A socio-legal analysis of Nigeria’s Protection from Internet Falsehoods, Manipulations and Other Related Matters Bill

Author: Tomiwa Ilori
HRDA Alumni Coordinator/Researcher: Democracy, Transparency and Digital Rights Unit, Centre for Human Rights, University of Pretoria

Introduction

 

The curbing of information disorder online has become one of the most contentious areas in platform regulation. Not only do states struggle with the best approach to fulfill their responsibility to safeguard human rights, non-state actors, especially social media platforms are stepping in with self-imposed rules that may reflect scale but struggle with context on regulating free speech. The most prevalent challenge facing social media regulation, especially outside the United States whose free speech regime is regarded as liberal, is the varying degrees of the protection of free speech in other jurisdictions. Social media platforms also face the challenge of protecting free speech on one hand and catering to national contexts on the other. These variations are often due to the different socio-political local context of each country.

There are several models that are used for platform regulation. One of the common forms of regulations is the self-regulation model adopted by many social media companies. These are often enforced primarily through Terms of Services (TORs) and practically implemented through community guidelines. Many social media companies defend their actions on removal or restriction of content by referring to these ‘internal rules’ which the user agreed to when signing up on the platform. Another form of regulation is the co-regulation or joint regulation model in which states work directly with social media companies to mitigate adverse effects of online harms. The most common model is the traditional model which involves the use of laws to define the scope, powers and duties with respect to content regulation. The distinguishing factor of this model from others is the use of the state’s monopoly to make laws without being bound by external or internal influences. Many states prefer this model including Nigeria, which has recently seen the introduction of a new Bill in parliament seeking to regulate online freedom of expression.

The Protection from Internet Falsehoods, Manipulation and Other Related Matters Bill

The Protection from Internet Falsehoods, Manipulation and Other Related Matters Bill of 2019 (the Bill) was introduced in the National Assembly in October 2019 and has since been read for the second time on the floor of the Senate by November 2019. The aim of the draft bill under Part 1 is to, among others, prevent the transmission of false statements, suppress the promotion of online location that repeatedly share false statements, safeguard against coordinated inauthentic behavior, provide for measures on paid political adverts and to sanction offenders.

In Part 2 of the Bill, section 3(1)(a) criminalises the transmission of a statement knowing or having reason to believe it is a false statement of fact. This provision applies to persons in and outside Nigeria who share statements that they know or believe to be a false statement of fact. Section 3(1)(b) further criminalises transmission statements likely to be prejudicial to the security of Nigeria; prejudicial to public safety; prejudicial to friendly relations of Nigeria with other countries; incite feeling of enmity, hatred directed to a person; influence the outcome of an election to any office in a general election or referendum; diminish public confidence in the performance of any duty or function of, or in the any exercise of any power of the Nigerian government. Punishment for contravening these provisions is a fine of up to N300,000 (US$830) or a term of imprisonment of up to three years or both or in any other case a fine not exceeding N10,000,000 (US$27,620). The same punishment also applies to an inauthentic account or bot that commits the offences in subsection (1)(b). Section 3(4) provides the insulation of intermediaries from liability in the course of such transmission.

The draft bill also criminalises the making or altering of bots to spread false statements of fact. If found guilty, the person responsible for making the bot will be liable to a fine of up to N200,000 (US$500) or an imprisonment term of up to three years or both or in any other case not being more than a fine of up to N5,000,000 (US$13810). If the bots have such effect listed in section 3(1)(b)(i)-(iv) above, the person responsible for making the bot shall be liable for a fine of  up to N300,000 or an imprisonment term of up to three years or both.

Section 5 of the draft bill also criminalises the receipt or agreement to receive financial or material benefits for the purpose of providing a service knowing that the service is or will be used in spreading false statements of fact in Nigeria by anyone in and outside the country. The offence is punished by a fine not exceeding N150,000 or an imprisonment term of up to two years or both or in any other case the fine not being more than N500,000 (US$1380). If these activities also have such effect listed in section 3(1)(b)(i)-(iv), such actions are punishable with a fine of up to N300,000 (US$830) or an imprisonment term of up to three years or both or in any other case may be a fine not exceeding N10,000,000 (US$27,620).

Part 3 of the draft bill provides for measures to be taken by a law enforcement department to regulate the transmission of false statement of facts in Nigeria. Such measures under section 6(1) include issuance of a ‘Part 3 Regulation’ by any law enforcement department on any false statement that has been transmitted or being transmitted in Nigeria or such department is of the opinion that it is in the public interest to issue such regulation. Section 6(2) also mandates the law enforcement department to issue such regulation even if such declaration of false statement has been amended or ceased to be transmitted in Nigeria.

Section 7 of the draft bill empowers the law enforcement department to issue a Correction Regulation to a person who transmits a false declaration, requiring the person transmitting the false declaration to state that the declaration is false or disclose the source of such false declaration or both. The provision absolves internet intermediaries of any liability in the transmission of such declaration.

Under section 8, a person may be issued a Stop Transmission Regulation to deter such person from transmitting a false declaration in Nigeria. This regulation may also include a correction regulation directing the person to publish a correction notice in a specified newspaper or other print publication in Nigeria. Under section 9 of the draft bill a person may be directed to through a regulation to perform an act in compliance with the regulation even outside Nigeria and bear the cost of such compliance. Non-compliance with part 3 of the draft bill is punishable by a fine of up to N200,000 (US$500) or a term of imprisonment term of up to twelve months or both or in any other a fine of up to N5,000,000 (US$13810). Section 11(1)(2) provides that no duty under any law or application to the High Court to vary or cancel the part 3 regulation shall be a defence to the charges under the bill. Section 11(2) absolves law officers of any liability for any action or inaction in the course of ensuring compliance with part 3 of the draft bill.

Where any person fails to comply with part 3 of the draft bill, the law enforcement department may direct the Nigerian Communications Commission (NCC) to order a service provider (ISP) to disable access by end-users to the online location where such declaration is sourced from and NCC must obey such direction. A service provider that refuses such order shall be liable upon conviction for a fine of up to N10,000,000 (US$27,620) for each day the order is not fully complied with. Before any appeal to the High Court is made with respect to Part 3 regulations, such appeal must first be made to the law enforcement department. A part 3 regulation remains in effect in the course of the appeal and will only cease to have effect when set aside by the High Court or the law enforcement department. Stay of proceedings in the appeal may only affect the regulation if it is abundantly clear that such regulation cannot be complied with. Also, issuance of a part 3 regulation does not affect the power of state to initiate proceedings for prosecution of an offence under the draft bill.

Part 4 of the draft bill deals extensively with regulations of internet intermediaries and providers of mass media services. Under this part, the law enforcement department may issue a part 4 regulation where a content containing false declaration has been or is being transmitted in Nigeria with instances similar to that of part 3 regulations. The draft law provides for the kind of regulations that may be issued to online intermediaries in Nigeria to include Targeted Correction Regulation (section 17); Disabling Regulation (section 18) and General Correction Regulation (section 19).

Under section 17, a regulation is targeted correction when it is issued to an intermediary service which includes social media platforms, requiring them to state that a certain declaration is false and or publish a specified declaration of facts or the online location where such declaration can be found. A Disabling Regulation under section 18 empowers the law enforcement department to issue a regulation to an internet intermediary to disable access of end-users to a false content. Section 19 provides for General Correction Regulation which may be issued to both a prescribed internet intermediary or a person to transmit a correction notice.

Part 4 regulation may be issued to a person whether they reside in Nigeria or not. The provisions of compliance and redress under part 4 regulation is similar to that of part 3 regulation above. The same Access Locking Order under part 3 regulation is applicable to part 4 regulation.

Under Part 5 of the draft bill, as provided for under section 27, the law enforcement department may declare an online location as peddling false declarations if three or more false content violates either part 3 or 4 of the regulations above in Nigeria or at least three of such false content have been transmitted within six months before the declaration by the law enforcement department is made. All the compliance requirements under parts 3 and 4 regulations are also applicable to situations where an online location is declared to be peddling false content including seeking redress and Access Locking Orders.

Section 32 provides that an internet intermediary including a digital advertising intermediary must take measures to ensure that a declared location is not transmitted in Nigeria. Failure to take such measures is punishable by fine of up to N200,000 (US$500) or an imprisonment term of up to twelve months or both or in any other case a fine of up to N5,000,000 (US$13810).

Assessing the constitutionality of the law

Nigeria’s constitution sets the standards for the protection of fundamental rights. These standards usually emanate from international human rights treaties which Nigeria is party to. Specifically, article 19(1) and (2) of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to freedom of expression. Article 19(3) of the ICCPR also provides for instances where the right may be justifiably limited. Such restriction must be pass the test of legality where such law limiting the freedom of expression must be ‘formulated with sufficient precision to enable an individual regulate his or her actions accordingly’; must pursue a legitimate aim, which includes the need to protect the rights of others, public morals and public order (ordre public); and such limitation must be necessary in a democratic society in that the state must demonstrate that there is a pressing social need, relevant and sufficient and use the least intrusive instrument to achieve its aim. This last requirement also states that such restriction must be a specific and individualise limitation of the right while establishing a connection between the expression and threat. Most importantly, these requirements must be cumulatively fulfilled.

Section 39 of the 1999 Constitution of Nigeria (as amended) provides for the right to freedom of expression. Any law limiting the right under section 39(3)(a) and (b) of the Nigerian Constitution must be reasonably justifiably in a democratic society. Indirect limitations of fundamental rights under section 45 of the Constitution are in line with the international standards for limitation of free speech.

Criminalisation of false news has been repeatedly criticised by international human rights monitoring bodies as undemocratic as it has a chilling effect on the right to freedom of expression. In the 2017 Joint Declaration on Freedom of Expression and ‘Fake News’, Disinformation and Propaganda, the United Nations’ Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression together with the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media and other inter-governmental experts, concluded that ‘general prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’’ are incompatible with human rights law and should be abolished. They also stressed that the “human right to impart information and ideas is not limited to ‘correct statements, and ‘protects information and ideas that may shock, offend, and disturb.’

The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has highlighted in a paper that measures taken by the states to curb information disorder often contain ambiguous definitions of what constitutes ‘false’ ‘unfounded’ or ‘biased’, which does not adequately describe the content that is prohibited. A close look at the draft bill shows that not only were some of these vague words used, their scope of application is also overboard to include persons living outside of Nigeria. This clearly does not comply with the standards that a law in limiting the right to freedom of expression must be formulated with sufficient precision.

For example, section 3(1)(a) (iv) and (vi) which provides that false statements include those that could influence the outcome of an election and referendum and diminish public confidence in the Nigerian government will not only stifle the right to political participation and valid criticisms of the government but also censor expression of dissenting and unpopular content which are crucial to the survival of a democratic society. Importantly, while social media platforms may not have significantly improved elections in Nigeria, they have made them more open by showcasing in real-time the factors that may affect the integrity of the elections.

Again, the regulations provided for under the bill gives extensive discretion to law enforcement departments, which paves way for arbitrariness. Asides this, the bill purports to oust the constitutionally guaranteed powers of the court to hear infringement of fundamental human rights matters under section 45 of the Nigeria Constitution. All the forms of regulations proposed are not only in gross violation of the 1999 Constitution of Nigeria, they are contrary to obligations Nigeria has committed to under international law.

Additionally, part 5 of the bill poses a huge threat to online freedoms as internet intermediaries, including social media companies are put under pressure to comply with regulations that clearly violate the enjoyment of free speech. Even though social media companies do have the duty to protect human rights under international law, the use of laws like the present bill will further reduce the ability of these companies to fulfill their obligations under the law which primarily includes a careful balance of protecting free speech and keeping platforms safe from harms.

The Economic Community of West African States (ECOWAS) Court of Justice has also ruled that speech that may appear false need not be criminalised considering that the interest of protecting the right to freedom of expression clearly outweighs the untested importance of censorship. This decision is in conformity with the reasonably justifiable test set by the Nigerian Constitution under section 39(3) that any law seeking to limit the right to freedom of expression in Nigeria must pass. This bill does not pass the test.

Walking through a desirable response to information disorder in Nigeria

While the bill reads like the resurrected version of the dead Frivolous Petitions Bill of 2015, this version, like the old one, is not capable of being implemented in Nigeria. This is noting that not only does the Law Enforcement Departments vested with extensive discretion under the law lack the adequate training to carry out its enforcement, the scope of the bill is not necessary nor reasonably justifiable in a democratic society.

One of the proven ways of combating online falsehoods is by promoting counter-speech. Counter-speech does not only allow democratic values to thrive, it is in the exchange of competing ideas that the true facts surfaces. In order to cater to the government’s concern of the effect of these falsehoods on public order, the teaching of history should be reintroduced into the curriculum of schools in order to help drive proper and factual contexts to allow for more opportunities for debates. Together with this, government must work with social media platforms, using the co-regulation approach to teach students at these levels and the general public the several ways of detecting false information online. This already works in countries like Italy and Finland. This presents opportunities to teach tolerance for unpopular speech and at the same time detect false information by countering with facts.

Just like the current scourge of problematic cyber-crimes legislations across Africa, the bill is capable of having a bush fire effect in other African countries should it become law in Nigeria. The advocacy on its dangers must start now when the bill is currently being considered by the legislature by taking advantage of all legal avenues including in and outside the legislature to protest against the bill.

Social media companies cannot afford to limit the scope of their respect for free speech to just the First Amendment in the United States. Not only does this adversely affect the duty to respect human rights in jurisdictions outside the US, it also poses great danger to the local contexts across countries. For example, the recently released Twitter policy on political ads states that they will prohibit any content relating to campaigns, elections, candidates, parties or overtly political content. While this is a shotgun approach to the issues of political ad, and a mild victory against micro targeting ads, the part of the policy that prohibits the mentioning of a specific legislation in an ad will have adverse effects on the political ecosystem of many countries outside the US. For instance, an ad made to campaign against the problematic provisions of this bill on Twitter, would be banned in accordance with the new policy. There is also the public’s right to access information especially during elections. Twitter has not in any way demonstrated that it protected that right with its new ad policy.

Another way in which the proposed law is problematic is the manner in which it absolves internet intermediaries from responsibilities. Intermediary liability across the globe, especially as it relates to the US-EU position is fast changing. There is more push towards intermediaries taking more responsibility rather than standing by as an impartial arbiter which in the true sense of platforms, they are not. Social media companies must lean more towards accountability and responsibility by not only self-imposing rules but by being proactively transparent in how content moderation is carried out on their respective platforms.

In combating online disinformation, the government of Nigeria cannot afford to use the traditional model of platform regulation which is seen in the Online Manipulations bill which seemed to have been lifted from the Singaporean law on online manipulation. It needs to work with a more practical approach which must take into account concerns of all stakeholders. This model involves key stakeholders with diverse perspectives coming together to lend a consensus-based, open and stakeholder-driven decisions on combating disinformation online. While it may cost more in time and resources, it proffers a longer-lasting solution to curbing online disinformation compared to the knee-jerk approach of the one-way system of the traditional model.

A possible result of a multi-stakeholder approach is the establishment of an independent oversight body in Nigeria with equal representation from government, social media companies, civil society, the academia and relevant stakeholders. This body will demonstrate a more diverse set of views steeped in a body of rules that are human rights-complaint to entertain cases that would otherwise be limited by the unfettered discretion of Law Enforcement Departments. It also gives an opportunity to correct the anomalies that will be created by this bill, by providing means of redress within the fringes of the law among other issues.

Conclusion

One of the biggest challenges of content regulation and protecting against online harms in the digital age is the problem of catering to local context. This has emboldened governments to step in with problematic laws that grossly violate human rights in the digital age. Many social media companies are also torn in between scaling global values and standards and catering to local contexts. While there is no guaranteed way to resolve this, the use of bad laws by states to curtail free speech is obviously not the way to go. While social media companies must understand that scaling values is not mutually exclusive with understanding local context, states must also lean towards a deliberative democratic model that assists with long-term solutions on online harms. Social media must also as a first step begin to set international human rights standards as the basis for their content regulation policies.

At the centre of this conversation, is the need to secure the voices of the people. Now that what gets amplified must get online, and what gets online now shapes public policy, everyone, including businesses, governments and the average person need to determine the future of free speech along the lines of preserving our collective existence and humanity. The Protection from Internet Falsehoods and Manipulation and Other Related Matters Bill 2019 does not merely pose some problems to this future, it is the problem. Its use of legal language to shrink protection of free speech especially in the digital age calls for a huge concern and an immediate response. Stakeholders must work together to ensure that the law is scrapped and a new initiative, driven by diverse representations is introduced through an independent and impartial body to determine the scope the limitation of the right to freedom of expression online and in general, secure Nigeria’s budding democracy.

About the Author:

Tomiwa Ilori is an LLD Candidate and Researcher at the Democracy, Transparency and Digital Rights Unit of the Centre for Human Rights, University of Pretoria where he is also the Coordinator of the Centre’s LLM/MPhil in Human Rights and Democratisation in Africa (HRDA) alumni network.

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Infringement on democracy, human rights and the rule of law through constitutional amendments: What mechanisms exist to restore Zambia?

Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar

The first Constitution of the Republic of Zambia (1964) established a multiparty system of government. However, increasing tensions between the ruling party and the opposition parties compelled the first president of the Republic of Zambia, Kenneth Kaunda, to institutionalise a one-party rule through the enactment of the Constitution of Zambia Act, 1973. The presidential rule in Zambia was reinforced, with the president as the sole player on the political scene. Following the collapse of the Soviet Union and the end of the cold war in the early 1990s, a wave of multiparty democracy swept across the African continent leading to emergence of political pluralism. Many countries in the Southern African region adopted constitutional dispensations that allowed political pluralism and cemented the roles of the different branches of governments. Zambia, a former British colony, was no exception to the wind of change; they adopted their new Constitution of Zambia, 1991 that restored multiparty democracy. Thereafter, the Constitution of Zambia (Amendment) Act No. 2 of 2016 spelt out the roles and mandates of the different branches of government and directed that all State organs and State institutions abide by and respect the sovereign will of the people of Zambia. This Constitution ensured separation of powers between the various branches of the government, which is crucial to uphold democracy, human rights and the rule of law.

Recently, the Attorney General of Zambia, Likando Kalaluka, issued the Constitution of Zambia (Amendment) Bill, 2019 whose object is to amend key provisions of the Constitution. Some of the major changes proposed include changes to the judiciary, the executive and the legislative branches of government. The Bill introduces opportunities for the Executive’s influence in the Judiciary through several  proposed changes including changes in the disciplinary proceedings against judges and the composition of the Supreme and Constitutional Courts. Article 143 (a) of the present Zambian Constitution stipulates a judge may be removed from office on grounds of “mental or physical disability that makes the judge incapable of performing judicial functions”. However, amendment 48 of the Bill introduces a legal uncertainty by proposing to replace the “mental or physical disability” ground with “legally disqualified from performing judicial functions”. This proposal threatens to violate the principle of legal certainty and the rule of law by exposing the judiciary to interference from the executive or legislature, thereby undermining the independence of the judiciary. Additionally, the Bill proposes to reduce the government’s financial accountability by abolishing parliamentary oversight over contracting public debt. The Bill further grants the Presidency power to enter into international treaties and agreements without the approval of the National Assembly.

According to Southern Africa Litigation Center, the proposed radical changes seek to derail the progressive effort towards improving accountability, democracy, rule of law, and realistion of human rights, which are enabled by implementation of the present Zambian Constitution. The International Bar Association, in collaboration with other organisations, publicly condemned the move to introduce the proposed changes to the present Constitution stating that the Bill would have far-reaching unfavorable consequences on the independence and impartiality of the Judiciary. This Bill also threatens to greatly reduce the National Assembly’s oversight powers and functions. These two arms of government, Judiciary and National Assembly, are crucial to provide the much-needed checks and balances to the powers of the Executive. The elimination of the National Assembly’s oversight, as well as the impeding of the independence of the Judiciary, would greatly undermine the sovereign will of the people of Zambia and the preservation of the rule of law, which is essential for upholding democracy, good governance and protection of human rights.

Over the past years, many leaders in Sub Saharan Africa have increasingly secured immense power through constitutional amendments that extended their terms in office. In 1998, Namibian president Sam Nujoma attempted to extend his term in office. Although the move got international and domestic criticism, he was nevertheless re-elected into office the following year. In 2002, Togolese president Gnassingbe Eyadema abolished term limits through a constitutional amendment and was re-elected in 2003. One year later, the Gabonese parliament voted to remove term limits from its constitution, allowing President Omar Bongo to run for a sixth term. In 2018, a Ugandan constitutional court upheld a constitutional change to do away with the presidential age limit to allow the incumbent President Yoweri Museveni to extend his 32-year rule. A constitutional amendment in Rwanda, apparently approved by 98% of voters, also ended a two-term limit for presidents, permitting President Paul Kagame to extend his rule into the third term with almost 99 percent voter’s support amid allegations of fraud and intimidation.  Pierre Nkurunziza of Burundi, Angola’s dos Santos, and former Senegalese President Abdoulaye Wade, among others, ran for additional terms arguing that the term limits that were passed during their mandates should only apply to future president’s. Efforts to extend presidential terms have become the norm in many African countries including Angola, Burkina Faso, Burundi, Cameroon, Chad, Djibouti, Equatorial Guinea, Guinea, Niger, Nigeria, the Republic of Congo, Rwanda, Senegal, Sudan, and Uganda.

In the face of all these prevailing challenges of presidential excesses in Africa, there exists regional mechanisms for addressing impedance to democracy and the rule of law. In 2007, Member States of the African Union (AU) adopted the African Charter on Democracy, Elections and Governance. This instrument has been ratified by 34 members states of the African Union, including Zambia, which ratified the Charter on 31 May 2011. This regional Charter, which came into force on February 15, 2012, calls on its member states to identify illegal means of accessing power or staying in office, including refusals to relinquish power following free and fair elections. Any constitutional amendments that infringed upon “the principles of democratic changes of power” would draw sanctions from the AU to those responsible. Similarly, Economic Community of West Africa States (ECOWAS) called on Member States to adhere to the spirit of their constitutional dispensations. Recently, in the Gambia during the disputed presidential elections, ECOWAS sent troops to Gambia to compel former President Jammeh to go into exile and leave the presidency to Adama Barrow, who had legitimately won the elections.

On the international arena, the European Union has imposed sanctions on a number of African countries including Burundi, the Democratic Republic of Congo, and Zimbabwe, with regard to hampered political transitions or fair elections. Likewise, the United Nations Security Council has imposed several sanctions to a number of African countries including Zimbabwe, South Africa, Angola, Rwanda, Sierra Leone, Somalia, Eritrea, Ethiopia, Liberia, DRC, Côte d’Ivoire, Sudan, Guinea-Bissau, Central African Republic, South Sudan and Mali. These sanctions vary from far-reaching economic and trade sanctions to more targeted measures such as arms embargoes, travel bans, and financial or commodity restrictions. Additionally, the Security Council has applied sanctions to support peaceful transitions, deter non-constitutional change and protect human rights.

Where the will of the people has been trampled on by the presidential excesses, and domestic mechanisms have failed, the international community must rally support to restore democracy and the rule of law in Africa. Several regional as well as international legal instruments can be empowered and enforced. African states must join hands to curtail the unending habit of constitutional amendments to amass executive power and increase presidential terms. The separation of powers of the various branches of the Zambian governments and the independence of the Judiciary should be safeguarded at all costs, as espoused in domestic, regional and international legal instruments. The Legislature and the Judiciary play a crucial role in safeguarding the interests of the people of Zambia and checking presidential excesses. Therefore, a unified call to ensure that the proposed changes in the Constitution of Zambia (Amendment) Bill, 2019 adhere to the spirit of the constitutional dispensation, will exert the sovereign will of the people, and uphold democracy, human rights and the rule of law.

About the Author:
Juliet Nyamao is a Human Rights Attorney admitted to the Kenyan Bar. She received her LLB from Moi University School of Law (Kenya) and LLM from Georgetown University Law Centre (USA). Juliet completed her fellowship in Leadership and Advocacy for Women in Africa at Georgetown University Law Center. She is currently a fellow at the American Bar Association-USA.

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African Court ruling: Mali’s child marriage laws violate human rights

reprohealthlaw blog

Many thanks to George Sakyi Asumadu, an LL.M student in Sexual and Reproductive Rights in Africa at the Centre for Human Rights in the University of Pretoria’s Faculty of Law, for summarizing and commenting on the significance of this landmark decision on age of marriage, gender discrimination, and violations of rights through customary law. We are pleased to excerpt this overview of the Court ruling and provide links to the full Case C.

APDF & IHRDA v Republic of Mali(Association pour le Progrés et la Défense des Droits des Femmes Maliennes (APDF) and The Institute For Human Rights and Development in Africa (IHRDA) v. Republic Of Mali), Application No. 046/2016, African Court on Human and Peoples’ Rights. (2018)  Decision of May 11, 2018  PDF.  Decision online . Case Comment by George Sakyi Asumadu.

COURT HOLDING: The African Court on Human and Peoples’ Rights (The…

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Botswana High Court decriminalizes homosexuality

reprohealthlaw blog

Many thanks to Kutlwano Pearl Magashula, an LL.M. student in the Sexual and Reproductive Rights in Africa program at the University of Pretoria’s Centre of Human Rights, for her summary and analysis of the recent judgment in Letsweletse Motshidiemang v Attorney General [2019] MAHGB-000591-16 (High Court of Botswana)Decision of June 11, 2019, in which the Court struck down sections of the Penal Code that criminalized same-sex sexual intercourse.

(Cite as:) Kutlwano Pearl Magashula, “Botswana High Court decriminalizes homosexuality: Letsweletse Motshidiemang v Attorney General, 2019” online at: “Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts” 5-page case summary and comment

We are pleased to excerpt her comments about the significance of this ruling:

The case made a watershed finding that recognized the rights of LGBT persons in Botswana. The Court found that sodomy laws do not serve any useful public purpose and in fact ‘deserve archival…

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Extending sexual health and reproductive rights through the Court: Analysis and lessons from FIDA – Kenya & Ors v The Attorney General & Ors High Court Petititon No 266 of 2015

Author: Nimrod Muhumuza
Lawyer and LLD candidate, Dullah Omar Institute, University of Western Cape

On 3 December 2013 and 24 February 2014, the Kenyan Director of Medical Services respectively withdrew the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya, and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies.

In June 2018, JMM, at just 18 years of age, died as a result of a botched abortion in an attempt to terminate a pregnancy resulting from rape. Activists and JMM’s mother petitioned the High Court of Kenya linking the withdrawal of the guidelines to JMM’s death which they argued was a violation of her right to life, and her right to health. It would be first time under the new 2010 Constitution of Kenya that Court would flesh out the application of sexual and reproductive health rights, particularly the right to abortion, to a particular demographic: teenage girls from economically and socially impoverished backgrounds. The Court also had to determine, if it found that JMM’s rights had been violated, the appropriate remedies available to the petitioners.

While the petition was in relation in to JMM’s unfortunate and unnecessary death, the Court found that abortion is permissible, if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. The application of these rights would apply to women and girls in Kenya. In determining the what amounted to ‘health,’ the Court provided an expansive definition stating that ‘health’ entails a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.

1. Facts, arguments and the decision

JMM was defiled at the age of 14. She did not find out that she was pregnant as a result of the assault until after two months when she missed her menstrual cycle and started feeling nauseous. She also did not inform anyone about either the assault or the pregnancy for fear of being blamed and ostracised by her family members. In December, 2014, she was introduced to an individual whom she thought was a doctor. The individual advised JMM that she could terminate the pregnancy. The individual did not examine JMM, nor did he carry out any test before he gave JMM an injection and advised her to return home and wait for the foetus to be expelled the next day. The foetus was not expelled and JMM returned to the pharmacy where the individual who had administered the injection, inserted a metallic object in her vagina and advised her, yet again, to return home and wait for the foetus to be expelled.[1]

JMM was taken to Kisii Teaching and Referral Hospital where the foetus was removed. However, Kisii Hospital could not treat JMM’s renal failure caused by the heavy bleeding she had suffered from. JMM’s mother, PKM was advised to transfer JMM to a hospital with better facilities. JMM ended up at Kenyatta Hospital. At Kenyatta Hospital, JMM was diagnosed with and treated for septic abortion and hemorrhagic shock and had also developed chronic kidney disease. Following treatment, JMM was detained at the hospital for failure to pay her bills during which she fell ill again and stayed at the hospital for two extra weeks until the bill was waived by the hospital.[2] JMM died before she could undertake dialysis treatment for kidney failure suffered as a result of excessive bleeding from the attempted, botched abortion.

These facts highlight several issues that plague the guarantee of sexual and reproductive health rights not just for women but for girls. JMM was afraid of informing her immediate family about her condition, she did not know that she was pregnant until two months after she was defiled. The institutions, particularly the hospitals both private and public did not, for the most part have skilled staff or equipment to attend to her condition. Where these were available, such as ambulances, they came at a prohibitive cost for JMM and her mother. JMM’s mother and the petitioners lay blame on the respondents: that in the absence of information on how safe abortions would or could be procured, chances are that many women and adolescent girls would not know how to secure a safe abortion thus imperiling the lives of many women and adolescent girls.[3]

The major issues of contention could be reduced to four: a) is abortion permitted; b) if so, under what circumstances; c) what amounts to ‘health’ under Article 26(4) of the 2010 Kenyan Constitution; d) who should make the determination under Article 26(4) regarding the conduct of an abortion procedure.

1.1 Petitioners’ arguments

The Petitioners contended that a number of rights had been violated by the Respondents as a result of the withdrawal of the Guidelines and that JMM’s death is linked to the withdrawal of the Guidelines. These included the right to life, the right to reproductive health, the right to equality, and non-discrimination, and the right to dignity. The petitioners argued that there is need for the government to provide information to the public on the circumstances in which abortion is allowed in Kenya and who can offer legal abortion services.  Without information on how or where to access abortion services in cases of sexual violence such as rape or defilement, the respondents jeopardised JMM’s rights and as a result, she and other minors similarly situated, could not access timely and necessary post-rape care including emergency contraceptives and post-exposure prophylaxis. They argued that the Constitution allows abortion where both the physical and psychological health of the mother is endangered by the pregnancy. The Petitioners were of the view that the determination of whether a pregnancy was a health-risk to the mother should be made by a trained health professional which they argued includes nurses, midwives and clinical officers and not necessarily a medical doctor.[4]

1.2 Respondents’ case

The respondents made the case for another set of victims, that of unborn children, who are protected by the 2010 Constitution. They argued that the reinstatement and implementation of the Guidelines would sound the death knell for these children. They further contended that the documents would open a get-way for ‘abortion on demand.’ They also prayed that Court declare abortion permissible only in the narrowest of circumstances, that is, when the physical health of the mother is in danger. The respondents argued that the term ‘trained health professional’ should be construed to mean only medical doctors.[5]

1.3 Judgment

Court was cognisant of the social context in which abortion takes place noting that ‘there is a high incidence of sexual violence amongst the poor women and girls. [A] large proportion of those who procure abortions in unsafe environments are from the lower echelons of society.’[6] The Court noted ‘the reality, which is acknowledged by the Ministry of Health, is that the bulk of those who seek abortion in unsafe environments seek treatment in public health institutions.’[7]JMM is the face and the name of many girls who die in the process of trying to get rid of unwanted pregnancies, failed by the deliberate actions and omission of the very entity supposed to protect and care for her. JMM’s case was a microcosm of what many children in Kenya endure: unwanted pregnancies as a result of sexual violence which too often leads to death due to unsafe, botched abortions.

1.3.1 Is abortion permitted?

The Court held that the general rule is that abortion is not permitted under Article 26. However, the Court found that Article 26(4) only creates exceptions to the general rule.[8] Article 26(4) provides circumstances and exceptions under which abortion is permissible. The Court also found that by virtue of Article 26(4), and section 35(3) of the Sexual Offences Act women and girls in Kenya who find themselves pregnant as a result of sexual violence have a right to an abortion if the pregnancy resulting from rape or defilement endangers their lives.[9] This construction turned on the Court’s interpretation of the right to life and the right to health which includes reproductive health care which the Court found were at the core of the petition. The Court found abortion was permissible in a situation in which emergency treatment is required, or where the life of the mother is in danger. One would, therefore, extrapolate that the Court’s rationale for this holding was the protection of the life and health of the mother.

1.3.2 Under what circumstances?

The judgment was unequivocal that abortion is permissible if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by written law.[10] To arrive at this conclusion, the Court had to determine what amounts to ‘emergency treatment’ and what amounts to ‘health’ under Kenyan law. ‘Emergency treatment’ refers to necessary immediate health care that must be administered to prevent death or worsening of a medical situation.’[11] The Court clarified the question of what amounted to ‘health’ under the Constitution. It provided an expansive and women and girl-child-friendly definition when it stated that health is a state of complete, mental and social well-being and not merely the absence of disease or infirmity.[12] This definition has to be read disjunctively and only one of these conditions need to be present for one to have the right to an abortion.[13] While the case before the Court concerned a pregnancy arising from sexual violence, the Court seemed to go further in stating that ‘it is not the cause of the danger that determines whether an abortion is necessary but the effect of the danger.’[14] In other words, interpreted liberally, a pregnancy that is a result of consensual sexual intercourse that impairs the health, expansively defined, of the mother gives her a right to terminate it subject to the determination of a trained health professional. This particular finding is revolutionary given that health includes the mother’s psychological health.

1.3.3 Who should make the determination that a mother’s life is in danger?

The Court was cognisant of the fact that there is a shortage of qualified medical doctors in many Kenyan facilities.[15] It was also alive to the fact that many health facilities that are the first port-of-call for women and girls seeking reproductive health services are manned by nurses and clinical officers.[16] To hold that only qualified medical doctors could make this determination would be detrimental to individuals like JMM who, due to socio-economic reasons are unable to access and/or afford the services of a qualified medical doctor. In other words, ‘It would mean that women in poor rural communities without [the services of qualified medical doctors] would be unable to procure abortions with potentially serious or fatal repercussions for some poor women.’[17]

1.4 Impact of the decision

The decision is one of a handful of Court cases that make pronouncements on the constitutionality of sexual and reproductive health rights, particularly the right to abortion, on the continent.[18] The Court’s liberal interpretation of the right to health, and who should make that determination should be lauded given the political, legal and socio-economic circumstances in which the right to health in general, and abortion in particular, is situated. Only three countries on the continent permit abortion without any restrictions.[19] While holding that abortion remains illegal in Kenya, the Court in the instant case seems to have put Kenya on the right direction in a bid to reduce maternal mortality arising from unsafe abortions. In clarifying the law on abortion in Kenya, the decision holds out hope for women and girls who need these services, as well as health care providers who offer them.[20] It is also a very useful precedent for advocates and jurists in countries with similar

[1] See paras 1-4 of judgment.

[2] Ibid paras 5-11.

[3] Ibid para 12.

[4] Ibid paras 14-23.

[5] Ibid paras 24-33.

[6] Ibid paras 319-320.

[7] Ibid paras 354-356.

[8] Ibid para 356 of the judgment. Article 26(4) provides that ‘abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

[9] Ibid paras 397-398 of the judgment.

[10] Ibid paras 397-398, 271.

[11] Section 2 of the Health Act, No 21 of 2017 cited at para 356 of the judgment.

[12] Para 361 of the judgment.

[13] Ibid para 362 of the judgment.

[14] Ibid para 399.

[15] Ibid para 358. Court notes that the use of the term ‘trained health professional’ was a ‘concession to the dearth of qualified medical doctors in many of our health facilities.’

[16] Ibid.

[17] Ibid.

[18] Two decided cases are available and both were heard and determined in South Africa. In 1998, the Christian Lawyers’ Association sought to have the Choice of Termination of Pregnancy Act declared unconstitutional on grounds that it violated a foetus’ right to life under section 11 of the 1996 South Africa Constitution in Christian Lawyers’ Association of South Africa and others v Minister of Health and others 1998 (4) 1113 (T) (10 July 1998).  Court found that a foetus is not a person and does not have a right to life, and that the right to make decisions concerning reproduction, contained in section 12 of the Bill of Rights, protects a woman’s right to decide whether or not to have an abortion. In 2004, Christian Lawyers Association of South Africa v National Minister of Health and others 2004 (10) BCLR 1086 (T), the petitioners challenged the constitutionality of an amendment to the Choice of Termination of Pregnancy Act that allowed minors above the age of 12 to terminate their pregnancies without informing or seeking the consent of their parents. The case was also dismissed. Court found that the Constitution protects the right of a woman to determine the fate of her own pregnancy and that the State may not unduly interfere with a woman’s right to choose whether or not to undergo an abortion.

[19] See Guttmacher Institute ‘Abortion in Africa: Incidence and Trends’ March 2018 accessed at https://www.guttmacher.org/fact-sheet/abortion-africa 22 August 2019.

[20] Centre for Reproductive Rights ‘The Center wins a major victory for abortion rights in Africa’ 12 June 2019 accessed https://reproductiverights.org/story/center-wins-major-victory-abortion-rights-africa at on 27 August 2019.

About the Author:
Nimrod Muhumuza is a lawyer and LLD candidate at the Dullah Omar Institute, University of Western Cape

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The Global Compact on Refugees: A breakthrough opportunity in addressing the protracted refugee crises in East Africa

Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar

In recent years, the world has witnessed an explosive increase in the number of refugees and internally displaced persons. The upsurge in forced displacement has increased the demand for humanitarian assistance and strained the limited resources of host nations, majority of which are developing economies. The resulting economic strain compelled the international community to develop sustainable mechanisms for protecting refugees and displaced persons in alignment with the 2030 Agenda for Sustainable Development.

According to the UN refugee agency report, 9 out of 10 refugees live in developing countries, with limited access to basic services like health, education and food. Sub-Saharan Africa hosts the largest proportion of refugees and displaced persons globally. The East Africa region hosts a large proportion of refugees in Africa. Kenya, Uganda and Ethiopia collectively host over 2.2 million refugees, many of whom are fleeing war, human rights violations and adverse climate changes. Despite the tremendous hospitality of these host countries and generous donations towards humanitarian funding, the gap between needs and humanitarian funding has continuously widened.

On 19 September 2016, world leaders  at a United Nations Summit for Refugees and Migrants in New York, United States, unanimously adopted the New York Declaration for Refugees and Migrants. This declaration was adopted specifically to address the plight of thousands of refugees and migrants confined in refugee camps with little hope of returning to their home countries. The  Declaration  reaffirmed the principles of refugee protection enshrined in the 1951 United Nations Convention on the Rights of Refugees. During the Summit, Member States further agreed to work towards the adoption of two critical documents: a global compact on refugees, and a global compact for safe, orderly and regular migration.

The Global Compact on Refugees was premised on four key objectives:

  • easing pressure on host countries,
  • enhancing refugee self-reliance,
  • expanding access to third-country solutions and
  • supporting conditions in countries of origin to enable safe, voluntary, and dignified returns.

The Compact was founded on principles of sovereign equality of Statesresponsibility-sharing, non-discrimination, and realisation of human rights. This Compact acknowledges a collaborative strategy in enhancing and improving livelihoods, while tackling challenges for communities in countries of origin, transit and destination. The Compact is consistent with the purpose and object of the United Nations Charter, which emphasises international co-operation in solving global problems, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

The Compact will hugely and desirably aid the response to the protracted refugee crises in the Eastern Africa region, as it would translate the principles of international cooperation and responsibility-sharing into practice. Despite East Africa bearing the greatest burden of the refugee crises and shouldering much of the responsibility, the international response has often remained insufficient and underfunded to the detriment of the refugees. Many host countries, majority of whom are developing economies, continue to face portentous humanitarian challenges as well as perennial food insecurity.

The protracted refugee crises has been exacerbated by the lack of political will, donor fatigue and inadequate funding. However, the Compact provides a basis for reliable and reasonable burden- and responsibility-sharing  commitments among all United Nations Member States, to include hosting and supporting the world’s refugees. Several mechanisms have been endorsed to facilitate burden- and responsibility-sharing. Firstly, through a periodic Global Refugee Forum, UN Member States have the opportunity to make both financial and non-financial pledges towards the implementation of the compact. The forums are crucial to ensuring accountability and compliance by Member States. Secondly, host countries may establish national leaderships to coordinate and facilitate the efforts of all relevant stakeholders working to achieve a comprehensive refugee response. The national leadership would guide the development of comprehensive refugee response plans to align with the national policies and priorities. Thirdly, the establishment of a Support Platform would facilitate precise support for refugees, host countries and communities, in line with the host country’s ownership and governance of the process. This would be fulfilled through implementation of a comprehensive policy initiative to ease pressure on host countries and build self-sufficiency among the refugees.

Additionally, in order to achieve the 5th UN Sustainable Development Goal, the Compact establishes a program of action that specifically targets women in conflict and seeks to promote gender equality and empowerment. Sexual and gender-based violence, trafficking in persons, and sexual exploitation and harmful practices experienced by women in refugee settings will be addressed by this program. Women living in refugee camps disproportionately face grievous human rights violations simply due to their gender. The program seeks to ensure these vulnerable women are protected, and able to seek redress for human rights violations.

Therefore, the Global Compact on Refugees has provided a breakthrough  opportunity to reinforce a global comprehensive response to the protracted refugee crises in East Africa. Proper implementation and enforcement of the recommendations of the Compact portends to improve livelihoods and protect the plight of refugees in the region. However, the success of the Compact will rely on successful mobilisation of political will, and sustainability of political engagement in addressing the widening gap between humanitarian needs and humanitarian funding. By emphasising on international co-operation, and burden and responsibility-sharing commitments, the Compact has the prospect of transforming lives and offering better protection for refugees as well as the residents of host countries.

About the Author:
Juliet Nyamao is a Human Rights Attorney admitted to the Kenyan Bar. She received her LLB from Moi University School of Law (Kenya) and LLM from Georgetown University Law Centre (USA). Juliet completed her fellowship in Leadership and Advocacy for Women in Africa at Georgetown University Law Center. She is currently a fellow at the American Bar Association-USA.

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A human rights approach to internet taxes in Africa

Author: Tomiwa Ilori
HRDA Alumni Coordinator/Researcher: Democracy, Transparency and Digital Rights Unit, Centre for Human Rights, University of Pretoria

Due to increasing underdevelopment in sub-Saharan Africa, many governments have looked towards several means to make up for deficits in domestic fiscal planning. One of the means through which governments have financed their budgets is by levying higher taxes on companies and individuals to be able to raise revenue.

While there may be legitimate reasons for states to levy taxes, in order for a tax system to be regarded as good and effective it needs to comply with at least five basic conditions: ensure a beneficial system; transparent in collection and use; less bureaucratic and equitable – every person should pay a fair amount of taxes not injurious to their well-being. While Information and Communications Technologies (ICTs) potentially impact the global economy, not all economies have thrived equally. In most sub-Saharan African countries, the impacts of ICTs have been least felt which damages the prospects of democratic development in the region.

Considering the wave of African countries now keen on legislating on internet taxes, there seems to be more justification for these taxes than improving revenue generation. Sections 18, 20 and 22 of the Tanzanian Constitution provides for the rights to freedom of expression association and work. The Tanzanian government levies a registration fee of more than US$900 for bloggers and other online content producers. The Electronic and Postal Communications (Online Content) Regulations of 2018 prescribes this fee in its Second Schedule. According to Sections 7(1) and (2) of the Regulation, this fee must also be paid by non-citizens of Tanzania who have their content accessed in Tanzania and refusal to pay such amount results in a fine of US$2200 and/or a minimum imprisonment of 12 months which depending on the case at hand, could be more. All of these regulations exist notwithstanding fact that 7.8% of Africa’s young population lives in Tanzania – making up 35% of its population which could benefit from the booming global e-commerce economy.

In Uganda, several online users have fallen by the sides after the introduction of internet taxes in the country. More than a year after the introduction of the tax, more than three million users (30% of those connected to the internet in Uganda) have stopped using the internet. The tax has also generated just 17% of the estimated revenue it was calculated to generate while more urban connected users are less affected compared to those who live in the rural areas. The tax increased broadband cost by 10%.

Despite strong opposition from stakeholders in 2018, the Zambian government also introduced internet taxation which has since denied access to more than 1.5 million internet users. Zambia has an internet penetration rate of only 40% which the introduction of the tax may further reduce.

The Finance Act of 2018 of Kenya has also been amended to introduce taxation of internet data services and fixed line telephone services by 15% with an already existing Value Added Tax (VAT) of 16% being paid by consumers. However, due to the large internet penetration base in Kenya at 85%, this increase may not have any meaningful negative impact on broadband access in Kenya.

In Ghana, the government recently increased the Communication Service Tax (CST) from 6% to 9% which is levied on consumers who use communication services of telecommunication providers that operate in the country. The new increase was made without the due process which requires stakeholders’ deliberations on the proposed increase.   Benin and Nigeria have also at some point in time considered internet taxation but dropped it.

However, while Nigeria may have dropped its own policy towards internet taxes, it has come up with another means of levying such taxes by focusing on online advertisements. It intends to do this by relying on Article 21 and 80 of the Nigerian Code of Advertising Practice which allows the Advertising Practitioners Council of Nigeria (APCON) to vet advert materials. Expedited vetting will cost between US$450 and US$800 while regular vetting will cost US$70. Failure to comply with these requirements may incur a fine of US$1400. Even though the Courts have ruled that levying of fees on adverts are only limited to advertising practitioners, the Council seem bent on implementing the policy even though it does not seem to be in its purview to do so.

Given the high poverty rates in some of these countries where internet taxes are being introduced, digitisation provides prospects for e-commerce and more vigorous online debates on driving people-focused public policy. Also, in each of these countries, the Laffer curve theory which postulates that an introduction of tax will not necessarily yield the desired amount of revenue is evident. Tax experts in Ghana have specifically warned that the new increase in CST may not yield the desired revenue projections.  In Uganda, the internet penetration may reduce drastically if the taxation continues for five years before it is reviewed. This is same for Tanzania whose government demands fees just about its GDP per capita as registration fees from bloggers. The amount to be realised by the state with this fee is not only negligible in contributing to Tanzania’s revenue generation, it seems more like a means of silencing the growing strength of online press in the country.

Countries like Tanzania will completely stamp out online freedom of expression and association online if the obnoxious registration levy for bloggers and internet taxes are not revised. This is also bearing in mind the rights to dignity, work and freedom of expression of these journalists and online bloggers have been adversely affected while also denying the public’s right to access information in Tanzania. These taxes are not only evidence of a bad tax system by not complying with the criteria above, they also adversely impacts on the fundamental human rights of the online public in Tanzania and Zambia as protected under national and international laws.

Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the right to gain living by work. Article 15 of the African Charter on Human and Peoples’ Rights (the African Charter) also provides for the right to work ‘under equitable and satisfactory’ conditions. This same right is guaranteed under Article 22 of the Tanzanian Constitution. Articles 40(1)(a) & (2) of the Ugandan Constitution also provides for the right to work under ‘satisfactory… conditions’ and ‘has the right to practice his or her profession…’

In the United Nations’ Guiding Principles on Extreme Poverty, States are advised that ‘Fiscal policies, including in relation to revenue collection, budget allocations and expenditure, must comply with human rights standards and principles, in particular equality and non-discrimination.’

All these provisions, together with the right to human dignity which being able to earn a living affords, are being violated by the introduction of these taxes in these countries. The right to freedom of expression is also under serious threats online as most of these taxes are targeted to reduce the impacts of deregulated public access to government policy making challenges through online platforms.

While it is not clear how the Nigerian advert regulating agency intends to collect the levies on online adverts, it is clear that such levy will not only affect small businesses that are teeming in the country, it will also raise questions as to whether it is a good tax system given no clear mode of collection. It also raises important questions on the propriety of licensing internet services which has been regarded as violating international norms and standards on protecting internet rights.

Facts have emerged that levying of internet taxes do not achieve the desired outcome of revenue generation but most African governments seem to continue with it given that it also helps to chill the enjoyment of human rights online. Also, given the Nigerian example of regulating online adverts, most of these regulations are already being carried out by these online platforms through their community guidelines and policies therefore such regulation by the agency is a waste considering the several adverse effects it would have on small businesses and the rights of many to work in the country.

The Kenyan example of internet taxation and the effect it has on users ought to show that it is best to develop broadband infrastructure that encourage affordability and access before introducing taxes. As most African countries are in the most expensive half of the table of countries with costly broadband access, countries that introduced internet taxes have had more people who no longer have access because the tax has become an unbearable burden making already expensive broadband even more expensive.

These issues show that African governments must take a human rights approach to internet taxes by respecting human rights, building proper broadband infrastructure and allowing businesses to thrive before milking them through counterproductive taxes. It is also an opportunity for many African states levying these taxes and those with plans to, to pay more attention to their obligations under international law. There is no point in levying taxes where not only the standard of living drastically reduces but also where there are hardly any results in improvement in public utilities and governance.

About the Author:

Tomiwa Ilori is an LLD Candidate and Researcher at the Democracy, Transparency and Digital Rights Unit of the Centre for Human Rights, University of Pretoria where he is also the Coordinator of the Centre’s LLM/MPhil in Human Rights and Democratisation in Africa (HRDA) alumni network.

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African Colloquium: Overcoming Barriers to Safe Abortion, Jan. 16-17, 2020, University of Pretoria

reprohealthlaw blog

Colloquium on Overcoming Barriers to Safe Abortion in the African Region, 16-17 January 2020 at the Centre for Human Rights, University of Pretoria, South Africa. Details, funding, topics, and Call for Abstracts

The Centre for Human Rights, University of Pretoria, South Africa, will host a colloquium on #SafeAbortion and realising women’s human rights from 16 to 17 January 2020. The colloquium is about developing responses to the persistence of unsafe abortion in the African region. The Centre invites abstracts on overcoming barriers to safe abortion in the #African region. The focus is two-fold: critically exploring laws, policies and practices that serve as barriers to access to safe abortion; and suggesting reforms to overcome the barriers in consonance with women’s human rights. The colloquium seeks to bring together scholars, practitioners and researchers from the African region and beyond working on various aspects of abortion.

Abstracts must be sent by email to

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The perpetual endeavour: Gender-mainstreaming and sustainable development in Kenya

Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar

According to Amnesty International’s Africa 2017/2018 report, women disproportionately bear the brunt of poverty. Persistent discrimination, marginalisation and abuse of women and girls, have systematically become institutionalised by unjust laws. Although the Constitution of Kenya guarantees equal rights and freedoms for both men and women, long-standing gender inequalities have significantly impeded the overall contribution of women and girls in achieving Kenya’s sustainable development agenda.

Women have not only been subjected to the worst forms of human rights violations, but they have also been consistently denied their right to active participation in the country’s growth and development, simply because of their gender. Women’s lack of socio-economic independence, as well as a prejudiced Kenyan society, both highlight gross violations of their inherent human rights including equal protection of the law. Addressing the longstanding gender inequalities and promoting women’s economic empowerment would be pivotal in accelerating achievements of the sustainable development goals in Kenya, and globally.

Kenya has one of the world’s highest rates of population growth, with half of its population living below the national poverty line. Consequently, many Kenyans lack access to quality education, health services, food, water and other important social services. After the promulgation of Kenya’s Constitution in 2010, women were determined to take up political and other leadership roles like their male counterparts. During the August 2017 general elections, many women aspirants vied for various political positions. This resulted in an increase in women’s representation in parliament, from 16 to 22 following the 2012 and 2017 general elections, respectively. Despite this milestone, women aspirants and politicians continue to face constant criticisms, hate speech and gender-based violent attacks from members of the public. The electioneering period is among the worst times for women in Kenya. Violence has been used to deter many women from seeking political and other leadership positions, as well as exercising their voting rights. Despite the milestones so far achieved, Kenyan women’s representation in leadership and politics falls short of the global average.

A 2011 International Foundation for Electoral Systems (IFES)/Bardall study on violence against women in elections established that women and men encounter electoral violence divergently, with women experiencing more than twice as much violence as their male counterparts. Thwarting women’s political participation greatly undermines their social, civil and political rights as enshrined in the Constitution as well as international conventions on women’s rights. Violence against women in politics also threatens to perpetuate gender inequality and human rights violations. Therefore, it is in the interests of the State to adequately take measures to address violence against women in politics and leadership positions to accelerate gender equality and the political empowerment of women.

Women make up a greater percentage of the workforce in the agricultural sector as well as other informal employment sectors.  However, majority do not have access and control over land and other properties.  Gender inequality in access and control of land and property is rampant owing to discriminatory inheritance and succession practices, disproportionate access to land and unfair land and property rights reforms.  Despite legislative reforms bestowing women the same rights as men in ownership of land and property, women are disproportionately disadvantaged due to the persistent discriminatory customary practices that are patriarchal in nature. Although, women are the pillar of agriculture in Kenya, which is a great source of income, for the most part, land is left to the male members of the family to inherit or own. These unjust customary laws and practices contribute to persistent gender inequality and give poverty a predominantly female face, since many women are dependent on men for financial support.  Insignificant proportion of women in Kenya have registered titles to land. Similarly, women have access to less than 10% of available credit, and less than 1% of agricultural credit. To improve the gender inequality, action must be taken to accelerate women’s access to resources by addressing persistent barriers that hinder realization of their land and property rights. Increasing women’s access to credit facilities, will likely  improve food security and alleviate poverty. Economically empowered women actively participate in decision making, which is significant in addressing the diverse growth and developmental challenges that have rocked Kenya and the African continent at large.

Nevertheless,  Kenya  has made great strides in improving the status of women and girls. The 2016 report of the African Human Development Index, ranked Kenya 18th in Africa, and 145th globally, in enhancing gender equality. The report highlighted that sub-Saharan Africa was losing an average of $95 billion a year due to gender inequality.  Kenya was also recognised at the Assembly for Women Conference in 2016 for prioritising girl child education and women’s political participation as drivers of change.  Implementation of gender equality laws, however, still remains a challenge. Although the government of Kenya has passed land laws to protect inheritance rights and eradicate customary practices that impede women’s access to property, many women continue encountering challenges to accessing the legal justice system for enforcement of these rights. It will require substantial effort and political will to ensure existing laws are applied entirely in all the counties in the country.

The United Nations’ 2030 Agenda for Sustainable Development sets gender equality as one of the most crucial goals that countries must aim to achieve. Kenya must commit to take positive measures to ensure indiscriminate and effective access to resources and services. Promoting women empowerment is also an ideal model of addressing gender inequality. For Kenya to achieve the 5th Sustainable Development Goal, the government, civil society organisations, development partners, women leaders and other stakeholders must collaborate to protect women from discrimination, eradicate persistent discriminatory practices that hinder the realisation of women’s human rights, and ensure women’s equal protection under the law. Additionally, Kenya must formulate gender-mainstreaming policies to correct the historical gender inequalities and accelerate sustainable development goals spearheaded by women.

About the Author:
Juliet Nyamao is a Human Rights Attorney admitted to the Kenyan Bar. She received her LLB from Moi University School of Law (Kenya) and LLM from Georgetown University Law Centre (USA). Juliet completed her fellowship in Leadership and Advocacy for Women in Africa at Georgetown University Law Center. She is currently a fellow at the American Bar Association-USA.

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#IAmToufah makes the message clear: We are not going to wish the rape crisis away

Author: Satang Nabaneh
Project Officer, Women Rights Unit, Centre for Human Rights, University of Pretoria

In dealing with past human rights abuses and upholding standards of respect for human rights, The Gambia’s transition from an abusive regime to democracy must also entail justice for victims of gender-based violence. Consequently, the most illustrative example of addressing sexual violence being part of the democratisation of society happened last month when 23-year-old former beauty queen, Fatou ‘Toufah’ Jallow accused former President Jammeh of rape.

Toufah detailed her story from the starting point of winning the state-sponsored beauty pageant in 2014 when she was 18 years old. Over the next few months, Jammeh lavished her with cash gifts and other favors including installation of running water in her family house. She was offered a position as a “protocol girl,” to work at the State House, which she declined. She also turned down his marriage proposal. During a pre-Ramadan Quran recital at State House, Jammeh locked her in a room and told her: “There’s no woman that I want that I cannot have.” She said that he then hit and taunted her, injected her with a liquid, and raped her. Days later, she fled to neighboring Senegal.

Fatoumatta Sandeng, the spokesperson of the  “Campaign to Bring Yahya Jammeh and his Accomplices to Justice”  (#Jammeh2Justice campaign), and daughter of Solo Sandeng, whose murder in custody in 2016 led to a rallying call against Jammeh was also confined to a hotel in his home village Kanilai for several days. She was a well-known band singer and had caught Jammeh’s eye when she performed on TV. She was released unharmed due to Jammeh having to attend a funeral.

These public allegations against Jammeh, of coercing and forcing young women to have sex with him, form part of a core focus of spotlighting the issue of rape and other sexual crimes during his rule from July 1994 to January 2017, in efforts to prosecute him. The Gambia Truth, Reconciliation and Reparations Commission, which is currently establishing the nature, causes and extent of violations and abuses of human rights committed during the period July 1994 to January 2017 will be a vital platform to establish the systemic abuse of young women by Jammeh.

The Creation of a Movement

Following the public rape allegations against Jammeh, The Gambia’s #MeToo has been triggered. The overdue public reckoning of sexual violence led to the social media hashtag #IAmToufah.  Women, both in and outside the country, shared their own experiences of sexual assault leading to other hashtags such as #SurvivingMelville. This widespread response highly accentuates the demand for accountability and justice. The Women’s Act 2010 defines violence against women to mean:

all acts perpetrated against women which cause or could cause them physical, mental and emotional, sexual, psychological or economic harm or suffering to women, including the threat to take such acts, or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life, in peace time and during situations of armed conflicts or of wars.

The #IAmToufah movement displays the incredible strength and courage of women and girls to talk about sexual violence. However, the public debate about sexual assault quickly led to denunciation by rape apologists of the “so-called victims” as “liars and people to be blamed, not the rapist”. The urge to brand the victim as a willing collaborator is unfortunate but not bewildering, especially given the Gambian context. What the harsh judgment and victim blaming show is society’s complicity in silencing and stigmatising victims of gender-based violence, including rape.

The Movement’s Oppressors

Ironically enough, some of the fiercest denialists are actually women/young women. This conformity to societal expectations is illustrative of the way systematic domination renders these women incapable of understanding their participation in and reinforcement of their own oppression.

The denialist attitudes held by people in The Gambia reflects the national rhetoric on rape, contested understanding of ‘consent’ and the patriarchal nature of the society. Rape should be understood not just in terms of the harm that individual victims suffer, but as a pillar of patriarchy: a central part of many cultures in The Gambia. Patriarchy is “the systematic, structural, unjustified domination of women by men. It consists of those institutions, behaviours, ideologies, and belief systems that maintain, justify and legitimate male gender privilege and power.” (Braam & Hessini 2004). Rape is not just about sexual desire; it becomes a way of discipling women when men believe there is a challenge to their masculinity or when women do not exercise their traditional female roles.

Photo credit: STS Pictures

Gender-based violence is one of the most pervasive forms of human rights violations perpetrated, mostly against women and girls. It is therefore appropriate that we demand for justice. According to the 2013 Gambia Demographic and Health Survey (DHS), 4.6% of people aged 15–59 had experienced sexual violence in the 12 months preceding the report.

On July 4, 2019, hundreds of women and men, boys and girls marched in solidarity demanding that government and society take concrete action to end gender-based violence in The Gambia. What was out there on the streets was a moving mass of action giving voice to rage. They carried placards with words that seethed.

“No means No”

“No more rape.”

“We are coming for you.”

This national discourse and reflection on the ongoing problem begs the question:

Why does the culture of rape continue?

The culture of impunity that has perpetuated our society for the past two decades serves as the foundation for the lack of justice for survivors of sexual violence. Although, The Gambia currently has a regulatory framework that addresses GBV including the Children’s Act 2005, Women’s Act 2010, Tourism Offences Act 2003 and Sexual Offences Act 2013, sexual violence remains unabated. While there is no national figure on the prevalence, we do know that sexual abuse is often commonplace for women and girls in The Gambia.

Reporting and much less, prosecution hardly takes place. Victims maybe afraid to report violence, especially if the person who has hurt them is more powerful or is in a position of trust and authority and could harm them again. Given the nature of Gambian society, victims are afraid of societal condemnation and stigma making them reluctant to report.

The state is deemed to condone or perpetuate violence when it does not effectively implement laws that protect women and girls from violence, effectively allowing impunity. When the state does not hold perpetrators accountable, it sends a signal that male violence as a mechanism of control over women is acceptable, thereby leading to normalisation of the violence.

The socio-cultural system serves as the foundation that entrenches and perpetuates these sexual crimes. There is a general social acceptance of violence and perpetuation of inequality. The Gambia is a deeply patriarchal society, which creates unequal power relationships between men and women and maintains gender stereotypes. Gender stereotype is defined as “a generalised view or preconception about attributes, or characteristics that are or ought to be possessed by women and men or the roles that are or should be performed by men and women.(Cook and Cusack, 2010, p.9). Rape is part of the patriarchal system in the Gambia that promotes low status of women. Whilst women constitute more than half of the Gambian population, society does not equally value women and girls. As noted elsewhere “[a]t the heart of gender inequality lies unequal power relations between women and men in our societies, where men control and dominate over women’s lives.”

What will it take to address the issue?

While we have laws and policies in place, it is vital that we ensure effective. enforcement mechanisms are in place. This would include the strengthening of the justice system and the police to deal with cases expediently as victims need to be provided with just and effective remedies. Perpetrators of all forms of sexual violence should be prosecuted and punished.

In addition to the provisions in the above mentioned laws, the new Gambian constitution must constitutionalise the prohibition of violence against women and girls in both the private and public spheres). Constitutions serve as important frameworks for articulating a State’s condemnation of violence against women in line with international standards. The inclusion of such a constitutional protection will be premised on the basis that gender-based violence violates the fundamental rights of women and limits their opportunities and choices. The state is also obligated to prevent women’s rights violation by state (such as the police or military) and non-state actors (such as spouse, partner or employer) for the attainable of equality in all spheres.

Equally important, civil society organisations need to collectivise efforts and continue to challenge attitudes and stereotypes that engender GBV and perpetuate the subordination of women and the unequal distribution of power between women and men. Assertions of culture and religion cannot be continually used to justify violations of women’s rights.

What the #IAmToufah brings to the table is not just a viewing of women and girls as victims of violence but spotlighting the abusers who must be named, shamed and brought to face justice. #TimeIsUp as Gambia makes the choice by taking a stance to not tolerate, condone or excuse sexual violence committed against women and girls. It is time we stop finding excuses for rapists. Rape is never acceptable, and perpetrators will not go unpunished!

This article is republished from Impakter. Read the original article.

About the Author:
Satang Nabaneh is a Gambian feminist, human rights defender and researcher. She is currently a Doctoral Candidate and Project Officer, Women Rights Unit, Centre for Human Rights, University of Pretoria. Her research interests include a broad range of issues related to human rights, democracy and constitutionalism.

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