On paper, the privacy rights of citizens of African countries are well protected. Privacy rights are written in constitutions, international human rights conventions, and national laws.
But in the first comparative review Of privacy protections in Africa, the evidence is clear: Governments are deliberately using laws that lack clarity. Or they completely ignore the laws to carry out illegal digital surveillance of their citizens.
What’s more, they are doing it with impunity.
This is important because people’s lives are increasingly being lived online, through conversations on social media, online banking, and the like.
We just published investigate on the protection of privacy in six African countries: Egypt, Kenya, Nigeria, Senegal, South Africa and Sudan. And the evidence is clear: Governments are using laws that lack clarity, or ignoring the laws entirely, to carry out illegal surveillance of their citizens.
Targets include political opponents, business rivals, and peaceful activists. In many cases, they were conducting massive citizen surveillance.
Our report finds that the existing surveillance law is being eroded by six factors:
- the introduction of new laws that expand the surveillance powers of the state
- Lack of legal precision and privacy guarantees in existing surveillance legislation.
- Increased supply of new surveillance technologies that allow illegitimate surveillance.
- State agencies that regularly conduct surveillance outside of what is permitted by law.
- impunity for those who commit illegitimate acts of surveillance
- insufficient capacity of civil society to hold the state accountable to the law.
Governments discuss that occasionally it is necessary to violate a citizen’s right to privacy in order to prevent a much greater crime. For example, a person may be suspected of terrorism.
But the covert nature of surveillance and the large power imbalance between the state and those surveyed present a clear opportunity to abuse power.
Strong surveillance laws are key to preventing this. They must define exactly when it is legal to carry out targeted surveillance of the most serious criminals, while protecting the privacy rights of the rest of the population.
African Digital Rights Network
We assess surveillance laws in all six countries using principles from globally accepted human rights frameworks. These included International principles on the application of human rights to communications surveillance, the UN Instrument project on surveillance and privacy led by the government and the African Commission Statement of Principles of Freedom of Expression and Access to Information.
Our team of researchers produced six country reports detailing specific cases. These included rulings from constitutional courts in South Africa and Kenya.
We discovered that all six countries had conducted surveillance that violated the constitutional rights of citizens. There were many examples of surveillance that violated rights or laws. There were no examples of perpetrators charged, subject to legal sanctions, resigning or fired.
Where the problems lie
To understand whether privacy rights are being violated, it is necessary to monitor the legality of the surveillance. But this is difficult to do due to weak legal provisions and lack of transparency and oversight.
Monitoring practices for monitoring privacy protections requires well-defined transparency and independent oversight mechanisms. These are completely absent or deficient in all the countries studied. With the exception of South Africa, the countries studied lacked a single law that clearly defined legal oversight and privacy guarantees.
Furthermore, fragmentary provisions, spread across various pieces of legislation, may conflict with each other. This makes it impossible for citizens to know which law is applicable.
We encountered a number of barriers to making surveillance more accountable.
- The legal provisions that allow surveillance are found in different laws. This makes it difficult to know which law applies.
- There are no independent oversight bodies to monitor the activities of law enforcement authorities.
- The investigating authorities do not publicly report on their activities.
- Individuals subject to surveillance are not notified or have the opportunity to appeal.
- There are several surveillance provisions that are not subject to the supervision of a judge. For example, access to a subscriber database by security agencies only requires the approval of a government agency (such as the Nigerian Communications Commission) which is granted under the Telephone Subscriber Registration Regulations.
Beyond the use (or abuse) of the law, we also find evidence of states investing in new surveillance technologies. These included artificial intelligence-based internet and mobile surveillance, mobile spyware, biometric digital identification systems, CCTV with facial recognition, and vehicle license plate recognition.
In Nigeria, for example, the government spending increase in the last decade in the acquisition of various surveillance technologies. Plus Recently approved a complementary budget for the purchase of tools capable of monitoring encrypted WhatsApp communications.
This combination of new technologies and violations of surveillance law points to an urgent need to strengthen existing laws by applying human rights principles.
How to close the gaps
We recommend that an independent oversight body monitor the activities of the investigating authorities. We also recommend the use of strategic litigation to challenge existing laws and actions that violate constitutionally guaranteed rights.
In addition to improving the law, there should be actions to increase public awareness of privacy rights and surveillance practices. A strong civil society, independent media, and independent courts are needed to challenge government actions. This is critical to holding governments accountable and upholding the privacy rights of citizens everywhere.
Abrar Mohamed Ali, Mohamed Farahat, Ridwan Oloyede and Grace Mutung’u were the researchers for this project. Ridwan Oloyede contributed to the writing of this article.