Advancing Collaborations in Strategic Litigation for Digital Rights in East Africa

By Edrine Wanyama |

Strategic litigation has gained recognition as a tool for pushing back against restrictions on rights to privacy, access to information and freedom of expression, assembly and association in the digital sphere in Africa. Notable cases have been recorded in Burundi, Kenya, Tanzania, Uganda, Cameroon, Gambia, Zimbabwe, and Sudan.

However, litigation for digital rights remains under-utilised across the continent due to lack of effective collaboration between actors such as lawyers, activists, academia, civil society organisations and other technical experts.

At the 2019 Forum on Internet Freedom in Africa (FIFAfrica19) in Addis Ababa, Ethiopia, a workshop was hosted to promote best practices for more effective collaboration across disciplinary silos in digital rights litigation. The session also aimed to raise the visibility of the outcomes and lessons learned from three recent digital rights cases and campaigns in Kenya, Tanzania and Uganda, alongside global experiences by Access Now, the Electronic Frontier Foundation (EFF) and the Media Legal Defense Initiative (MLDI), so as to inform future intervention. It was attended by 22 participants comprising of parliamentarians, lawyers, academics, journalists, digital rights activists, civil society actors and representatives of government agencies.

The workshop and case analysis were premised on the catalysts for collaboration which outline 12 principles in advancing digital rights campaigns using litigation.

The 12 Catalysts for Collaboration

Various issues emerged during the workshop and in many instances echoed the experiences of cases in East Africa and beyond. In his presentation, “Litigating Digital Rights and Online Freedom of Expression in East, West and Southern Africa”, Padraig Hughes from MLDI explored  internet regulation and international human rights instruments provisions related to digital rights, including data protection and privacy, the right to be forgotten, encryption, anonymity and cybercrime. He noted that whereas countries across the world were party to many of the instruments, case law on internet regulation in Africa was not as advanced as in other continents. Indeed, a study of the case of The Bloggers Association of Kenya (BAKE) v Hon. Attorney General & Three Others in Kenya indicates that due to limited precedent and case law on strategic litigation in Africa, BAKE had to rely heavily on European Union case law as a reference point.

BAKE’s petition challenged the Computer and Misuse Act, 2018, stating that it violated, infringed and threatened fundamental freedoms protected in the Bill of Rights in the Constitution of Kenya, 2010. In May 2018, a judge granted interim conservatory orders, suspending 26 clauses in the Act. To-date, a hearing date is yet to be set for the case. However, the orders granted remain in force pending the hearing.

The EFF’s Corynne McSherryn presented collaborative cases which challenged border device search and seizures in the United States of America, as part of which border and pocket guides have been issued to help travellers in securing their digital data before travelling. The publicity and awareness approach of the guides is similar to that adopted in pushing back against a social media tax in Uganda by encouraging the use of Virtual Private Networks (VPNs). A case related to this pushback is the Cyber Law Initiative (U) Limited and Five Others Versus The Attorney General of Uganda and Two Others.

On July 2, 2018, Cyber Law Initiative (U) Limited and four individuals – Opio Daniel Bill, Baguma Moses, Okiror Emmanuel and Silver Kayondo – sued the Attorney General, the Uganda Communications Commission (UCC), and the Uganda Revenue Authority (URA) in the Constitutional Court over an amendment to the Excise and Duty Act. The amendment introduced a tax of Uganda Shillings (UGX) 200 (USD 0.05) per day in order to access Facebook, WhatsApp, Twitter, and Viber, among other social media platforms. The case relied heavily on print, broadcast and online media to raise public awareness and push back against the tax through encouraging use of Virtual Private Networks (VPNs). It is over a year since the case was filed and all relevant submissions have been tabled before court. However, a hearing date has not been fixed. Efforts to have the case hearing date fixed have included a petition to the Deputy Chief Justice with an annexation of over 400 signatures, to no avail.

Aaron Kiiza, part of the legal team on the Uganda social media tax case, noted that collaborative litigation remains a major challenge due to group dynamics and unforeseen circumstances. This was the case in Tanzania where three collaborators withdrew from Legal and Human Rights Center and Two Others v. The Minister for Information, Culture, Arts and Sports, the Tanzania Communications Regulatory Authority and the Attorney General, which demoralised the group and was deemed as the “starting point of defeat” in the case.

The Legal and Human Rights Centre, Media Council of Tanzania, Tanzania Media Women Association (TMWA), Jamii Media, Tanzania Human Rights Defenders Coalition (THRDC), and the Tanzania Editors Forum (TEF) filed a case in the High Court of Tanzania challenging enforcement of the Electronic and Postal Communications Act (EPOCA) (Online Content Regulations) of 2018. The applicants argued that the regulations were promulgated in excess of power, illegal, against the principles of natural justice, unreasonable, arbitrary and ambiguous. However, three applicants (Jamii Media, TAMWA and TEF), later withdrew from the case. TAMWA and TEF’s withdrawal from the case was attributed to waning interest, while that of Jamii Media was due to separate criminal proceedings against its Executive Director, which had already put a strain on the organisation’s operations.

 On May 4, 2018, the Court issued a temporary injunction preventing the implementation of the Regulations which were to take effect the following day on May 5, 2018. However, the government of Tanzania appealed against the decision, and Court overturned the injunction and dismissed the case, with each party bearing its own costs.

Meanwhile, in the Zimbabwean case against the network disruption of January 2019, Kuda Hove from the Media Institution of Southern Africa (MISA) Zimbabwe observed that collaborative litigation sometimes leads to delays which can affect justice. In the Kenyan case, time constraints required BAKE to draft and file the petition, under certificate of urgency, with only two days left before the Computer Misuse and Cybercrimes Act, 2018 came into force. Hove noted that there is always the need to strengthen communications among parties and collaborators who may fail on their duties and obligations during the litigation.

Participants also highlighted the lack of digital rights knowledge, skills and competencies amongst judges and lawyers a shared experience across all three cases studied. Resource constraints which affect evidence gathering are another shared challenge.

Furthermore, the slow nature of legal processes was acknowledged. The cases in East Africa have been fraught with setbacks, including case backlog and judiciary transfers leading to fatigue of both the legal counsel and the general public.

The workshop and case analysis were carried out as part of a CIPESA-MLDI project aimed at increasing the availability of information on digital rights cases in Africa and lessons learned to inform future intervention for effectiveness, creativity and resilience of cases. The documenting of the case studies was conducted by CIPESA in partnership with the Kenya ICT Action Network (KICTANet) and Tanzania Human Rights Defender’s Coalition (THRDC), and involved expert consultations, literature review and interviews.

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.

Litigating Against Internet Shutdowns in Cameroon

By Juliet Nanfuka |
The pushback against internet shutdowns in Cameroon has recently taken a new turn with advocacy organisations filing formal submissions before the Supreme Court of Cameroon. In their January 2018 submission, AccessNow and Internet Sans Frontières (ISF) highlight Cameroon’s commitment to international and regional human rights law and urge judges to recognise that disrupting or blocking the internet is incompatible with the right to free expression and access to information.
Authorities in Cameroon first initiated an internet shutdown in the English-speaking regions on January 17, 2017, which lasted 93 days. The shutdown was imposed in the wake of ongoing strikes, fatal violence and protest action against the continued “francophonisation” and marginalisation of English speakers who claim the central government “privileges the majority French-speaking population and eight other regions.” Cameroon’s constitution recognises the two languages as equal and calls for bilingualism. A second shutdown was effected on October 1, 2017 and some 150 days later, there was still no sign that the shutdown is about to be lifted in the affected Anglophone regions of Southwest and Northwest Cameroon.
The case in which AccessNow and ISF intervened is one of two ongoing cases challenging the January 2017 shutdown. Initiated in April 2017 by Cameroon’s Veritas Law Offices, in collaboration with the Media Legal Defence Initiative (MLDI), the cases are against the Ministry of Post and Telecommunications, Cameroon Telecommunications (CamTel) – a private company which dominates the telecoms sector in the country – and the Government of Cameroon.
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,  various initiatives are seeking to encourage collaboration across different internet governance actors in strategic litigation for a free and open internet.
AccessNow and ISF’s filing seeks remedy for the shutdown, calling it a violation of citizens’ constitutional rights to freedom of expression and access to information and freedom from discrimination. Indeed, in the submission, the organisations point out that international and regional courts as well as human rights institutions have condemned shutdowns as contrary to the law, unnecessary, and a disproportionate means of achieving their aim.
The filing also to refers to Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) and Article 9 and 27(2) of the African Charter, which state that a limitation or restriction on the right to freedom of expression will only be justifiable where it is (i) provided by law, (ii) serves a legitimate interest, and (iii) is necessary in a democratic society. These articles further state that where a state’s restriction or limitation fails to meet any one of the aforementioned criteria, it will amount to a violation of the right to freedom of expression.
Meanwhile, in November 2016, the African Commission on Human and Peoples’ Rights adopted a Resolution in which it expressed its concern over “the emerging practice of State Parties of interrupting or limiting access to telecommunication services such as the Internet, social media and messaging services, increasingly during elections”. It urged state parties “to respect and take legislative and other measures to guarantee, respect and protect citizens’ right to freedom of information and expression through access to Internet services.”
Various countries in Africa, Europe and Asia have experienced various forms of internet disruptions in recent years, some repeatedly like DR Congo, Ethiopia, India, Turkey, and Uganda, often with little legal recourse available to citizens. In the few instances where redress has been sought through courts of law, the proceedings have been slow such as the case of Uganda which called for the 2016 social media and mobile money shutdowns to be classed as illegal in a bid to deter a repeat of similar actions. Indeed, litigation is offering a new frontline in digital rights, such as in the case of the Gambia following the February ruling by the Economic Community of West African States (ECOWAS) Regional Court of Justice that media laws on sedition, false news and criminal defamation violate the right to freedom of expression. This mirrored the 2015 ruling by the East African Court of Justice (EACJ) which ruled that sections of Burundi’s Press Law of 2013 violated press freedom and democratic principles called for them to be repealed.
Nonetheless, the push for digital rights has taken on different forms and strategies, including the popular #KeepItOn campaign which is creating greater awareness and pushback against internet shutdowns. In Africa, for as long internet disruptions continue to recur, more strategic responses to them need to be developed particularly as sinister measures such as ambiguous regulations are increasingly taken to control the flow of information and freedom of expression online.
Update: Internet Access in the affected regions of Cameroon was restored in early March 2018.