two years on, social media content, often from the diaspora, continues to fuel political and ethnic tensions.

Cameroon
Source:  Facebook

With the conflict in Anglophone regions leading to calls for a break-away state and separatists actively seeking support from the Cameroonian diaspora, there is an ongoing risk that online content that depicts the Cameroonian government as repressive and violent could result in offline harm.

Source
Source: Facebook

As for the social media posts falsely claiming that Shadary had won the 2018 presidential election in DR Congo, considering the internet disruption at the time, indications are that the perpetrators of the sponsored ads and admins of the accounts in question were based in the diaspora. Lumumba aime LE CONGO (Lumumba loves Congo), which was among the key propagators of the ads, had been created just before the elections and traded on the likeness of Patrice Lumumba, a famous independence leader. Besides content claiming victory for Shadary, the page also shared posts from several fake domains or news aggregation websites like CongoActu24.com. This was another example in which disinformation had the potential to lead to offline harms within a fragile political environment.

Congo

Pandemics

Like in other African countries, Cameroon and DR Congo have seen a surge in Covid-19 disinformation online, some of it pegged on cultural, political and religious sensitivities including promotion of herbal remedies, steaming, alcohol, contradictory and speculative reports about treatments and/or confusing guidance about standard operating procedures (SOPs).

The spread of disinformation around diseases can be a public health risk, as has been the case in Cameroon and the DR Congo regarding Ebola and, more recently, Covid-19. Disease disinformation undermines confidence in underlying science, slows down sensitisation, politicises health activities and questions the motives of health officials.

DR Congo is no novice to pandemics, having borne the brunt of the Ebola outbreak between 2017 and  2019. In May 2020, France 24 News reported a Covid-19 fake news campaign in DR Congo. The France 24 reports were later corroborated by Facebook and DFRLab, which linked the network to a politician called Honore Mvula. The network carried several Covid-19 false claims attributed to public figures including French infectious disease expert Didier Raoult, French president Emmanuel Macron and Madagascar president Andry Rajoelina and these made rounds on Congolese Facebook pages, recording a high rate of engagement. Mvula denied the allegations against him. Facebook took down the pages.

FFRDC

Internet Disruption

Cameroon and DR Congo have a history of ordering internet disruptions on multiple occasions during public protests and elections. In January 2017, internet connectivity was restricted in the Anglophone region of Cameroon following dissent and calls for succession from the Francophone region. The disruption, which lasted for over 230 days until March 2018 is recorded as the longest internet shutdown on the continent.

Similarly, in the DR Congo, instability in the country has been continuously characterised by persistent internet shutdowns since December 2011. Following a relatively peaceful voting day on December 30, 2018, the government shut down the internet on December 31 and progressively, broadcast  media, and expelled some international journalists reporting on the elections. The official reasons provided by policymakers were “to avoid fake results from circulating”.

According to analysts, the internet shutdown in Cameroon cost the economy USD 1.67 million per day, while the shutdown in DR Congo  cost the economy USD 3 million per day.

Net block
Source: Twitter

Internet shutdowns during elections are a common and growing trend of digital repression especially in authoritarian countries in Africa, whose leaders have been in power for many years. When governments impose information blackouts or curtail the free flow of information online through other means, disinformation thrives as fact-checking and the production of counter-narratives are hampered. In the case of Cameroon and DR Congo, that disinformation, much of it originating from the diaspora, propagates hate speech and disinformation that threaten to exacerbate civil strife and undermine electoral integrity. In turn, the shutdowns and the disinformation propagated by state and non-state actors, are eroding technology’s potential to enhance electoral integrity, to civic engagement and the fight against diseases such as Covid-19.

Netblock1
Source: Twitter

Overcoming Disinformation

Accounts of targeted messaging during elections have become common, and they are particularly concerning as the content of the messages is often misleading, out-rightly false, or inciting. This recent rise of online campaigning through social media platforms has thus raised further concerns about how the required data is obtained, the extent to which African democracies are vulnerable to foreign interference, the ways in which social media algorithms are prone to manipulation, and the ethics of using African countries as a testing ground for new digital technologies.

Whereas efforts to legislate against disinformation are human rights pressure points, alternative countermeasures, in collaboration with social media platform operators, hold some promise. In 2020, several sub Saharan African governments partnered with social media platforms and other intermediaries to fight Covid-19 disinformation. Earlier in 2018, Cameroon directly engaged with Facebook to explore opportunities for fighting the spread of false and misleading information within the country. Meanwhile, promoting digital literacy skills and fact checking capacity, and creating awareness about what is unacceptable content on platforms and how to report objectionable content, remain key needed actions. Hence efforts and other measures to combat disinformation and other harmful content, including around elections and in the fight against Covid-19, require closer collaboration between governments, civil society and platforms than we have witnessed this far.

Richard Ngamita is a Data Researcher who currently works on human rights, disinformation and espionage. He previously worked at Google with the Spam team. He has also led investigative research across health, agriculture and refugee movements.

Mauritius’ Social Media Regulation Proposal Centres State-Led Censorship

By Daniel Mwesigwa |

In Sub-Saharan Africa, Mauritius leads in many aspects. It is the only country on the continent categorised as a “full democracy” by the Economist Intelligence Unit Democracy Index for 2020. Additionally, it has the second highest per capita income (USD 11,099) and one of the highest internet penetration rates in the region (72.2%).

However, the recently published consultation paper on proposed amendments to the country’s Information and Communications Technology (ICT) law, purportedly aimed at curbing abuse and misuse of social media, could place Mauritius among the ranks of regressive states. The proposed establishment of a National Digital Ethics Committee (NDEC) to determine what content is problematic in addition to a Technical Enforcement Unit to oversee the technical enforcement of NDEC’s measures has potential surveillance and censorship implications.

The social media regulation proposals by Mauritius are made in light of increasing calls for accountability of technology platforms such as Google and Facebook by western countries. Indeed, the consultation paper cites Germany’s Network Enforcement Act (colloquially known as the Facebook Act), which requires social media platforms to remove “illegal content” from their platforms within 24 hours of notice by users and complaint bodies. Non-compliance penalties are large – with fines ranging between five  million and 50 million euros.

The paper states that, unlike in Germany and other countries like France, the United Kingdom, and Australia, complaints by Mauritian local authorities to social media platforms “remain unattended to or not addressed in a timely manner”. Moreover, it adds, cooperation under the auspices of domestic laws and regulations is only effective in countries where technology companies have local offices, which is not the case in Mauritius. As such, according to the Authority, “the only practical solution in the local context would be the implementation of a regulatory and operational framework which not only provides for a legal solution to the problem of harmful and illegal online content but also provides for the necessary technical enforcement measures required to handle this issue effectively in a fair, expeditious, autonomous and independent manner.”

However, the Authority’s claims of powerlessness appear unfounded. According to Facebook’s Transparency report, Mauritius made two requests for preservation of five user accounts pending receipt of formal legal processes in 2017. In 2019, Mauritius made one request to Facebook for preservation of two accounts. Similarly, the country has barely made any requests for content take down to Google, with only a total of 13 since 2009. The country has never made a user information or content takedown request to Twitter. In comparison, South Africa made two requests to Facebook for preservation of 14 user accounts in 2017 and 16 requests for preservation of 68 user accounts in 2019. To Google, South Africa has made a total of 33 requests for 130 items for removal since 2009 while to Twitter, it has made six legal demands between 2012 and 2020.

Broad and Ambiguous Definitions

According to section 18(m) of Mauritius’ Information and Communication Technologies Act (2001, amended multiple times including in 2020), the ICT Authority shall “take steps to regulate or curtail the harmful and illegal content on the Internet and other information and communication services”.

Although the consultation paper states that the Authority has previously fulfilled this mandate in the fight against child pornography,  it concedes that it has not fulfilled the part of curtailing illegal content as it is not currently vested with investigative powers under the Act. The consultation paper thus proposes to operationalise section 18(m) through an operational framework that empowers the Authority “to carry out investigations without the need to rely on the request for technical data from social media administrators.”

The amendments to the ICT Act will relate to defining a two-pronged operational framework with the setting up of: i) a National Digital Ethics Committee (NDEC) as the decision making body on illegal and harmful content; and ii) a Technical Enforcement Unit to enforce the technical measures as directed by the NDEC.

However, neither the existing Act nor the consultation paper define what constitutes “illegal content”. Whereas the consultation paper indicates that the Chairperson and members of NDEC would be “independent, and persons of high calibre and good repute” in order to ensure transparency and public confidence in its functions, the selection criteria and appointing Authority are not specified, nor are recourse mechanisms for fair hearing and appeals against the decisions of the proposed entity.

An Authoritarian Approach to Internet Architecture

Through a technical toolset (a proxy server), proposed under section 11, the regulator will be able to identify social media traffic which will then be automatically decrypted, archived, and analysed. For instance, the technical toolset would undermine HTTPS in order to inspect internet traffic. This means that information of all social media users pertaining to device specifics, content type, location, among others, would be available to the authorities. The regulator expects that once a complaint regarding social media is received, they will be able to block the implicated web page or profile without necessarily needing the intervention of social media platforms.

Additionally, the Authority expects social media users to accept installation of a one-time digital certificate on their internet-enabled devices to facilitate the re-encryption of traffic before it is transferred to the social networking sites. In other words, the Authority wants internet users in Mauritius to replace their own padlocks used for their home security with ones given to them by the Authority, which it has open and unfettered access to.

On the other hand, Mauritius’ commitments to freedom of expression, data protection and privacy potentially collide with these social media regulation proposals. In particular, Mauritius’ Data Protection Act (2017) requires informed consent of users, prohibits disproportionate collection of user data, and mandates fair and lawful processing of user data. The Data Protection Act was enacted to align with the European Union’s General Data Protection Regulation (GDPR). In March 2018,  Mauritius also ratified the African Union Convention on Cybersecurity and Personal Data Protection, although the Convention is yet to be enforced due to lack of quorum. Moreover, in September 2020, Mauritius signed and ratified the Council of Europe’s Convention for the Protection of individuals with regard to automatic processing of personal data.

Indeed, the Authority is aware of the potential infractions of the proposed technical measures on basic freedoms — stating in the paper that “the proposed statutory framework will undoubtedly interfere with the Mauritian people’s fundamental rights and liberties in particular their rights to privacy and confidentiality and freedom of expression”. Its seeking views and suggestions of “an alternative technical toolset of a less intrusive nature” may very well be an open solicitation for more surreptitious ways of monitoring social media data, with fundamental rights still at stake.

 Democracy and Local Investment

While Mauritius runs a multiparty system of government, its human rights record has been steadily deteriorating, according to the United States Department of State’s Human Rights Report 2020. Moreover, basic freedoms such as freedom of expression are being curtailed through digital taxation and clampdown on social media dissent. Recently, Twitter cited stability and democracy as the key reasons for the opening of its first Africa offices in Ghana. Although Mauritius is strategically placed as a regional and economic hub in Africa, and has been positioning itself as a “Cyber Island”, legal frameworks such as the proposed ICT law amendments and mixed rankings on democracy alongside high rankings on internet access and ease of doing business may likely undermine the country’s international competitiveness and internet freedom standing.

Accordingly, the Authority would do well to immediately discontinue these plans to employ technical measures to monitor social media and internet traffic as they would amount to multiple breaches of fundamental freedoms. The proposals also run counter to the Data Protection Act which prioritises minimisation of data collected and informed user consent. Moreover, the technical proposal would promote self-censorship and undermine the basic workings of the institutions of democracy.

Further, although social media regulation could be paved by good intentions such as the need to stamp out inflammatory content, it could be more beneficial to explore alternative options with a range of stakeholders to promote more fair and transparent content moderation practices in line with international human rights law. Mauritius has already proved that aligning domestic and international laws and practices is necessary by fashioning its data protection law along the lines of the GDPR. Additionally, Mauritius could leverage existing partnerships with other countries of regional economic blocs such as The Common Market for Eastern and Southern Africa (COMESA) to form a coalition of fact-checkers that have direct access to social media platforms.

Finally, the Authority could collaborate with technology platforms such as Facebook to support Creole language human moderators. This could be a necessary step to enhancing content moderation through automated decisions and more so for “low resource” groups of languages including Mauritian Creole.

Digital Rights and Inclusion Forum

The Digital Rights and Inclusion Forum (DRIF) is an arena where tough topical global issues around Internet rights, especially in Africa, are discussed between civil society, technology companies, government, academia and other stakeholders. For the first time ever, the Forum will focus considerable time and energy on digital inclusion, after organising six editions that focused heavily on digital rights.
For more information on the event, click here.