英国发展研究所-非洲监测法：对六个国家的回顾（英）-2021.10-203页_1mb

Surveillance Law in Africa: A Review of Six Countries

Core Content

This report, Surveillance Law in Africa: a review of six countries, conducted by the Institute of Development Studies (IDS) and supported by Omidyar Network, provides the first comparative analysis of surveillance laws in six African countries: Egypt, Kenya, Nigeria, Senegal, South Africa, and Sudan. It highlights the failure of existing surveillance legislation to protect citizens' privacy rights and identifies six key factors contributing to this erosion:

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.

Main Viewpoints

The report argues that surveillance law should balance the state's need to monitor individuals suspected of serious crimes with the protection of citizens' fundamental privacy rights. It emphasizes the importance of:

• Competent judicial authority: A judge with knowledge of digital technologies and human rights to authorise surveillance.
• Legality: Surveillance must be conducted only within the legal parameters defined by legislation.
• Legitimate aim: Surveillance is only justified for specific, serious crimes such as terrorism.
• Reasonable grounds: There must be a high degree of threat and a high probability of obtaining evidence.
• Necessity and proportionality: Surveillance should be necessary and limited in scope, duration, and impact.
• Notification and transparency: Citizens should be informed of surveillance, and transparency reports should be published annually.
• Independent oversight: Public oversight mechanisms are essential to ensure accountability and prevent abuse.

Key Information

The report is structured as follows:

• Executive summary: Outlines the main findings and recommendations.
• Introduction: Defines the importance of privacy rights and the risks of state surveillance.
• Background: Discusses the legal and international basis of privacy rights and the evolution of surveillance law.
• Methodology: Explains the research approach, which involved a desk-based qualitative analysis of primary legislation and secondary sources.
• Analytical approach: Focuses on three international frameworks for surveillance law:
  • The International Principles on the Application of Human Rights to Communications Surveillance (EFF 2013)
  • The UN Draft Instrument on Government-led Surveillance and Privacy (UNHCHR 2018a)
  • The African Commission (2019) Declaration of Principles of Freedom of Expression and Access to Information in Africa (referred to as the 'African Declaration')
• Country report summaries: Provides a visual summary of surveillance law provisions in each of the six countries.
• Findings: Analyzes the six country reports using the above frameworks to highlight common issues and opportunities for reform.
• Conclusion and recommendations: Proposes actionable recommendations for improving surveillance legislation, including the establishment of a single, comprehensive law in each country, the requirement for judicial authorisation, and the need for civil society engagement and awareness.

Country Reports Overview

Each country report includes detailed analysis of the legal framework, safeguards, and surveillance practices. Key points from the visual summary (Figure 1.1) are:

• Egypt: Provides partial protections, but the Emergency Law of 2017 removes most of them.
• South Africa: Has the most comprehensive protections under the Regulation of Interception of Communications Act (RICA), though parts of the law have been suspended for further protection.
• Sudan: Provides some protections, but the National Security Law allows state agencies to override them.

Conclusion

The report finds that state surveillance in all six countries is failing to protect privacy rights, and that those committing illegal surveillance are not being prosecuted. Civil society activists are concerned about the normalisation of illicit surveillance and the risk of digital authoritarianism. To address these issues, the report recommends:

• Establishing a single, comprehensive surveillance law in each country.
• Requiring independent judicial authorisation for all surveillance.
• Ensuring legal precision and clear definitions of surveillance limits, transparency, and accountability.
• Strengthening civil society capacity to hold the state accountable.
• Raising public awareness about privacy rights and surveillance practices to foster political will for reform.

Recommendations

• Reform surveillance laws to ensure they align with international human rights standards.
• Implement judicial oversight and independent review mechanisms.
• Promote transparency and public accountability through annual transparency reports.
• Strengthen civil society engagement and capacity to challenge and reform unjust surveillance practices.
• Ensure that surveillance is narrowly targeted and proportionate to the legitimate aim of preventing serious crimes.