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AFRICAN JOURNAL OF LEGAL ISSUES IN TECHNOLOGY AND INNOVATION, VOL. 1, NO. 1 (2023)
113
THE PLACE OF DIGITAL SURVEILLANCE UNDER THE
AFRICAN CHARTER ON HUMAN AND PEOPLES’
RIGHTS AND THE AFRICAN HUMAN RIGHTS
SYSTEM IN THE ERA OF TECHNOLOGY
Mujib Jimoh
*
ABSTRACT
All the main international human rights instruments, except the African
Charter on Human and Peoples’ Rights (the “African Charter”), contain
the right to respect for private life, the home and correspondence. This right
protects unlawful and unnecessary surveillance. Different theories have
been propounded by scholars about the absence of this right in the African
Charter. The most prominent and acceptable theory is that the African
Charter mirrors African Traditional Values and that under the African
system of communalism, privacy is somewhat respected, in contrast with the
wide privacy notion under Western liberalism. However, in the era of
surveillance technologies where States are able to use these technologies to
violate privacy, there is a question about the sustainability of the notion of
the “somewhat respect for privacy” in the African human right system. This
paper answers this question, and in addition, answers the following: (i) to
what extent can and should digital surveillance be permitted under the
African human rights system; and (ii) is there any provision in the African
Charter that can protect Africans from unnecessary digital surveillance by
African States? The paper finds that African States use surveillance
technologies for illegitimate purposes, despite the fact that Africa is
technologically behind. Therefore, it argues for the formulation of a binding
instrument on privacy; a framework for the use of technology in Africa; and
the enactment of surveillance laws which are necessary, legitimate, effective
and proportional.
*
LLB (First Class Hons.), Ibadan; BL, Nigeria Law School; LLM (Cand.) Duke University. Email:
mujib.jimoh@duke.edu
JIMOH, THE PLACE OF DIGITAL SURVEILLANCE UNDER THE AFRICAN CHARTER ON HUMAN AND
PEOPLES’ RIGHTS AND THE AFRICAN HUMAN RIGHTS SYSTEM IN THE ERA OF TECHNOLOGY,
AFRICAN JOURNAL OF LEGAL ISSUES IN TECHNOLOGY AND INNOVATION, VOL. 1, NO. 1 (2023), 113 – 130
114
INTRODUCTION
Various international human rights instruments contain the right to respect for
private life, the home and correspondence.
1
This right protects unlawful and
unnecessary surveillance.
2
This right is however, lacking in the African Charter on
Human and Peoples’ Rights (the “Charter”). Expectedly, some scholars have
engaged in debates about the reason for the absence of this right in the Charter.
3
The most dominant view, given the uniqueness of the Charter,
4
is that the privacy
contained in other international instruments available at the time of drafting the
Charter mirrored Western liberalism – which was thought to be too wide,
5
and too
individualistic – that the drafters of the Charter felt it would be incompatible with
the African culture and the communitarian ontology to include such right in the
Charter.
6
However, this does not mean that privacy was not existent in Africa,
7
but
it was somewhat recognized within the communal system.
In modern times, it has become imperative to consider the extent to which the
somewhat recognition of privacy under the African human rights system can be
sustained in light of emerging technologies, which affect culture and human
1
See Universal Declaration of Human Rights (UDHR), art. 12; International Covenant for Civil and
Political Rights (ICCPR), art. 17; European Convention on Human Rights (ECHR), art. 8; American
Convention on Human Rights (ACHR), art. 11.
2
Council of Europe, Impact of the European Convention on Human Rights: Right to Privacy
<https://www.coe.int/en/web/impact-convention-human-rights/right-to-privacy> accessed 6 June
2022.
3
Two of the scholars who have engaged in a debate about the absence of this right in the African
Charter are Professor Alex B. Makulilo and Professor Kinfe M. Yilma. In a forthcoming paper, I
tagged this debate the ‘Makulilo-Yilma debate’. Yilma believes the absence was “probably a mere
drafting oversight’. See Kinfe M. Yilma, ‘The Quest for Information Privacy in Africa: A Review
Essay’ (2017) 7 Journal of Information Policy 111-119. Makulilo believes Africa suffered from
‘privacy myopia’ before contact with the West and that ‘privacy in Africa is principally a Western
imported liberal concept’. See Alex B. Makulilo, ‘A Person is a Person through Other Persons – A
Critic Analysis of Privacy and Culture in Africa’ (2016) 7 Beijing Law Review 192-204; Alex B.
Makulilo, ‘The Quest for Information Privacy in Africa’ (2018) 8 Journal of Information Policy 317-
337.
4
For discussion on the uniqueness of the African Charter, see Rose D’sa, ‘Human and Peoples’
Rights: Distinctive Features of the African Charter’ (1985) 29(1) Journal of African Law 72-81;
Julia Swanson, ‘The Emergence of New Rights in the African Charter’ (1991) 12 New York Law
School Journal of International & Comparative Law 307-333. Richard Gittleman, ‘The African
Charter on Human and Peoples’ Rights: A Legal Analysis’ (1982) 22(4) Virginia Journal of
International Law 667-714; Ziyad Motala, ‘Human Rights in Africa: A Cultural, Ideological, and
Legal Examination’ (1989) 12 Hastings International and Comparative Law Review 373-410.
5
The following quote by William Pitt exhibits the nature of Western privacy: ‘The poorest man may
in his cottage bid defiance to all the force of the crown. It may frail, its roof may shake, the wind
may blow through it; the storms may enter; the rain may enter but the king of England cannot enter;
all his forces dare not cross the threshold of the ruined tenement.’ See H. Brougham, Historical
Sketches of Statesmen in the Time of George III – to Which Are Added Remarks on the French
Revolution (Read Books 2007).
6
Akin Ibidapo-Obe, Essays on Human Rights Law in Africa (Concept Publications Ltd 2005) 260;
Osita Ogbu Human Rights Law and Practice in Nigeria (2nd revised edn, Snaap Press Ltd 2013)
280-281. See also Julia Swanson, ‘The Emergence of New Rights in the African Charter’ (1991) 12
New York Law School Journal of International & Comparative Law 307-333 at 327.
7
Yilma (n3).
JIMOH, THE PLACE OF DIGITAL SURVEILLANCE UNDER THE AFRICAN CHARTER ON HUMAN AND
PEOPLES’ RIGHTS AND THE AFRICAN HUMAN RIGHTS SYSTEM IN THE ERA OF TECHNOLOGY,
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rights.
8
One such area to consider is the issue of digital surveillance, and its effect
on privacy in Africa. One might be curious to know: is there any provision in the
Charter which protects Africans from unnecessary digital surveillance in the era of
technology, considering that the right to privacy, which should serve this purpose,
is absent in the Charter? One may also ask: to what extent can and should digital
surveillance be permitted under the African human rights system? The foregoing is
part of the questions this paper answers.
This paper conceptualizes the term ‘technology’. As popular as the term is, it is
said to be one of the most ‘confused’.
9
What is however clear is that
etymologically, ‘technology’ has its roots ‘in the Indo-European root tek, a term
that probably referred to the building of wooden houses by wattling, that is,
weaving sticks together’.
10
It is Agar’s view that though ‘we are probably
comfortable with asserting that humans have had technologies since the Paleolithic,
and a menagerie of animals, from crows to chimps, have even been identified as
tool users, ‘technology’ is of surprisingly recent vintage.’
11
This paper
conceptualizes technology as ‘a system created by humans that uses knowledge
and organization to produce objects and techniques for the attainment of specific
goals’.
12
Notwithstanding that we may be able to trace technology to the Paleolithic
from the foregoing definition, this paper limits the scope of technology to modern
technology like computers, modern machine, robotics, artificial intelligence and
big data.
13
Also, whilst surveillance existed before the advent of technology,
14
this
paper conceptualizes it as the use of technologies to monitor, intercept and exploit
communication and information.
15
In addressing the questions raised by this paper, the paper is divided into four
parts. After this introduction, part 2 discusses the relationship between technology,
individualism and communalism under the African human rights system. Part 3
discusses digital surveillance in Africa and its effects on human rights in the
continent. Part 4 discusses the protection of privacy and the place of digital
surveillance under the African human rights system and makes some
recommendations before drawing the conclusion.
8
Jennifer M. Myers, ‘Human Rights and Development: Using Advanced Technology to Promote
Human Rights in Sub-Saharan Africa’ (1998) 30(2) Case Western Reserve Journal of International
Law 343.
9
Jon Agar, ‘What is Technology’ (2020) 77(3) Annals of Science, 377-82, 377.
10
ibid 108.
11
ibid.
12
La Shun L. Carroll, ‘A Comprehensive Definition of Technology from an Ethological
Perspective’ (2017) 6 Soc. Sci 126.
13
Thus, where the term technology is used in this paper, it means the same as modern technology.
14
For a comprehensive discussion from a South African perspective, see Michael Kwet,
‘Surveillance in South Africa: From Skin Branding to Digital Colonialism’ in Jeffrey Vagle and
Michael Kwet (eds), The Cambridge Handbook of Race and Surveillance (forthcoming).
15
Surveillance and digital surveillance are used interchangeably in this paper. Also, whilst
surveillance may be done by private individuals and States, the paper considers it from the
perspective of State surveillance.
JIMOH, THE PLACE OF DIGITAL SURVEILLANCE UNDER THE AFRICAN CHARTER ON HUMAN AND
PEOPLES’ RIGHTS AND THE AFRICAN HUMAN RIGHTS SYSTEM IN THE ERA OF TECHNOLOGY,
AFRICAN JOURNAL OF LEGAL ISSUES IN TECHNOLOGY AND INNOVATION, VOL. 1, NO. 1 (2023), 113 – 130
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2. THE STATE OF PRIVACY UNDER THE AFRICAN HUMAN RIGHTS
SYSTEM: INDIVIDUALISM, COMMUNALISM AND TECHNOLOGY
16
The Charter, which is the principal international human rights instrument in
Africa, underscores the notion of communalism.
17
Although a school of thought
believes that the beginning of Statehood in Africa signalled the end of the
communal value of the African society,
18
at the time of clamouring for a human
rights instrument in Africa, which also coincided with the clamour for African
Statehood,
19
the idea of having a human rights instrument with only individual
rights was not conceived. Rather, discussions were on an African human rights
instrument which recognized both communal and individual rights. For instance, at
the 16th Ordinary Session of the African Union (“AU”) in 1979, when the Charter
was still being debated,
20
the AU called for the preparation of ‘a preliminary draft
of an African Charter on Human and Peoples’ Rights providing for the
establishment of organs and for the promotion and protection of human and
peoples’ rights.’
21
Thus, the Charter contains not only ‘human’ rights’,
22
but also
‘peoples’ rights.
23
It has been maintained that the idea of including peoples’ rights in the Charter
underscores the notion that communal rights are greater than individual rights.
24
According to Gittleman, ‘the notion of individual responsibility to the community
is firmly ingrained in African tradition and is therefore consistent with historical
traditions and values of African civilization upon which the Charter relied.’
25
The
inclusion of collective or communal rights in the Charter is unique and contrasts
with other international human rights instruments, like the European Convention
on Human Rights and the American Convention on Human Rights.
26
This notion of
communality is deeply integrated in the Charter and it is a core value upon which
the Charter rests.
27
Murray and Wheatley state that:
[T]he values of the African societies differ from those of Western societies, with
the notion of community central to the African way of life: a person is not regarded
16
For a comprehensive discourse on privacy in Africa, see Alex B. Makulilo, Privacy and Data
Protection in Africa, (Scholars’ Press 2014) 1-572; Alex B. Makulilo (ed), African Data Privacy
Law (Springer Cham 2016).
17
Richard Gittleman, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’
(1982) 22(4) Virginia Journal of International Law 667-714.
18
Walter Rodney, How Europe Underdeveloped Africa (Bogle-L’Ouverture Publications 1972) at
140; Temitope Fagunwa, ‘Ubuntu: Revisiting an Endangered African Philosophy in Quest of a Pan-
Africanist Revolutionary Ideology; (2019) 3(45) Genealogy 1-17.
19
Nii L. Bruce-Wallace, ‘Africa and International Law – the Emergence to Statehood’ (1985) 23(4)
The Journal of Modern African Studies 575-602; Rachel Murray, Human rights in Africa from the
OAU to the African Union, (Cambridge 2000) 1-267
20
The Charter entered into force on 21 October 1986. See Frans Viljoen, ‘Application of the African
Charter on Human and Peoples’ Rights by domestic courts in Africa’ (1999) 43(1) Journal of
African Law 1.
21
Gittleman (n18) 667.
22
Charter, arts. 1-18.
23
Charter, arts. 19-24.
24
Gittleman (n18) 673.
25
ibid.
26
OHCHR, Minority Rights under the African Charter on Human and Peoples’ Rights
<https://www.ohchr.org/Documents/Publications/GuideMinorities6en.pdf> accessed 15 June 2022
27
Gittleman (n18) 676
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PEOPLES’ RIGHTS AND THE AFRICAN HUMAN RIGHTS SYSTEM IN THE ERA OF TECHNOLOGY,
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as an isolated and abstract individual, but an integral member of a community. In
Africa, “man is part and parcel of society.” The African Charter on Human and
Peoples’ Rights (ACHPR) makes clear that the rights of an individual are bound up
with and thus only realized with the context of the community in which those rights
are not restricted, but rather protected …
28
Despite many praises for the Charter,
29
it has been criticized for the absence of a
privacy provision.
30
There is a view which proposes that the reason of this is
because of an indirect proportionality between privacy and communalism. Privacy,
according to some scholars, is an individualistic right.
31
The view posits that the
reason for the absence of a privacy provision in the Charter is because, privacy
being an individualistic right, cannot co-exist in an instrument like the Charter,
which ingrains the principle of communalism. This view theorizes that
individualism is a condition precedent for privacy to develop.
32
Thus, the view
downplays the development of privacy in Africa due to its communal nature.
However, this view has been criticized and rejected, rightly, by some scholars.
Makulilo opines that:
An overview of the above scholarship (about privacy and culture in Africa) reveals that
the first strand over-emphasises individualism not only as a permanent natural condition
but also a pre-condition for privacy to develop. This is misleading …
33
The view that there is an indirect proportionality between communalism and
privacy is fallacious, at least, for one reason. The view seems to suggest that
individuals cannot have personal rights in a communitarian setting. But this cannot
be correct. Taylor offers an insight when he posits that the choice is not always
between a close, family-like community and a modern, impersonal society since it
is possible to have a ‘communitarian or holist ontology and to value liberalism’s
individual rights.’
34
Within the communal system of the African society, both
individual and collective privacy
35
were/are recognized.
36
Even with technology in
28
Rachel Murray and Steven Wheatley, ‘Groups and the African Charter on Human and Peoples’
Rights’ (2003) 25(1) Human Rights Quarterly 213, 215.
29
Abiodun J. Osuntogun, ‘An Appraisal of the Rights in the African Charter on Human and Peoples’
Rights and Notable Institutions for their Enforcement’ (2016) 4(1) Akungba Law Journal 332.
30
Moussa Samb, ‘Fundamental Issues and Practical Challenges of Human Rights in the Context of
the African Union’ (2009) 15(1) Annual Survey of International & Comparative Law 61-74, 64.
31
Daniel Solove, Understanding Privacy, (Cambridge, MA: Harvard University Press 2008) 39;
Agnidipto Tarafdah, ‘Surveillances, Privacy and Technology: A Comparative Critique of the Laws
of USA and India’ (2015) 57(4) Journal of the Indian Law Institute 550-578, 550.
32
Makulilo (2018) (n3) 320.
33
Ibid.
34
Charles Taylor, ‘Cross-purposes: The Liberal-Communitarian Debate’ in Nancy Rosenblum (ed)
Liberalism and the Moral Life (Harvard University Press 1991) at 161; Charles Taylor,
‘Communitarianism, Taylor-made: An interview with Charles Taylor’ (1996) 68(2) Australian
Quarterly 1-10, 3; Moeketsi Letseka, ‘In Defence of Ubuntu’ (2012) 31 Studies in Philosophy and
Education 47-60, 53.
35
Collective privacy is the privacy of a group of people. See Woodrow Hartzog, ‘What is Privacy?
That’s the Wrong Question’ (2021) 88(7) The University of Chicago Law Review 1677-88.
36
In a forthcoming paper, I argue, providing evidence of the presence of privacy in Africa using the
Yoruba ethic-nation as an example, that privacy existed in Africa before contact with the West. I
described a typical Yoruba compound which shows the presence of privacy. See Nathanie Fadipe,
The Sociology of the Yoruba (Ibadan University Press 1970); Olanrewaju. Shitta-Bey, ‘The Family
JIMOH, THE PLACE OF DIGITAL SURVEILLANCE UNDER THE AFRICAN CHARTER ON HUMAN AND
PEOPLES’ RIGHTS AND THE AFRICAN HUMAN RIGHTS SYSTEM IN THE ERA OF TECHNOLOGY,
AFRICAN JOURNAL OF LEGAL ISSUES IN TECHNOLOGY AND INNOVATION, VOL. 1, NO. 1 (2023), 113 – 130
118
modern times and amidst the concern that it fosters individualism, both individual
and collective privacy are recognized and regarded as important.
37
Notwithstanding the absence of a privacy provision in the Charter, subsequent
international instruments and Declarations adopted pursuant to the Charter, even
with their limitations,
38
recognize this right. For instance, the African Charter on
the Rights and Welfare of the Child
39
provides that ‘no child shall be subject to
arbitrary or unlawful interference with [one’s] privacy, family home or
correspondence, or to the attacks upon honour or reputation...’
40
The 2019 African
Declaration on Freedom of Expression and Access to Information
41
also states that
‘everyone has the right to privacy, including the confidentiality of their
communications and the protection of their personal information’.
42
However, one must agree with the view that with the advent of technology, the
African communal society is gradually waning
43
and steadily becoming
individualistic, culminating in the development of a new sub-set of privacy
44
– data
privacy – which underscores the protection of individual’s personal information.
Roos propounds that the law is always challenged by new technological
advancement.
45
On privacy, she opines that three eras of technological inventions
culminated in the development of privacy law. The first is the ‘new miniature
camera technology’ which influenced the popular Warren and Brandeis’s article,
46
with the concern at the time being that such technology could be used by
‘sensationalist press to publish pictures of individuals without their consent’.
47
The
second, according to Roos, is the ‘introduction of computers in the 1950s’ with the
concern about the misuse of personal information since computers are able to store
information;
48
whilst the third is the development of ‘private computers and
as Basis of Social Order: Insights from the Yoruba Traditional Culture’ (2014) 23 International
Letters of Social and Humanistic Science 79-89.
37
Hartzog (n36) 1684.
38
The African Charter on the Rights and Welfare of the Child is limited in a way. It protects the
African Child defined in Article II as a person below the age of 18. Thus, it is not applicable to all
persons. Also, whilst the 2019 African Declaration on Freedom of Expression and Access to
Information protects the privacy of ‘everyone’, the Declaration is not binding under international
law. See DAGDOK, International Law: Conventions and Declarations <http://dagdok.org/un-by-
subject/international-law/conventions-and-declarations/> accessed 20 June 2022.
39
The African Charter on the Rights and Welfare of the Child is made pursuant to the Charter. See
The African Charter on the Rights and Welfare of the Child, Preamble, Clause 2.
40
The African Charter on the Rights and Welfare of the Child, art. X.
41
The 2019 African Declaration on Freedom of Expression and Access to Information was adopted
by the African Commission on Human and Peoples’ Rights pursuant to Article 45 of the Charter
which mandates the African Commission to promote human rights in Africa. See The 2019 African
Declaration on Freedom of Expression and Access to Information, Preamble, Clause 1.
42
The 2019 African Declaration on Freedom of Expression and Access to Information, Principle 40.
43
Makulilo (2016) (n17) 10-15; See also Vaunne Ma and Thomas J. Schoeneman, ‘Individualism
Versus Collectivism: A Comparison of Kenyan and American Self-Concepts’ (1997) 19 Basic and
Applied Social Psychology 261-273.
44
See Anneliese Roos ‘Privacy in the Facebook Era: A South African Legal Perspective’ (2012)
129(2) South African Law Journal 375-402.
45
ibid 375. See also Lyria Moses, ‘Why Have a Theory of Law and Technological Change’ (2007)
8(2) Minnesota Journal of Law, Science & Technology 589-606, 594-595.
46
Louis Brandeis and Samuel Warren, ‘The Right to Privacy’ (1890) 4(5) Harvard Law Review193-
220.
47
Roos (n45) 375.
48
ibid at 376.
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communication networks’.
49
Hence, in Africa, just like in other parts of the world,
it became necessary to develop a framework which addresses the introduction of
data privacy as an impact of technology on privacy.
So much have been written about the impact of technology on privacy.
50
One
area that has been well considered is the emergence of ‘data privacy’ due to the
advent of technology. Though there is a relationship between privacy and data
privacy, the advent of technology has necessitated the need for special protection.
51
It is generally agreed that whilst most African countries have privacy provisions in
their constitutions,
52
such provisions might not be sufficient to contain the impact
of technology and the internet on privacy, hence, the need for data privacy
protection. For instance, it is declared in the Supplementary Act on Personal Data
Protection within ECOWAS (the Supplementary Act) that ‘notwithstanding the
existence of the national legislations relating to the protection of privacy of the
citizens in their private and professional life and relating to the guarantee of the
free movement of information, it becomes a matter of urgency to fill the legal
vacuum generated by the use of internet which is a new instrument of
communication’.
53
At the international stage, the AU in 2014 adopted the African Union
Convention on Cyber Security and Personal Data Protection (the Malabo
Convention) where it is declared that the AU ‘aware that it is meant to regulate a
particularly evolving technological domain, and with a view to meeting the high
expectations of many actors with often divergent interests…’
54
Surprisingly, the
Malabo Convention, despite its comprehensiveness in addressing privacy issues in
the use of technology in Africa,
55
has not been ratified. Article 36 of the Malabo
Convention provides that the Convention shall enter into force thirty (30) days
after the date of the receipt by the Chairperson of the Commission of the AU of the
fifteenth (15th) instrument of ratification. Since 2014 when the Malabo Convention
was adopted, only fourteen (14) of fifty-five (55) AU member States have signed it
and only seven have ratified it.
56
Also, at the domestic stage, the situation is not
any better. According to the UNCTAD, only thirty-three (33) of the fifty-four (54)
African States have data protection and privacy legislation.
57
Even in States with
49
ibid at 377.
50
See Hartzog (n36); Michelle Cayford and Wolter Pieters, ‘The Effectiveness of Surveillance
Technology: What Intelligence Officials Are Saying ‘(2018) 34(2) The Information Society 88-103;
Glenn Greenwald No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (1st
edn Metropolitan Books/Henry Holt, 2014); Eriola Cakrani, ‘Technology and Privacy, Internet
Effects on Privacy’ (2013) 4(9) Mediterranean Journal of Social Sciences 279-283; Hall Berghel,
‘Through the PRISM Darkly’ (2013) 46(7) Computer 86–90.
51
See The South African Development Community (SADC) Data Protection Model Law, Preamble,
Clause 10.
52
Yilma (n3) 115.
53
The Supplementary Act on Personal Data Protection within ECOWAS, Preamble, Clause 10.
54
See The Malabo Convention, Preamble, Clause 8
55
‘African Countries Urged to Ratify Malabo Convention’ (itweb, 10 September 2021)
<https://itweb.africa/content/GxwQD71ZJy4MlPVo> accessed 30 June 2022; ‘Malabo Convention:
African Data Regulators Call for Action’ (Unwanted) <https://www.unwantedwitness.org/malabo-
convention-african-data-regulators-call-for-action/> accessed 30 June 2022.
56
To access the status list, see <https://au.int/sites/default/files/treaties/29560-sl-
AFRICAN%20UNION%20CONVENTION%20ON%20CYBER%20SECURITY%20AND%20PE
RSONAL%20DATA%20PROTECTION.pdf> accessed 16 June 2022.
57
These countries are: Angola, Cape Verde, Seychelles, Burkina Faso, Mauritius, Tunisia, Senegal,
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the legislation, about half is not yet in force.
58
There are also some efforts by the African Regional Economic Communities
(RECs) to protect data privacy in the era of technology. For instance, in 2010,
ECOWAS adopted the Supplementary Act ‘conscious…that the increasing use of
information and communication technology (ICT) may be prejudicial to the private
and professional life of the users’.
59
To make the Supplementary Act binding on
member States, it is annexed to and forms an integral part of the ECOWAS
Treaty.
60
In fact, the Supplementary Act is the first, and remains the only,
international data protection law in Africa that is binding.
61
Though there are also
the East African Community Legal Framework for Cyberlaws and the Southern
African Development Community (SADC) Data Protection Model Law whose aim
is to ensure the harmonization of data protection policies in member States. Despite
the foregoing, as a whole, there is no binding African international law protecting
privacy right; Africa does not have a framework to address human rights issues in
the use of technology
62
and it lacks the framework for the enforcement of data
protection.
63
Thus, the state of privacy in Africa is such that needs to keep up with
the advent of technology for a continued safeguard of the privacy rights of
Africans.
3. THE EFFECTS OF DIGITAL SURVEILLANCE IN AFRICA IN THE
ERA OF TECHNOLOGY
The advancement in technology in modern times is directly proportional to the
spread of digital surveillance.
64
Hence, it is not surprising that most governments in
Benin, Morocco, , Gabon, Lesotho, Ghana, Ivory Coast, Mali, South Africa, Madagascar, Chad,
Malawi, Equatorial Guinea, Sao Tome e Principe, Guinea, Mauritania, Niger, Algeria, Botswana,
Nigeria, Uganda, Kenya, Republic of Congo, Togo and Egypt, Zimbabwe; see UNCTAD, Data
Protection and Privacy Legislation Worldwide <https://unctad.org/page/data-protection-and-
privacy-legislation-worldwide>; Securiti, Checklist of African Data Protection Law
<https://securiti.ai/wp-content/uploads/2022/01/African-Data-Protection-Laws.pdf> accessed 17
June 2022.
58
Graham Greenleaf and Bertil Cottier ‘Comparing African Data Privacy Laws: International,
African and Regional Commitment’ (2020) 32 UNSWLRS 1-37.
59
Supplementary Act, Clause 9
60
Supplementary Act, art. 48
61
African Declaration on Internet Rights and Freedoms Coalition, Privacy and Personal Data
Protection in Africa: A Rights-Based Survey of Legislation in Eight Countries p. 188; Ololade
Shyllon, ‘The Right to Privacy and the Protection of Personal Information in Africa: Challenges and
Prospects’ (2017) <https://aanoip.org/wp-content/uploads/2018/07/Privacy-and-Data-Protection-IB-
Dec-2017.pdf>
62
In 2021, the African Commission on Human and Peoples’ Rights declared in its 473 Resolution
that Africa does not have a huma rights framework for the use of AI, Robotic and emerging
technologies. To access the Resolution, please see
<https://www.achpr.org/sessions/resolutions?id=504> accessed 27 June 2022.
63
Olumide Babalola ‘Data Protection Legal Regime and Data Governance in Africa: An Overview’
(2022) Aercafrica Policy Brief No. DG003 1-7
64
Tarafdah (n32) 552. For comprehensive discussion, see Jane Duncan ‘Taking the Spy Machine
South: Communications Surveillance in Sub-Saharan Africa’ in Bruce Mutsvairo (eds) The Palgrave
Handbook of Media and Communication Research in Africa (Palgrave Macmillan, Cham 2018);
Williem Gravett ‘Digital Neocolonialism: The Chinese Surveillance State in Africa’ (2022) 30(1)
African Journal of International and Comparative Law 39-58; Lewis Herrington, ‘The Debatable
Land: Spies, Secrets and Persistent Shadows’ (2018) 94(3) International Affairs 645-655; Simon
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the world, including some African States, engage in the act of surveillance.
65
Digital surveillance is the deployment of technology to monitor, intercept or
exploit sensitive data, information or communication.
66
The monitoring,
interception or exploitation may take different forms: it could be the use of audio or
video surveillance technologies; it could be the use of location monitoring
technologies; it could be the use of phone monitoring technologies or internet
monitoring technologies.
67
Generally, in Africa, and in other parts of the world, digital surveillance could
be aimed at a target, or it could be mass surveillance. A targeted surveillance is
aimed at a specific individual or group; whilst mass surveillance involves the
general accumulation of information unmethodically.
68
‘The distinction between
targeted and mass surveillance is important, says the European Union, ‘both from a
legal and policy perspective.’
69
This is because whilst target surveillance could
pass international human rights test – if it pursues a legitimate objective – for
instance, when deployed for the security of the society, mass surveillance cannot.
70
The concern in Africa is that some governments have embarked on the use mass
surveillance, and where target surveillance is employed, it is used as a tool of
repression – like victimizing the opposition – rather than pursue legitimate
objective.
71
Technological power does not belong to Africa. This is because technology
originated outside Africa
72
and the ‘ownership and control of the three core pillars
of the digital ecosystem: software, hardware, and network connectivity’
73
lies
outside the continent. Thus, most surveillance technologies are imported to African
States from China, Europe and the United States.
74
However, paradoxically, despite
the fact that technologically, Africa is lagging behind, somehow, sophisticated
Willmetts, ‘The CIA and the Invention of Tradition’ (2015) 14(2) Journal of Intelligence History
112-128; CIPESA, 2021 State of Internet Freedom in Africa: Effects of State Surveillance on
Democratic Participation in Africa. Report may be accessed at <https://cipesa.org/2021/09/how-
state-surveillance-is-stifling-democratic-participation-in-africa-state-of-internet-freedom-in-africa-
study-findings/> accessed 17 July 2022.
65
Ola El-Ashy et. al, ‘Big Brother in the Middle-East and North Africa: The Expansion of Imported
Surveillance Technologies and their Supportive Legislation’ (2019) 3 Global Campus Human Rights
Journal 229-249.
66
Ishan Sharma ‘A More Responsible Digital Surveillance Future’ (2021), Federation of American
Scientist 5.
67
Ola El-Ashy et al (n67) 230.
68
European Union, Surveillance and Censorship: The Impacts of Technology on Human Rights
(EP/EXPO/B/DROI /FWC/2013-08/Lot8/02) 10-11.
69
Ibid.
70
ibid 11.
71
There are reports of the use of surveillance on opposition in Uganda. See Bulelani Jili ‘The Spread
of Surveillance Technology in Africa Stirs Security Concerns’
<africacenter.org/spotlight/surveillance-technology-in-africa-security-concerns/> accessed 29 June
2022.
72
This paper has already conceptualized technology as modern technology. See Roos (n45); see
Makulio (2018) (n3) 322-23; Lee Bygrave Data Privacy Law: An International Perspective (Oxford
University Press 2014) 106; Graham Greenleaf Asian Data Privacy Laws: Trade and Human Rights
Perspectives (Oxford University Press 2014).
73
Kwet (n15) 12.
74
Tony Roberts (ed) ‘Surveillance Law in Africa: A Review of Six Countries’ (Brighton: Institute of
Development Studies, 2021) 8; Jane Duncan, Stopping the Spies: Constructing and Resisting the
Surveillance State in South Africa, (Wits University Press 2018) 1-156.
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digital surveillance technologies are being used by repressive African
governments.
75
Human rights reports, articles and research works have shown
evidence of the use of surveillance technologies in Algeria, Botswana, Cameroon,
Côte d’Ivoire, Egypt, Ethiopia, Equatoria Guinea, Ghana, Libya, Malawi,
Morocco, Nigeria, Rwanda, South Africa, Tanzania, Uganda, Zambia and
Zimbabwe.
76
Reports show the use of a Deep Packet Inspection technology known
as Eagle, which was developed by Amesys, a French company, and deployed by
the Libyan government for both target and mass surveillances, where the
government was able to ‘listen to the entire country’
77
and monitor target
individuals.
78
Uganda is also reported to have purchased closed-circuit television
camera (CCTV) from Huawei, a Chinese company, for surveillance.
79
There are
also reports that a surveillance technology called FinSpy, developed by Gamma
International, a company headquarters in Italy, is being used by the Ethiopian
government as a tool of mass surveillance.
80
In addition to this, concern has been
raised on Ethiopia’s Telecom Fraud Offence Proclamation which criminalizes the
manufacture, assembly or import of any telecommunications equipment without a
permit, and empowers the State to monitor encryption, with its antecedent
propensity for surveillance.
81
This concern about monitoring encryption has also
been raised in Chad, Malawi, Senegal, Tanzania, Tunisia and Zambia,
82
with
stringent punitive laws made as consequences for failure to comply with the laws.
83
International law generally permits limitations on human rights in certain
circumstances.
84
Thus, surveillance laws may be enacted to protect public interest
such as national security, public health, morality or the right of others, and there is
nothing wrong under the African human rights system, as the African Commission
made clear in Media Rights Agenda v. Nigeria,
85
with enacting laws to protect
these interests. For instance, the 2015 African Guideline on Countering Terrorism
provides that States may interference with privacy if it is necessary to pursue a
legitimate (communal) interest.
86
Nevertheless, the concept of ‘necessity’ is vague,
and is susceptible to abuse. Therefore, there is the danger of apparent conflict of
75
Ola El-Ashy et al (n67) 230.
76
ibid; European Union (n70); Jili (n73); CIPESA (n64).
77
Ola El-Ashy et al (n67) 231.
78
See Mark B. Taylor War Economies and International Law (Cambridge University Press 2021)
269.
79
Jili (n73) 2.
80
European Union (n70) 11.
81
Gabriella Razzano Human Rights and Information in Africa: A Reflection on Trends (fesmedia
Africa, Friedrich-Ebert-Stiftung 2016) 15.
82
‘2021 State of Internet Freedom in Africa: Effects of State Surveillance on Democratic
Participation in Africa’ (AfricaPortal 28 September 2021)
<https://www.africaportal.org/publications/state-internet-freedom-africa-2021-effects-state-
surveillance-democratic-participation-africa/> accessed 3 July 2022
83
CIPESA (n64) 7.
84
UNODC, Limitations Permitted by Human Rights Law
<https://www.unodc.org/e4j/en/terrorism/module-7/key-issues/limitations-permitted-by-human-
rights-law.html> accessed 4 July 2022.
85
Media Rights Agenda v. Nigeria (2000) AHRLR 200. See Charter, art. 27.
86
See Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in
Africa, Part 11. As discussed above, the Charter underscores communal rights. See Arts. 19-24. So,
it is not surprising that the Guideline contains such provision.
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surveillance with human rights when deployed for illegitimate purposes.
87
The
danger manifests most in a continent like Africa, which has been described as ‘an
egregious human rights violator’
88
with little respect for human rights.
89
Thus, with
technological tools for digital surveillance available to African governments, there
is a latent,
90
and there are indeed, more violations of human rights in Africa.
Potentially, surveillance can inhibit all human rights and may be used to achieve
nefarious objectives.
91
But, this paper discusses its effect on the right to privacy
and dignity and freedom of democratic participation in Africa.
Privacy is the most affected human right by digital surveillance. When Miller
asserted that, ‘it would be a good thing if privacy could be protected, but the war
and way of technology and the needs of security have de facto made the right to
privacy a dead letter,’
92
he was probably referring to digital surveillance. There are
many reports documenting the impacts of digital surveillance on privacy. The
International Federation for Human Rights (FIDH) has released some of these
reports; has been a major advocate against the use of surveillance to erode privacy
right in Africa; and has even sued some technology companies that develop digital
surveillance technologies which have been used illegitimately in Africa.
93
Also, a
group of researchers reviewed the law and surveillance in six (6) African countries
and concluded that these States, through their surveillance, violate the right to
privacy; and that no one has been prosecuted for it.
94
Writing about how
surveillance affects privacy in Africa, Jili states that:
Remote-control hacking is another form of surveillance technology that is
spreading across the continent. These surveillance systems enable governments to
access files on targeted laptops. They also log keystrokes and passwords as a
means to turn on webcams and microphones. Eavesdropping is another
surveillance technique that allows governments to access calls, texts, and the
locations of phones around the world. This technique, most closely linked to the
Bulgarian-based surveillance firm Circles, an affiliate of the NSO Group, which
developed the infamous Pegasus software, provides spyware technology to
countries as a means to exploit faults in telecom systems. Several governments in
African countries, such as Botswana, Equatorial Guinea, Kenya, Morocco, Nigeria,
Zambia, and Zimbabwe, are reportedly using these systems to connect to their local
87
CIPESA (n64) 16.
88
Makau Mutua, ‘The African Human Rights Court: A Two-Legged Stool?’ (1999) 21 Human
Rights Quarterly 342.
89
Manisuli Ssenyonjo ‘Responding to Human Rights Violations in Africa: Assessing the Role of the
African Commission and Court on Human and Peoples’ Rights (1987–2018)’ (2018) 7 International
Human Rights Review 1.
90
Gravett (n65) 39.
91
The use of technology for political, economic, and social domination has been well documented in
various reports. See for instance Jili (n73); Ola El-Ashy et al (n67).
92
Jeremy M. Miller, ‘Dignity as a New Framework, Replacing the Right to Privacy’ (2007) 30(1)
Thomas Jefferson Law Review 1-52, 1.
93
For instance, FIDH sued Amesys in a French court. See FIDH Submission to the UN Special
Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression:
The Surveillance Industry and Human Rights <
https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Surveillance/FIDH.pdf>
accessed 5 July 2022.
94
The six countries are Egypt, Kenya, Nigeria, Senegal, South Africa and Sudan. See Robert (ed)
(n76).
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telecommunications companies’ infrastructure to conduct surveillance.
95
The concern about the impact of surveillance on privacy is further compounded
by lack of a framework in Africa to address this, most of the which have been
discussed earlier in this paper. First the Charter, which is the principal international
human rights instrument in Africa, does not contain a privacy provision.
96
Secondly, there is no binding international instrument for data protection in Africa,
other than the Supplementary Act, which is only binding on ECOWAS States.
97
Thirdly, whilst there are other instruments and Declarations which contain privacy
provisions in Africa, there are limitations to them. The African Charter on the
Rights and Welfare of the Child, though has a privacy provision, is applicable to a
child – person under the age of 18,
98
and Declarations – such as the 2019 African
Declaration on Freedom of Expression and Access to Information – are generally
not binding under international law. There is thus a lacuna to address.
Surveillance may also aid in the violation of, and interference with, the right to
dignity.
99
Dignity is a jus cogens, for which no derogation is permitted.
100
The right
to dignity is protected and contained in all major international instruments,
101
including the Charter
102
and constitutions of African States.
103
There are scholars
who believe that privacy is inherent in the right to dignity, such that the right to
dignity of an individual may be violated if their privacy is infringed.
104
Roos, a
leading scholar on privacy in Africa, disagrees however, stating that this is
‘confusion’. ‘If it is kept in mind that privacy as a personality interest is only
infringed when someone learns of true private facts about a person against the
person’s will’, states Roos, ‘the difference between privacy and other personality
objects [like dignity] becomes clear.’
105
Nonetheless, without necessarily waging
into this debate, there are reports of the use of surveillance to aid the violation of
95
Jili (n73) 2.
96
This is not to say there is/was no privacy in Africa. The only concern here is how to proceed in
enforcing a right not contained in the Charter before the African Court on Human and Peoples’
Rights and the African Commission on Human and Peoples’ Rights if domestic remedy cannot be
obtained. See Sabelo Gumedze ‘Bringing Communications before the African Commission on
Human and Peoples’ Rights’ (2003) 3 African Human Rights Law Journal 118-148.
97
These States are Benin, Burkina Faso, Cabo Verde, Cote d'Ivoire, The Gambia, Ghana,
Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo.
98
The African Charter on the Rights and Welfare of the Child, art. II
99
CIPESA (n64) 29.
100
James Rachels, ‘Kantian Theory: The Idea of Human Dignity’ (1986)
<https://public.callutheran.edu/~chenxi/phil345_022.pdf> accessed 13 July 2022.
101
UDHR, art. 1; ICCPR, art. 10. Although not expressly provided in the ECHR, the jurisprudence
of the European Court confirms that dignity is a recognized right. See Sebastian Heselhaus and
Ralph Hemsley ‘Human Dignity and the European Convention on Human Rights’ in Paolo Becchi
and Klaus Mathis (eds) Handbook of Human Dignity in Europe (Springer Cham 2019).
102
Charter, art. 5
103
See for instance 1999 Constitution of Nigeria, s. 34; South Africa Constitution, s.12.
104
Avani Singh and Michael Power, ‘The Privacy Awakening: The Urgent Need to Harmonise the
Right to Privacy in Africa’ (2019) 3 African Human Rights Yearbook 202-220; Kinfe M. Yilma and
A. Birhanu, ‘Safeguards of the Right to Privacy in Ethiopia: A Critique of Laws and Practices’
(2012) 26 Journal of Ethiopian Law 109-110.; Robert (n76) 180. See also Justice Alfred
Mavedzenge, ‘The Right to Privacy v National Security in Africa: Towards a Legislative Framework
which Guarantees Proportionality in Communications Surveillance’ (2020) 12(3) African Journal of
Legal Studies 360-390.
105
Anneliese Roos, ‘The Law of Data (Privacy) Protection: A Comparative and Theoretical Study’
(PhD thesis, University of South of Africa, 2003) 557.
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dignity of persons in Cameroon, Kenya, Mozambique, Nigeria, Tanzania and
Uganda after violating their privacy.
106
The UN Special Rapporteur observed that
‘there are credible indications to suggest that digital technologies have been used to
gather information that has then led to torture and other ill-treatment.’
107
Some of
the victims’ accounts go thus:
[1]: I do not really know how they do it … because when they arrested me I found
them with my voice calls I had with my interviewees in the story I had published. That
made me sure that they had intercepted my communications.
[2]: I learnt that security agencies were listening to my calls when people I used to
call would be arrested the following day. While being tortured, the recordings of our
conversations would be played or sometimes they were told what I said when talking
to them.
108
The use of surveillance to suppress the freedom of democratic participation in
Africa is also well documented. CIPESA released a report in 2021 on the effects of
state surveillance on democratic participation in Africa.
109
Article 13 of the Charter
guarantees the democratic right to participate freely in government. Sadly, African
States have used surveillance to target opposition leader and civil societies. For
instance, it has been found that intelligence officials in Uganda used surveillance
technology to crack the encrypted communications of opposition leader, Bobi
Wine.
110
This has also been discovered in some other African States.
111
Notwithstanding the foregoing, when deployed for legitimate purposes,
surveillance may avert potential dangers to the society. Cayford and Pieters are
amongst the scholars who have documented some of the positive uses of
surveillance technologies. In their article,
112
they document how the United
Kingdom intelligence agencies have depended on ‘the fantastic work that GCHQ
do to detect terrorist communications. That leads to us finding terrorist plots that
we would not otherwise find, that we are then able to thwart, which leads to lives
being saved’
113
They also note how drones, equipped with missiles, ‘have not only
disrupted terrorist plots, but it also reduced the original Qaeda organization along
the Afghanistan Pakistan border to a shell of its former self”.
114
In light of these
positive uses of surveillance technologies, therefore, the issue to address in Africa
is how to ensure that surveillance technologies are used to pursue and achieve
legitimate purposes only.
Data protection laws originated from North America and Europe. Greenleaf
notes that ‘data privacy laws originated as a “Western” notion, in that their earliest
legislative instantiations were in North America (1970 and 1974), and in seven western
European countries in the 1970s.”
115
He further notes that ‘the principal players who
106
CIPESA (n64) 5.
107
See ‘The Right to Privacy in the Digital Age’ A/HRC/27/37 (2014) para 14.
108
CIPESA (n64) 17.
109
ibid
110
Jili (n73) 1.
111
Robert (n76) 4.
112
Cayford and Wolter Pieters (n51).
113
ibid 93.
114
Ibid.
115
Greenleaf (n73) 11.
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negotiated their transformation into an international standard, the OECD Guidelines, in
1978–80 were from Europe, North America, and Australasia.’
116
Europe is the leading
continent to emulate in the realm of data protection. Because the United State does
not have a single data protection law,
117
but rather different data protection laws for
different specific data,
118
there is a clamour for the government to develop a
national privacy policies and standards in order to balance the privacy right of
citizens against surveillance and national security.
119
The general rule in the United
States is that surveillance is permitted, except in certain circumstances.
120
Whilst
the Fourth Amendment to the United States Constitution protects some form of
privacy right,
121
the United States Supreme Courts has not strictly upheld privacy
right when there is a compelling State’s interest.
122
In the wake of the 9/11
incident, the United Sates has put in surveillance measures, which privacy and data
privacy advocates have criticized, to promote its national security. According to
Richards:
Government investigators in antiterrorism cases possess a powerful tool known
as the National Security Letter (NSL). NSLs are statutory authorizations by which
the FBI can obtain information about people from their telephone companies,
Internet service providers, banks, credit agencies, and other institutions with which
those people have a relationship. NSLs are covert and come with a gag order that
prohibits the recipient of the letter from disclosing its existence, even to the person
whose secrets have been told to the government. NSLs can currently be obtained
under four federal statutes: the Right to Financial Privacy Act of 197842 (RFPA),
the ECPA,43 the Fair Credit Reporting Act44 (FCRA), and the National Security
Act of 1947.
123
Due to more emphasis on national security, scholars believe that the current data
protection laws in the United States have not been effectual in striking a balance
between individual privacy right and national security.
124
Whereas in Europe, there
is a rich legal regime for data protection.
125
The first law on data protection was
made in Europe (Germany) in 1970 in response to some surveillance activities.
126
In 2018, the General Data Protection Regulation (GDPR), Europe’s most popular
data protection legal instrument, entered into force. Although the GDPR gives
European Union (EU) States the discretion in balancing data privacy right and
116
Ibid.
117
Robert Hasty, Trevor W. Nagel and Mariam Subjally Data Protection Law in the USA
(Advocates for International Development 2013) 1-28.
118
See for instance the Privacy Act of 1974; Health Insurance Portability and Accountability Act of
1996; USA PATRIOT Act, 2001; The Family Educational Rights and Privacy Act. See Stephen
Cobb ‘Data Privacy and Data Protection’ (2016) ESET White Paper 1-15, 3 and Michael Walter-
Echols, ‘Panopticon – Surveillance and Privacy in the Internet Age’ (BSC project, Worcester
Polytechnic Institute, 2009) 13-14.
119
John Shattuck and Mathias Risse ‘Reimagining Rights & Responsibilities in the United States:
Privacy, Personal Data, and Surveillance’ (2021) 016 Carr Center for Human Rights Policy 25
120
Neil Richards ‘The Danger of Surveillance’ (2013) 126 Harvard Law Review 1934.
121
The text of the Fourth Amendment does is not worded in absolute terms but those deemed
unreasonable.
122
Walter-Echols (n119) 10.
123
Richards (n121) 1492.
124
Cobb (n119) 10.
125
For a brief history of data protection in Europe, see Hendrik Mildebrath Understanding EU Data
Protection Policy (European Parliamentary Research Service 2022).
126
Ibid 2
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national security,
127
such measures taken by the State should be “necessary and
proportionate”.
128
The GDPR is a comprehensive legal instrument on data
protection in Europe. For instance, it contains provisions on ‘adequacy decision’.
129
The adequacy decision allows the transfer of data from the EU to a third country if
it is shown that the third country has data protection standard similar to the EU
standards. In the recent Schrems cases, the Court of Justice of the European Union
(CJEU) held that the EU’s arrangement with the United States to transfer personal
data to the United States was illegal due to the surveillance policy in the United
States.
130
In effect, the Schrems cases validated the view that the United States has
a lesser protection for data privacy and more legal basis for State surveillance than
the EU. Africa may thus find the EU regime on data protection, surveillance and
national security more human rights complaint than that of the United Sates.
4. THE PROTECTION OF PRIVACY AND THE PLACE OF DIGITAL
SURVEILLANCE UNDER THE AFRICAN HUMAN RIGHTS SYSTEM
One curious question that comes to mind is the extent to which digital
surveillance may be permitted under the African human rights system, given some
of its positive uses. As stated earlier, the Charter deeply ingrains the notion of
communality, where the society is considered to be superior to the individual.
Gittleman posits that ‘the term “peoples’ rights” was included at the insistence of
the socialist States, the most vocal of which were Ethiopia and Mozambique. They
maintained that the individual had no greater rights than that of the society as a
whole.’
131
Articles 19–24 of the Charter contains provisions on ‘peoples’ rights.’
The Charter also includes three (3) articles which stipulate the duties of the
individual to the community.
132
Gittleman did excellent job narrating why the
Charter includes both collective rights and individual’s duty to the community. It is
best to hear from him directly:
‘The notion of individual responsibility to the community is firmly ingrained in
African tradition and is therefore consistent with historical traditions and values of
African civilization upon which the Charter relied. The inclusion of this far-
reaching clause has roots, however, in factors other than mere tradition and to a
large extent explains the various tensions throughout the Charter. The socialist
States such as Mozambique and Ethiopia had a difficult time reconciling traditional
human rights conventions with socialist philosophy. The notion of “individual” in a
socialist State differs markedly from the notion in a capitalist State. As a result, to
ensure the eventual adoption of the Charter by all States, the drafters in Dakar
stated that if the individual is to have rights “recognized” by the State, he also must
have obligations flowing back to the State. The drafters believed that references in
extant international instruments to an individual's obligations were so vague as to
be meaningless. For this reason, the African Charter attempts to rectify this concern
127
See Treaty of the European Union, art 4(2); GDPR, Preamble, Para 6
128
Charter of the Fundamental Rights of the European Union, art 52(1); GDPR, art 23.
129
GDPR, art. 45.
130
Hendrik Mildebrath The CJEU Judgment in the Schrems II Case (European Parliamentary
Research Service 2020).
131
Gittleman (n18) 673
132
Charter, arts. 27, 28 and 29
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by enumerating those obligations imposed upon the individual’
133
Consequently, it may be argued that where the right of the society will be
jeopardized as a result of an action/inaction of an individual, which may only be
averted by surveillance, surveillance should be permitted. For instance, insecurity
is currently rife in Africa, with the United States Institute of Peace declaring that
‘terrorism and extreme violent are arguably Africa’s greatest threat in 2021’.
134
There are scholars who believe that in a situation where the security of the society
is threatened, surveillance is necessary and justified in this circumstance.
135
In
other words, whilst surveillance may actually prevent a threat to the society, but it
must always be used to pursue this legitimate objective.
There are scholars who have further argued that in addition to pursuing a
legitimate objective, the surveillance must be effective in achieving the legitimate
objective: otherwise, it would be pointless and a means to violate individual rights
if there is nothing to show for such surveillance.
136
Under the African human rights
system, threat to the society/others is the only legitimate objective for which the
right of an individual may be suppressed, and thus, for which surveillance may be
permitted.
137
At the same time, it is important to lay down a guideline for this so as
not use surveillance pursue an illegitimate objective – like repression – and erode
individual rights under the pretence of societal rights. D’sa was one of the scholars
who identified the potential danger, where States may violate individual rights
under the pretence of pursuing a legitimate purpose.
138
Consequently, whilst there
are some African States that have enacted laws permitting the governments to
conduct surveillance,
139
it is imperative to always consider the justiciability,
necessity, legitimacy, effectiveness and proportionality of these laws.
140
One of the steps in the series of steps to be taken in maintaining a balance and
ensuring that surveillance technologies are used for legitimate purpose in Africa, is
to, first, have a binding international instrument protecting privacy in Africa. Some
scholars have argued that privacy should be imported to, and regarded as, part of
the right to dignity contained in the Charter,
141
this has not been tested by both the
African Commission and the African Court on Human and Peoples’ Rights (the
“African Court”). Thus, though African States have privacy provisions in their
constitutions, it may be essential that there is an African international instrument
safeguarding the privacy of Africans for which Africans may seek to enforce at the
African Commission or African Court where domestic remedy cannot be obtained.
This is because even with rights expressively provided in the Charter, States are
using domestic laws to ‘claw-back’ these rights.
142
In Article 19 v. Eritrea,
143
133
Gittleman (n18) 677
134
‘Security Challenges in Africa: 2021 and Beyond’ (United States Institute of Peace 24 February
2021) <https://www.usip.org/events/security-challenges-africa-2021-and-beyond> accessed 17 July
2022.
135
Mavedzenge (n106) 2.
136
Cayford and Wolter Pieters (n51).
137
Charter, art. 27.
138
Rose D’sa ‘Human and Peoples’ Rights: Distinctive Features of the African Charter’ (1985)
29(1) Journal of African Law 72-81.
139
Mavedzenge (n106) 2.
140
ibid; Cayford and Wolter Pieters (n51).
141
Avani Singh and Michael Power ‘The Privacy Awakening: The Urgent Need to Harmonise the
Right to Privacy in Africa’ (2019) 3 African Human Rights Yearbook 202-220
142
For some discussion on claw-back clauses, see Gittleman (n18).
JIMOH, THE PLACE OF DIGITAL SURVEILLANCE UNDER THE AFRICAN CHARTER ON HUMAN AND
PEOPLES’ RIGHTS AND THE AFRICAN HUMAN RIGHTS SYSTEM IN THE ERA OF TECHNOLOGY,
AFRICAN JOURNAL OF LEGAL ISSUES IN TECHNOLOGY AND INNOVATION, VOL. 1, NO. 1 (2023), 113 – 130
129
rejecting Eritrea’s argument that it could limit the right to freedom of expression
under its domestic law, the African Commission held that:
[If] ‘law’ is interpreted to mean any domestic law regardless of its effect, States
Parties to the Charter would be able to negate the rights conferred upon individuals
by the Charter. However, the Commission’s jurisprudence has interpreted the so-
called claw-back clauses as constituting a reference to international law, meaning
that only restrictions on rights which are consistent with the Charter and with States
Parties’ international obligations should be enacted by the relevant national
authorities. The lawfulness of Eritrea’s actions must therefore be considered against
the Charter and other norms of international law, rather than by reference to its own
domestic laws alone.
144
Secondly, there is need to develop a comprehensive framework for the use of
technology in Africa. Such framework will, among others, set the guiding
principles for surveillance, and provide adequate checks to prevent abuse by the
authorized agencies. In 2021, the African Commission ‘noting with concern that
the development and uses of AI technologies, robotics and new and emerging
technologies have far-reaching consequences on human rights in general, including
privacy’,
145
calls on ‘State Parties to work towards a comprehensive legal and
ethical governance framework for AI technologies, robotics and ither new and
emerging technologies so as to ensure compliance with the African Charter and
other regional treaties.’
146
One of the first steps to achieving this is by undertaking
further studies to understand the impacts of technology on human rights. Another
step will be for African States to adopt and ratify conventions on technology, for
instance, the Malabo Convention, for data protection.
Further, African States should enact laws on surveillance. The laws should
contain provisions on the necessity, legitimacy, effectiveness and proportionality of
surveillance. The laws should pursue a legitimate objective – for instance, to
prevent danger to the society. Whilst it is recognized that laws are not enough
147
as
it could be used for an illegitimate purpose, adequate mechanism for seeking
remedies in the event that surveillance is used for an illegitimate purpose should be
provided.
CONCLUSION
This paper has considered the state of privacy in Africa in the light of
surveillance technology. It found that there is lack of a binding international
instrument or law on privacy in Africa. It discusses the need for a binding
international instrument on privacy in Africa and how technology is gradually
waning the communal tenet of the Charter. It also considers the effects of
surveillance technology in Africa and its potential for human rights violations
when used for illegitimate purpose. In fact, it found the deployment of surveillance
143
Communication 275/03 – Article 19 v. Eritrea.
144
ibid paras [91, 92].
145
African Commission on Human and Peoples’ Rights Resolution 473, Preamble, Clause 10
146
Ibid, Clause 4.
147
Robert (ed) (n76) 5.
JIMOH, THE PLACE OF DIGITAL SURVEILLANCE UNDER THE AFRICAN CHARTER ON HUMAN AND
PEOPLES’ RIGHTS AND THE AFRICAN HUMAN RIGHTS SYSTEM IN THE ERA OF TECHNOLOGY,
AFRICAN JOURNAL OF LEGAL ISSUES IN TECHNOLOGY AND INNOVATION, VOL. 1, NO. 1 (2023), 113 – 130
130
technology as a tool for repression, violation of privacy right and dignity in Africa,
despite the fact that Africa is behind technologically. The paper found some
positive uses of surveillance technologies and recommends ways to deploy
surveillance technology in a human rights compliant manner.
