The African Commission on Human and Peoples’ Rights (the African Commission) meeting at its 77th Ordinary Session held from 20 October to 09 November 2023 in Arusha, United Republic of Tanzania:
Recalling its mandate to promote and protect human and peoples’ rights in Africa under Article 45 of the African Charter on Human and Peoples’ Rights (the African Charter);
Affirming Articles 2, 9, 10 and 11 on the rights of all peoples to enjoy the rights and freedoms guaranteed in the African Charter without distinction including the rights to receive information, to express and disseminate opinions, for freedom of association and assembly within the confines of the law;
Reaffirming the provisions of the Declaration of Principles on Freedom of Expression and Access to Information in Africa (the Declaration) which provides in Principle 5 that the same rights that people have offline should be protected online, in accordance with international human rights law and standards;
Acknowledging Principle 40(1) of the Declaration, in addition to Resolution ACHPR/Res.362(LIX) 2016 on the Right to Freedom of Information and Expression on the Internet in Africa, which recognize the right to privacy, including the confidentiality of communications and the protection of personal information;
Noting Principle 20 of the Declaration which calls on States to guarantee the safety of journalists and other media practitioners and in particular, take measures to prevent attacks on them, including threats and unlawful surveillance undertaken by State and non-State actors;
Underscoring Principle 41 of the Declaration which provides that States should only engage in targeted surveillance in conformity with international human rights law and ensure that any law authorizing targeted communication surveillance provides adequate safeguards for the right to privacy, and Principle 42(7) which provides that “every individual shall have legal recourse to effective remedies in relation to the violation of their privacy and the unlawful processing of their personal information;”
Further concerned about the unrestrained acquisition of communication surveillance technologies by State actors without adequate regulation.
Recognizing the lack of adequate national frameworks on privacy, communication surveillance and the protection of personal data;
Concerned about the prevalence of mass surveillance and unlawful targeted communication surveillance that does not conform with international human rights law and standards, and the disproportionate targeting of journalists, human rights defenders, civil society organizations, whistleblowers and opposition political activists, without appropriate safeguards for privacy rights;
The African Commission calls on States Parties to:
i.Ensure that all restrictions on the rights to privacy and other fundamental freedoms, such as freedom of expression, freedom of association and freedom of assembly, are necessary and proportionate, and in line with the provisions of international human rights law and standards;
ii.Align approaches on the regulation of communication surveillance with relevant international human rights law and standards, considering safeguards such as the requirement for prior authorization by an independent and impartial judicial authority and the need for effective monitoring and regular review by independent oversight mechanisms;
iii.Only engage in targeted communication surveillance that is authorized by law, that conforms with international human rights law and standards, and premised on reasonable suspicion that a serious crime has been or is being carried out;
iv.Promote and encourage the use of privacy-enhancing technologies and desist from adopting laws or other measures prohibiting or weakening encryption, including backdoors, key escrows and data localization requirements, unless such measures are justifiable and compatible with international human rights law and standards;
v.Ensure that victims of violations arising from arbitrary surveillance measures have access to effective remedies and take specific measures to investigate and prosecute cases of illegal and indiscriminate surveillance.
Done in Arusha, Tanzania, 09 November 2023
