Litigation in sub-Saharan Africa
This Black History Month, we’re highlight the work of lawyers in sub-Saharan Africa in developing freedom of expression standards. There have been significant gains in recent years thanks to lawyers and civil society pushing to improve standards through litigation.
An increasing community of litigators are making these victories possible. By leveraging national, regional and continental courts, they are able advance and protect freedom of expression both offline and online. In this article, we outline some great examples of lawyers tackling these issues head on.
Defending digital rights in Nigeria
The Digital Rights Lawyers Initiative (DRLI), a lawyer-led digital rights organisation in Nigeria, has litigated over 50 digital rights cases since 2019. DRLI’s Chairperson, Olumide Babalola Esq., successfully challenged sections in Nigeria’s Cybercrime Act at the Court of Justice of the Economic Community of West African States (ECOWAS). The court held that the wording of the legislation was not sufficiently precise. This gave enforcers the freedom to interpret which forms of expression were legitimate.
Challenging criminalisation of journalists in The Gambia
Noah Ajare, CEO of African Rights Watch, represented four exiled Gambian journalists in ‘FAJ and Others v The Gambia’ in 2015. On 14 February 2018, the ECOWAS Court delivered a landmark judgment. It found that the Gambian authorities had violated the rights of the journalists through laws criminalising speech.
Developing strategic litigation on internet shutdowns and blocking
Mojirayo Ogunlana-Nkanga, a Nigerian lawyer and human rights advocate, is currently challenging the internet shutdowns in Guinea at the ECOWAS Court on behalf of four applicants. The government shut down internet access across the country in March 2020, and again in October 2020. It’s worth noting that the shutdowns came at critical moments in Guinea’s democracy. That month, millions went to the polls to vote in a constitutional referendum. The result would determine whether President Alpha Conde would be entitled to stand for a third term as president. Then, in October 2020, Guinea held its presidential election.
In addition, she’s also representing 5 NGOs, including Paradigm Initiative, and four journalists at the ECOWAS Court, after the Nigerian government banned Twitter on 4 June 2021. The ban followed Twitter’s decision to delete a post by President Buhari on 2 June 2021 in violation of its ‘abusive behaviour’ rules. The government also issued a directive threatening to prosecute anyone who used Twitter.
Protecting data privacy in Kenya
Finally, Mercy Mutemi is a litigator and legislative drafter in Kenya who has taken on unprecedented strategic litigation to advance digital rights. She is currently litigating constitutional challenges against the Computer Misuse and Cybercrimes Act. Furthermore, she’s challenging the roll-out of biometric registration under Huduma Namba and the installation of surveillance software in mobile phones.
Despite these successes, civic space has been closing in many countries in Africa over the past half-decade. The COVID-19 pandemic has only accelerated this trend. Digital technologies have become critically important, with almost all aspects of our life moving online. The internet connects communities, enables virtual education and healthcare, and functions as a tool to stem the tide of infections. The work of lawyers in challenging laws which restrict freedom of speech on the continent is more important than ever.
To learn more about the work of lawyers in sub-Saharan Africa this Black History Month, you can read our interviews with Cathy Anite. Michelle Mwiinga, Louis Gitinywa, Mercy Mutemi, Tonny Kirabira, Gosego Rockfall Lekgowe and Solomon Okedara.
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