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

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Mapping Digital Rights and Online Freedom of Expression in East, West and Southern Africa Mapping Digital Rights and Online Freedom of Expression in East, West and Southern Africa MAPPING DIGITAL RIGHTS AND ONLINE FREEDOM OF EXPRESSION IN EAST, WEST AND SOUTHERN AFRICA Published by the Media Legal Defence Initiative 2018 www.mediadefence.org 1 Mapping Digital Rights and Online Freedom of Expression in East, West and Southern Africa Published by the Media Legal Defence Initiative https://www.mediadefence.org/ This report was prepared with the assistance of ALT Advisory https://altadvisory.africa/ This work is licensed under the Creative Commons Attribution-NonCommercial 4.0 International License. This means that you are free to share and adapt this work so long as you give appropriate credit, provide a link to the license, and indicate if changes were made. Any such sharing or adaptation must be for non-commercial purposes, and must be made available under the same “share alike” terms. Full licence terms can be found at http://creativecommons.org/licenses/by-ncsa/4.0/legalcode. 2 Mapping Digital Rights and Online Freedom of Expression in East, West and Southern Africa TABLE OF CONTENTS LIST OF ACRONYMS ........................................................................................................ 4 INTRODUCTION ............................................................................................................... 5 Overview of this report .................................................................................................... 5 Defining digital rights ...................................................................................................... 6 Approach and methodology ............................................................................................. 6 Acknowledgements ........................................................................................................ 8 PART I: AFRICAN REGIONAL HUMAN RIGHTS MECHANISMS ............................................. 10 PART II: EAST AFRICA .................................................................................................... 15 Overview and background ............................................................................................. 15 Country snapshot ......................................................................................................... 17 (i) Burundi ............................................................................................................................ 17 (ii) Ethiopia ........................................................................................................................... 20 (iii) Kenya .............................................................................................................................. 24 (iv) Rwanda ........................................................................................................................... 30 (v) Tanzania ......................................................................................................................... 34 (vi) Uganda ............................................................................................................................ 37 Concluding observations ............................................................................................... 42 PART III: WEST AFRICA .................................................................................................. 45 Overview and background ............................................................................................. 45 Country snapshot ......................................................................................................... 47 (i) Burkina Faso ................................................................................................................... 47 (ii) Cameroon ....................................................................................................................... 49 (iii) The Gambia..................................................................................................................... 52 (iv) Ghana ............................................................................................................................. 56 (v) Nigeria ............................................................................................................................. 58 (vi) Sierra Leone .................................................................................................................... 63 Concluding observations ............................................................................................... 65 PART IV: SOUTHERN AFRICA .......................................................................................... 67 Overview and background ............................................................................................. 67 Country snapshot ......................................................................................................... 68 (i) Angola ............................................................................................................................. 68 (ii) Botswana ........................................................................................................................ 71 (iii) Namibia ........................................................................................................................... 73 (iv) South Africa ..................................................................................................................... 76 (v) Zambia ............................................................................................................................ 81 (vi) Zimbabwe ........................................................................................................................ 84 Concluding observations ............................................................................................... 88 PART V: WHERE TO NEXT? OPPORTUNITIES FOR LITIGATION .......................................... 90 SELECTED RESOURCES ................................................................................................ 98 APPENDIX: QUESTIONNAIRE .......................................................................................... 99 3 Mapping Digital Rights and Online Freedom of Expression in East, West and Southern Africa LIST OF ACRONYMS ACHPR African Commission on Human and Peoples’ Rights ACRWC African Charter on the Rights and Welfare of the Child AFEX African Freedom of Expression Exchange APC Association for Progressive Communications AU African Union CIPESA Collaboration on International ICT Policy in East and Southern Africa CSO Civil society organisation EAC East African Community EACJ East African Court of Justice ECOWAS Economic Community of West African States ICCPR International Covenant on Civil and Political Rights ICT Information and communication technology IFEX International Freedom of Expression Exchange IP Internet protocol ISP Internet service provider ITU International Telecommunications Union MLDI Media Legal Defence Initiative MNO Mobile network operator NGO Non-governmental organisation REC Regional economic community SADC Southern African Development Community UDHR Universal Declaration of Human Rights UN United Nations UNCTAD United Nations Conference on Trade and Development UNESCO United Nations Educational, Scientific and Cultural Organization VoIP Voice-over-IP VPN Virtual private network 4 Mapping Digital Rights and Online Freedom of Expression in East, West and Southern Africa INTRODUCTION 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
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