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Mujib Jimoh. “A prolegomenon on deepfakes and human rights in the African Charter.” (2023) 7 Global
Campus Human Rights Journal 49-66
http://doi.org/10.25330/2663
A prolegomenon on deepfakes and human
rights in the African Charter
Mujib Jimoh*
Abstract: Deepfake, the manipulation of videos, audio and images using
Artificial Intelligence (AI) technology, is popularly gaining attention in
different areas of law since its first creation in 2017. Recent scholarships
have considered its impacts on evidence law and proofs in courtrooms.
Other areas of law that have been tested with deepfake include criminal
law, torts, intellectual property and national security law, among others.
In Africa, one of the challenges in addressing issues relating to deepfake is
illiteracy. Most Africans are said to be ignorant of what deepfake is. Yet,
with its nature and as a form of AI, deepfake impacts almost all known
human rights since human rights are interdependent and interrelated. This
paper seeks to introduce and underscore the impacts of deepfake on human
rights in Africa, particularly the rights contained in the African Charter
on Human and Peoples’ Rights (African Charter). Although an analysis of
the impact of deepfake on all the rights contained in the African Charter is
outside the scope of this paper, the most impacted human rights—the right
to dignity, privacy and information—will be discussed. As a prolegomenon
(introduction) on this topic, the paper aims to highlight the human rights
violations in the creation of deepfakes in Africa. The paper argues that
while most deepfakes are created by private individuals, under the ‘duty to
respect’ framework of human rights, both individuals and State Parties have
obligations to respect human rights.
Keywords: African Charter, AI, deepfake, human rights, technology
*LLB, LLM (Duke Law School USA); mujibjimoh@yahoo.com
(2023) 7 Global Campus Human Rights Journal50
1. Introduction
Perhaps, one of the best ways to introduce a paper of this nature is to
narrate a personal experience and a practical example of the impact of
deepfakes. At a conference titled ‘technology and the Future of human
rights,’ organised by the Centre for human rights, University of Pretoria,
in September 2022, this author presented a paper titled deepfakes and
Shallowfakes as Artificial Misinformation in the Era of technology: Effects on
Democratic Participation in Africa1. The presentation commenced with
three short videos. In the first video, President Obama was seen saying:
We’re entering an era in which our enemies can make it look like
anyone is saying anything at any point in time. Even if they would
never say those things. So, for instance, they could have me say things
like… “Killmonger was right” or “Ben Carson is in a sunken place”
or, how about this, simply, “President Trump is a total and complete
dipshit.” Now, you see, I would never say these things. At least, not
in a public address. But someone else would…This is a dangerous
time… (Romano, “Jordan Peele’s”)
As it would turn out, the “someone else” was indeed, President Obama.
Sorry, Jordan Peel (Caldera, 2019).
In the second video, David Beckham, the former English football
player, spoke nine languages including Kiswahili and Yoruba in a call to
end malaria (Westerlund, 2019). In the third, a Nigerian Governor was
seen stuffing his babaringa with bundles of United States dollars (This Day,
2021). Thereafter, the audience seeing the videos for the first time were
asked if they knew which ones were real and fake, but none could tell,
with certainty. And it made no difference either for those who had seen the
videos a couple of times, as the Nigerian Governor, whether true or false
had argued that the video was ‘cloned’ (This Day, 2021). Everyone saw the
videos but doubted their eyes.
In the simplest words, a deepfake is a forged video, audio or picture,
using AI (Caldera, 2019; Winter & Salter, 2020). Although the manipulation
of videos, audio and pictures, is not a recent vintage (Langguth, et al.,
2021), the advancement in technology and the proliferation of deepfake
software apps, have particularly triggered critics about the need to address
the dangers posed by deepfakes. While not all uses of deepfakes are bad
(Citron & Chesney, 2019; Naruniec et al., 2020), when they are created,
they mostly set out to achieve one underlying aim: to deceive the audience.
1 This author has published an article on the paper presented at this conference. See
Mujib Jimoh, “The Right to Democratic Participation in Africa in the Era of deepfake,”
Pretoria Student Law Review 17 (2023): 106.
A prolegomenon on deepfakes and human rights in the African Charter 51
However, the deception is not as much a problem as the inability of
the audience to spot it. If the audience could spot it, nonetheless, only
one-third of the problem would be solved. There are two other major
problems. First, once a deepfake is released to the public, its forged nature
cannot be corrected in the minds of the audience. “The truth becomes
irrelevant in the heat of the moment while feelings and opinions dictate
the perspective on reality” (Faragó, 2019). Second, there is a futuristic
problem, an “information apocalypse,” where people feel information
cannot be trusted again (Westerlund, 2019).
Noteworthily, the underlying deceptive aim in creating deepfakes
is usually geared towards other objectives. It could have some political
connotations, like Jordan Peele’s Obama video or it could be to spite or
defame a character, like the user “u/deepfakers”’s 2017 post on Reddit,
superimposing faces of female celebrities such as Scarlet Johansson and
Gal Gadot, into porn video (Cole, 2017). The objective could be harmless,
like David Beckham’s video or it could be for fun, yet the aim to deceive is
not eroded. The foregoing raises many legal issues ranging from evidence
law (LaMonaga, 2020; Maras & Alexandrou, 2018), criminal law (Citron,
2019), Torts (Kocsis, 2022), intellectual property (Nema, 2021), national
security law (Chesney & Citron 2019), among others. Also, within the
spectrum of issues arising from deepfakes is human rights. Since human
rights are said to be interrelated and interdependent (Scott, 1989) and
since deepfake is a form of AI (Kocsis, 2022), all known human rights are
potentially implicated by the effects of deepfakes.
Deepfake is a relatively recent concept as it emerged in 2017 and
scholarship on it is still growing2.
In Africa, one of the challenges in addressing issues relating to deepfake
is illiteracy. Most Africans are said to be ignorant of what deepfake is
(Ndebele, 2023). This paper, thus, seeks to introduce and underscore
the impacts of deepfake on human rights in Africa, particularly the rights
contained in the African Charter on Human and Peoples’ Rights (African
Charter or Charter). It aims to contribute a timely scholarly work on
the deepfake–human rights discourse from an African Human Rights
perspective. Although an analysis of the impacts of deepfake on all the
human and peoples’ rights contained in the African Charter is outside the
scope of this paper, the most impacted human rights, the rights to dignity,
privacy and information will be discussed. This paper will be broadly
divided into four parts. After this introduction, Part II will provide an
overview of the African human rights system. Part III discusses the impacts
of deepfake on the rights to human dignity, privacy and information. Part
IV will conclude the paper.
2 But see Milena Popova, “Reading out of Context: Pornographic deepfakes, Celebrity
and Intimacy,” Porn Studies 7, no. 4 (2020): 367.
(2023) 7 Global Campus Human Rights Journal52
2. The African Human Rights System3
The foundation of the African Human Rights System is the African
Charter (Jimoh 2023a, 1). The Charter was adopted in 1981 and came
into force in 1986 (Samb, 2009). Almost all African countries have ratified
it (Adigun, 2024). Despite the flaws and criticisms by eminent scholars,
the impacts of the African Charter on the African Human Rights System
have been described as “legendary” (Osuntogun, 2016). The main reason
attributed to this bold complement to the Charter is its broadness in the
recognition of human rights, particularly Economic, Social and Cultural
Rights (ESCRs) (Swanson, 1991 & Jimoh, 2024). For instance, one widely
publicised praise for the African Charter is the equality it maintains with
respect to ESCRs and civil and political rights (Ssenyonjo, 2011). The
Charter is said to place ESCRs above civil and political rights (El-Obaid &
Appiagyei-Atua, 1996), though the African Commission on Human and
Peoples’ Rights (African Commission or Commission) is, at the same time
criticised for giving them less attention (Murray, 2001).
Notwithstanding, the Charter is said to have taken the maximalist
approach. Other reasons include the fact that the Charter presents the
idea “that rights are interdependent and indivisible” (Samb, 2009), its
adoption of a liberal approach to the issue of locus standi (Osuntogun,
2016), its recognition of a contextual approach to human rights (Motala,
1989 & Bondzie-Simpson, 1988), its recognition of both human rights
and peoples’ rights and its imposition of duties on individuals (Jimoh,
2023b). For these reasons, the Charter is said to have provided a strong
legal framework for the promotion and protection of human rights in the
continent and that the “jurisprudence of the African Commission attests to
this achievement” (Centre for human rights, 2016).
The two main regional human rights judicial and quasi-judicial bodies
where the rights contained in the African Charter may be claimed are the
African Commission and the African Court on Human and Peoples’ Rights
(the African Court or Court). The state parties to the Charter enjoy a margin of
appreciation, however narrow, (Born, Morris & Forres, 2020)4 and may, as in
3 Notable human rights scholars have written extensively on the African Human Rights
System. Professor Rachel Murray has a lot of work on this. See for instance, Rachel
Murray, The African Charter on Human and Peoples’ Rights: A Commentary (Oxford:
Oxford University Press, 2019); Rachel Murray, human rights in Africa from The OAU to
the African Union (Cambridge: Cambridge University Press, 2004); Rachel Murray and
Steven Wheatley, “Groups and the African Charter on Human and Peoples’ Rights,”
human rights Quarterly 25, no. 1 (2003): 213. Professors Heyns and Viljoen have written
extensively on this too. See for instance, Christof Heyns, “The African Regional human
rights System: In Need of Reform,” African Human Rights Law Journal 2 (2001): 155;
Frans Viljoen, International Human Rights Law in Africa (2nd ed, Oxford University
Press, 2012).
4 See the African Court’s narrow application of the margin of appreciation principle in
Applications 009&011/2011 – Tanganyika Law Society and The Legal and human rights
A prolegomenon on deepfakes and human rights in the African Charter 53
dualist states, enact the provisions of the Charter into their local law, placing it
on the same pedestal as their local legislation5. While the African Commission
is established by the African Charter, the African Court is established by
the protocol to the African Charter on Human and Peoples’ Rights on the
establishment of an African Court on Human and Peoples’ Rights.
Both the African Commission and the Court can receive communications from
both State Parties and individuals alleging violations of rights guaranteed under
the Charter (Gumedze, 2003). For a communication made by an individual
on a breach of any rights under the Charter to be seized and admissible by
the African Commission, it must fulfil fourteen conditions (Jimoh, 2022). If the
application is made to the African Court, there are eight conditions to be satisfied
(Heyns, 2001). Since its establishment in 1987, the African Commission has
been instrumental in the development of human rights jurisprudence in Africa.
It has, through its four mandates under the Charter, adopted several resolutions,
declarations and guidelines, in promoting human rights in the continent. It has
also adopted different international law interpretation theories and the derivative
human rights approach in construing the rights contained in the African Charter
(Amin, 2021 & Jimoh, 2024). In addition, through the provisions of articles 60
and 61 popularly referred to as the “decompartmentalisation” articles, the African
Commission has drawn inspiration from the decisions and general comments of
the human rights Committee, the decision of the International Court of Justice,
decisions of the European Court of human rights and the decisions of the Inter-
American Court of human rights (Burgorgue-Larsen, 2018 & Jimoh, 2023c).
Although the jurisprudence of the African Court is still developing, it has also
contributed to the promotion of human rights in Africa (Makunya, 2021).
3. The Impacts of deepfake on the Rights in the African Charter
3.1. Deepfake and the Right to Human Dignity
Due to the superior nature of the dignity of the human person,6 it has
been described as a value rather than a norm. According to Petsche,
values are the foundation of the normative system and they give rise to
Centre and Reverend Christopher Mtikila v The United Republic of Tanzania. The Commission
did the same in Communication 255/2002 – Garreth Anver Prince v. South Africa.
5 For instance, Nigeria has done this by placing the Charter on equal footing with its local
legislation. See Abacha & Others v Fawehinmi (2001) AHRLR 172.
But see also Muyiwa Adigun, “The Implementation of the African Charter on Human
and Peoples’ Rights and the Convention on the Rights of the Child in Nigeria: The
Creation of Irresponsible Parents and Dutiful Children?,” The Journal of Legal Pluralism
and Unofficial Law 51(3) (2019): 320, 328 (arguing that the Charter is superior to
other Acts in Nigeria, though inferior to the Constitution).
6 But see critical criticisms of the notion that dignity is a superior right in Ruth Macklin,
“Dignity is a Useless Concept: It Means No More Than Respect for Persons or Their
Autonomy,” British Medical Journal 327 (2003): 1419; Stephen Pinker, “The Stupidity of
Dignity: Conservative Bioethics’ Latest, Most Dangerous Ploy,” The New Republic, May
28, 2008, https://newrepublic.com/article/64674/the-stupidity-dignity.
(2023) 7 Global Campus Human Rights Journal54
norms (Petsche, 2010). “Thus, for example, the prohibition of degrading
treatment (a norm),” states Petsche, “is based on the dignity of the human
person (a value) and gives rise to the corresponding individual right not to
be made subject to such treatment” (Petsche, 2010). The African Charter
follows this value→norm approach. It provides that “every individual
shall have the right to the respect of the dignity inherent in a human being
and to the recognition of his legal status (value). All forms of exploitation
and degradation of man particularly slavery, slave trade, torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited”
(norms) (African Charter, Article 5).
Although the origin of the right to human dignity is unclear (Dan-Cohen,
2011), some sources describe Kant as the father of the concept (Smith
II, 2016), while others attribute it to the writings of Cicero (Weatherall,
2015). It is clear that the right has its roots in natural law. It is an intrinsic
right of a human person (Glensy, 2011). According to Weatherall, Cicero’s
Dignitas hominis denotes “the inherent status of ‘worthiness’ of every
individual by virtue of his being human” and “the honourable authority of
a person, combined with attention and honour and worthy respect paid to
him” (Weatherall, 2015). By the concept of African humanism (ubuntu),
an African worldview—dignity is firmly engrained in the value system
(Metz, 2011 & Van Binsbergen 2001).
Under the African Human Rights jurisprudence, the right to human
dignity is both substantive and procedural. In addition to the provisions
of Article 5 of the African Charter, the preamble to the Charter in two
clauses makes express reference to dignity (African Charter, Clauses 2 and
8). Gelaye explains thus:
Here one may ask what significance is of an express incorporation
of dignity in the preamble of the African Charter. The scholarship
on treaty interpretation underscores the importance of statements
incorporated in preambles. Accordingly, one of the core functions
of preambles is to specify the purpose that specific provision of
the treaty seeks to achieve. As such, they serve as guidance in the
interpretation of treaties by judicial bodies. This helps to minimise
the misapplication of specific provisions of the treaty. If preambles
have such a role, the presence of human dignity in the African
Charter is a positive development, since the adjudicatory bodies will
have the mandate to use the concept in the discovery, explication,
application and limitation of rights in it. Hence, it could be argued
that human dignity is a value that shapes the interpretation of human
rights in the African Charter (Gelaye 2021, 126).
Dignity is a rule of jus cogens (Kleinlein, 2017). Under international
law, a jus cogens is an overriding and compelling rule for which no
A prolegomenon on deepfakes and human rights in the African Charter 55
derogation is permitted except by a subsequent norm of the same
character (Brownlie, 1979). While jus cogens cover many areas of
international law, most eminent scholars accept that norms of jus cogens
are mainly human rights. “A brief look at the peremptory norms,”
state den Heijer and van der Wilt “beyond contestation, prohibition
of apartheid, slavery, torture, genocide, crimes against humanity
immediately confirms this contention” (den Heijer & Van der Wilt,
2016). A cautious reading of Article 5 of the African Charter reveals that
when the norms contained in the second clause are violated, the right to
human dignity is, by implication, violated (Ukaj-Elshani, 2019). Thus,
under the African Charter, all forms of exploitation and degradation of
human persons are a violation of the right to dignity. Both the African
Commission (see for instance Huri-Laws v. Nigeria) and the Court (see
for instance Mugesera v Rwanda) have considered communications and
applications alleging a violation of this right. For instance, in Purohit
and Another v. The Gambia, the African Commission held that human
dignity is an inherent basic right to which all human beings are entitled
without discrimination.
Most deepfakes are pornographic in nature (Winter & Salter, 2020).
In recent years, Porn Studies has published different papers on the use
of deepfakes to shame and demean celebrities through the creation of
nonconsensual porn. Deepfakes superimpose the faces of celebrities
on different bodies without their consent, thus, violating their human
person (Popova, 2020). Most of the time, deepfakes are created to
humiliate the character of a person, such as showing people doing
abhorrent things like paedophilia (Hall, 2018) and rape (Citron, 2019)
and as such, constitute degradation or violations of human dignity
(Öhman, 2022). A key component of the right to dignity is respect and
deference (Mahlmann, 2012; & Caldwell, 1976). The first of Schachter’s
twelve conducts antithetical to the right to dignity are “statements
that demean and humiliate individuals or groups” (Schacter, 1983).
Certainly, if a picture is worth a thousand words (Citron & Chesney,
2019), a video is worth more. The foregoing negative uses of deepfakes,
therefore, constitute a violation of this right. Although neither the
African Commission nor the Court has addressed the question of human
rights responsibility in the use of deepfake, the extant African Human
Rights jurisprudence leads to the conclusion that deepfake constitutes a
violation of this right. For instance, in Modise v Botswana, the African
Commission acknowledged that indignity could take many forms and
that exposing victims to “indignity” violates the right to human dignity
in the Charter (Modise v Botswana, para 92).
Noteworthily, deepfakes are mostly created by private individuals.
However, the framework of human rights responsibility demands an
obligation to respect, protect and fulfil (Alston & Quinn, 1987). The
obligation to respect places a responsibility on both individuals and
(2023) 7 Global Campus Human Rights Journal56
the States not to harm the human rights of others7. Thus, while States
have the obligation to ensure that human rights in their jurisdictions
are respected, this duty is also on private individuals (Meron 1989;
Nampewo, Mike & Wolf, 2022). Moreover, the jus cogens nature of
the right to dignity demands that the right be respected by both States
and individuals. In its decision in Purohit v. The Gambia, the African
Commission stated that dignity is an inherent right that every human
being is obliged to respect by all means possible, and it confers a
duty on every human being to respect this right (Purohit, para 57). In
addition to private individuals, governments are under an obligation
not to authorise and disseminate deepfakes to manipulate the citizenry
against its opposition members.
Considering the nature of deepfakes, one important provision in the
African Charter that relates to the admissibility of communication by
the African Commission and Court is the provision of Article 56(4) of
the Charter. It provides that “communications…shall be considered if
they are not based exclusively on news disseminated through the mass
media.” As a form of mass media (Kasturi, 2014), social media represents
the platform where most deepfake contents are released. Where an
allegation of a breach of human dignity is based exclusively on deepfake
content posted solely on social media, would the African Commission
and Court still require that such communication not be based exclusively
on the mass media? In Jawara v The Gambia, the African Commission
observed that:
While it would be dangerous to rely exclusively on news disseminated
from the mass media, it would be equally damaging if the Commission
were to reject a communication because some aspects of it are based
on news disseminated through the mass media. This is borne out of
the fact that the Charter makes use of the word ‘exclusively’. There
is no doubt that the media remains the most important, if not the
only source of information. It is common knowledge that information
on human rights violations is always obtained from the media. The
genocide in Rwanda and the human rights abuses in Burundi, Zaire
and Congo, to name but a few, were revealed by the media. The issue
therefore should not be whether the information was gotten from the media,
but whether the information is correct (paras 24, 25 and 26).
The foregoing decision is confusing. In the earlier part of the
observation, the African Commission suggested that some other form
of evidence must be adduced. In the latter part, the Commission
7 But see David Jason Karp, “What is the Responsibility to Respect human rights?
Reconsidering the ‘Respect, Protect, and Fulfill’ Framework,” International Theory 12
(2020): 83 (arguing for a reconsideration of the understanding of the duty to respect).
A prolegomenon on deepfakes and human rights in the African Charter 57
seemed to suggest that truth is the yardstick and not exclusivity. The
extant jurisprudence seems to lean towards the former and suggests
that other evidence reinforcing the violation, however minimal,
should be adduced (Gumedze, 2003 & FIDH, 2016). Thus, a political
opponent whose deepfake video is circulated online to sway the minds
of the electorates may need to support their communication with other
evidence apart from the social media platforms where the deepfake is
circulated.
3.2. Deepfake and the Right to Privacy
Most scholars in the early part of the last century described privacy as
the seclusion of oneself or property from the public (Winfield, 1931). By
the later part of that century, scholars began to reject this description and
found that it difficult to define and conceptualise privacy (Uniacke, 1977).
“The year is 2021, and privacy is still a concept in disarray” (Hartzog,
2021). One, if not the most influential scholar of privacy of our time,
Professor Daniel Solove, has written extensively on the concept and has
advised that the obsession over the meaning of privacy should stop8.
Rather, he suggests that the appropriate question should be what is privacy
for (Cohen 2013). This paper heeds Solove’s advice.
In Africa, Professors Roos and Makulilo are perhaps the leading
scholars on privacy law and have written brilliant works on the concept
(Roos 2006; Roos 2012; & Makulilo, 2014). Professor Solove in his book
Understanding Privacy after acknowledging that the existing taxonomy
on privacy needed revision in light of modern technology,9 opines the
following new taxonomy of the ambit of privacy:
1. Information collection, which comprises surveillance and
interrogation.
2. Information processing, which comprises aggregation,
identification, insecurity, secondary use and exclusion.
8 For consideration of some of Professor Solove’s work on privacy, see Daniel Solove,
“Conceptualizing Privacy,” California Law Review 90 (2002): 1087; Daniel J. Solove,
“The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure,”
Duke Law Journal 53 (2003): 967; Daniel Solove, “A Taxonomy of Privacy” University
of Pennsylvania Law Review 154 (2006): 477; Daniel Solove Understanding Privacy
(Massachusetts: Harvard University Press, 2008); Daniel J. Solove and Paul M.
Schwartz, Privacy Law Fundamentals (4th ed. IAPP, 2017).
9 This taxonomy was described by Professor William Posser in William Posser, “Privacy,”
California Law Review 48, no. 3 (1960): 383. These are:
(a) Intrusion upon seclusion or solitude, or in private affairs.
(b) Public disclosure of embarrassing private facts.
(c) Publicity that places a person in a false light in the public eye.
(d) Appropriation for the defendant’s advantage of a person’s name or likeness.
(2023) 7 Global Campus Human Rights Journal58
3. Information dissemination, which comprises breach of
confidentiality, disclosure, exposure, increased accessibility,
blackmail, appropriation and distortion.
4. Invasion, which comprises intrusion and decisional interference
(Solove, 2010).
Privacy is implicated by deepfakes (Citron & Chesney 2019). Using
Solove’s taxonomy (3) and (4), negative deepfake uses could constitute
blackmail and distortion and are in fact, an appropriation, intrusion and
interference. One key aspect of privacy law is the protection of individuals
from harassment and manipulation (Hartzog 2021, 1683). But deepfake
does exactly the opposite. The most often cited case to illustrate this
point is the case of Rana Ayyub, an Indian journalist. Ayyub wrote about
corruption in Hindu national political parties (Chesney & Citron, 2019).
Thereafter, a deepfake video of her appeared online with the malicious
purpose of labelling her as “promiscuous, immoral, and damaged goods”
(Citron & Chesney, 2019). Such intent to control, expose and damage the
identity of Ayyub invaded her privacy. As Citron states, “Those who wish
to control, expose and damage the identities of individuals routinely do so
by invading their privacy” (Citron, 2019). Perhaps, the best description of
the impact of deepfake on privacy is that given by Professor Citron:
Machine-learning technology is used to create digitally manipulated
“deep fake” sex videos that swap people’s faces into pornography.
Each of these abuses is an invasion of sexual privacy—the behaviours,
expectations, and choices that manage access to and information
about the human body, sex, sexuality, gender, and intimate
activities… Much like nonconsensual pornography, deep-fake sex
videos exercise dominion over people’s sexuality, exhibiting it to
others without consent. They reduce individuals to genitalia, breasts,
buttocks and anuses, creating a sexual identity not of the individual’s
own making. They are an affront to the sense that people’s intimate
identities are their own to share or to keep to themselves (Citron
2019, 1870, 1921).
However, the African Charter contains no privacy provision. One
reason attributed to this is that at the time of drafting the Charter, privacy
was understood as an individualistic right, which was incompatible with
the communal tenets promoted by the Charter (Jimoh, 2023d). Although
a recent Declaration by the African Commission, the 2019 African
Declaration on Freedom of Expression and Access to Information contains
privacy provisions, the African Commission has been adjudged to have
been deficient in the promotion of the right (Jimoh, 2023a). Moreover,
declarations are not binding under international law. Notwithstanding,
there is little reason to believe that the right to privacy may not be claimed
A prolegomenon on deepfakes and human rights in the African Charter 59
at both the African Commission and the Court. There are three ways this
may be done.
First, privacy may be pleaded as part of the right to human dignity
contained in the Charter (Bloustein, 1964 & Gavison, 1980). The African
Commission has been implored to use its derivative approach as it did
concerning the right to water, to derive privacy from the right to dignity
(Singh & Power, 2019). Second, both the African Commission and the
Court can take inspiration, using the decompartmentalisation articles of the
African Charter, from other human rights instruments to which a State Party
to the African Charter is a party in upholding this right (Jimoh, 2024).
Third, where these two approaches fail, it may be argued that Africans
up to at least age 35, have a guaranteed privacy right under the African
Human Rights System. The basis for this submission is that the African
Charter on the Rights and Welfare of the Child guarantees the privacy
right of the African Child defined as a person below the age of 18 (African
Charter on the Rights and Welfare of the Child, art. II). Similarly, article 7 of
the African Youth Charter safeguards the right to privacy of young persons
defined as a person up to 35 years. Both Charters are in force. Importantly,
while the African Committee of Experts on the Rights and Welfare of the
Child and the African Union Commission have the responsibilities of
protecting the rights in the Charters respectively, it has been argued that
other regional human rights bodies, including the African Commission
and Court by the decompartmentalisation articles, can entertain a question
on the violations of these Charters (Adeola, 2015).
3.3. Deepfake and the Right to Information
The Right to Information (RTI) is a right to the truth. It is a necessary norm
in a democratic society. “Democratic discourse is most functional,” states
Professor Citron, “when debates build from a foundation of shared facts
and truths supported by empirical evidence” (Citron & Chesney, 2019). RTI
has been classified as an intrinsic right and not just an instrumental right
(McDonagh, 2013). One advantage of the intrinsic classification of RTI is its
good fit for unlimited access to information in “terms of the nature of the
information to which it applies” (McDonagh 2013). When seen as a right to
the truth, the unlimited access to it must be seen as an unlimited access to the
truth, as the truth must be seen as part of RTI, without necessarily stating it.
Yet, deepfake does no less than distorting the truth. Even without deepfakes,
safeguards for RTI are weak in Africa, the provisions of the African Charter,
notwithstanding (Adu, 2018). Article 9 of the Charter provides:
(1) Every individual has the right to receive information.
(2) Every individual shall have the right to express and disseminate his
opinion within the law.
(2023) 7 Global Campus Human Rights Journal60
It is important to state that Article 9 contains two different rights, RTI
and the right to freedom of expression. The jurisprudence on RTI under the
European human rights System, until recently, has been interwoven with
the right to freedom of expression (McDonagh, 2013). Perhaps, this may
be because RTI is moulded into the right to freedom of expression in other
international instruments.10 The Charter, on the other hand, separates the two
rights, with the advantage being that RTI could be considered as a stand-alone
right without necessarily espousing the jurisprudence on RTI’s relationship
with the right to freedom of expression. The importance of this separation
may be useful in a jurisprudential analysis of the scope of these rights within
the African Human Rights System. This is because, unlike the right to freedom
of expression, RTI is not limited by the clawback clause which the Charter
is notorious with (Naldi, 2001 & Sibanda, 2007). A literal interpretation of
the provisions of Article 9 of the Charter may lead to a finding that while the
right to freedom of expression may be limited by “law,”11 RTI may not, except
under Article 27(2) of the Charter which contains the legitimate reasons for
limitation (Media Rights Agenda v. Nigeria).
Deepfakes affect RTI in two main ways. First, it has a direct effect on
RTI. This is because the nature of RTI, as the right to receive the true
information, is distorted. The very essence of deepfake is to utilise neural
networks that can analyse different sets of data samples to learn how “to
mimic a person’s facial expressions, mannerisms, voice, and inflections…
feeding footage of two people into a deep learning algorithm to train it
to swap faces” (Westerlund, 2019). When this is done, the information
received by the recipient is forged and tampered with and thus, the benefits
of RTI to be able to know the truth cannot be guaranteed. The resultant
effect is artificial misinformation (Segun, 2021). Secondly, deepfake has
indirect effects on RTI. Because human rights are interdependent and
interrelated, the distortion of RTI may indirectly affect the enjoyment of
other rights which benefit from RTI. Rights like the right to participate
freely in the government (Charter, Article. 13), the right to health (Charter,
Article. 16), and the right to education (Charter, Article. 17), benefit
mostly from RTI (UNICEF 2015).
African States must respect and protect RTI, particularly with the
proliferation of deepfake technology. Governments are under obligation to
ensure that they do not sanction deepfakes as a tool for repressing their
opposition. The African Commission and Court have, in numerous of their
decisions, upheld RTI (Article 19 v. Eritrea). It has been suggested that one
way State Parties may make RTI guaranteed under the Charter effective, is
10 See for instance Universal Declaration of human rights art 19; European Convention
on human rights, art 10. Of But the Inter-American Court of human rights in Claudio
Reyes v Chile IACHR 9 September 2006 Series C No 151 para 77, treated both rights as
separate and distinct.
11 Insofar as it is in accordance with Charter, international law and domestic law. See
Article 19 v. Eritrea (2007) AHRLR 73 (ACHPR 2007).
A prolegomenon on deepfakes and human rights in the African Charter 61
to enact laws which strengthen RTI and criminalise the creation and use of
deepfake for manipulation (Westerlund, 2019). In the performance of this
duty, however, measures taken by State Parties should be legitimate and
proportional to prevent clamping on other rights (Citron &Chesney, 2019).
4. Conclusion
Technological advancements necessitate a corresponding legal change
to avoid a gap (Moses, 2007). In responding to the legal implications
of deepfakes, most scholarships on this have been written by American
Professors addressing the issues within the U.S. legal system. The
contribution of this paper to the discourse is the regionalisation of the
human rights issues in the use of deepfakes in Africa. The paper discusses
the effects of deepfakes on the rights to human dignity, privacy and RTI.
Both individuals and State Parties to the African Charter must respect these
rights. In addition, States have the obligation to protect these rights and
to create a framework ensuring that they are respected. Certainly, there
are other human rights implicated by deepfake since human rights are
interdependent and interrelated. This paper creates a pathway for human
rights scholars to continue the discourse.
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