Digital Rights in Africa Course, 6 September 2021 

Keynote address by Commissioner Jamesina E. L. King, Special Rapporteur on Freedom of Expression and Access to Information in Africa 

Good morning, Good afternoon dear friends wherever you may be. I bring you warm greetings from Sierra Leone and the African Commission on Human & Peoples’ Rights headquartered in Banjul, The Gambia. 

I am very happy to be with you today and I want to specially thank Prof Frans and Hlengiwe for inviting me to participate in this event. I would like to express my profound gratitude to the Centre for Human Rights and Paradigm Initiative for undertaking this partnership that seeks to impart knowledge on digital rights in Africa. It is indeed timely and relevant. The world is grappling with the COVID-19 pandemic and the response to the pandemic requires measures that limit physical contact of people so as to curb the spread of the virus. This has shifted the focus to the online space and greater protection of digital rights are thus fundamental. We are witnessing how digital technologies are contributing to the enjoyment of human rights and other spheres of life. There is an increased number of people in Africa that are using various forms of Information and Communications Technologies (ICTs) and there is still a greater number that remains excluded and COVID-19 has further exposed these realities. 

As I speak about digital rights on the continent, I would like to begin by focusing on the most recent instrument of the African Commission on Human & Peoples’ Rights that was adopted under the mandate of the African Commission’s Special Rapporteur on Freedom of Expression and Access to information, the Declaration of Principles on Freedom of Expression and Access to Information in Africa. 

The Declaration is a standard setting document that was adopted by the African Commission during its 65th Ordinary Session which was held from 21 October to 10 November 2019 in Banjul, The Gambia. It was officially launched in May 2020. The 2019 Declaration replaces the 2002 Declaration of Principles on Freedom of Expression. Its focus is on freedom of expression and access to information online and offline. 

The revision of the Declaration, under the stewardship of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, was undertaken pursuant to Article 45(1) of the African Charter on Human and Peoples’ Rights. The African Commission promotes human and peoples’ rights, among others, by formulating and laying down principles and rules to solve legal problems relating to human and peoples’ rights and fundamental freedoms upon which African States may base their legislation. 

The Commission also adopted landmark Resolutions that informed the revision of the Declaration. These are Resolution 222, Resolution 350 and Resolution 362. Resolution 222 authorized the Special Rapporteur to expand article 4 of the Declaration focusing on access to information. Resolution 350 gave the Special Rapporteur the mandate to undertake the process of revising the entire Declaration. Thereafter, the Commission adopted Resolution 362 which underscored the need to have clear and comprehensive principles to guide the promotion and protection of human rights in the online environment and thus encouraged the Special Rapporteur to take note of developments in the internet age during the revision of the Declaration. 

Also, the Joint Declaration on Freedom of Expression and the Internet, adopted by the UN Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission’s Special Rapporteur on Freedom of Expression and Access to Information in Africa on 01 June 2011, was also instrumental in shaping the current Declaration. It recognised the power of the Internet to promote the realisation of other rights and public participation, as well as to facilitate access to goods and services. It stressed “the transformative nature of the Internet in terms of giving voice to billions of people around the world, of significantly enhancing their ability to access information.” 

The revised Declaration establishes or affirms the principles that embody the rights to freedom of expression and access to information in conformity with article 9 of the African Charter, which guarantees individuals the right to receive information, as well as the right to express and disseminate information. It recognises the role of new digital technologies in the realization of the rights to freedom of expression and access to information and the role of open government data in fostering transparency, efficiency and innovation. It also affirms that “the same rights that people have offline should be protected online and in accordance with international human rights law and standards”. 

Thus, a unique aspect of the present Declaration is the inclusion of digital rights under Part IV is on Freedom of Expression and Access to Information on the Internet. This section is reflective of the changes in the human rights landscape in the context of freedom of expression and access to information on the continent in online space. This is also in recognition of the new digital technologies and their contribution to the realisation of freedom of expression and the right of access to information, and an affirmation that the rights that people have offline should be protected online, using the same standards. 

Principles 37 to 42 provides guidance to state parties to the African Charter on legislative, administrative and other measures to adopt in addressing issues on: A. Access to the internet; 

1. Non-interference; 
2. Internet intermediaries; 
3. Privacy and the protection of personal information; 
4. Privacy and communication surveillance; and 
5. Legal framework for the protection of personal information. 

As part of the state reporting obligations, the African Commission requires States to, in accordance with article 62 of the African Charter, in each Periodic Report submitted, to provide detailed information on the measures taken to facilitate compliance with the provisions of this Declaration. In the recent State reports that States submitted to the African Commission, as Special Rapporteur I engaged States on issues of digital rights such as access to the internet, digital literacy, privacy and data protection. 

The current status of digital rights on the continent requires urgent attention. Access to internet 

Access to information and communications technologies and universal and affordable access to the internet is yet to be achieved. Investment in digital infrastructure is still at its formative stages. According to the United Nations Development Programme (UNDP), ‘more than 4 billion people still do not have access to the Internet; 90 percent of them are in the developing world’ including Africa. There are improvements in mobile connectivity which is contributing tremendously to the digital economy. However, the cost of data and internet taxes are still high and undermine meaningful access to the internet. In terms of the Declaration, states should recognise that universal, equitable, affordable and meaningful access to the internet is necessary as it facilitates the exercise of human rights. 

The digital divide is acute in Africa. 

Digital Infrastructure is very poor on the continent. The digital divide is still very wide and not much is being done to bridge this gap. There is the gender divide; the rural and urban divide; the rich and poor divide. Investment in digital infrastructure is still low, especially in rural communities. A lot of children especially in the rural areas are missing out on school during the pandemic due to exorbitant costs of data, lack of internet and unaffordability of gadgets so that they can participate in online learning. Persons with disabilities also face greater challenges in this context. Assistive devices are costly and beyond the reach of many. There is a need to ensure the universal and affordable internet inclusivity and accessibility. 

Internet shutdowns and network disruptions 

There is a growing challenge of internet shutdowns and network disruptions on the continent and this is prevalent during elections. Uganda and Zambia are the most recent countries to experience this challenge during their elections. These disruptions undermine internet access and everything else that is dependent on internet connectivity. The limitation should be: 

1. prescribed by law; 
2. serve a legitimate aim; and 
3. is a necessary and proportionate means to achieve the stated aim in a democratic society. 

These network disruptions and shutdowns undermine democracy and do not serve a legitimate purpose. I would like to reiterate that they are not necessary. Instead, Africa requires more access to the internet more than ever and governments’ efforts should be directed towards achieving that objective. The current circumstances of the COVID-19 pandemic has shown us the tremendous potential and benefits of having access to the internet. 

Online violence 

It is also important to reflect on other challenges that are faced while using online platforms such as online violence. Women, children and sexual minorities face different kinds of violence online including non-consensual sharing of intimate images, cyberbullying and online grooming. It is necessary to reflect on ways of addressing these forms of violence. 

Publication of false information 

The challenge of publication of false information especially on online platforms is also a worrisome trend now. Although there are genuine concerns about misinformation and disinformation, the stance taken by some governments to criminalise publication of such information is worrying as this might revive the criminal defamation that some countries had repealed from their statutes. Such regulations that criminalise publication of false information formed part of the regulations that governments adopted in response to the COVID-19 pandemic. While steps should also be taken to discourage the public from disseminating misinformation and disinformation alternative measures such as proactive disclosure of information by relevant institutions, and media literacy should be adopted. 

Privacy and data protection 

The momentum on data protection and privacy is growing in Africa and the continent embraces digital technologies which in some instances result in massive data harvesting, and processing of personal information. Unfortunately the privacy and data protection framework is in its nascent stage. Most countries still do not have data protection laws. There are countries such as Mauritius, South Africa, Kenya and Senegal that have comprehensive data protection laws and oversight mechanisms in place. This is the direction that other countries should be taking. Also, the African Union Convention on Cybersecurity and Personal Data Protection is yet to come into force as it has not acquired the requisite number of ratifications. 

As I conclude, there is a lot to consider and an urgent need to continuously work on issues of digital rights including media and digital literacy, online safety, privacy and data protection, cybercrimes, cybersecurity, internet governance among others. I would like to emphasise that the rights of freedom of expression and access to information are cornerstones of democracy and essential for the realization of all other human rights, including socio-economic rights, and both rights have the potential to contribute to the socio-economic transformation of the continent. 

As you embark on this course on Digital Rights in Africa, I implore you to make extensive use of this Declaration and also complement the work of the African Commission in popularising it. The Declaration should be used together with other instruments that promote digital rights on the continent such as the Guidelines on Access to Information and Elections in Africa, the Model Law on Access to Information in Africa, among others. 

Allow me to reiterate that the Declaration embodies the foundational principles for the realisation of the fundamental rights of freedom of expression and access to information online and offline, and further affirms that the same rights that people have offline should be protected online and in accordance with international and regional human rights laws and standards. I am pleased to inform you that, in addition to the revised Declaration, the African Commission will be taking more initiatives in addressing the intersection between human rights and technologies. The Commission adopted Resolution 473 on the “need to undertake a study on human and peoples’ rights and artificial intelligence (AI), robotics and other new and emerging technologies in Africa”. We hope that the Commission and other Africa Union Human Right bodies will take more steps in ensuring the realisation of human rights in the digital age. 

I wish you all the best in this journey that you have embarked on enhancing your knowledge in the area of digital rights. 

Thank you for your kind attention.