Cybercrime continues to be a global challenge, despite significant expansions in regulations targeting it. There is an important need for legal solutions, matching sanctions with effective implementation to help stem the rise of both cyber fraud and technical attacks on digital infrastructure. In responding to this challenge, many African countries have passed laws with the objective of fighting cybercrime, in a bid to reclaim the digital space as a place of trust and security. However, in doing this, many seem to have lost the plot, and are using these laws to violate digital rights, rather than the original objectives of ensuring trust and security.
Perhaps the most prominent violations come through the use of cybercrime laws by many African States to stifle dissent, thereby violating constitutionally and internationally set standards on the right to freedom of opinion and expression. The international human rights system is replete with examples of how ambiguity in the phrasing of laws and punitive sanctions on the publication of false information can seriously undermine protection of this right. However, many African States have not learned from these examples. Some of these cybercrime laws have emerged as a result of increased activities between African officials and the Chinese government.
There have been at least 23 cybercrime laws passed across the African region. Many of these laws have provisions targeting ‘cyberstalking,’ ‘cyber bullying’, and ‘offensive communications’, which are being used to curtail freedom of speech. For example, section 24 of the Cybercrime (Prohibition, Prevention, Etc) Act of 2015 in Nigeria is titled ‘cyberstalking’ and provides for offences that include ‘annoyance’ ‘insults’ and ‘false information.’ The offence is punishable by a fine of up to ₦7,000,000.00 (US$18,000.00) and three years’ imprisonment. While the wordings and punishments may slightly differ, these types of provisions are embedded in the cybercrime laws of countries like Uganda, Tanzania, Kenya, Egypt, Malawi, and others which provide for even more disproportionate sanctions.
In addition to the threats posed to human rights by cybercrime laws, countries across Africa also have a legacy of repressive colonial laws which are being applied to the digital space. These include Penal and Criminal Codes which are mostly remnants of the colonial criminal legal systems which have been used repeatedly to violate freedoms. Through these old laws, many African countries have continued to entrench digital colonialism in the region by transplanting legal standards from Africa’s colonial past into its digital space through their cybercrime laws.
Moreover, these laws have legitimised many African governments’ attempts to make extra-legal demands of the private sector. Private sector actors ranging from social media platforms to internet service providers have had to conform with illegal demands as a precondition to them being allowed to continue their operations in the region. For example, the 2019 Ranking Digital Rights report shows that the private sector not only struggles with securing user data against authorities’ requests, but also increasingly blocks content in response to informal demands.
In order to address the growing scourge of free speech violations in Africa’s digital space, key stakeholders must come together to address it through both country-specific and regional reforms. Given the recent revisions to the Declaration of Freedom of Expression and Access to Information in Africa, it seems that the wheels for such regional reform are now in motion. However, these efforts must be consolidated at the State-level. Therefore, there is a need to holistically review these cybercrime laws in many African countries to bring them in line with internationally accepted standards of protecting the right to freedom of opinion and expression. In order to do this, reform must be designed with democratic participation of key stakeholders like civil society organizations, governments, private sector, academia and others within the ICT sectors in Africa.
Tomiwa Ilori is a doctoral researcher at the Centre for Human Rights, University of Pretoria. He also works as a researcher at the Expression, Information and Digital Rights Unit at the Centre. He can be found on Twitter at @tomiwa_ilori.