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The right to privacy and to private communications is a fundamental human right that is enshrined in African constitutions, international human rights conventions and domestic laws. All surveillance is a violation of these privacy rights. States argue that on occasion it is necessary to violate privacy rights to prevent serious crimes such as terrorist attacks.

The large power imbalance between the state and citizens and the secretive nature of surveillance creates the risk of abuse. Examples in this study show that states use surveillance powers to spy on journalists, business rivals, opposition politicians and activists in ways that threaten open democracy.

Long History of State Surveillance

State surveillance is not new but has dramatically expanded in the digital era. Colonial powers used surveillance to enable extraction of taxes and to monitor the struggle for independence. In recent years, analogue surveillance has been digitalised and automated, making mass surveillance possible.

This has happened against a backdrop of 15 consecutive years of reductions in democratic freedoms worldwide and shrinking civic space globally. The violation of human rights occurs in many countries, but the threat is arguably greatest in fragile democracies: those with weak legal and regulatory oversight, poor institutional protections and where levels of awareness about privacy rights and surveillance practices are lowest.

New Study of Surveillance Practices in Africa.

Surveillance Law in Africa: a Review of Six Countries examines existing surveillance law and practice in six African countries and assesses them against international law. It identifies opportunities to better balance the protection of citizens’ privacy with the state’s need to conduct narrowly targeted surveillance. This is the first such comparative analysis of African legal surveillance frameworks.

1. Surveillance law attempts balance

Surveillance law provides a means to ensure that surveillance is narrowly targeted, while protecting citizens’ rights by defining in law privacy and due process safeguards, transparency and independent oversight mechanisms. However, little research currently exists about what legal provisions are in place across Africa and how legal frameworks compare with each other and with available guidelines.

2. State surveillance is expanding

This is happening despite explicit guarantees of these privacy rights in African constitutions, international human rights conventions and domestic laws. Governments are making large investments in new surveillance technologies, passing laws that expand their legal surveillance powers, and conducting illegal surveillance of journalists, judges, business rivals and opposition leaders.

3. Illegal state surveillance is happening

Among other examples, this report includes evidence of illegitimate state surveillance: of journalists and academics in Egypt; of business rivals and politicians in South Africa; of activists and lawyers in Sudan. The impunity of those conducting illegal surveillance, is evidenced by the absence of any prosecutions of those acting outside of the law to violate citizens’ constitutional privacy rights.

This report finds that existing surveillance law is failing to protect privacy rights, which are currently being eroded by six factors:

1. The introduction of new laws that expand state surveillance powers.
2. Lack of legal precision and privacy safeguards in existing surveillance legislation.
3. Increased supply of new surveillance technologies that enable illegitimate surveillance.
4. State agencies regularly conducting surveillance outside of what is permitted in law.
5. Impunity for those committing illegitimate acts of surveillance.
6. Insufficient capacity in civil society to hold the state fully accountable in law.

This report finds state violation of privacy rights occurs in all countries studied and that impunity exists for those conducting illegitimate surveillance. No prosecutions were recorded in any country for those state employees conducting illegitimate surveillance of citizens. Civil society activists are alarmed about evidence of surveillance creep, the normalisation of illicit surveillance and what they fear is a slow descent into digital authoritarianism.

4. Improvements to surveillance legislation is clear

There is a high degree of consensus among scholars and international bodies about how to significantly improve existing surveillance law. This review recommends establishing a single surveillance law in each country. Surveillance law should require an independent judge to test all surveillance applications for reasonable grounds, legitimate aims, necessity and proportionality. Legislation must provide legal precision and define mechanisms for notification, transparency, oversight and legal punishments for illegitimate surveillance.

5. Legislation alone is insufficient

Unless the state adheres to the law, it has limited relevance. Our country reports suggest that holding governments accountable in law depends on a strong and active civil society. Raising public awareness about privacy rights and surveillance practices is a necessary precondition to mobilising the political will that is necessary for reform of the law and the ending of impunity.

This requires sustained capacity building and coordinated action with journalists, lawyers, human rights activists, policymakers and other stakeholders. A systematic approach is necessary that includes – but goes beyond – reform of legislation.

An edited synopsis of Surveillance Law in Africa: a Review of Six Countries by Tony Roberts, Abrar Mohamed Ali, Mohamed Farahat, Ridwan Oloyede and Grace Mutung’u.