By Adeboye Adegoke, Senior Manager, Grants and Programs Strategy at Paradigm Initiative.
As a new government takes over the reins of power in Nigeria, it will be useful to set a digital rights agenda for the new administration. This agenda is an aggregation of ideas, recommendations and output of many engagements and consultations on digital rights in the past years. First, let me define digital rights to lay a basis for the article.
If I was going to define digital rights a few years ago, I’d define it as the contextual application of the rights guaranteed by International, regional and national human rights instruments, in the use of existing, emerging and future digital technologies, including the internet.
In today’s reality, this definition would rather be naive and would be a total misrepresentation of the reality of the majority of the world’s population where access to the internet, affordability of devices, digital gender-divide, cost of data etc are still key and pending issues affecting the realisation of fundamental rights. One of the key lessons from the COVID-19 pandemic was the need for countries to prioritise digital inclusion so no one is left behind in the digital evolution and the attending gains of the digital economy.
In its judgment on the twitter ban in Nigeria, the ECOWAS court held that digital platforms are vehicles and enablers of constitutionally guaranteed rights. Affordable and reliable internet access is essential for individuals to exercise their digital rights effectively. Therefore, digital rights is defined for this purpose as the right and ability of citizens to access digital technologies towards the enjoyment of their fundamental rights and freedom.
With this definition, I have laid the basis for the following agenda;
1. Pursue Universal Access as a State Policy: The outgoing government claimed it achieved a 100% broadband access on the back of Elon Musk’s Star Link’s entry into the Nigerian market. This is at best, a mere political statement that anyone who’s interested in real change should take with a pinch of salt. This techpoint article fairly addressed the matter. In summary, access that’s available and affordable to a limited economic class can not be the basis to claim 100% access.
Also, according to the Broadband Commission, meaningful universal connectivity means that anyone, anywhere, regardless of geographic location, socio-economic status, race, gender, or any other differentiating demographic, has access to affordable services and devices to connect to reliable and safe internet. The previous administration made marginal progress in this regard but its claim of 100% broadband access was bogus.
To achieve the objective of universal access, the new administration must revisit the barriers that have been previously identified. These are affordability, web literacy and a lack of access to devices such as smartphones and computers; There must be a deliberate approach to address these issues. Also, emerging issues such as multiple digital taxation must be halted to avoid killing the goose that’s laying the golden egg and further alienating more people from digital access.
The lingering problem of the right of way which has been a barrier to broadband penetration in Nigeria must be addressed. As a starting point, the new administration must revisit the pending commitment made during the COVID-19 pandemic and work with regional governments (states and local governments) to ensure the barrier is totally removed.
In a nutshell, the state must be deliberate about its pursuit of universal access as a state policy, beyond clutching to a chance occurrence of a major player’s entry into the Nigerian market.The new government can bridge the digital divide by promoting universal access to affordable and reliable internet connectivity. This can involve investing in infrastructure development and implementing policies that promote digital literacy and skills training. Special attention should be given to marginalised and under-served communities to ensure equal access and opportunities.
2. Prioritise Collaboration and Stakeholder Engagement: The previous government threw the phrase ‘stakeholder engagement’ around a lot. Any keen observer of the ecosystem however knew that the engagements were barely respected and it did appear that they were employed to tick the boxes against what should have been a deliberate effort to benefit from the diversity of expertise that exist in and outside of government. For example, it conspicuously omitted civil society or other public interest representation in the board of the data protection institution proposed in its data protection bill.
Also, the feedback it received on the proposed amendment to the NITDA bill fell on deaf ears. It went as far as tampering with the report of the public hearing held by the Senate Committee on ICT and Cybersecurity on the bill, to give a false impression that the bill enjoyed stakeholder buy-in. The incoming administration should engage in meaningful consultations with academia, technology companies, civil society organizations and other stakeholders to develop and implement policies related to digital rights.
Collaborative efforts can help identify and address emerging issues, as well as ensure that the government’s actions align with the needs and aspirations of Nigerian citizens. The approach to digital governance by the previous administration failed to appreciate the significance and importance of a human-centric approach to digital regulation. Digital technologies offer economic, social, and political opportunities. However, without robust approaches to national policies and regulations, technology can have negative impacts and can worsen the very issues they seek to improve.
As clearly articulated in a report on putting people at the Centre of Digital Policy by the Africa-Europe Cooperation and Digital Transformation, “The creation process for policies, regulations, and bills to protect against these risks lead to successful outcomes when all stakeholders – especially citizens and their representatives – are consulted in the policymaking process.” This approach helps policymakers to gain a better sense of long-term issues related to technology, not only those issues that are important to the government at the moment or to the more established stakeholders and their business interests. To put it succinctly, don’t just seek stakeholders input, be conscious about the process, ensure broad participation and allow their input to count.
3. Enact and Review Relevant Legislation: This government is privileged to inherit some bills and laws from previous administrations that it can quickly work on to positively alter the regulatory framework for digital rights protection in Nigeria.
• The Digital Rights and Freedom Bill which the Buhari administration initially rejected in 2019 went through a new cycle of stakeholder engagement between 2019 – 2023. This will be a low hanging fruit for the new government. It can immediately review this draft bill and forward to the National Assembly for the required legislative process towards assent by the President.
• Data Protection Bill. This bill suffered from a lack of inclusion from a civil society perspective and it’d be great to see the new government address this and other pending concerns before enacting the bill into law.
• Cybercrimes Act 2015. Unlike the previous two, this is already a law in Nigeria. It is not as though it was a digital rights-oriented law. From its name, the Cybercrimes Act clearly focuses on addressing cyber criminality. However, this law has a notorious provision in section 24 which has been the most potent tool and basis for the violation of digital rights, especially freedom of expression online since its enactment.
The section due to its vague provision has been used to target dissent, journalists and citizens for legitimate expressions that the powerful feel uncomfortable about. There is a pending ECOWAS court judgment ordering the Nigerian government to amend this provision. Thankfully, the Federal Ministry of Justice is currently leading a process to review the bill in order to amend the law. This government can take ownership of this process to ensure that section 24 of the bill is repealed.
• Regulation of surveillance to ensure responsible and right-respecting use of surveillance technologies is next. For the longest time, successful administration denied its investment in surveillance technologies, sometimes ignoring freedom of information requests on the subject. Nigeria has gone past the days of living in denial to a time when we must ensure that the uses and application of surveillance technologies are responsible. In 2019, the Nigerian Communications Commission (NCC) issued the Lawful Interception of Communication Regulations.
The regulation requires that there must be court warrants for interception to happen but failed to create an effective system of accountability around these processes. The incoming administration should ensure an effective accountability model for surveillance practices in Nigeria through judicial and public accountability. This is to ensure that the right to privacy as guaranteed for every Nigerian by the Constitution is preserved and to ensure that law enforcement agencies respect the rule of law in the discharge of their duties. The current model defers to the Attorney General of the Federation, a partisan member of the cabinet.
The Freedom Online Coalition recently published a useful resource that may prove useful. The Guiding Principles on Government Use of Surveillance Technologies aims to prevent or mitigate the use of Internet controls to suppress human rights and fundamental freedoms and unjustly limit access to information, the pairing of advanced video surveillance with artificial intelligence (AI)-driven tools to persistently identify and monitor people without an appropriate legal basis, and other discriminatory uses targeted at perceived government opponents as a means to enforce social and political control.
• The Code of Practice For Interactive Computer Service Platforms/Internet Intermediaries is another example of regulatory effort without stakeholder buy-in. The challenge with this code is its attempt to regulate digital platforms in an overly simplistic manner. This comes with risk to digital rights of Nigerians. Regulating digital platforms is a tough task and even the most developed nations are still grappling with figuring things out. The European Union recently passed the Digital Services Act (DSA) which includes rules for online intermediary services, highlighting the responsibilities of users, platforms, and public authorities.
The Act places citizens at the centre and it better protects consumers and their fundamental rights online, establishing a powerful transparency and a clear accountability framework for online platforms. Also the Act ensures for citizens, a better protection of fundamental rights, gives them more choices, lower prices and ensures they are less exposed to illegal content. The Act also creates legal certainty, harmonisation of rules for providers of digital services.
The Act doesn’t come into force until February 2024 despite the richness of expertise and stakeholder consultations that went into drafting and enacting it. Meanwhile the Code of Practice was conceived, drafted and adopted in a very limited context, limited consultation and timeframe. Nigeria can draw inspiration from the DSA. I wouldn’t recommend a copy and paste approach but I strongly recommend that the new administration undertake a study of this legislation and explore its applicability to the Nigerian context. Beside the DSA, the office of the United Nations Secretary-General’s Envoy on Technology is leading on a global digital compact to ‘outline shared principles for an open, free and secure digital future for all.’
This will establish agreed principles for digital governance that support human rights, social justice and sustainable development and that can form the basis of a longer-term framework for accountable and inclusive digital governance.This process is rich and benefitting from quality stakeholder inputs, with multiple multilateral organisations, leading nations in the world, academics, civil society and others making meaningful contribution to the process. These examples are a good guide and can help the thinking of the new government in approaching digital governance in Nigeria.
4. Institutional Capacity Building: The government should invest in building the capacity of relevant institutions responsible for enforcing digital rights such as the National Human Rights Commission and the Judiciary. They must be empowered to address digital rights issues. Adequate resources, training programs, and technical expertise should be provided to ensure effective implementation and enforcement of digital rights by the commission.
5. Join the Freedom Online Coalition. The Freedom Online Coalition is a group of countries deeply committed to the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights. The group believes that the human rights that people have offline must also be protected online. It also commits to working together, and with all others who share these views, to support Internet freedom and protect human rights online worldwide. In the past administration, Nigeria was invited to join the coalition by the government of Finland, one of the previous chairs of the coalition, but the Buhari Administration refused. It must be said that many would argue that Nigeria does not possess the value to be a worthy member of such a coalition. However, the perceived value of Nigeria is also directly linked to the kind of standard it holds itself accountable to. My argument for proposing that Nigeria joins this coalition is premised on this point. The coalition is strategic and useful for peer learning and provides access to an unbelievable amount of resources on digital rights protection.
By adopting these measures, the new government in Nigeria can play a crucial role in promoting and protecting digital rights, thereby enabling its citizens to enjoy the benefits of the digital age while upholding fundamental human rights.