Download the full Southern Africa Digital Rights Issue Number 3 here!

Across the continent biometric data collection systems are being implemented at an increasing pace and for a variety of reasons. And yet, as this issue of Digital Rights Southern Africa makes clear, there is no or slow commensurate roll-out of measures to ensure that such biometric data collection and processing systems are secure and to the actual benefit of the societies in which they are being implemented.

As this issue illustrates, the “worrying manifestations” of concerns around these systems cut across the six spotlighted countries and the region as a whole. Eswatini has become the bellwether in terms of violations on the regional digital rights landscape, and in this edition regulatory happenings in that country once again paint a threatening picture.

In Botswana, Namibia and Malawi authorities are struggling to come up with legislative measures to safeguard privacy rights as they seek to craft biometric data collection and digital ID policies, or to implement such systems where frameworks already exist.

In our Zambia contribution there is a call for a citizen-centric approach to implementing such systems, while in Zimbabwe concerns abound about the state’s intentions with digital ID systems.

In the end, it remains unclear what impact these systems will have on the countries under the spotlight, but one thing is certain, the trends are worrisome.

Available in this third edition:

Editorial: Spotlight on the vexing questions around biometrics and digital IDs (By Frederico Links)

Essential reforms needed to elevate biometric data protection: Botswana's Biometric Data Security Challenges and Urgent Calls for Legal Reforms (By Thapelo Ndlovu)

Risk of human rights infringement as Eswatini rushes to regulate the ICT sector (By Melusi Matsenjwa)

Malawi dragging its feet on filling legal gaps to prevent human rights’ violations (By Jimmy Kainja)

Namibia navigates biometric data privacy pending civil registration bill (By Dianne Hubbard)

Biometric ID rollout should foreground citizencentric data protection and privacy (By Levy Syanseke)

Zimbabwe grapples with complex realms of biometric and digital identification (By Helen Sithole)

Southern Africa Digital Rights is produced under ‘The African Declaration on Internet Rights and Freedoms: Fostering a human rights-centred approach to privacy, data protection and access to the internet in Southern Africa’ project.

Read more:

Southern Africa Digital Rights edition 1

Southern Africa Digital Rights edition 2

Download the full Southern Africa Digital Rights Issue Number 2 here!

Throughout 2023 signs and episodes of shrinking civic space continued to mark the Southern African digital rights landscape.

What this edition serves to spotlight is that privacy and data protections remain and will continue to remain areas that regional civil societies have to be seized with going forward. The same with access to internet and telecommunication services.

And what should also not be lost sight of, and which should shine through the articles in this edition, are that activists, journalists, and ordinary citizens face threats and challenges to their privacy, data security and access to digital services and spaces. It should be clear, that while this edition speaks to contexts across six countries the issues discussed reflect trends and practices playing out across the whole Southern African Development Community (SADC) region to greater or lesser degrees.

Some of these trends and practices are continental as well and are topical in discussions of the state of human rights on the continent. Advocacy efforts around these topics and issues remain substantial and strategically significant. We invite you to read and engage with the content of this edition of the digest, and to reflect on what is happening against the backdrop of what is unfolding where you are.

Available in this second edition:

Editorial: A region grappling with digital rights deficits (By Frederico Links)

Botswana showcases e-government's privacy pitfalls (By Thapelo Ndlovu)

Eswatini strives for digital sovereignty amid technological advancements (By Ndimphiwe Shabangu)

Unveiling the landscape: Malawi’s data protection journey and the evolving digital rights terrain (By Jimmy Kainja)

Rights watered down in draft privacy and data protection bill in Namibia (By Frederico Links)

Unregulated CCTV in Zambia sparks data privacy concerns (By Mwazi Sakala and Maureen Mulenga)

Zimbabwe’s digital leap falls short in bridging access to justice gaps (By Nompilo Simanje)

Southern Africa Digital Rights is produced under ‘The African Declaration on Internet Rights and Freedoms: Fostering a human rights-centred approach to privacy, data protection and access to the internet in Southern Africa’ project.

Read more:

Southern Africa Digital Rights edition 1

Southern Africa Digital Rights edition 3

On 22 and 23 May 2023, a Regional Stakeholder Convening on Digital Rights and Inclusive Internet Governance in Southern Africa was held in Johannesburg, South Africa. The event was organised by the Namibia Media Trust (NMT) and the Association for Progressive Communications (APC) with support from OSF. It was facilitated by Anriette Esterhuysen.

With the project titled: ‘The African Declaration on Internet Rights and Freedoms: Fostering a human rights-centered approach to privacy, data protection and access to the internet in Southern Africa’ nearing closure, the partners needed to convene to critically unpack and review the experiences of the last two years, as well as look ahead to how the work implemented by national partners can be carried forward sustainably. A project review meeting with the project team took place alongside the consultation, to review the project implementation experience and outcomes and to strategize around sustaining partner activities in-country, as well as regional collaboration among the partners.

In essence the convening brought together a combined total of 21 participants, 6 males and 15 females from six Southern African countries to discuss the challenges and opportunities related to digital rights in the region. Over the course of two days, representatives from project partners in Eswatini, Botswana, Malawi, Zambia, Namibia and Zimbabwe shared their experiences and concerns regarding digital rights violations. They were joined by resource persons from South Africa.

The presentations emphasized the need for improved legislation, increased awareness, collaboration among civil society organizations (CSOs), and engagement with policymakers and regulatory bodies. The discussions revolved around issues such as access to affordable internet, surveillance, freedom of expression, data protection, and the impact of emerging technologies.

This report aims to provide a comprehensive overview of the discussions and outline recommendations for addressing the identified challenges.

Download the full report here.

Download the full Southern Africa Digital Rights Issue Number 1 here!

Digital rights are under threat everywhere across the African continent at the moment. This is borne out and underscored by a string of influential reports over recent years from prominent regional and global civil society, multilateral and digital rights non-governmental organisations. The constricting of digital civic spaces through lawfare, the use of sophisticated spyware by some governments to invasively and violatingly intrude into and monitor people’s lives, pervasive social media mediated disinformation souring online experiences, rampant cyber criminal attacks and the dehumanising commercial surveillance economy all combine to degrade Africans’ online lives.

This is happening at a time when cyberspace also still shows so much promise as an avenue for achieving broad-based social justice, as well as unlocking socio-political and economic freedoms. African internet users remain resilient in the face of all manner of state-sponsored and private tech-enabled cyber threats and obstacles, and civil society actors across various countries continue to raise and amplify their voices and the hopes and aspirations of their constituencies even as their spaces for free expression, both online and offline, are being squeezed tighter and tighter by a range of malevolent actors and forces.

This project – an initiative of the African Declaration (AfDec) Coalition, supported by the Association for Progressive Communications (APC) and the Namibia Media Trust (NMT), and funded by the Open Society Initiative of Southern Africa (OSISA) – seeks to open up another avenue for elevating the voices of African civil society actors, specifically those scattered across six southern African countries in most of which democratic engagement spaces are increasingly, and in some severely, constrained. The project brings together civil society and digital rights researchers, activists and advocates from about 10 organisations spread over Botswana, Eswatini, Malawi, Namibia, Zambia and Zimbabwe.

These individuals and organisations are partnering and collaborating to shine a bright spotlight on the individual country-level digital rights and online civic spaces in which they operate. This six-country digital rights collage captures and portrays broader regional narrative streams in the quest to democratise the sub-regional cyber space. As part of our collaboration we will be bringing you regular updates concerning access to the internet and the state of data and online privacy in our respective countries. We will be bringing you these updates through six regional digests, of which this is the first, that we will be producing until May 2023.

In this first edition, we look at how civil society in Botswana, with regional support, managed to convince the government to make significant and meaningful changes to draft criminal procedures law that would have been a death-knell to digital privacy. We also discuss how in the wake of uprising and unrest ordinary citizens in Eswatini have to navigate a new reality under a newly imposed cybercrime law. Then there is the discussion of how the arrests of journalists and social media users are problematically characterising the digital rights space in Malawi.

In the same vein, Namibia is introducing mandatory SIM card registration and data retention regulations that could become a violation of the constitutionally enshrined right to privacy. In Zambia, civil society actors are pushing for the review and repeal of a cybercrime law that was brought in to suppress legitimate political expression. And from Zimbabwe, we bring you a discussion of how a complex range of issues are impacting the exercising of digital rights in the country. While all this might not make for happy reading, it certainly is important reading, and it showcases the will and commitment of those in each of the countries who continue to fight for freedoms, both online and offline. With all that said, we bring you Digital Rights Southern Africa.

Available in this first edition:

Editorial: Showcasing the will and commitment of those fighting (By Frederico Links)

Botswana CSOs rebuff criminal procedures bill (By Thapelo Ndlovu)

Eswatini passes cyber laws under dark clouds (By Ndimphiwe Shabangu)

Arrests mar Malawi’s digital rights landscape (By Jimmy Kainja)

New surveillance regulations lurk threateningly in Namibia (By Frederico Links)

Lungu law looms dangerously over Zambian digital rights (By Susan Mwape)

Affordable connectivity and privacy violations plague Zimbabwe (By Otto Saki and Nompilo Simanje)

Southern Africa Digital Rights is produced under ‘The African Declaration on Internet Rights and Freedoms: Fostering a human rights-centred approach to privacy, data protection and access to the internet in Southern Africa’ project.

Read more:

Southern Africa Digital Rights edition 2

Southern Africa Digital Rights edition 3

The right to freedom of expression is enshrined as a cornerstone of democracy. This is because of its intrinsic importance in informing the public and encouraging debate. Inherent in the right to freedom of expression is the notion of access to information and press freedom. Freedom of expression also underpins a range of other rights, thereby enabling the full realisation of fundamental rights. It is by now well-established by the UN and the African Commission on Human and Peoples’ Rights (ACHPR) that rights, particularly the right to freedom of expression, apply equally online and offline. As set out in the African Declaration on Internet Rights and Freedoms:

• Everyone has the right to hold opinions without interference.
• Everyone has a right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds through the Internet and digital technologies and regardless of frontiers.
• The exercise of this right should not be subject to any restrictions, except those which are provided by law, pursue a legitimate aim as expressly listed under international human rights law (namely the rights or reputations of others, the protection of national security, or of public order, public health or morals) and are necessary and proportionate in pursuance of a legitimate aim.
• The exercise of the right to freedom of expression can, at times, require tolerance from others. As has been explained by the Constitutional Court of South Africa, the right to receive or impart information or ideas is applicable “not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.”

Indeed, the right extends even where those views are controversial: The corollary of the freedom of expression and its related rights is tolerance by society of different views. Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views.

Notably, however, the right to freedom of expression is not absolute. It must necessarily be balanced against competing rights and interests. Some forms of speech do not enjoy any protection under international law, while other restrictions to the right to freedom of expression are only permissible under certain circumstances.

The challenge being experienced in Southern Africa – and indeed globally – is that states and private sector actors are adopting laws, policies and other measures that unjustifiably restrict the right to freedom of expression. This is typically done under the guise of, for instance, national security or the protection of reputation, but it encroaches far beyond that which is permitted under the law  These unjustifiable restrictions have a chilling effect on the free flow of ideas and meaningful discourse, and have the potential to severely undermine the full realisation of the right.

This report focuses on the content of the right to freedom of expression and gives an assessment of restrictions to the right. In Part I, we look at the international human rights framework on the right to freedom of expression as set out in international treaties and other appropriate resources, in order to distil the key elements of the right. In Part II, we set out the legal position on the circumstances under which the right to freedom of expression may be limited. In Part III, we explore key case studies across Southern Africa that raise serious concerns about existing or prospective laws that will restrict the right to freedom of expression. Lastly, in Part IV, we will take a forward-looking approach to consider what strategies can be used to safeguard the right to freedom of expression at its essence, and set out our recommendations for different stakeholder groups. This report does not purport to cover all laws in the respective countries in Southern Africa. Instead, the researchers have had the discretion to identify those laws that are seen to be of most concern in the present time, taking into account the political, social and economic landscape in the country at the moment. Through this report, we have identified key trends and recommendations for states, private sector actors and civil society to consider in the development of laws, policies and measures that impact the right to freedom of expression.

The need for this report was identified at a meeting of the Southern African members of the African Declaration on Internet Rights and Freedoms (AfDec) Coalition. It was recognised that while the right to freedom of expression is firmly entrenched at the domestic, regional and international levels, the realisation of this right remains a struggle in practice, particularly in the digital era.