Tech Policy in Africa: Emerging Trends in Internet Law and Policy

Technology Policy Internet Policy

Tech Policy in Africa: Emerging Trends in Internet Law and Policy

Commentary
Posted on: 1st July 2021
Bridget Boakye
Policy Lead, Internet Policy Unit

    Introduction

    Introduction

    In the last decade, internet access and costs have improved significantly across Africa. Fuelled by ongoing investments in digital infrastructure, internet penetration stood at 43 per cent by the end of 2020 and the average cost of 1GB of data had dropped by a third since 2018. Africa’s digital economy is expected to contribute $180 billion to the continent’s GDP by 2025, driven by a projected increase in digital connectivity of 11 per cent (over the next decade) combined with other factors including the continent’s youthful population, growing urbanisation and access to cheaper handsets, often from Chinese manufacturers. 

    Cognisant of the economic and social impact of the internet, African governments are designing and implementing policies and frameworks to fully capture the benefits of digitalisation. Such initiatives include the African Union’s (AU) vision for a digital single market (DSM) as a common digital platform for trade across the continent and start-up-focused legislation in countries such as Tunisia and Senegal to support and incentivise entrepreneurship within Africa’s growing tech ecosystem. Policy frameworks such as the Declaration of Principles on Freedom of Expression and Access to Information in Africa and the Declaration on Internet Governance also function as regional resources for African governments in the protection of digital rights and the data and privacy of their citizens.   

    Challenges for internet governance in Africa also exist. Across the continent, internet shutdowns, emerging social media tax regimes and lack of access to finance, among other existing and ad-hoc tech-related policies, complicate and impede market access, growth and innovation for online users and tech entrepreneurs. Moreover, while digital rights and data-protection laws enshrine and protect the rights and data of African citizens, regulatory inconsistencies and constraints in enforcement across countries persist.  

    Figure 1 - Overview of internet policy in Africa
    Fundamentals Emerging 
    Electrifying Africa  Africa's Digital Single Market (DSM)
    Internet Infrastructure Digital Rights
    Internet Access/Usage

    Digital Taxes

    Electronic Registers & Digital ID

    Data Protection & Privacy

    Digital Inclusion 

    Cybersecurity

    Digital Skills  Digital Economy - Start-Ups & Innovation
    Effective Regulatory Infrastructure Fintech Regulation

    This commentary sets out some of the latest developments in the major debates around internet policy in Africa. The topics explored build on our existing work on the fundamentals (see above) of internet governance in Africa, specifically on our work with African governments in relation to public-sector reforms and partnerships to support electrification efforts across the continent, our global call to action to achieve universal internet access and affordability by 2030, the case and design considerations for universal digital IDas well as upcoming work on digital skills and inclusion through our Fundamentals of Tech Transformation series. In partnership with the United Nations Economic Commission for Africa (UNECA), we are also developing areas of engagement within the Institute's government advisory teams to support pan-African digital transformation in alignment with the AU's Digital Transformation Strategy (2020-2030). 

    Termed emerging policy areas in Figure 1, the topics we discuss include Africa’s digital single market, digital taxes, digital rights, data protection and privacy, cybersecurity, fintech regulation, and the digital economy  start-ups and innovation. These topics are beginning to emerge as salient points of interest for African governments and institutions working to define their trajectory and voice within the larger global internet policy debate, and they are captured as strategic areas within the AU's Digital Transformation Strategy. While African governments face similar challenges to other governments (for example, tax regulation of big tech), they also face distinct challenges and considerations in this arena, especially in harmonising and enforcing data-protection laws across the continent.  

    Key Takeaways for Policymakers

    Key Takeaways for Policymakers

    African policymakers have made tremendous strides in developing regulatory frameworks for technology and the internet in Africa. These policies have helped nourish vibrant tech ecosystems and growing digital economies across many parts of the continent. While challenges exist, there are tremendous opportunities for designing and implementing progressive and inclusive internet policies for our modern times. Below are a few takeaways:

    1. African governments, like their counterparts around the world, face complex questions in addressing challenges related to the digital market, including taxing big tech and regulating fintech. For challenges such as taxing big tech, acting within the agreements designed by international bodies such as the OECD could help stem potential retaliatory pushbacks by other governments while disincentivising the appeal of consumer-facing digital taxes that restrict citizens' digital rights and participation in the growing digital economy. The G7's recent agreement on a global minimum corporate tax rate of 15 per cent is a step in the right direction towards global tax reform. 
    2. To combat misinformation and disinformation and manage the social and economic fallout of the Covid-19 pandemic, African governments enacted various laws and practices vis-à-vis freedom of expression on the internet. While some of these mandates may be necessary for the times, they are often a response to the absence of effective forms of controls for very harmful or illegal content online. It is the responsibility of global tech companies and the international community to build the co- and self-regulatory mechanisms (linguistic and culture-specific moderation) and takedown processes, which help individual governments reduce online harms and manage crises transparently and accountably without resorting to censorship or shutdowns.
    3. While companies and governments build tools and mechanisms to combat online harms through cooperation, African heads of state must uphold the digital rights and freedoms they have committed to upholding. Internet shutdowns by African governments are particularly problematic for digital rights and they exemplify some of the most extreme restrictions in a proliferating model of internet governance that seeks to restrict peoples’ rights, hobble competition in markets and put up new borders. Through the tool of precedents, African courts must continue to uphold the digital rights of African citizens when they are violated and partnerships between the private sector (telcos) and civil society must stand up to future government-mandated internet shutdowns. 
    4. Data protection and privacy have become a hot topic for internet governance in Africa due to recent events surrounding election influence and meddling in various countries. While national and regional efforts feed into the construction of the regulatory framework for data governance, the robustness of laws varies, implementation is fragmented, and financial and resource constraints restrict effective implementation where laws exist. The vision towards a DSM for Africa should compel governments to integrate and harmonise their data-protection laws given decentralised online risks. There is an opportunity for African governments to build privacy protections that look to the GDPR for inspiration, but take away the bureaucracy, and leap-frog that regulation to create space for innovation based on privacy-preserving technology.
    5. According to the Africa Cybersecurity Report 2017, cybercrimes cost African economies $3.5 billion in 2017. To fully reap the dividends from digitalisation, African governments must implement effective policies and awareness to address cyberattacks and vulnerabilities. The recently appointed AU Cybersecurity Expert Group must provide leadership and momentum for the ratification and deployment of the African Union Convention on Cybersecurity and Personal Data by more African countries, and African governments, through the help of the International Telecommunication Union (ITU), should establish computer security incident response teams (CSIRTs). 
    6. Start-up growth, funding and acquisition, especially in fintech, health-tech and agri-tech, have spiked in recent years. Notable challenges to the tech ecosystem include unreliable power, slow and expensive internet, low access to capital, inadequate infrastructure, out-of-date and ad-hoc application of regulations and, recently, navigating the complexities of the Covid-19 pandemic. Start-up-focused legislation such as the Startup Act that passed in Tunisia and Senegal can help safeguard a friendly business environment for new businesses and innovators. Comprehensive national AI strategies can also foster investment and the development of new technologies on the continent.
    7. Data infrastructure, cloud policy, AI governance and ethics, internet geopolitics and the future of the internet are also fast-evolving policy areas. While these topics are not prominently featured within the AU's Digital Transformation Strategy, they are central to aligning Africa's digitalisation policies with those of the rest of the world and should be carefully considered by African governments and their supporting institutions.

    Emerging Policy Areas

    Emerging Policy Areas

    Digital Single Market

    The AU's recently articulated vision for a digital single market (DSM) for Africa presents one of the most groundbreaking strategies to accelerate the development of harmonised regulatory frameworks for the continent’s digital economy. Adopted in 2020, the African Union’s Digital Transformation Strategy for Africa (2020-2030) builds on the strategic vision of the SMART Africa Manifesto (2013) and sets as its objective the building of a secured DSM for Africa by 2030. Under the Africa Continental Free Trade Area agreement, the AU will implement existing and future digital policies and strategies to support digital economies that are networked and collaborative for intra-continental and global e-commerce and trade.

    Digital Rights

    The Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019) and the African Declaration on Internet Rights and Freedoms (2014) are regional resources for policy direction on digital-rights protection in Africa. The former binds all African governments to protect the right to freedom of expression and access to information while the latter promotes the responsibility of African states to respect, protect and fulfill human rights online for all people.  

    Although these frameworks exist, internet shutdowns – broadly defined as the deliberate disruption of the internet or electronic communication for a specific population or within a location often by a government – are a growing trend and an area of contention for African states, civil society organisations and citizens, especially as elections become a trigger point for internet shutdowns. In Africa, documented internet shutdowns grew by 47 per cent from 2018 to 2019. Governments that have ordered internet shutdowns often cite the need to ensure national security and public order but activists say internet shutdowns are an attempt to hide gross human-rights violations. In a recent decision, Nigeria’s government indefinitely suspended Twitter, citing “misinformation and fake news spread…[with] real-world violent consequences,” after the platform deleted a tweet by the country’s president.

    In two recent cases, African courts have upheld the digital rights of citizens against their governments’ mandated internet shutdown. In 2019, Zimbabwe’s High Court ruled that the government went beyond its powers with a mandated internet shutdown and ordered the government to restore internet access. In 2020, the Economic Community of West African States (ECOWAS) Community Court of Justice ruled that the internet shutdown stipulated by the Togolese government during protests in 2017 was illegal. The court ordered the government to pay two million CFA to the plaintiffs and to guarantee the implementation of safeguards for freedom of expression.

    Furthermore, the Covid-19 pandemic has introduced new challenges to the protection of digital rights across Africa. To combat misinformation and disinformation and manage the social and economic fallout around the Covid-19 pandemic, African governments have enacted various laws and practices vis-à- vis freedom of expression on the internet. In State of Internet Freedom in Africa in 2020 - Resetting Digital Rights Amid Covid-19 Fallout, the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) argues that pandemic-response laws and punitive practices across Africa have criminalised and sanctioned journalists, online activists and bloggers, further infringing on digital rights, exacerbating the digital divide and deepening the digital exclusion of vulnerable groups in Africa.  

    Digital Taxes

    For many internet users in Africa, social media is the internet. Facebook is the most visited website in Africa. As of December 2020, there were more than 255 million Facebook subscribers in Africa. Through its Free Basics initiative, mobile users in 32 African countries can access Facebook and other basic services free of data charge.  

    As is true in other regions, African governments are wrestling with ways to tax big tech platforms. According to a tax report by British nongovernmental organisation, ActionAid International, the Global South could be missing out on €2.3 billion in taxes from Facebook, Microsoft and Google alone. Several African governments and the African Union have begun discussions on taxing big tech through the support of the African Tax Administration Forum. Many African governments are cautious of taxing big tech companies, however, out of concern for a retaliatory response from the US, preferring instead to defer to an international agreement, potentially from the OECD. 

    With the rapid adoption of digital services such as WhatsApp in many African countries, African governments in countries such as Kenya and Nigeria have also introduced taxes on social media, e-commerce and mobile money as a means of growing government revenue. These policies, as seen with social media taxes in Uganda and Tanzaniashrink internet use, impact digital rights and are difficult to enforce. Existing sector-specific taxes on the telecommunications sector in many African countries also inhibit the use of the internet. Recent research from CERDI-CNRS suggests that the telecommunications sector is generally more taxed - up to 118 per cent average effective tax rate in Niger, for example - than the mining and standard sectors in many African countries while higher effective tax rate is correlated with lower mobile internet penetration and gross national income.  

    Data Protection and Privacy

    CNN’s report uncovering Russian troll farms in Nigeria and Ghana in 2020 and the exposés revealing the involvement of data mining firm, Cambridge Analytica, in Nigeria and Kenya’s elections in 2017 have brought data protection and privacy laws in Africa under the international spotlight.  

    The African Union Declaration on Internet Governance (2017) and the African Union Convention on Cyber Security and Personal Data Protection (The Malabo Convention, 2014) provide regional frameworks for data protection, privacy, and safety online across Africa. As of 2020, 28 of 54 African countries have data protection laws and 15 of those have data protection authorities (DPAs) to enforce their laws. However, the robustness and implementation of data protection laws are fragmented and the dependence of DPAs on the state, limited financial resources and lack of institutional capacity limit the full effectiveness of these laws where they exist. 

    In State of Internet Freedom in Africa in 2020  Resetting Digital Rights Amid Covid-19 Fallout, CIPESA reports that when several African governments enacted new Covid-19 legislation and cited existing laws to deploy surveillance technologies and other untested applications as part of Covid-19 emergency measures, some lacked adequate regulation and oversight, specifically an explicit provision on the confidentiality of personal data and a timeframe of use, thereby infringing on individuals’ data-privacy rights. Although some African data-protection agencies have issued various guidance and statements on responsible data processing amid the pandemic, abuse persists.  

    Cybersecurity

    African governments, like the rest of the world, face a rising tide of cyber threats. Recent events of cybercrime, including a major hack of Uganda’s mobile money network in October 2020, a cyber attack on South Africa’s second-largest hospital operator in June 2020, and the discovery of a security breach of the communication channels at the African Union headquarters by Chinese hackers in early 2018, have amplified calls for more relevant legislation and robust cybersecurity measures. But as of June 2020, only eight African countries (Angola, Ghana, Guinea, Mauritius, Mozambique, Namibia, Rwanda and Senegal) had ratified the Malabo Convention and just 16 have national cyber security incident response teams (CSIRTs)

    Fintech Regulation

    Fintech applications, especially mobile money and cryptocurrency, have progressed financial inclusion and contributed to prosperity and accountability across Africa. Sub-Saharan Africa has become the global epicentre for mobile money transactions and, increasingly, cryptocurrency where activity has grown tremendously over the past year. Investments in fintech across the continent have skyrocketed, with a reported 51 per cent increase in VC funding in early 2020. Acquisitions such as those of Nigeria’s Paystack and Kenya’s DPO Group, and the partnership between Nigeria’s Flutterwave and PayPal, have further elevated the profile of the sector.  

    But despite increasing participation and investment, regulatory policies are largely out-of-date and ad-hoc applications of existing laws expose end users and service providers to numerous risks. While country-specific guidelines on fintech regulation exist, recent regulatory crackdowns on crypto-trading have amplified calls for comprehensive fintech policy across Africa. In response, countries such as Angola and Ghana are using fintech regulatory sandboxes to test their thinking and facilitate discussion among key stakeholders. 

    Start-Ups & Innovation

    The internet has facilitated innovation across many sectors in Africa, especially healthcare and agriculture. With over 50 per cent growth in health-tech and 110 per cent growth in agri-tech in the past three years, Africa is experiencing a boom in both these areas.  

    While African entrepreneurs have experienced impressive growth and success, even amid the Covid-19 crisis, notable challenges still exist including unreliable power, poor internet, low access to capital, inadequate infrastructure and, recently, navigating the complexities of the pandemic. The Startup Ecosystem Ranking 2020 also indicates that Africa’s start-up ecosystem is falling behind that of the rest of the world, with growth remaining constant in essential sectors such as ed-tech.  

    To drive economic growth and safeguard a friendly business environment for new businesses and innovators, start-up-focused legislation is being considered in ten African countries this year while Startup Acts have been passed in Tunisia and Senegal. African governments have also embraced AI research, training and application. African governments have been receptive to investment in big data and AI, including the celebrated launch of IBM’s Research ThinkLab in Kenya and South Africa (2016) and Google AI Research Centre in Accra (2019). However, challenges around the meaningful and ethical adoption of emerging technologies remain. 

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