The role of African governments in the implementation of the Revised Declaration on freedom of expression online in AfricaPosted: 24 November, 2021 Filed under: Ayowole Olotupa-Adetona, Bitebo Gogo, Imani Henrick, Ogah Peter Ejegwoya | Tags: Access to Information, African Commission on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression and Access to Information in Africa, domestic laws, freedom of expression, freedom of expression online, human rights, illegitimate restrictions, international human rights standards, Legal reform, multistakeholderism, online content regulation, privacy protection, Regulating online content, right to opinion 3 Comments
Authors: Imani Henrick, Bitebo Gogo, Ogah Peter Ejegwoya & Ayowole Olotupa-Adetona
The rights to freedom of expression, access to information and opinion are three distinct yet interconnected rights. The right to freedom of expression includes overt or covert communication through any medium including the Internet while access to information is being able to get information through any means. Both rights can be limited under international human rights standards. However, the right to opinion which is broader than both rights cannot be limited under international human rights standards.
This article identifies the role of African governments in implementing freedom of expression online. In doing so, it focuses on the provisions of the recent Declaration of Principles on Freedom of Expression and Access to Information in Africa (Revised Declaration) 2019.
The Revised Declaration was drafted by the Special Rapporteur on Freedom of Expression and Access to Information in Africa in consultations with relevant stakeholders and it was adopted by the African Commission on Human and Peoples’ Rights in 2019. The Revised Declaration replaced the Declaration of Principles on Freedom of Expression in Africa 2002 (Declaration). The Revised Declaration improved on the previous Declaration by identifying the roles of states in protecting the right to freedom of expression online under international human rights standards.
The preamble to the Revised Declaration provides that the right of freedom of expression and access to information available offline should also be protected online in line with international standards. It also has useful provisions on digital technologies and the right to freedom of expression online among others. One major feature of the Revised Declaration is that it directs the responsibilities of protecting online expression towards states. These responsibilities include legal reform, multistakeholderism, privacy protection, online content regulation and provisioning Internet access.
In order to implement the right to freedom of expression online through the Revised Declaration, the African governments must do the following:
Legal reform: Principle 43 of the Revised Declaration requires states to adopt legislative measures to give effect to the Declaration. Currently, the local laws in several African countries have unclear and over-broad provisions on the right to freedom of expression online. Principle 22 of the Declaration requires states to review criminal measures on content. Laws that criminalise acts such as sedition are antithetical to the Revised Declaration and international human rights standards. Countries like Zambia, Nigeria, and Uganda all retain sedition in their criminal laws.
Local laws should specifically protect online expression and key stakeholders should also be involved in making such laws. In developing these laws, non-state actors like civil societies, Internet Service Providers (ISPs), and other stakeholders should be included in order to drive multistakeholder participation.
Multistakeholderism: Principle 17 (4) of the Revised Declaration urges states to put a multistakeholder model of regulating online expression in place. What this means is that states should develop a rulemaking system that involves proximate actors, including users. Such regulation should also be administrative in nature which should not usurp the judiciary’s role in adjudicating on online expression. Part V of the Model Law on Access to Information in Africa provides for the structure of an independent and impartial oversight mechanism by ensuring that the funding and functioning of the body is detached from the executive authority.
Privacy and protection of personal information: The Revised Declaration recognises the importance of privacy protection to freedom of expression. Guaranteed privacy ensures that people are able to freely air their views in private and public without fear; this can be through anonymous posts. Furthermore, Principle 40 of the Revised Declaration provides for confidentiality of communication and protection of personal information. Principle 41 of the Revised Declaration also discourages states from engaging in mass or illegal surveillance.
Regulating online content: In Principle 34 of the Revised Declaration, the role of states in regulating online content is to provide an oversight mechanism. The oversight mechanism of states is to facilitate multistakeholder regulation of online platforms to ensure transparency and accountability.
Internet access: Freedom of expression online can only be exercised where there is access to Internet and digital technologies. Principle 37 of the Revised Declaration requires states to embrace collaborative efforts to foster more Internet access. States are also encouraged to facilitate digital literacy and security skills, particularly in underserved communities in line with the provision of Principle 37(3)(e) of the Revised Declaration. States can make effective use of the Universal Service and Access Funds available in their countries to install facilities like fibre optic cables that can further bridge the digital divide and cater for the unserved and underserved areas.
Governments have roles in protecting online expression. In the African context, governments should refrain from criminalising free speech and ensure that domestic laws and policies do not impose illegitimate restrictions on online expression. Internet and digital technologies should also be accessible and affordable so that the citizens can be educated and enlightened to make informed decisions. Ultimately, a free digital space will ensure that citizens have the liberty to express themselves in a way that promotes innovation and development.
About the Authors:
Imani Henrick is a journalist from Njombe, Tanzania. She is a former TV presenter, who is now working with KingsFm Radio as a program director. She advocates for human rights and Internet freedom in the programs she hosts. Imani Played a major role in the #KeepItOntz movement against internet shutdowns during Tanzania’s 2020 election. She has won many awards including the best female TV presenter, and Youth Peace Challenge (YPC) awards organised by the Korean government. She educates young girls on self-awareness and menstrual hygiene, and also enlightens women on digital security. Imani is a fellow on DRIMF by Paradigm Initiative that aims to improve public understanding of Digital Rights and Inclusion issues in Africa.
Bitebo Gogo is a lawyer by training, a Chartered Arbitrator and Mediator, and the Volunteer Executive Director of Keeping It Real (KIR) Foundation. She is an education enthusiast and a Disability Inclusion Advocate, who has been recognised as one of the prominent voices advocating for a more humane, disability inclusive, and equitable society. Bitebo is passionate about helping people; especially the youth, unleash and maximise their potentials so that they can pursue purpose-driven lives and make a meaningful impact in society.
Peter Ogah Ejegwoya is a co-founder of the Youth Engage for Community Development, a youth led grassroot NGO working to improve access to quality life, education, and healthcare services. Peter has over five years’ experience advocating for women and girls’ rights and has helped implement several projects in partnership with Action Aid, Ford Foundation, International Foundation for Electoral System (IFES), Yiaga Africa, and HEDA Resource Center. Peter has also worked with organsations, such as Budgit to promote citizens rights online and offline, and to expand spaces for women and youth inclusion in politics.
Ayowole Olotupa-Adetona is a legal practitioner and a partner at Alan Attorneys. His area of practice is human rights, particularly as it relates to the digital space. Ayowole is also the co-founder of Mantis Africa, a legal technology and digital rights advocacy group, where he partners with several organisations and coalitions to promote digital rights and inclusion in Africa and foster the use of technology for dispensing legal services. Ayowole is a creative writer who is passionate about education and teenage development.
Freedom of expression online is crucial for democracy to thrive in Africa!
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Sedition may still be in the criminal law statutes of Nigeria but it has long been declared unconstitutional and therefore it’s no longer an offence in Nigeria. Thus, in Arthur Nwankwo v. The State (1985) 6 NCLR 228 the defendant was charged with sedition under section 51 of the Criminal Code before an Onitsha High Court for publishing a book which had exposed corrupt practices under Governor Jim Nwobodo of former Anambra state.
The appellant was convicted and sentenced to one year imprisonment. But the conviction and sentence were set aside by the Court of Appeal on the grounds that the offence of sedition is illegal and unconstitutional, Speaking for the court, Olatawura JCA held inter alia:
“We are no longer the illiterates or the mob society our colonial masters had mind when the law was promulgated…To retain S. 51 of the Criminal Code, in its present form, that is even if not inconsistent with the freedom of expression guaranteed by our Constitution will be a deadly weapon to be used at will by a corrupt government or a tyrant…Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.”
The laws enacted by “our colonial masters” and imposed on the country include the Official Secrets Act and the provisions of the Criminal Code relating to sedition and criminal libel. As criticism is indispensable in a democratic society Olatawura J.C.A charged the Nigerian people to defend their hard won freedom of expression at all times. According to his lordship:
“The decision of the founding fathers of this present constitution which guarantees freedom of speech which must include freedom to criticize should be praised and any attempt to derogate from it except as provided in the Constitution must be resisted. Those in public office should not be intolerant of criticism. Where a writer exceeds the bounds there should be a resort to the law of libel where the plaintiff must of necessity put his character and reputation in issue.”