In this, the first part of a series of articles on Internet legislation in Africa, Heather Ford gives a broad overview of legislation – and lack thereof – dealing with censorship and privacy on the Internet in Africa.

On first glance, the Internet in Africa seems to be coming along quite nicely. Access figures are rising daily, there is a broad commitment by governments in the region to focus development in this sector, and ICT national strategies are being, or already have been, developed in order to accelerate the uptake of communication technologies in various countries on the continent.

If, however, one attempts to look for legislation to deal with human rights issues such as the right to privacy, data protection and freedom of expression on the Internet, there seems to be a vacuum of legislation that has left Internet communities in many African countries open to attacks both by the authorities as well as criminal elements. As more governments start to recognise how the Internet is being used by ‘subversive’ elements within their countries, the dire need to formalize legal instruments to protect citizens from arbitrary surveillance on the Internet becomes all the more clear. As the South African Internet Service Providers Association (ISPA) stated in response to recent data protection laws in that country, ‘In order for the Internet to grow, citizens need to feel confident that their privacy online is given the maximum possible protection.’

The right to privacy of Internet users is being attacked for different reasons in Africa: in each case governments claim to be acting in the interests of protecting their citizens – either from ‘moral corruption’, ‘terrorism’, or ‘cybercrime’. This is achieved through the constant surveillance and registration of Internet users, the banning of Internet publications, the use of Internet filters and/or the imprisonment of publishers. This is not to say that Africa is the only continent where the privacy of Internet users is being threatened. After September 11, many countries around the world enacted laws that severely threaten a citizen’s right to privacy on the Internet. Where there are no laws to deal with the Internet in Africa, however, governments use old provisions to survey and censor individuals in cases as they emerge. In other countries, repressive media laws are being developed by authoritarian governments to attack individuals who publish their content on the Internet.

The dearth of laws pertaining to the Internet in Egypt has allowed the government to closely monitor content being published by local nationals and to use existing laws to stop the publishing of any content that intends to ‘corrupt public morals’.

In 2002 the interior ministry in Egypt set up a department to investigate computer and Internet crime. Before that, the government had issued warnings to the local Internet community to refrain from publishing on taboo issues such as homosexuality, human rights violations, criticism of the president and the army, as well as modern versions of Islam. Since early 2001, there have been numerous cases of entrapment of gay men on the Internet, as well as the imprisonment of webmaster, Shohdy Surur for posting a sexually-explicit, socially critical poem written by his late father 30 years ago. Since there is no law in Egypt that refers to Internet publishing, the state brought charges under the law on public morals which forbids possession of material for sale or distribution ‘with intent to corrupt public morals’.

Lack of legislation, on the other hand, has had a positive effect on opposition groups in authoritarian states, enabling them to speak out using a medium that resists control on many, but not all, levels. The internet in Egypt continues to have a positive effect on supporting agents of change, despite government attempts to control it. Some media organizations have been able to circumvent the power of the government to censor their publications in the traditional media by publishing them on the Internet. The Middle East Times publishes on its website all of the articles that were censored in the print edition of the publication (http://www.metimes.com/cens/censored.htm). On another positive note, the Egyptian Initiative for Personal Rights (EIPR) recently succeeded in amending the latest Communications Bill to include references to the protection of privacy as well as restricting the right of security agencies to interfere with private communications.

South Africa is far ahead of most African countries in developing comprehensive laws relating to the Internet. That is not to say that these laws have been greeted with complete enthusiasm by the local Internet community. The Electronic Communications and Transactions Act of 2002 was riddled with controversy over certain provisions, one of which allowed the Minister of Communications the power to declare any database in the country to be critical and set standards for the administration of that database. The act also announced the that all cryptography and authentication providers needed to register with the government, and introduced new ‘Cyber Inspectors’ who are given the power to aid law enforcement in criminal and civil investigations, as well as being granted the power to inspect and confiscate computers, determine whether individuals have met the relevant registration provisions as well as search the Internet for evidence of ‘criminal actions’.

The Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 has encountered a similarly controversial path. The act, published in the Government Gazette on January 22, 2003 compels service providers to retain personal data that they have collected from customers indefinitely, and make it available to law enforcement when requested to. It also makes any communication service which cannot be monitored by the authorities illegal, and gives the Minister of Communications broad powers to specify technical and security requirements, facilities and devices as well as the type of communication-related information to be stored.

Even though there are no laws that cover communications over the Internet in Zimbabwe, the government uses some of the country’s repressive media laws such as the Public Order and Security Act (POSA) and the Access to Information and Protection of Privacy Act (AIPPA) to prosecute journalists who publish anything "likely to cause alarm or despondency" (POSA) on the Internet or traditional media.

For the majority of African countries without Internet privacy and freedom of expression laws, it is essential that civil society act purposefully and initiate national and region policy processes that are based on International human rights instruments. The Universal Declaration of Human Rights states that ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any medium and regardless of frontiers’ (Article 19) and ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence’ (Article 12). Regional charters such as the African Charter on Human and Peoples’ Rights and the African Charter on Broadcasting are strong regional statements that could guide new efforts by African civil society to press their leaders to develop, and, more importantly, to enforce new ICT laws that have privacy and freedom of expression at their core.

What you can do:

* Find out what laws govern the Internet and communications in your country and lobby governments to adopt laws that ensure freedom of expression and the right to privacy.
* Join the email discussions around civil society engagement in African ICT policy currently going on at
* Visit the Association for Progressive Communications’ (APC) Africa Internet Policy Monitor website, http://africa.rights.apc.org and join the mailing list [email protected]