Although Malawi has had no high incidents of digital rights violations compared with other countries in Eastern and Southern Africa, chances are now high that the story will now be different following the enactment of two pieces of legislation; the Communications Act 2016 and the Electronic Transactions Act 2016.
The two legislations came into force on June 1 2017 and, Innocent Kalua, a Google Policy Fellow for Eastern and Southern Africa at Paradigm Initiative has said the two laws have some provisions that may infringe on people’s rights to privacy and free expression.
Kalua is a co-author of the Digital Rights in Africa 2017 Report and these are some of the concerns raised in the second edition of the report, which provides commentary on digital rights violations, policies and other related developments in Africa, in the year 2017.
The Digital Rights in Africa Report is an annual publication produced by Paradigm Initiative, a social enterprise that builds an ICT-enabled support system and advocates digital rights in order to improve livelihoods for under-served youth in Africa. The first edition of the report was published in 2016.
Digital rights are human rights that allow individuals to access, use, create, and publish digital media or to access and use computers and other electronic devices, on communications networks.
Kalua made reference to Sections 92 through 94 of the Communications Act, which gives powers to mobile network providers to register generic numbers and SIM cards, including a subscriber’s full name, identity card number and residential or business address.
The section goes further to request the mobile operator to verify the information and retain copies of the documents obtained.
The mandatory registration began in June last year. Kalua said such SIM card registration requirements are part of a growing trend on the continent towards governments’ monitoring and control of communications infrastructure.
“According to the Malawi Government , one of the justifications for mandatory SIM card registration is to combat crime, however, there has not been any conclusive evidence showing that SIM card registration helps to reduce crime.
“But, as observed by Frank La Rue, the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Expression, SIM card registration facilitates the establishment of extensive databases of user information, eradicating the potential of anonymity of communications, enabling location tracking and simplifying communications surveillance,” he said.
Further, he observed that provisions in part XIX of the Communications Act, giving mandate to the Malawi Communications Regulatory Authority (Macra) to use an electronic monitoring system to monitor and enforce licensees’ compliance would be problematic as there is no clear delimitation in the provisions of exactly what should be monitored.
At the time the Act came into force, Macra had already acquired electronic monitoring technology known as Consolidated ICT Regulatory Management System (Cirms), famously know by the name “Spy machine.”
Although there was a court battle to challenge Macra’s decision to acquire the Cirms, the Supreme Court of Appeal allowed Macra to deploy Cirms, subject to an undertaking by Macra that it would not use the monitoring system to intercept private communications.
In his observation, Kalua said this does not diminish the serious threats to citizens’ fundamental rights to privacy and freedom of expression, posed by the machine.
“Since Section 167 of the Communications Act prohibits monitoring of actual communications content, it can be safely assumed that, instead, it allows monitoring of metadata, that is, information about the actual communications content, such as origin, destination, time and frequency, et cetera.
“Such data may also make it possible to create a log of what a person has been accessing online, which grossly violates citizens’ right to privacy and free expression,” he said.
According to Kalua, the onus is now on Parliament to request for changes to be made to the legislations to ensure that Malawians continue to enjoy their rights, online, as is the case with any other human rights in the physical world.
The report cites internet shutdowns, attacks on press freedom and the pushback against digital rights abuses as the three major themes that dominated discussions across the African continent in 2017.
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