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On digital rights, States and citizens stake opposing claims: May in Africa

A legal victory on one hand, with criminal defamation declared unconstitutional by Lesotho High Court, but Kenya, Uganda and Tanzania pass regulations that clamp down on the freedom of expression of online users.

Journalists and members of civil society march on World Press Freedom Day, in Nakuru, Kenya, 3 May 2018
Journalists and members of civil society march on World Press Freedom Day, in Nakuru, Kenya, 3 May 2018

SULEIMAN MBATIAH/AFP/Getty Images


The Accra Declaration, the unconstitutionality of criminal defamation, and West Africa Leaks

There were three glowing triumphs on the continent last month: the Accra Declaration crafted within the ambit of this year's theme - "Keeping Power in Check: Media, Justice and the Rule of Law"; the decision to declare criminal defamation unconstitutional by Lesotho's Constitutional Court, and the largest collaborative investigative journalism initiative out of West Africa. However, the glow faded slightly as journalists across numerous borders faced an onslaught of attacks from state and non-state actors.

Along with these victories for media freedom and freedom of expression, the region saw a series of threats and attacks on journalists, activists and citizens in numerous incidents throughout the month. But the most hotly contested area has been the digital space, with laws being crafted that impact freedom of expression in both subtle and overt ways.

The numerous and critical conversations during World Press Freedom Day events culminated in the adoption of the Accra declaration - regarded as a document of strength and resolve, and a determined push for the rights of journalists. Amidst many protective clauses the Accra Declaration "underscored the need for countries to review cases of journalists who were in prison for their work, with a view to releasing anyone whose prosecution was not constitutional and inconsistent with international standards," reported GhanaWeb.

In the region's largest ever investigative journalism collaboration, 13 journalists from 11 countries came together through the International Consortium of Investigative Journalists (ICIJ) and Cenozo to launch West Africa Leaks. As announced, "West Africa Leaks explores the impact of offshore secrecy in the 15 countries that make up Africa's westernmost region, where reporters work in English, French and Portuguese and dozens of local languages."

"The team pored over 27.5 million files from recent offshore investigations, including Offshore Leaks, Swiss Leaks, Panama Papers and Paradise Papers, to hold some of West Africa's most powerful people to account."

The journalists working on the West Africa Leaks are committed, passionate and have a strong sense of the responsibility they hold. "The average citizen, the poor man in the street, who has his money stolen by the government, we have seen, even in the street, they respect us, and they respect the work we do. Even though we don't have much security and even if we don't have all the means we need to do our jobs, we are committed to holding the powerful to account," explains Moussa Aksar, managing director of L'Evenement in Niger.

Moving on to the legal front, the decision by Lesotho's High Court sitting as a Constitutional Court to declare criminal defamation unconstitutional joyfully reverberated throughout the continent and globe. "The three judges held that criminalizing defamation had a chilling effect on journalistic freedom of expression, resulting in self-censorship by journalists and a less-informed public," reported CPJ.

The Lesotho judgement followed the decision of other African courts, namely the ECOWAS Court, the Zimbabwe Constitutional Court and the Kenya High Court, which also declared that the offence of criminal defamation violated the right to freedom of expression.

The Special Rapporteur on Freedom of Expression and Access to Information in Africa Commissioner, Lawrence Mute, commended the ruling and explained that it "is in line with the Commission's Resolution on Repealing Criminal Defamation Laws in Africa (ACHPR/Res.169 (XLVIII)10), calling on state parties to the African Charter on Human and Peoples' Rights (African Charter) to repeal criminal defamation laws or insult laws which impede freedom of speech."

Sierra Leone also looks set to repeal criminal defamation according to Minister of Information-designate, Mohamed Swarray, who reassured journalists that the country's notorious criminal and seditious libel law will be abolished under his tenure. Swarray told the parliamentary committee on appointments that the law had no place in a democracy, and that the desire to remove it was rooted in the campaign promise of the new President Julius Maada Bio.


Dispatches

This progressive decision is in direct contrast to the manner in which States are going against the content and spirit of regional protocols and model laws on internet access, cybercrime security, and data protection. As governments on the continent realise that there is a massive growth in the number of citizens sharing information through online platforms, they are finding alternative ways to clamp down on freedom of expression. Now African governments are moving a step further - from internet restrictions or shutdowns to crafting laws that impose administrative barriers or criminalise certain forms of information.

Just two days after WPFD, the Electronic and Postal Communications (Online) Regulations 2018 came into effect in Tanzania. According to the new law, online publishers, including bloggers and podcasters, are required to pay about US$920 in registration and licence fees. Bloggers are required to provide details of shareholders, share capital, citizenship of owners, staff qualification and training programs, as well as a tax clearance certificate, to obtain an operating license. Bloggers convicted of disobeying the new rules could be fined five million shillings ($2,200) or imprisoned for a minimum 12 months, or both.

Through the regulations, the Tanzanian Communications Regulatory Authority (TCRA) is given the responsibility for keeping a register of bloggers, online forums, radio and television online. The TCRA is also able to take action against non-compliance of the regulations, which includes ordering the removal of content.

A group of organisations won a temporary court injunction when they jointly took the matter to Tanzania's high court asking the judiciary to block implementation of the regulations. The six organisations argued the new law is in direct violation of freedom of expression as well as the privacy of internet users. On 29 May, the courts handed down their decision, ruling in favour of Tanzania's government and maintaining that it is within its rights to impose the rules.

Across the border to the east, Kenya passed the Computer Misuse and Cybercrimes Act 2018 primarily intended to protect consumers from cybercrime and protect the confidentiality and integrity of computer systems and data. Critics are concerned that government could abuse the powers provided in the law to claw away at Kenyan netizens' internet freedoms, constitutional rights to privacy, freedom of expression and access to information.

Under the law, anyone who is found guilty of publication of false, misleading or fictitious information will be charged a maximum fine of five million Kenyan shillings or imprisoned for a term at least two years, or both. As Henry Maina, director of Article 19 Eastern Africa explains: "laws criminalising 'false news' are extremely problematic and are frequently subject to abuse by the authorities due to the power they give the authorities to determine 'truth'."

In Uganda, Kenya's neighbour to the west, civil society organizations and rights activists took to the streets to protest the passing of the controversial Excise Duty (Amendment) Bill 2018 which imposes a daily tax on social media users in the country.

An AFEX statement reports that Moses Magoola, a programme manager at Human Rights Network for Journalists in Uganda (HRNJ-U), believes the underlying objective in the passing of this law is to stifle free expression rights of millions of Ugandans who increasingly depend on online tools to communicate

"The tax is not coming in place to deliver a service but to control and deter people from expressing themselves especially on civic and political matters. The measure is to disable citizen mobilization and communication on matters of national importance," explained Magoola.

On 31 May, the Zambia Information and Communication Technology (ZICTA) announced government is planning to enact online laws to combat cyber related crimes and social media breaches. ZICTA director, Mofyta Chisala "hinted that the new law will require all WhatsApp group administrators in the country to register the groups and set up codes of ethics or risk being arrested."

Moving to offline space – Burundi – which once had the reputation and privilege of enjoying one of the most independent media environments, is now one of the most violent regimes in the region. In seeking a third term, through a constitutional referendum President Pierre Nkurunziza came down heavily and brutally on political opponents, human rights activists and journalists.

On May 4, the National Council for Communication (CNC) of Burundi accused the BBC and VOA of "breaching professional ethics" and imposed a 6-month ban on local broadcasting by the BBC and VOA. The intimidation of journalists continued throughout the campaign. Jean Bosco Ndarurenze, a reporter, was expelled from a ruling party meeting on 7 May. His audio recorder was confiscated and was then returned on the condition that its contents be deleted. Radio Insanganiro reporter Pacifique Cubahiro and his cameraman suffered a similar fate when they tried to report on the massacre of residents in a village in the northwest of the country. A few days later, journalists with the Renouveau Burundi newspaper were prevented from covering members of the public collecting their voter cards from the city hall in the capital, Bujumbura.

The Media Foundation for West Africa (MFWA) highlighted numerous “incidents of threats and verbal assault on journalists and civil society activists in the West African region for exercising their constitutionally guaranteed rights to freedom.

These reports included the brutal attack on Emeka Ihiegbulem, a correspondent of the PUNCH Newspapers in Nigeria, who was violently assaulted by a group of men from the army, police and other security agencies while covering the 18th anniversary celebration of two Biafra separatist groups: Movement for the Actualisation of Sovereign State of Biafra (MASSOB) and the Biafra Independent Movement (BIM).

Ghana's Member of Parliament for Assin Central, Kennedy Agyapong, publicly threatened one of Africa's most famous journalists, Anas Aremayaw Anas, for his latest investigative video on corruption in Ghana football. Reacting to the story on Adom FM, the MP condemned Anas' methods and called on the Inspector General of Police to withdraw the security that is provided at the journalist's home.

Abdul Malik Kwaku Baako, Editor-in-Chief of the New Crusading Guide, was trolled and threatened on Facebook for his remark: that while he respected Otumfour Osei Tutu II, the king of the Asantes, he would not under any circumstance kneel before him. One of the threatening messages sent on social media warned Baako that: "I will come after you at Peace FM and deal with you. I will seize your bag of documents and burn them."

Franklin Cudjoe, the president of civil society organisation IMANI Africa, was warned through a Facebook post that people were plotting to hurt him. This seemed to be in retaliation to his taking government to task over a recent $89 million dollar service telecom sector contract awarded to a Haitian company. Cudjoe said he had reported the threats to the police and tendered the alert he received as evidence.

According to Committee to Protect Journalists (CPJ) informant: on 10 April, a Cameroonian military tribunal ordered Akumbum Elvis McCarthy be remanded in custody for a renewable six-month period while police investigate claims that the journalist aired secessionist propaganda. McCarthy is a news broadcaster from Abakwa FM Radio, a privately owned station based in Cameroon's Bamenda region.

In mid-May, ARTICLE 19, East Africa launched a report which focused on media freedom violations since May 2017. There were 94 recorded incidents of violations against individual journalists and media workers, including bloggers, in Kenya during this period. The report goes further by incorporating recommendations to the President and Government of Kenya.

On the other side of the world, Canadian authorities backtracked on their decision denying Angolan multi-award winning investigative journalist and human rights defender, Rafael Marques de Morais, a visa to Canada.

Marques was planning to visit his teenage son, a Canadian citizen who studies at a high school in Toronto. According to the Globe & Mail, which broke the story, Canadian authorities were not convinced that Marques would return to Angola. An international outcry from a diverse array of human rights and democracy groups pushed Canada's Immigration Department into reversing its controversial decision to ban the famed African anti-corruption campaigner from visiting his son.

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