From limitation to derogation of rights: Revisiting internet shutdowns during elections in Africa

Author: Chrispin Bosire
Advocate of the High Court of Kenya

Introduction

Free access to information, free speech and liberty of expression contribute to democratic elections. Article 9 of the African Charter on Human and Peoples’ Rights (the African Charter) guarantees the right to receive information and safeguards freedom of expression and dissemination of opinions. Access to information and press freedom are important elements of free expression. This right is now exercised both offline and online, as provided under Principle 5 of the 2019  press freedom.  However, systemic internet disruptions and restrictions on access to communication platforms are on the rise in Africa. This has negatively affected the people’s right to expression during elections, and meaningful access to vital electoral information, necessary to make informed decisions.

This article considers internet shutdowns during elections in Africa, as unnecessary derogations on peoples’ rights. It compares government-led internet shutdowns during elections with the legal test of limitation of rights. It holds the view that governments should limit internet access during elections, only under permissible exceptional circumstances, in compliance with international human rights standards, to avoid regression.

Internet shutdowns are defined as measures to intentionally prevent or disrupt access to or dissemination of information online. Internet shutdowns may include broad measures by States or private telecommunication companies ranging from blocking access to websites, disconnecting communication towers and blocking access to social media platforms. Intentional disruption of internet access during elections, therefore borders a derogation on the right to access information, disguised as permissible limitation of rights by governments.

Principle 9 of the Declaration of Principles on Freedom of Expression and Access to Information in Africa guides states seeking to limit the exercise of the rights to freedom of expression and access to information. The elements establish a conjunctive test, which means they need to be met all at the same time, in the limitation of rights. Principle 9(1) thus highlights that the limitation should be prescribed by law, serve a legitimate aim, and be necessary and proportional to the objective sought to be achieved.

In making legislation to limit expression and access to information, states should follow the standard set under Principle 9(2) of the Declaration. The law needs to be clear, precise, accessible and foreseeable. Furthermore, the implementation of such a law should be done by an independent and impartial national body. The procedures for implementation should not be arbitrary or discriminatory. Principle 9(2) further requires that states should put in place safeguards against abuse such as independent tribunals and courts for review of a limitation decision.

During elections, a legitimate aim is to be measured against the objective which should be to preserve respect for the rights or reputations of others, national security, public order or public health. Political reasons such as calming normal tensions and opposition mobilisation cannot meet this guidance. Additionally, a limitation is considered necessary and proportionate only if it originates from a pressing and substantial need that is relevant and sufficient. Principle 9(3) of the Declaration further guides states to ensure that such responses must have a direct and immediate connection to the expression and access to information. The benefit of protecting any of the legitimate interests should outweigh the harm, hence states should sparingly use any limitation laws.

During elections, these considerations are not usually taken into account, in implementing internet shutdowns by governments. This leads to the suspension of enjoyment of fundamental rights. African states should acknowledge that the African Charter on Human and Peoples’ Rights does not contain a derogation clause allowing a country to temporarily abstain from their human rights obligations in an emergency.

States must therefore acknowledge that access to the internet enables the electorate to effectively exercise expression, by making voting decisions based on credible information accessed offline and online. Cutting access during elections therefore amounts to illegitimate restrictions when weighed against the advantage of access. According to Principle 5 of the ACHPR Declaration, all rights that people are entitled to offline must also extend to them online, thus states are under an obligation to ensure the promotion of digital rights, including internet access, freedom of expression online, privacy and data protection online.

Guideline 27 of the Guidelines on Access to Information and Elections in Africa provides that in exceptional cases where internet shutdowns are permissible, it should be authorised by law; serve a legitimate aim and be necessary and proportional in a democratic society. States are thus encouraged to adopt the test under Guideline 27 in compliance with international human rights law, and further ensure that the reasons for any shutdown are proactively disclosed.

Principle 1(2) of the Declaration of Principles on Freedom of Expression and Access to Information in Africa provides that states shall create an enabling environment for the exercise of freedom of expression and access to information. This is by ensuring protection against acts or omissions of non-state actors that curtail the enjoyment of freedom of expression and access to information. Principle 37 restates the need for states to facilitate freedom of expression and access to information online, and to ensure meaningful access to the internet.

The African Commission on Human and Peoples’ Rights in its Resolution on the Right to Freedom of Information and Expression on the Internet particularly encourages African states to ‘respect and take legislative and other measures to guarantee, respect and protect citizen’s right to freedom of information and expression through access to Internet services.’

Information accessibility during elections through open-access databases is therefore essential to democratic elections. Voter registers, names of candidates, vote tallies and incidents reported should all be proactively disclosed online. This is to promote citizen participation, transparency, access to information, freedom of the press and accountability under article 2(10) of the African Charter on Democracy and Governance, which has been ratified by 38 African states.

Partial or full internet shutdowns are common during elections in Africa. For instance, internet shutdowns have been recorded in Burkina Faso, Chad, Congo, Eswatini, Ethiopia, Gabon, Niger, Nigeria, Senegal, South Sudan, Uganda, and Zambia. Governments have resorted to curtailing critical voices on communication and social media platforms, and attacks and arrests on bloggers, independent journalists and other news coverage platforms thereby muzzling freedom of expression in Africa.

States cite national security concerns and curbing the spread of false election results as reasons for internet shutdowns during elections. However, considering the circumstances of elections, this article holds the view that in practice, shutdowns serve the purpose of restricting access to information and interfering with free speech and transparency. The usual cited justifications of national security are often not supported by any serious evidence. As highlighted under principle 2 (a) of the Johannesburg Principles, the national security exception is considered justifiable where its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity among other factors.

There is also a need to improve internet access and liberalise digital access to information, particularly during elections. States are required by sustainable development goals standards, to fully commit to the promotion of access to information and communications technology. Implementation of access to information requires universal, equitable, affordable and meaningful access to the internet.

Substantial internet access is thus corollary to the exercise of the right to freedom of expression and access to information during elections. It is a derivative right as without internet access, information available online is inaccessible, and it is not possible to share it on digital platforms. Some civil society actors have recommended that states should guarantee the right to access the internet as the foundational right for expression and access to information.

Article 9 of the African Charter on Human and Peoples’ Rights (African Charter) guarantees the right to receive information and to express and disseminate opinions within the law. The African Charter therefore introduces a requirement for the legality of any limitation of this right. Additionally, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), requires that limitations on expression should be provided for by the law, and be reasonable and necessary in a democratic society. Limitations on expression based on national security should therefore not claw back the essence of the right of access to information and freedom of expression.

Internet shutdowns in an election context affect Election Management Bodies, political parties, election observers, election monitors, law enforcement agencies, campaign funders whether public or private entities or persons, media regulatory bodies, the media, civil society organisations, professional organisations, religious bodies, and other relevant State institutions, departments and private entities. A balance is thus required in assessing the result of cutting access for all these key election stakeholders. Governments should thus prioritise the needs of the electorate in making internet shutdown decisions during elections.

The reality of internet shutdowns

The cases reviewed below illustrate that internet shutdowns during elections do not meet the four-part test of limitation of rights (and legality, legitimacy, necessity and proportionality). In the context of elections, such limitations are not backed by compliant laws and are not necessary:

Uganda’s 2021 internet shutdown took the form of government instructions to the telecommunications regulator to block access to the internet during the elections. The directive ordered Internet Service Providers to block all access to social media platforms including Facebook, Twitter, WhatsApp, and Instagram.  The elections were carried out in internet darkness, thus restricting expression and access to information.

The reports indicated that the government claimed that it had to resort to the internet shutdown as a response to Facebook, which deactivated social media accounts of the National Resistance Movement Party, the President’s party. The government’s response in stopping access to platforms for the whole country shows a systemic problem during elections, with increased government control over the communications infrastructure.

In this case, there was no danger to national security, as the shutdown was implemented during the election period, without lawful justification. There was no legitimate aim and it was not necessary to implement the internet shutdown. It therefore did not qualify as a legitimate limitation of the right to access information for the people of Uganda.

The government of Uganda was thus in violation of Article 9 of the African Charter, and beyond this, it violated its laws on freedom of expression, freedom of the media, and access to information. Furthermore, the internet shutdown was a violation of the East African Community Treaty which bears on the state an obligation to champion human rights. The facts and circumstances of internet shutdowns are important, just like the legitimate aim that the government seeks to achieve by implementing internet restrictions, as these are used to measure the necessity of such restrictions.

Zimbabwe experienced internet shutdowns in 2019, where the government sought to use the Interception of Communications Act as a basis for the disruptions in communications infrastructure. The minister for National Security, under the office of the President, issued the directive to shut down the internet. This led to the cutting of access to communication platforms including WhatsApp and Facebook for all persons in Zimbabwe. The implementation of the shutdown demonstrated that since the government retains the monopoly of authority, telecommunication platform operators have only one choice, to comply with such directives, or face retaliation, including in licencing requirements as noted by Mare.

The internet shutdown was implemented as a response to protests against the high cost of living caused by an increase in fuel prices. The High Court ruled that the Minister of Security did not have the authority to order internet shutdowns. This led to the restoration of access to the platforms, as the order was deemed to have no legal effect. This demonstrates that while it was a ruling on a preliminary point, the process of ordering restrictions on the internet is important, including the person responsible for the order.

The petitioners in the substantive pleadings sought the court’s determination on whether the Interception of Communications Act was the appropriate law to back the government’s decision to restrict access to the internet and other communication infrastructure. This is important because the law restricting access to the internet is required to meet the requirements under international law.

The circumstances in Zimbabwe demonstrate that the internet shutdown does not meet the ‘exceptional’ threshold, to justify the limitation of the rights to expression, access to information, media freedom and importantly during elections, the right to participation by the public, based on access to the internet.

In Amnesty International v Togo, the 2017 internet shutdown by the government was triggered by calls for constitutional reforms to guarantee multi-party democracy. The Togolese people clamoured for a referendum to bring back the 1992 constitution that allowed democracy based on more than one political party. The people further sought the return of the two-term presidential limits. In response, the government resorted to repressive measures including internet disruptions. The Economic Community of West African States (ECOWAS) Court was approached by the petitioners to remedy the perceived unlawful acts of the government.

The Court, guided by Article 9 (1) and (2) of the African Charter, declared the internet shutdown as a violation of the right to freedom of expression and access to information. The court stated that access to the internet is a derivative right linked to free speech and expression. The court found that Togo failed to provide a law upon which it based its action to shut down the internet, and as there was no such law, it was a violation of the African Charter. The Court further ordered Togo to put in place a legal framework protecting freedom of expression, consistent with international human rights law standards. It also demonstrates that it was not necessary to shut down the internet as no national security interests justifiably proved. The court, having found a violation of the rights of the people of Togo further ordered Togo not to shut the internet down again, this being a remedy of non-recurrence.

In 2021 the government of Zambia implemented restrictions on internet access and blocked access to WhatsApp, Facebook, Instagram and Twitter. The shutdown was done during the presidential elections, which led to information gaps, infringing on the right to access information and freedom of expression. 

An urgent application was filed in court, challenging the decision of the government to block access. In its judgment, the court allowed the parties to settle the matter by reaching a consensus that there was a need for the state to allow uninhibited access to information on all available telecommunication platforms. The court further ordered immediate restoration of the internet considering that this was in an election context.

The cyber laws in Zambia are permissive to limitations of rights, and where used broadly, extend to unjustified derogations of rights. The political circumstances in Zambia demonstrated that the restrictions were not proportionate nor necessary, to meet a legitimate aim, but aimed at cutting access to allow wide discretion to the state to target critical voices such as journalists. When used in the context of elections to implement internet shutdowns, these laws fail the test of limitation of rights under international law.

Congo has a long history of internet shutdowns, such as in 2015 when the government ordered restrictions on communications in the context of the electoral bill. The restrictions affected access to Facebook and Twitter. The government did not provide reasons for the shutdown that could meet the allowable limitation of rights test under international law. Similar shutdowns were implemented in Gambia affecting communications, where internet service providers are directed to block access to social media and communication platforms. The restrictions target the work of journalists and are a restraint on the exercise of rights. In Tanzania, during the 2020 election period, the government intentionally disrupted access to the internet and communication platforms, without lawful justification.

From the foregoing, the justifications provided for internet shutdowns in the African countries and cases reviewed demonstrate that there is a dearth of laws based on which states can order internet shutdowns. Instead, states seek to circumvent international and regional human rights standards, by relying on overbroad legislation, such as counter-terrorism and public order proclamations. The legality of internet shutdowns is pegged on the full implementation of the test of legitimacy, necessity, and proportionality.

Conclusion

African States are required to implement laws, regulations, and safeguards against unjustified internet shutdowns during elections. This is to comply with state obligations to respect the right of freedom of expression and access to information. The declaration on internet freedom during elections restates the importance of free access to information essential for democracy.

The article has highlighted that limitations on access to information, free speech and expression by governments can only be justified under exceptional circumstances, and the limitations are required to meet the four-part test of legality, legitimacy, proportionality and necessity under the African Charter and international human rights law broadly. Any limitation that does not meet these standards waters down the essence of human rights unjustifiably and therefore amounts to a violation of the rights.

About the Author:

Chrispin Bosire is an active Advocate of the High Court of Kenya, and an Internet Governance Fellow (KeSIG). He did his Post-Graduate Professional Attachment at the African Court on Human and People’s Rights in 2024.

He holds a Masters’ Degree in Human Rights and Democratisation in Africa (Distinction, Centre for Human Rights, University of Pretoria, 2023), a Bachelor of Laws degree (Hons, Moi University, 2018), and a Postgraduate Diploma in Law (Kenya School of Law, 2019-2020).

His practice majors on the intersection between technology, digitisation and human rights. His interest is internet democracy in Africa, including the impact of technology on human rights in the digital environment. His specialisation is in the field of election technology and accountability in elections management, media freedom and regulation, digital identity systems, artificial intelligence and the role of technology in the implementation of socio-economic rights.

He currently practices Strategic Litigation, Commercial and Corporate Law, Property Development and Portfolio Management. He has expertise in Technology, Media and Telecommunications Law.