Mapping Digital Rights and Online Freedom of Expression in East, West, and Southern Africa

Media Defence has published a new report, Mapping digital rights and freedom of expression in East, West and Southern Africa. This in-depth study analyses each region and each country, and is ideal for anyone who wants a deeper understanding of digital restrictions in sub-Saharan Africa. The report was prepared with the assistance of ALT Advisory, and is free to download and distribute under a Creative Commons Attribution-NonCommercial Licence.

Download the report (PDF)

Overview of this report

The right to receive, seek and impart information is well-entrenched under international law – through, for instance, the UDHR, the ICCPR and the African Charter on Human and Peoples’ Rights (African Charter) – as well in many domestic laws across the continent. However, the reality on the ground in achieving the realisation of the right gives rise to concern.

The internet has enabled an expansion of civic space and a fuller enjoyment of fundamental rights, although this has not necessarily been welcome in all states. Unfortunately, for many people across the region, access remains a serious challenge. Indeed, internet penetration in Africa is low compared to other continents. According to 2017 ITU data, only 21.8% of African residents have used the internet, compared to 43.7% in the Arab States, 43.9% in the Asia/Pacific region, 65.9% in the Americas, and 79.6% in Europe. [1]

For those who do have access, this access does not come without challenges and restrictions. There are currently various laws and policies in different countries across the region that have been proposed or have been adopted that seek to regulate the internet, and directly encroach – or have the potential to encroach – on the exercise of the right to freedom of expression online. Some countries have also seen a crackdown on human rights defenders and journalists who challenge the state authorities through the institution of criminal and other legal proceedings against them.

While many states appear to see the value of the internet for economic development and education, this is accompanied by a lack of trust in the internet and the concerns for the mobilising power that this can afford to individuals and groups.

In response, civil society organisations and members of the media across the region have taken a firm stand in the face of these challenges. Concerted efforts at policy reform and strategic litigation have served as a bastion into the erosion of the right to freedom of expression. The regional and sub-regional courts have also become an important fora for seeking accountability against African states that unjustifiably infringe the right to freedom of expression.

This report maps the current landscape in respect of digital rights and online freedom of expression in East, West and Southern Africa. It looks at the trends regarding law and policy developments, as well as recent litigation, within these regions. The report focuses on 18 countries – 6 per region – and tracks the recent developments that have taken place in these countries.

Part I of the report provides an overview of the litigation before the ACHPR and the African Court on Human and Peoples’ Rights (African Court) in respect of freedom of expression. Parts II, III and IV of the report look at the trends generally in East, West and Southern Africa respectively, as well as some of the key legal and civil society actors working on digital rights and online freedom of expression, and include a snapshot of some of the notable developments – both positive and negative – that have occurred in the 18 countries under consideration in this report, as well as reflections on opportunities and challenges for vindicating digital rights within each of the countries. Lastly, Part V considers what the next possible opportunities will be for digital rights and online freedom of expression litigation in the region.

Defining digital rights

It is by now firmly established by both the ACHPR and the UN that the same rights that people have offline must also be protected online, in particular the right to freedom of expression. [2] Article 19(2) of the ICCPR makes clear that the right to freedom of expression applies regardless of frontiers, through any media of one’s choice.

For the purposes of this report, we use the term “digital rights” to refer broadly to human rights in the digital era, and the rights that are implicated in the access and use of the internet and other ICTs. This comprises a wide range of distinct but interrelated topics. As set out below, while this report does not purport to cover the full ambit of digital rights, it seeks to focus on some of the most pertinent trends and developments seen across the region.

In broad terms, some of the key topics explored in this report within the ambit of digital rights and freedom of expression online include digital access, online content regulation, privacy and surveillance, media freedom, the spread of so-called ‘fake news’ and disinformation on social media platforms, and taxes imposed on access to the internet and platforms. Some countries have also had other noteworthy developments that are unique to the country, and where considered relevant these developments have been included as well.

Approach and methodology

In terms of the temporal scope, the report primarily focuses on developments during the two year period between mid-2016 to mid-2018, although certain of the key laws and policies pre-date this period, and have been included to provide a more holistic picture. We are also cognisant that rapid developments have taken place in some countries between the end of that period and the date of publication. The selection of countries in the report has been informed by various factors. Firstly, it represents a geographic spread, with six countries being selected from each of the sub-regions under consideration. Regard was also had to the social and political influence of the countries, and the role they play in swaying policy development in other countries on the continent. Furthermore, a key consideration was the recent trends in the countries, including new or proposed laws and policies, recent or ongoing litigation, and ICT-infrastructure development, levels of access to the internet and the prevalence of use of ICTs and social media that would likely impact on digital rights.

The availability of country-specific information was another important factor, and related to this, the existence of civil society, media and other organisations that are active in the country and have documented developments. We also took into account countries in which we have previously worked. Finally, we also had regard to where ongoing or future work in respect of digital rights would be likely to achieve positive outcomes. Importantly, we recognise that every country in the region has a unique context that presents its own opportunities and challenges, and although it was not possible for present purposes to map all the countries, we recognise the important and much-needed work that is being undertaken in respect of freedom of expression and digital rights across the continent, including those that fall beyond the scope of this report.

In preparing this report, we have relied primarily on secondary sources. The reports of civil society organisations at the domestic, regional and international levels that are active in the countries in question have been key in informing the content of this report. We have also had regard to media reports, press statements, submissions to human rights treaty mechanisms and other similar briefings to develop a fuller understanding. Furthermore, in respect of jurisprudence, laws and policies, regard has also been had to the primary sources that are under discussion.

A further source of information has been through questionnaires sent to legal and civil society organisations working in the region. A copy of the questionnaire has been included as an appendix at the end of this report, and sought input from the respondents on their work on digital rights, the current context, and their views on the opportunities and challenges in the region. The questionnaire was sent to legal, media and civil society organisations that we are aware of working across all three sub-regions, and 12 responses were received. Of these, 11 were received as completed questionnaires, with the remaining one done via a telephone call. We are deeply grateful for the input received from the respondents acknowledged below. In terms of the methodology for future iterations of this report, we will continue to strive to include as many respondents’ views as possible in order to understand the situational positioning from a diverse range of viewpoints.

However, we are cognisant that the report presents a high-level overview of complex and nuanced issues. We have, to the extent possible, endeavoured to rely on a range of sources from different actors to ensure that the content of the report is balanced. We have exercised our discretion in selecting the laws, policies and other developments that are highlighted in this report, but recognise that there will certainly be others that have not been included that are also of relevance to digital rights and freedom of expression online.

We are also cognisant of certain limitations to this report. Local context is always an important factor. As such, while we have drawn on the experience of various role-players – including Media Defence’s own experience and that of our partner organisations – and sought to place reliance on credible sources and the reports of actors working on digital rights directly in the countries under consideration, this report does not purport to present a first-hand account of the in-country situation in the 18 selected countries. We also note that up-to-date information regarding laws, policies and court decisions are not readily accessible in respect of all countries, in which case secondary sources provide the only available information. Furthermore, the process of information-gathering is also made better and more accessible in countries where there are a number of active civil society organisations, strong press freedom and high levels of access to the internet and ICTs, which in turn result in a greater exercise of freedom of expression. The converse is that information-gathering is significantly more challenging in respect of those counties that are currently under repressive regimes, lack judicial independence and accountable state institutions, or where the barriers to accessing the internet and ICTs inhibit the availability of content online.

Lastly, we note that while we have endeavoured to ensure the accuracy of the content contained in the report at the time of publication for the period under consideration, the field of digital rights is dynamic and constantly evolving with new laws, judicial pronouncements and other developments occurring frequently. Changes in leadership, legislative changes and other developments occur rapidly, and can drastically affect the landscape at any time.  As mentioned above, it is intended that this report will ultimately form part of a series, with these changes reflected in future editions covering that particular time period.

Acknowledgements

Media Defence would like to thank the following individuals and organisations for providing their input that has assisted in the development of this report:

• Association for Progressive Communications, Anriette Esterhuysen (Senior Advisor)
• fesmedia, Sekoetlane Phamodi (Programme Coordinator)
• Gambian Press Union, Bai Emil Touray (President)
• Kenya Union of Journalists, Erick Uduor (Secretary-General)
• Legal Resources Centre, Tsangadzaome Mukumba (Researcher)
• Media Foundation for West Africa, Vivian Affoah (Senior Programme Officer: Freedom of Expression)
• Media Monitoring Africa, William Bird (Director)
• PEN Nigeria, Folu Agoi (President)
• Protège QV, Avis Momeni (Secretary-General)
• Research ICT Africa, Anri van der Spuy (Manager: Africa Digital Policy Project)
• Right2Know, Murray Hunter (Secrecy Organiser)
• Southern Africa Litigation Centre, Kaajal Ramjathan-Keogh (Executive Director)

We note that the respondents have consented to being acknowledged in this report. As indicated above, 11 of the 12 respondents provided their responses through submitted questionnaires, with one having been conducted via a telephonic discussion.

We note further that while the input of the individuals and organisations above has been considered and incorporated as appropriate, this should not necessarily be construed as them having endorsed the contents of this report.

Download the report (PDF)