By Yohannes Ayalew
No right has preoccupied as many conversations in the digital age than the right to privacy. This is mainly owing to the fact that an individual’s privacy is being subjected to constant intrusion by States and non-state actors, thereby leaving the individual’s lives in a ‘goldfish bowl’ situation. At global and regional levels, countries are grappling to withstand these threats in the digital era by employing a number of legal and institutional mechanisms.
This blog post seeks to examine possible treaty-based mechanisms towards realising the right to privacy on the internet in Africa. These are: applying international law through the Charter’s flexibility clause and through developments under African human rights law as a result of subsequent agreements and practice.
Tellingly, the content of the right to privacy under international human rights law is broad-ranging, and includes: private life (or solitude), autonomy (or self-determination), identity (e.g., biometric data), integrity, sexuality, intimacy (e.g., data protection, freedom from surveillance, confidentiality etc) and communications on the internet. (see here, here and here) Nonetheless, defining the right to privacy intuitively is an elusive undertaking as the concept itself is sweeping. Some authors even go beyond to explain the difficulty of defining the concept of the right to privacy through the metaphor of ‘Chameleon’—which underscores that the notion of privacy is under frequent changes.
The right to privacy in the digital age is recognised under the 2015 UN Human Rights Council landmark resolution, which affirms that ‘the same rights that people have offline must also be protected online, including the right to privacy.’ (See UN Office of the High Commissioner for Human Rights (OHCHR) reports in 2014, 2018 and 2021). Recently, while interpreting the right to privacy under article 16 of the Convention on the Rights of the Child (CRC), the UN Committee on the Rights of the Child in its General Comment No.25 (2021) has clarified that the gamut of the right to privacy includes additional layers in the digital ecosystem.
When it comes to the African human rights system, in order to realise the right to privacy in digital era robustly, States are required to align their use or development of AI, robotics or other digital technologies with African human rights law. While the African Charter on Human and Peoples’ Rights (African Charter) doesn’t expressly provide for the right to privacy, the early draft of the African Charter, which was drafted by Kéba Mbaye in 1979, contained an express provision on the right to privacy. In particular, article 24(2) of Mbaye draft guarantees individuals’ privacy from arbitrary or abusive interferences in their private life, family, home or correspondence.
Recent debates have asked whether, and to what extent, African human rights law, and in particular African Charter protects the right to privacy on the digital ecosystem.
On the one hand, there is a view that the African Charter doesn’t expressly protect the right to privacy, which gives rise to the debate of lex imperfecta (an imperfect treaty). To put this another way, the omission of the right to privacy under the African Charter makes Africa’s foremost human rights instrument inadequate to safeguard this right (see here and here). As such, proponents of this view offer claim that accordingly the African Charter could be overhauled through amendment, although it should be noted that amending the Charter by itself requires considerable effort as provided under article 68 of the African Charter.
On the other hand, there is an argument that it is possible to read the right to privacy into the African Charter, notwithstanding this lack of an express provision. Proponents of this view have offered distinct opinions as to how the right to privacy exists under African human rights law (see for example here, and here). The right to privacy may therefore be implicit in some provisions in the African Charter, including the rights to integrity, dignity, liberty and security and the right to health, and accordingly impliedly read into the African Charter.
The flexibility clause or complementarity principle within the African Charter provides a mechanism to read the right to privacy into the African Charter through drawing inspiration from international law or the corpus of international human rights relating to the right to privacy in the digital age. Article 60 of the African Charter states that:
The [African] Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the Parties to the present Charter are members.
The presence of the flexibility clause can be seen as a bulwark for the protection of the right to privacy because it reinforces international human rights law in Africa and brings the regional and international system into harmony. Nevertheless, an overbroad formulation of the flexibility clause may cast doubt on the determinacy of treaty obligations.
Subsequent agreements and practice
Subsequent agreements and practice that have developed African human rights law since the Charter came into force are the second way to read the right to privacy into the African Charter.
The 2018 Draft Conclusions of the International Law Commission (ILC) on the interpretation of treaties helps us understand the meaning and effect of subsequent agreements and practice. Pursuant to Draft Conclusion 6(2), subsequent agreements and subsequent practice under article 31(3) of the Vienna Convention on the Law of Treaties (VCLT) may take a variety of forms. They include not only externally oriented conduct, such as official acts, statements and voting at the international level, but also internal legislative, executive and judicial acts, and may even include conduct by non-State actors on behalf of one or more States parties and that falls within the scope of what the treaty conceives as forms of its application. The ILC Draft Conclusion further clarifies that a pronouncement of expert treaty bodies (such as the African Commission on Human and Peoples’ Rights (ACmHPR)) may give rise a subsequent agreement or subsequent practice by states under articles 31(3) of the VCLT, although such pronouncement on its own cannot constitute a subsequent agreement or practice.
When we extrapolate the ILC Draft Conclusions in line with subsequent agreements or practice in the African human rights system, it can be said that African states had not envisaged all human rights, including the right to privacy at the time when the African Charter was adopted. However, African states have since adopted various treaties and protocols that serve to interpret (and arguably widen) the scope of the African Charter. For example, despite being applied on specific themes, the African Charter on the Rights and Welfare of the Child (ACRWC) – which inter alia spells out the right to privacy – was adopted by States in 1990. The ACRWC may be considered as a subsequent treaty which came nine years after the adoption of the African Charter in 1981.
Importantly, the African Commission adopted copious subsequent Declarations (see 2002, 2016, and 2019), Resolutions (see here), Press releases (see here and here), and Guidelines (see here) that seek to fully guarantee the right to privacy in Africa. For example, following the adoption of Principle 40 of the 2019 African Declaration of Principles on Freedom of Expression and Access to Information, the right to privacy in Africa has now clearly been thought to include the protection of personal information, anonymity and confidentiality of communications in digital environment. The African Declaration provides:
Principle 40. Privacy and the protection of personal information
1. Everyone has the right to privacy, including the confidentiality of their communications and the protection of their personal information.
2. Everyone has the right to communicate anonymously or use pseudonyms on the internet and to secure the confidentiality of their communications and personal information from access by third parties through the aid of digital technologies.
The African Declaration explicitly guarantees protection of personal information, anonymity and confidentiality of communications. This further assures individuals of the right to enjoy freedom from any form of surveillance or interception. This further elaborates the right to privacy in the digital ecosystem.
States assent, however, continue to be the Achilles heel of subsequent agreements and practice. Simply put, unless states agree and take notice of the existence of the right to privacy under the African Charter through jus dispositivum (a law adopted by consent), it will be unlikely for this approach to become effective (see here, and here).
Additional barriers to the right to privacy
Thus far, there is no well-developed jurisprudence developed by the African human rights mechanisms, such as African Court on Human and Peoples’ Rights (ACtHPR), African Commission on Human and Peoples’ Rights (ACmHPR) and African Committee of Experts on the Rights and Welfare of the Child (ACERWC), on the right to privacy in the digital era in Africa.
In the absence of well-established jurisprudence, the African regional human rights system could draw inspiration from other avenues such as domestic systems. In 2019, for instance, the South African case of Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others, saw the High Court hold that the practice of bulk surveillance activities and foreign signals interception by the South African Government amounted to interference with individuals’ privacy and was accordingly declared to be unlawful. The South African Constitutional Court upheld this judgement in 2021. The practice of some domestic courts in Africa will have a ripple effect on the development of jurisprudence at regional level. While the impact of domestic jurisprudence on regional level couldn’t be ignored, yet it will be a slow process for this to influence other judicial attitudes towards privacy.
The above illustrates that amendment of the Charter is unlikely, and other mechanisms (i.e., jurisprudence) are ineffective. Ultimately, the African Commission and African Court should seriously consider utilising the flexibility and subsequent agreements and practice mechanism to more effectively protect the right to privacy in the digital age.
Yohannes Eneyew Ayalew is PhD Candidate at the Faculty of Law, Monash University and was formerly a Lecturer in Media Law and Human Rights at Bahir Dar University, Ethiopia. He is also a PhD Affiliate at Castan Centre for Human Rights. His project is looking at balancing the rights to freedom of expression and to privacy on the Internet under the African human rights system.