An internet shutdown can be defined as the intentional disruption of the internet or electronic communications to exert control over the flow of information. Such shutdowns may take the form of blocking access to websites, web pages, and social media pages, disrupting access and flow of information through internet mediums or blocking various websites. Internet shutdowns are an emerging legal issue affecting countries around the world, including Africa. This fact sheet highlights national and regional laws on internet shutdowns and the existing mechanisms, with a focus on Kenya and Nigeria.
Regional Standards
At the African regional level, the African Union has been calling on states to rethink their laws and to consider issues pertaining to access to the internet. In its Resolution ACHPR/RES. 362(LIX) 2016: Resolution on the Right to Freedom on information and Expression on the Internet in Africa, The African Commission on Human and Peoples’ Rights (the Commission), meeting at its 59th Ordinary Session, held Banjul, Islamic Republic of The Gambia, from 21 October to 04 November 2016, it called on State Parties take legislative and other measures to guarantee, respect and protect the right to freedom of information and freedom of expression through the access to internet services. The resolution was drafted in the context of 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.
Furthermore, at the African regional level the African Charter on Human and Peoples’ Rights guarantees the right to receive information, and to express and disseminate opinions within the law under Article 9. The foregoing provision is supplemented by the African Union Resolution ACHPR/RES. 362(LIX) 2016.
Sub-Regional Standards
In the Economic Community of West African States[1], the Revised Treaty of the Economic Community of West African States[2] under Article 66 guarantees various protections for the Press including a call on member states to facilitate the exchange of information between their press organs, to promote and foster effective dissemination of information within the Community, and to ensure respect for the rights of journalists, among other obligations.
At the East African Court of Justice, there is currently no reported judicial determination on this topic.
Domestic Standards
In Kenya, considering the right to internet access can be derived from the constitutional right to access information and media freedom, any such limitations on the same are to be construed as limitations on fundamental rights and freedoms which must be guided by the following principles namely:
- A right or fundamental freedom in the Bill of Rights shall not be limited except by law;
- The limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and considering all relevant factors, including the nature of the right or fundamental freedom,
- The importance of the purpose of the limitation, the nature and extent of the limitation, and
- The need to ensure the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others, and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.[3]
In the case of Abdalla Ali Taib and Others vs Rabinder Kaur Ahluwalia, Civil Suit No. 512 of 2011[4], the High Court of Kenya directed Internet Corporation for Assigned Names and Numbers (ICANN) and relevant Kenyan Government authorities and bodies with governing, regulatory or oversight powers, to close and/or put to stop to a website that had published an offensive article against the plaintiffs. The plaintiffs had filed the suit complaining about the publication of an offending article against them. While allowing the claim, the court ordered the Respondent to ensure that the offending website on the internet in respect of which the Respondent held responsibility, be immediately and without exception, shut down and all materials and contents relating to the suit and the plaintiffs, published or posted on the internet or published or posted elsewhere, removed and shut down. The effect of the above judgment is yet to be seen in light of internet shutdowns whereas no such measures have been taken in regard to other defamation suits filed after this court’s pronouncement.
In addition to the foregoing, there is no express law on access to the internet. However, by extension, Article 33 of the Constitution of Kenya, 2010 grants the right to freedom of expression which includes the freedom to seek, receive or impart information or ideas. Article 34 on the other hand guarantees media freedom and it provides that freedom and independence of electronic, print and all other types of media is guaranteed. At the moment there is ongoing litigation at the High Court of Kenya in context of thr Constitutional Petition No. E233 of 2022, Kituo Cha Sheria and Another vs Attorney General and Others, whereby the petitioners have sought various declarations including that ‘a Declaration that internet access is essential to the enjoyment of basic human rights.’
In Nigeria, there is currently no reported law specifically allowing the government to initiate an Internet shutdown or any such law recognizing access to the internet. Similarly, there is also no reported case law or judicial determination on these issues.
Mechanisms for Challenging Internet Shutdowns
- Who has locus standing to initiate such challenges?
- What is the evidentiary threshold to be met and what is the type of evidence to be used in such a challenge?
- What remedies or penalties are available regarding claims on internet shutdowns?
Regional Standards
At the African regional level, a party aggrieved by an internet shutdown may lodge a claim alleging violation of fundamental rights and freedoms. A key provision may include Article 9 of the African Charter on Human and Peoples Rights[5] which provides for the right to receive information and to express and disseminate his/her opinion within the law.
The Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights[6] establishes the African Court on Human and Peoples’ Rights and Article 3 vests the court with jurisdiction to hear and determine all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other human rights instruments ratified by the States concerned. The Court and the African Commission both exercise a judicial role under the Charter. Under Article 4, the court may also render advisory opinions on any legal matter relating to the Charter or any other relevant human rights instruments, at the request of a member state, the Organization of African Unity (OAU), any of its organs, or any African Organization recognized by the OAU. This is provided that the subject matter of the opinion is not related to a matter being examined by the African Commission. On locus standi, pursuant to Article 5 of the Protocol, the African Commission, state parties, and African Inter-Governmental Organizations have locus standi to submit cases to the court. The court may also entitle relevant Non-Governmental Organizations with observer status before the African Commission, and individuals to institute cases directly before it.
Under Article 27 the remedies may include appropriate orders to remedy violations, including payment of fair compensation or reparation. Additionally, in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the court may adopt such provisional measures as it deems necessary. In the case of Landry Angelo Adelakoun and Others vs Republic of Benin (Application No. 012/2021) [2022] AfCHPR 75[7], the Applicants filed the claim alleging violation of their human rights owing to the nationwide shutdown of the internet on the day of the legislative elections on 28th April 2019 in the Republic of Benin. While dismissing the claim, the court held that the Applicants had failed to satisfy the requirements of Article 27 (2) on provisional measures. It held that the court may only order provisional measures in cases of extreme gravity and urgency, aimed at preventing irreparable harm to persons. In the court’s opinion, urgency which is consubstantial with extreme gravity, means that ‘an irreparable and imminent risk is caused before the court renders its Ruling’. The risk in question must be real, which excludes supposed or abstract risk and must require immediate remedial action for irreparable harm. Additionally, there must be a ‘reasonable likelihood of occurrence’ in the context and personal circumstances of the Applicants. Also, the Applicant seeking provisional measures must provide proof of urgency or extreme gravity as well as proof of the irreparable nature of the harm. In the circumstances of the case, the court held that the Applicants had failed to discharge the burden on any of the said requirements.
Sub-Regional Standards
At the Economic Community of West African States (ECOWAS) the Community Court of Justice is established as the key organ to hear and determine disputes pertaining to violations and interpretation of the Treaty of the Economic Community of West African States. The Court has jurisdiction to determine cases of violations of human rights that occur in any member states. Article 10 (d) of the said Supplementary Protocol lays out the admissibility criteria and it grants individuals locus standi to lodge claims. Such claims must not be anonymous nor be made whilst the same matter has been instituted before another International court for adjudication.
With regards to internet shutdowns, the Community Court of Justice was in the case of Amnesty International Togo vs The Togolese Republic [2020] ECOWASSCJ 9 (06 July 2020)[8] confronted with a complaint challenging the actions by the Togolese government of shutting down the internet because of protests which occurred in context of the intended limitation of the Presidential term limits in Togo. The Complainants asserted that their freedom of expression had been infringed among other rights, while the 8th Applicant contended that her right to work as a journalist had been infringed as a result of the internet shutdown. While allowing the complaint, the Community Court partly held that
Since access to internet is complementary to the enjoyment of the right to freedom of expression, it is necessary that access to internet and the right to freedom of expression be deemed to be an integral part of human right that requires protection by law and makes its violation actionable. In this regards, access to internet being a derivative right and at the same time component part of each other, should be jointly treated as an element of human right to which states are under obligation to provide protection for in accordance with the law just in the same way as the right to freedom of expression is protected. Against this background, access to internet should be seen as a right that requires protection of the law and any interference with it has to be provided for by the law specifying the grounds for such interference.
There is no stipulated evidentiary threshold or specific form of evidence. A party just needs to plead their case and demonstrate violation of the ECOWAS Treaty or human rights principles.
Recently, it was reported that in a judgment of the ECOWAS Court of Justice ruled that the indefinite suspension of access to Twitter in Nigeria by the Federal Government of Nigeria in June 2021 was unlawful and violated the provisions of the African Charter on Human and Peoples’ Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR).
At the East African Community, the Treaty establishing the East African Community makes provisions for upholding and promoting the rule of law and human rights among others. The Treaty establishes the East African Court of Justice as one of the organs of the East African Community with the powers to adjudicate over disputes in context of violations of the Treaty and the Protocols.
Any person has jurisdiction to approach the court and lodge a complaint. The evidentiary burden rests on a complainant and the court considers all forms of evidence including oral and affidavit evidence, among others.
On internet shutdown cases, in the year 2021, the Law Society of Uganda filed a Reference challenging the actions by the Government of Uganda whereby the Government of Uganda had shut down the internet and access to various online media during the period of the General Elections in 2021. The matter is still pending before the Court. Among the evidence tendered by the Complainants are various correspondences including a letter dated 12 January 2021 from the Uganda government’s Communications Commission instructing all Uganda’s Internet Service Providers to ‘block access to Internet-based social media platforms and online messaging applications including Facebook, Twitter, WhatsApp, Instagram and others.
The remedies that the East African Court of Justice may grant include a declaration of violation of the Treaty of the East African Community and various Protocols, as well as various international law statutes and instruments.
Domestic Standards
In Kenya, a party may invoke the High Court’s jurisdiction either as a constitutional Petition or through judicial review proceedings. Under Article 22 and 258 of the Constitution of Kenya 2010 any person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. There is no standard evidence on which to rely and it is incumbent on the petitioner to set out and state precisely the nature of allegations and infringement of those rights. This position was affirmed by the Kenyan High Court in the case of Anarita Karimi Njeru vs Republic, Miscellaneous Criminal Application No 4 of 1979[10] in which the Applicant has claimed a violation of her fundamental rights in the context of criminal proceedings in which she was charged with theft by a person employed in public service. The remedies that may be granted include a declaration of violation of rights and an order for compensation for damages and violations.
In Nigeria, Section 39(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides for freedom of expression while Section 39(2) provides that every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions. Under the Nigerian laws, a person whose fundamental right to freedom of expression has been infringed upon, such as where access to the internet is denied by the government, can bring an action for the enforcement of their fundamental right of freedom of expression and obtain reliefs or remedies in line with the Fundamental Rights (Enforcement Procedure) Rules 2009 (the “FREP Rules”) which lays down the procedure for the determination of claims involving the breach of fundamental rights. An internet shutdown in Nigeria may therefore be challenged in court on the grounds that such shutdown is an infringement of the fundamental human rights.
Any Nigerian citizen or anyone acting on behalf of such person has the locus standi to institute a fundamental human rights action in court. In relation to locus standi, Paragraph 3 (e) of the Preamble to the FREP Rules provides that the Court shall encourage and welcome public interest litigations in the human rights field, and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates, or groups as well as any non-governmental organisation, may institute human rights applications on behalf of any potential applicant.
Given the wide latitude for access to courts, an affected journalist or a group of journalists or non-profit representing journalists can have the standing to challenge an internet shutdown in court, on the grounds of such shutdown being an infringement of fundamental human rights. Paragraph 3(e) of the Preamble to the FREP Rules further provides that in human rights litigation, the applicant may include any of the following: anyone acting in his own interest; on behalf of another person; acting as a member of, or in the interest of a group or class of persons; acting in the public interest, and an association acting in the interest of its members or other individuals or groups. Based on the provisions of paragraph 3(e) of the FREP Rules, telecom companies that are directly the subject of internet shutdown orders have standing to challenge such shutdown order, acting in their own interests or the interests of other individuals or groups.
On the evidentiary threshold and burden, any person who alleges that there has been a breach of their fundamental rights of expression as provided in the Constitution of the Federal Republic of Nigeria (as amended) or the African Charter on Human and Peoples’ Right must submit an application for the enforcement of their fundamental rights. This application must be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made. Every application must also be accompanied by a written address which shall contain a brief argument that will support the individual’s claim that there has been a breach of their fundamental right of expression. Additionally, the Evidence Act of Nigeria, 2011 provides that oral testimonies, electronic evidence, physical evidence and documentary evidence are admissible as evidence in court proceedings.
The remedies or penalties available include: interim relief: for example, an order for the Internet shutdown to be vacated; damages; and declarative orders: An order of the court declaring the Internet shutdown order is unlawful.
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Disclaimer
This factsheet was designed by Arnold Ochieng Oginga and contributing law firms in collaboration with the TrustLaw. Media Defence assumes no responsibility or liability for any errors or omissions in the context of this site.
Authors and Contributing Law Firms
Arnold Ochieng Oginga
Udo Udoma & Belo-Osagie Advocates, Nigeria lead by Itorobong Udom and Ozofu Ogiemudia
TrustLaw
TrustLaw is the Thomson Reuters Foundation’s global pro bono legal service. They connect high-impact NGOs and social enterprises working to create social and environmental change together with law firms and corporate legal teams, to provide them with free legal assistance.
[1] ECOWAS is made up of 15 Member countries that are located in the Western African region. These countries have both cultural and geopolitical ties and shared economic interests. They include Benin, Burkina Faso, Cabo Verde, Cote D’ivoire, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. See https://ecowas.int/member-states/
[2] Revised Treaty of the Economic Community of West African States available at https://ecowas.int/wp-content/uploads/2022/08/Revised-treaty-1.pdf
[3] Article 24 of the Constitution of Kenya, 2010
[4] Abdalla Ali Taib and Others vs Rabinder Kaur Ahluwalia, Civil Suit No. 512 of 2011 available at http://kenyalaw.org/caselaw/cases/view/108904
[5]African Charter on Human and Peoples Rights available at https://au.int/sites/default/files/treaties/36390-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf
[6] African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights https://au.int/sites/default/files/treaties/36393-treaty-0019_-_protocol_to_the_african_charter_on_human_and_peoplesrights_on_the_establishment_of_an_african_court_on_human_and_peoples_rights_e.pdf
[7] Landry Angelo Adelakoun and Others vs Republic of Benin (Application No. 012/2021) [2022] AfCHPR 75, available at https://africanlii.org/akn/aa-au/judgment/afchpr/2022/75/eng@2022-03-24
[8] Amnesty International Togo vs The Togolese Republic [2020] ECOWASSCJ 9 (06 July 2020)https://africanlii.org/akn/aa-au/judgment/ecowascj/2020/9/eng@2020-07-066
[9] The Court pointed out thus ‘We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.’ Available at http://kenyalaw.org/caselaw/cases/view/36849/