African Commission’s Revised Declaration of Principles on Freedom of Expression and Access to Information in Africa should be a call to action

Author: Dunia Mekonnen
Almami Cyllah Fellow, Amnesty International, USA

The African Commission on Human and Peoples’ Rights (ACHPR) revised its Declaration of Principles on Freedom of Expression in Africa to address new technological advances, online activity, and internet restrictions throughout Africa, after deliberating on the draft beginning from April 2018. The Special Rapporteur collected comments from civil society, States parties, and others on the new draft Declaration of Principles on Freedom of Expression and Access to Information in Africa. The Declaration, is based on a series of resolutions adopted by the African Commission in 2012 and 2016.

Access to information is a central component of freedom of expression. When citizens are misinformed and are unable to access basic public information, they can’t fully realise their right to freedom of expression. Access to information is defined as the right to seek, access, and receive information. In General Comment No 34 on article 19 of the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee elaborated that state parties should take account of the extent to which developments in information and communication technologies have substantially changed communication practices around the world. In addition to the ICCPR, the Universal Declaration of Human Rights(UDHR) discusses the right to access information and the internet more broadly. Likewise, in his 2016 report, the UN Special Rapporteur on Freedom of Expression emphasised that the right to record, film and use online media is part of the right to seek and receive information which is protected under article 19/2 of the ICCPR. Access to information is also recognised under regional legal frameworks such as  the African Charter, the Guidelines on Access to Information and Elections in Africa and the Convention on Cyber Security and Personal Data Protection. These legal frameworks provide safeguards to access to information.

In the current global world, social media surveillance threatens to clutch the civic space, particularly in the digital sphere, and Africa is not an exception. In some parts of the continent, the market for social media surveillance is booming, benefiting autocratic governments. Many African countries also employ social media monitoring projects.

In several countries, governments have restricted access to specific apps and platforms used by opposition groups to mobilise or resorted to shutting down the internet altogether. In 2018, 8 African countries experienced internet-related interventions. In 2019, Sudan, Democratic Republic of Congo, and Zimbabwe all cut off internet services. These actions were responses to election violence and or ongoing protests in these countries.

Chad closed social media platforms, including Twitter and WhatsApp for about 300 days between March 2018 and January 2019. The social media block started on Mar. 28, 2018 following increased tensions after a national conference of politicians and traditional chiefs recommended constitutional changes that would allow President Idris Déby to rule until 2033. Similarly, in a recent move, the Nigeria government introduced the Protection from Internet Falsehoods, Manipulation and Other Related Matters bill that would further stifle the space for critics, human rights reporting and accountability in the country. For example, part 5 of the bill poses a huge threat to online freedoms as internet intermediaries, including social media companies which are put under pressure to conform to regulations that clearly violate the enjoyment of free speech.

The stifling of access to information reduces citizens’ ability to efficiently access information about basic services, fully participate in the social, economic and political developments of their countries or hold their governments accountable for public expenditure, which can in turn poorly affect their rights to health, employment and housing. They can also not fight corruption. The lack of access to information particularly online media also hinders the engagement of Civil Society Organisations with human rights mechanisms such as the African Commission on Human and People Rights (ACHPR) and the like. This is mainly through a lack of transparency and access to accurate and complete information for CSOs taking a part in these forums. Internet disruptions and distortion strategies also played an important role in elections in Sub-Saharan Africa. Studies indicate, about 80% of governments restrict mobile internet service and shut down online media during elections or public protests. It is in recognition of these emerging threats, and based on the various challenges between 2012 and 2016, that the ACHPR adopted the Revised Declaration of Principles on Freedom of Expression and Access to Information. One of the major factors contributing to this revision is that the African Declaration on Principles of Freedom of Expression and Access to Information of 2012 lacked protection to online media. The revised declaration consolidates developments on freedom of expression and access to information, including taking account the AU treaties and soft law standards and the emerging jurisprudence of judicial and quasi-judicial organs of the African Union. The declaration underscores the importance of media diversity and pluralism. It promotes the safety of journalists and other media practitioners, including protection from the murder, extrajudicial killings, torture, and other inhuman treatments. In a stronger sense, the declaration bans the inappropriate conduct of law enforcement, security intelligence, and military personnel, prohibits custodial sentences for criminal defamation and prohibits speeches that advocate for national, racial, and religious hatred.

If properly implemented, the revised declaration could have a transformative impact on the internet, in terms of giving voice to citizens of Africans and meaningfully enhancing their ability to access information, while improving diversity and reporting. It could create a bridge across the digital divide, which the continent is currently experiencing. It could also address the emerging practice of states intruding or restricting access to telecommunication services, including the Internet, social media, and messaging services, during elections.

Nonetheless, the effective implementation of the declaration will require both political will and increased capacity as is in many African countries, online media, offline media, and the private press don’t function properly in some countries. Further, existing freedom of information laws, including, the African Union model law on access to information and freedom of expression, are not being enforced. It is in light of this, friends of Africa can play a critical role in the protection of the free expression and access to information.

Recommendations

  1. The US Congress should robustly support access to information and freedom of expression by passing H.R. 345. Responding to widening threats to freedoms of the press and expression around the world, reaffirming the centrality of a free and independent press to the health of democracy, and reaffirming freedom of the press as a priority of the United States in promoting democracy, human rights, and good governance on World Press Freedom Day.
  2. The US government and other international actors should invest in capacity building and education initiatives to support the effective implementation of the revised declaration.
  3. The African Commission on Human and Peoples’ Rights should make public interventions where violations of the right to freedom of expression and access to information occur.
  4. The African Commission on Human and Peoples’ Rights should support research initiatives based on the declaration at country level to advance the work of the Commission’s Special Rapporteur on Freedom of expression and access to information.

About the Author:

Dunia Mekonnen is a graduate of the Gorgetown Law Centre and currently works as Almami Cyllah Fellow at Amnesty International USA.

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A call for an adequate legal and institutional framework in the protection and inclusion of children with mental/ developmental disabilities in Nigeria

Author: Busayo Oladapo
Kenna Partners Associate, Nigeria

According to a report by the United Nations Children’s Fund (UNICEF), between 93 and 150 million children live with a disability worldwide. The World Health Organisation (WHO) also reports that there are 7 million children with disabilities in Nigeria. With the emergence of the United Nations Convention on the Rights of Persons with Disabilities 2006, the scope of disabilities has expanded to include persons with mental, intellectual or sensory impairments. Despite the almost universal ratification of the Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD) which reiterate the inalienable rights of children, children with disabilities and their families all over the world are continually confronted with daily challenges that compromise the enjoyment of their human rights, Nigeria inclusive. With the global rise in the number of children with developmental disabilities, the implication is that in the coming years, a significant number of young adults globally would be individuals with one form of mental/ development disability or the other. Therefore, it is imperative for state parties to be more intentional about the protection and inclusion of children with developmental/mental disabilities for better integration into the society.

The CRPD provides that children with disabilities must enjoy their full rights like other children and be allowed to express their views and opinions without any form of discrimination. It also mandates state parties to ensure the protection of the rights of children with all forms of disabilities including mental/ developmental disabilities.

The protection and inclusion of children with mental/developmental disabilities has received judicial pronouncements in the United States of America and the United Kingdom. In C & C v The Governing Body of a School, the Secretary of State for Education (First Interested Party) and the National Autistic Society (Second Interested Party) (SEN) [2018] UKUT 269 (AAC), the Upper Tribunal Administrative Appeals Chamber in the UK ruled as discriminatory, the exclusion of a student from school due to a tendency towards violence that was caused by his autism. This implies that in the UK, children with disabilities cannot be excluded from school simply because their disability makes them exhibit ‘anti-social’ behaviour. Also, in Endrew F. v. Douglas County School Dist. RE-1 137 S. Ct. 988;197 L.Ed. 2d 335, the United States Supreme Court in 2017 held that under the Individuals with Disabilities Education Act (IDEA) schools must provide students with education that is “reasonably calculated to enable a child make appropriate progress in light of the child’s circumstances.

With respect to the protection of children with mental/ developmental disabilities in Nigeria, it is imperative to note that Nigeria ratified the Convention on the Rights of a Child in 1991 and the Convention on the Rights of Persons with Disabilities (CRPD) in March 2007 and its Optional Protocol in September 24, 2010. Consequently, the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018 which is applicable in all states of the federation, was enacted for the protection of persons with disabilities in Nigeria. The Act criminalises discrimination on the basis of disability with a fine of NGN100,000 or a term of 6 months imprisonment to anyone that violates the law.

Whilst the enactment of this Act is laudable, its successful implementation has been hampered in light of the fact that the National Commission for Persons with Disabilities is yet to be established despite the express provision for its creation in the Act. This shortcoming makes implementation and enforcement of the law very difficult, if not impossible. Another challenge with this Act is that it speaks more of physical disabilities than other forms of disabilities. Furthermore, there is no institutional framework for the protection and inclusion of children with mental/developmental disabilities in Nigeria. In addition, there remains inadequate judicial authorities upholding the need for the protection and inclusion of children with mental/developmental disabilities in Nigeria.

In light of the foregoing challenges and shortcomings of the current legal and institutional framework for the protection and inclusion of children with mental/ developmental disabilities in Nigeria, it is recommended that the National Assembly and state Houses of Assembly should enact laws which are targeted at the protection and inclusion of children with disabilities in Nigeria. To achieve this, civil society organisations should sensitise stakeholders and key legislators on the importance of  a legislative framework for the protection of children with mental/developmental disabilities  Also, the Federal Government should establish institutions for the protection of children with mental/ developmental disabilities and facilitate access to quality education and medical care for children living with mental/ developmental disabilities through community-based programmes for early detection and provision of support services for children with mental/ developmental disabilities and their families. Furthermore, civil society organisations and parents/ guardians of children whose rights have been infringed upon, should approach the courts for protection by instituting actions for the enforcement of fundamental right. This would draw the attention of the courts to the issue, and provoke their judgment in this regard. Consequently, civil society organisations would play an active role by utilising the courts to enforce the rights of children living with mental/ developmental disabilities in the country. This has the benefit of improving Nigeria’s body of laws and jurisprudence on children living with disabilities. These recommendations, if adopted would ensure better protection and inclusion of children with mental/ developmental disabilities in Nigeria.

About the Author:

Busayo Oladapo is an Associate at Kenna Partners who specialises in the provision of legal advisory and company secretarial services to corporate clients in Nigeria. She advises top tier companies, businesses and organisations on legal and regulatory compliance in respective sectors. She also provides legal representative services to clients in the banking, oil and gas and telecommunication industry in Nigeria.  Busayo is passionate about children’s right and strongly advocates for institutional and legal reforms in the protection and enforcement of children’s right in Nigeria and the world. She graduated from the University of Lagos where she obtained her LL.B(Hons) and attended the Nigeria Law School, Abuja.

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Nigerian High Court avoided constitutional scrutiny of anti-gay laws

reprohealthlaw blog

Many thanks to Ovye Affi, an LL.M student of Sexual and Reproductive Rights in Africa, in the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa. He kindly contributed a 6-page case summary to the updated edition of Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts., online here. We are pleased to circulate a few excerpts about this “first suit in a Nigerian court which specifically sought the protection of the rights of homosexuals.”

Cite as: Ovye Affi, “Nigerian High Court avoided constitutional scrutiny of anti-gay laws : Mr. Teriah Joseph Ebah v. Federal Republic of Nigeria (2014),” Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, Reprohealthlaw Blog, Dec. 10, 2019 Decision online. 6-page Case Comment by Ovye Affi.

“Court Holding: The Court held that the Applicant in this case has no legal standing to bring an…

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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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