Digital rights in Africa: Continental and regional policies and initiatives
Besides the Malabo Convention (covered further in sub-section 4.2.), there are several other continental and regional frameworks and initiatives that cover issues related to the protection of human rights in the digital space.
A Network of African Data Protection Authorities (NADPA) – established in 2016 – brings together privacy and data protection authorities from 19 countries1As of October 2022, NADPA membership includes DPAs from Angola, Benin, Burkina Faso, Cabo Verde, Chad, Côte d’Ivoire, Gabon, Ghana, Kenya, Mali, Mauritius, Morocco, Niger, Nigeria, Sao Tome and Principe, Senegal, South Africa, Tunisia, and Uganda. to facilitate cooperation and the sharing of experience, support states in preparing legislation on privacy and data protection and establishing data protection agencies (DPAs), and promote the adoption and implementation of relevant African legal instruments.2Network of African Data Protection Authorities [NADPA]. (n.d.). The Network’s functions. The network is also cooperating with African and international bodies and associations (e.g. the Global Privacy Assembly and the Global Privacy Enforcement Network). In March 2022, the network signed a memorandum of understanding with the Smart Africa Alliance to work together on issues such as supporting the enforcement of data protection regulations, encouraging the creation of a harmonised framework for data protection policies and regulations across Africa, and supporting countries in preparing or updating legislation and establishing DPAs.3Smart Africa. (2022, March 10). Smart Africa and NADPA signed an MOU to advance the enforcement and harmonisation of personal data protection laws in Africa. Smart Africa blog.
Over the years, the African Commission on Human and People’s Rights (ACHPR) has developed several instruments and resources covering issues related to the protection of human rights and freedoms in the digital space. A Resolution on the right to freedom of information and expression on the internet (adopted in 2016) calls on countries to guarantee, respect, and protect citizens’ right to freedom of information and expression through access to internet services.4African Commission on Human and Peoples’ Rights [ACHPR]. (2016). Resolution on the right to freedom of information and expression on the internet in Africa – ACHPR/Res.362(LIX)2016.
In 2019, the Commission adopted a Declaration of Principles on Freedom of Expression and Access to Information in Africa, which highlights a series of principles related to internet access, freedom of expression online, the right to anonymity, and the right to privacy and data protection in the digital space. States are called, among others, to:
- Adopt laws, policies, and other measures to provide universal, equitable, affordable, and meaningful access to the internet without discrimination.
- Not to interfere with the right of individuals to seek, receive, and impart information through any means of communication and digital technologies. This means refraining from measures such as the removal, blocking, or filtering of content unless such interference is justifiable and compatible with international human rights law and standards.
- Not to engage in or support any disruption of access to the internet and other digital technologies for segments of the public or an entire population,
- Not to require internet intermediaries to proactively monitor content which they have not authored or otherwise modified.
- Not to adopt laws or other measures prohibiting or weakening encryption, including backdoors, key escrows, and data localisation requirements unless such measures are justifiable and compatible with international human rights law and standards.
- To only engage in targeted communication surveillance that is authorised by law, conforms with international human rights law and standards, and is premised on the specific and reasonable suspicion that a serious crime has been or is being carried out or for any other legitimate aim.5African Commission on Human and Peoples’ Rights [ACHPR]. (2019). Declaration of Principles on Freedom of Expression and Access to Information in Africa.
A 2022 Resolution on the protection of women against digital violence in Africa calls on states to adopt or review legislation to combat digital violence against women and facilitate women’s access to education in digital technology domains.6African Commission on Human and Peoples’ Rights [ACHPR]. (2022). Resolution on the protection of women against digital violence in Africa – ACHPR/Res.522(LXXII)2022.
Another Commission resource that touches briefly on digital issues is the set of Guidelines on Access to Information and Elections in Africa. It notes that regulatory bodies should refrain from shutting down the internet during electoral processes. In exceptional cases where shutdowns may be permissible under international law, such limitations need to be authorised by law, serve a legitimate aim, and be necessary and proportional in a democratic society.7African Commission on Human and Peoples’ Rights [ACHPR]. (2017). Guidelines on Access to Information and Elections in Africa. Furthermore, in the Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, the Commission stresses that, while the spread of terrorism may be intensified by the use of the internet and social media, these ‘are tools which can be used to combat the spread of terrorism and should not be viewed as a threat in itself’.8African Commission on Human and Peoples’ Rights [ACHPR]. (2015). Principles and Guidelines on Human and People’s Rights while Countering Terrorism in Africa.
At a regional level, the Economic Community of West African States (ECOWAS) has an act on personal data protection (adopted in 2010), which requires member states to develop national legal frameworks for the protection of data and privacy and to establish data protection authorities.9Economic Community of West African States [ECOWAS]. (2010). Supplementary Act A/SA.1/01/10 on personal data protection within ECOWAS. There is also an ICT accessibility policy (endorsed in 2018), which calls on member states to ensure digital accessibility for all, including persons with disabilities.10Economic Community of West African States [ECOWAS]. (2018). ECOWAS moves to ensure digital accessibility in the region. Press release, 15 December. Within the Southern African Development Community (SADC), a model law on data protection was adopted in 2012 which outlines rights and obligations related to the protection of personal data.11Southern African Development Community [SADC]. (2012). Model law on data protection.
A significant pan-African initiative – spearheaded by civil society and later endorsed by multiple actors from across diverse stakeholder groups – is the African Declaration on Internet Rights and Freedoms. The declaration highlights 13 key principles to be promoted and respected in the digital space, from privacy and data protection to gender equality, and from freedom of expression to cultural and linguistic diversity.
The declaration calls on African governments to ratify and give effect to all relevant international and regional human rights treaties related to the protection of human rights on the internet, as well as to ensure that legal, regulatory, and policy frameworks for the protection of these rights are in full compliance with international standards and best practices. Civil society groups are encouraged to include identified abuses of internet rights and freedoms in their reports to international human rights bodies and mechanisms and to communicate with the Special Rapporteur on Freedom of Expression and Access to Information in Africa on measures to uphold freedom of expression in relation to the internet.12The mechanism of the Special Rapporteur on Freedom of Expression and Access to Information was established by the African Commission on Human and Peoples’ Rights in 2004. The mandate includes, among others, monitoring compliance with freedom of expression standards and advising member states and submitting reports to the Commission on the status of the enjoyment of the right to freedom of expression in Africa. Technical communities are asked to ensure African participation in the development of open standards.13African Internet Rights. (n.d.). African Declaration of Internet Rights and Principles.
As the adoption of the aforementioned declaration illustrates, civil society organisations, alliances and think tanks based in Africa are particularly active on matters related to the protection and promotion of digital rights. Among them are the African Digital Rights Network, the African Internet Rights Alliance, the Association for Progressive Communications (APC), Collaboration on International ICT Policy in East and Southern Africa (CIPESA), OpenNet Africa, Paradigm Initiative, and Research ICT Africa. These entities usually also participate in various international processes and initiatives such as the Internet Governance Forum (IGF), the RightsCon conference, and the Human Rights Council (HRC) (making contributions to the Council and attending side events held on the margin of Council sessions). Governments can (and should) tap into the expertise of these organisations to strengthen their engagement in international processes dealing with such issues.