The Role of the Courts in Safeguarding Online Freedoms in Africa

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The growing importance of the Internet in Africa has been accompanied by attempts of authoritarian governments to control the digital flow of information and communication through internet shutdowns, censorship, and surveillance. The increase in internet shutdowns in recent years in Africa demonstrates the worrying trend of governments’ attempts to restrict freedom of expression in the digital realm.

Purported reasons for internet shutdowns range from the protection of national security to the prevention of fake news or misinformation. However, the real motives often lie elsewhere, in the desire of governments to suppress opposition parties, protests, and voters. Even where national security is an issue, the shutdowns that we see are rarely, if ever, proportional.

At the heart of the debate over these shutdowns lies the right to freedom of expression online. Many African governments officially protect this right, for example through constitutional provisions or legislation governing access to information. The African Commission on Human and Peoples’ Rights (ACHPR) also has a resolution which affirms the rights of all Africans to freedom of expression online. In addition, the African Declaration on Internet Rights and Freedoms and the African Platform on Access to Information (APAI) declaration both seek to protect individuals against internet shutdowns. At a global level, the UN has also provided legal instruments to protect the right to freedom of expression.

Despite this, internet shutdowns continue – even in countries that subscribe to these laws and guidelines.

So how can human rights activists hold governments that are violating these rights to account? Two court cases concerning Zimbabwe and Togo demonstrate the huge role that courts could play both on the national and regional level  in determining whether or not internet shutdowns become a permanent feature of African political life.

Zimbabwe’s 2019 Internet Shutdown

The internet shutdown in Zimbabwe came against the backdrop of a week of deadly protests caused by a spike in gasoline prices in the country in early 2019. To quell the protests, Econet Wireless Zimbabwe, the country’s biggest mobile phone and internet service provider (ISP) alongside others complied with a government-ordered internet shutdown. This internet shutdown directive was issued by the Minister of State for the President’s Office for National Security through the Director General of the President’s Department citing Zimbabwe’s Interpretation of Communication Act. Internet platforms such as email services and prominent social media platforms including WhatsApp, Facebook and Twitter were all down.

Following this directive, lawyers representing three individual journalists and the Zimbabwe Chapter of the Media Institute of Southern Africa (MISA Zimbabwe) requested outright revocation of the directive. The government and its related authorities failed to heed to this request. As a result, the case was challenged in Zimbabwe’s High court (a national court) and heard by Justice Tagu in a matter of days.

The Applicants, Zimbabwe Lawyers for Human Rights (ZLHR) and Media Institute of Southern Africa-Zimbabwe Chapter, challenged the internet shutdown directive on three fronts. First, there was no legal basis to issue a directive based on the Interception and Communications Act Chapter 11. Second, the directive had caused violation of fundamental freedoms and the rights of the applicants and members of the public in general and third, the directive had brought serious inconveniences, loss of businesses and income, threats to life, and right to health care among others.

Lawyers for the respondents – the Minister of State for National Security and others including Director-General of Intelligence Services, The President of the Republic of Zimbabwe, Econet Wireless Zimbabwe Limited and so on – refuted these arguments. In the end, Justice Tagu upheld the applicants’ argument that the Minister of State was not legally responsible for the administration of the Act. Accordingly, “the Minister” was not in the legal position to exercise such powers per Section 6 of the Act, which states that only the President can issue  a “warrant” or a “directive” re: the administration of the act. The ruling was upheld upon the failure of the respondents to file an appeal and internet services were subsequently restored.

This represented a remarkable victory for the rule of law in a country where this has increasingly come under threat, but it is worth noting that oral arguments on the expansive legal issues raised by applicants were not part of the ruling.  Stakeholders who had wanted this case to serve as a foundational precedent in the fight against internet shutdowns were thus left unsatisfied, as ultimately it was determined on the basis of procedural mistakes and not the issue of whether the internet shutdown infringed on the rights of citizens such as freedom of expression

Togo’ s 2017 Internet Shutdown

In 2017 the Togolese government ordered an internet shutdown to quell anti-government protests. Civil society actors and lawyers, skeptical of the independence of Togolese courts, took the Case to the Ecowas Community of West African States (ECOWAS) Court. The Court ruled that the shutdown was illegal and violated freedom of expression – but this decision only came in mid-2020, almost three years after the shutdown was implemented.

The Court ordered the government of Togo to pay 2 million CAF to the plaintiffs as compensation and to implement measures to safeguard the freedom of expression of the Togolese people. It also stated that digital rights were human rights too – both offline and online. Thus, unlike the Zimbabwean Case, the ECOWAS Court dealt with the substantive consequences of the shutdown, making it a first precedent by a regional court for the sub-region and beyond.

At the same time, the time that the Court took to make the decision, and the fact that Togolese activists could not seek redress domestically, demonstrate the limitations of seeking judicial protection against political abuses.

Looking Ahead

The lack of entrenched judicial independence, fear of incumbent governments and witness intimidation in many African states makes litigation of internet shutdown and digital censorship cases difficult. These two cases, however, offer both hope and valuable lessons in the fight against internet shutdowns going forward.

In particular, they demonstrate that legal recourse could be resorted to when internet shutdowns occur and in cases where national courts are unwilling or are compromised by allies of the incumbent, regional courts could step in as demonstrated by ECOWAS court’s ruling. The ruling by the Zimbabwean High Court also exemplifies the key role local or national courts can potentially play in protecting the right to freedom of expression online.

In any case, the onus lies on citizens, civil society actors, lawyers, and internet rights and freedom activists to be constantly vigilant in challenging internet shutdown cases in the local and regional courts.

Michael Asiedu (@michasiedu) is a doctoral researcher at the University of St. Gallen.

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