MLDI to Host a Strategic Digital Rights Litigation Workshop at FIFAfrica18

Announcement |

Litigation has been recognised as a potentially effective tool in removing restrictions on the free flow of information online in countries with repressive internet regimes. Increasingly, some initiatives are seeking to encourage collaboration among different actors in strategic litigation for a free and open internet.

Indeed, various cases in litigation for the respect and realisation of digital rights have recently been recorded in Cameroon, Kenya, Burundi and Gambia, among other countries in Africa.

Yet still, litigation remains under-utilised because of a lack of effective collaboration between different actors: lawyers, activists, academics, technical experts and other members of civil society.

Accordingly, the Forum on Internet Freedom in Africa (FIFAfrica) 2018 will serve as an opportunity for the Media Legal Defense Initiative (MLDI) to build the capacity of internet activists to collaborate across disciplinary silos to more effectively push back against regressive legal frameworks that are not conducive to access and use of the internet in Africa.

Sessions at the workshop will explore the meaning of strategic litigation and examine relevant comparative and international legal standards drawing on judgments from regional courts. Together with participants, MLDI will analyse the legal issues that can arise in the context of digital rights and freedom of expression through three case studies. Through interactive group sessions, participants will examine how the comparative and international standards can be applied in practical terms.

The workshop, scheduled to take place on September 26, 2018, is aimed at enhancing the strategies for future digital rights and online freedom of expression litigation and advocacy in Africa. It builds on the foundations set in knowledge and skills for collaboration in research for internet policy advocacy as well as regional efforts targeting the legal fraternity in East and West Africa.

The 2018 workshop is the second digital rights litigation training to be held on the sidelines of FIFAfrica. The first workshop was hosted at the 2017 edition of FIFAfrica in Johannesburg, South Africa by the Berkman Klein Centre for Internet and Society at Harvard Law School and MLDI.

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

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

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

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

Strategic Litigation as an Answer to Preventing Internet Shutdowns?

By Kuda Hove |
Zimbabwean lawyer and activist Kuda Hove reflects on a workshop he attended on strategic digital rights litigation hosted by the Berkman Klein Center for Internet & Society at Harvard University and Media Legal Defence Initiative as well as on various discussions from the  recently concluded Forum on Internet Freedom in Africa.
The Forum on Internet Freedom in Africa 2017 (FIFAfrica17) was a great platform to learn more about the issues plaguing the African Internet space. The event was also a  platform to interact with some of Africa’s sharpest Internet activists and explore opportunities for collaborative interventions for advancing internet freedom on the continent.
From the Strategic Digital Rights Litigation training workshop, I learned how litigation can serve as a tool to promote and protect online rights in various African jurisdictions. It was also in this workshop that I learnt about the role of African Regional Courts in internet and information rights related matters which are referred to them by African nationals, as evinced by the case of Lohé Issa Konaté v. The Republic of Burkina Faso in which the right to freedom of expression and freedom of the press were upheld.
I come from Zimbabwe where referral of cases to regional courts such as the African Court of Human and Peoples’ Rights is rare. In the past, Zimbabweans have successfully referred a land matter to the Southern Africa Development Community (SADC) Tribunal. However, the government of Zimbabwe ignored the SADC Tribunal ruling and pushed for changes to be made to the SADC Tribunal. As a result, it is no longer possible for private SADC citizens to directly report State sponsored human rights violations to the SADC Tribunal. It was therefore, interesting to interact with session facilitators and participants who were conversant in the procedure involved in approaching other African regional and supranational courts.
The various discussions on Internet shutdowns in Africa were of interest to me especially when the Forum’s keynote speaker Rebecca Enonchong, described her experience during Cameroon’s 93 day internet shutdown which took place between January and April 2017. She said the deliberate shutdown of the Internet in English speaking parts of Cameroon led to a rise in “Internet refugees.” That is, individuals who travelled from parts of Cameroon without the Internet to other parts of the country where Internet was available for the purpose of accessing social media messages, emails and other Internet based communications.
The concept of Internet refugees reminded me of the experience of some of the rural populations in Zimbabwe. We might not have experienced internet shutdowns, but access to the Internet in areas outside of main cities and towns remains problematic, largely due to lack of infrastructure. Access to the Internet is still directly affected by factors such as access to electricity, sparsely populated cellphone towers, and lack of any substantial fixed line networks in rural areas. These infrastructure inadequacies contribute to the growth in the digital divide between urban and rural populations. Residents in rural areas are left with no choice, but to travel from their homes to the nearest clinic, growth point, or other business centre for the sole purpose of accessing mobile networks which allow them to communicate over the Internet. Given that rural women are seized with domestic roles, it is usually men who are able to travel to these areas with mobile network access, thus contributing to a gender divide when it comes to the use of ICT based communications in rural areas.
The panel discussion on the impact of Internet shutdowns raised a number of thought-provoking points and questions. For example, how do activists convince governments not to shut down the internet in their respective countries? Would an economic argument based on the negative economic impact Internet shutdowns have on national economies be effective? Or is it more effective to argue against Internet shutdowns from a human rights perspective which highlights the fact that the United Nations has recognised access to the Internet as a human right that must be protected? Despite both these arguments, the trend of internet shutdowns initiated by African governments continues to grow, which indicates that they do not care about economic loss resulting from Internet shutdowns, and the same governments have also shown a culture of impunity in respect for human rights.
I walked away from #FIFAfrica17 pondering how successful strategic litigation against an African government which has shut down the internet might be. In my mind, this would be an attention-grabbing test case which just might be a solution and deterrent to errant African governments. Such a case would be argued before a court such as the African Court of Human and Peoples Rights. The legal basis for this challenge would be that the government in question has violated its citizens’ fundamental rights such as the right to access to information, right to freedom of expression, and the right to freedom of assembly. These rights all enjoy protection under the African Charter on Human and People’s Rights and their violation is a violation of this continental instrument. Furthermore, private sector players can even act as amici curiae and provide proof of the economic prejudice they have suffered as a direct result of being cut off from the Internet. Time will tell whether such strategic litigation will prove effective in the fight against Internet shutdowns in Africa.