By Alick Ponje:
Two months ago, the magistrates’ court in Phalombe District jailed 21-year-old Innocent Zunguzeni for four years after it found him guilty of posting on his Facebook page ‘albino for sale’.
The decision, coming at a time more and more Malawians had started to expressly take issues to social media platforms, sparked a new wave of worry on how far one can be free in digital spaces.
In February 2017, 23-year-old Protazio Nkhoma was handed to 42-month jail term over a Facebook post in which he alleged that Malawi Professional Boxing Control Board President, Lonzoe Zimba, had shot and killed two Americans in his house.
The Facebook post was ruled to be defamatory and injurious to the reputation of Zimba. There was not much debate on the matter, perhaps because most people did not really understand the larger context.
The arrest of one Tumpale Mwakibinga, for likening First Lady Gertrude Mutharika to a cartoon, in a Facebook post, ignited debate on digital rights despite that it faltered quicker than it had gained momentum.
But such cases bring to light the reality that Malawians are facing and will continue to face as they express themselves digitally.
Essentially, digital rights are human rights in the internet era. They are said to be simply extensions of the equal and inalienable rights laid out in the United Nations Universal Declaration of Human Rights.
Human rights lawyer and Executive Director of Centre for the Advancement of Human Rights and Development, Chrispine Sibande, is of the view that Malawians should be free to express themselves on social media as long as what they say or do cannot be defined as criminal conduct.
“Our Constitution provides for, and guarantees, freedom of expression, freedom of opinion and freedom of association. Social media is just a platform. Social media simply widens the platform because of its wide network,” Sibande says.
The conviction of Zunguzeni and the arrest of Mwakibinga are said to have been supported by the Electronic Transactions and Cyber Security Act which was introduced in 2016.
Sibande states that, while the Act came about because issues such as technology, internet and digital world were not properly addressed in the laws of Malawi, it is legitimate for some citizens to be worried about the link between human rights and the said law.
“For instance, Section 87 of the Electronic Transactions and Cyber Security Act says ‘any person who wilfully and repeatedly uses electronic communication to disturb or attempts to disturb the peace, quietness or right of privacy of any person with no purpose of legitimate communication whether or not a conversation ensues, commits a misdemeanour and shall, upon conviction, be liable to a fine of K1,000,000 and to imprisonment for 12 months.’
“The reference to peace and quietness of any person in this offence is quite vague. Who decides that ‘this communication is disturbing peace’? At what stage do we say ‘this communication is disturbing some quietness’?
“Everyday people practise some peace and quietness. The offence is too broad and may be abused by State authorities, security agents and individuals. I am not sure what kind of issues our legislators (Parliament) wanted this offence to cover and address,” Sibande says.
He would rather see the provision repealed as, he argues, it has the potential of overshadowing important provisions of the Act which Malawi needs in the digital age “where technology is part of our everyday life”.
The human rights lawyer looks at social media as important and effective as it promotes freedom of expression, opinion, association and the right to information at all times.
On the other hand, he concedes that there have been challenges where some people have used social media to injure others through fake news and false information.
“We cannot ignore this disease. Because information travels fast on social media, it has, in some cases, injured other people. Again, fraud and other heinous crimes have been committed through social media.
“Sometimes it has been difficult to repair the damage to those that have been injured. Again it has not been easy to investigate and catch criminal offenders. Some crimes remain unresolved till today because of the complexity of the digital world,” he says.
As a solution to challenges which the social media poses, Sibande suggests that people should be continuously educated on making good use of it.
He also calls on the government to invest in training security agencies on how to investigate real crimes on social media and not petty crimes.
“We need [non-governmental organisations (NGOs)] and civil society organisations that specifically focus on working on issues promoting digital freedoms and internet rights. These NGOs would help in educating the masses in the proper use of social media and, eventually, promote the rights of people in the digital world,” he adds.
On his part, co-founder of Digital Rights Network, Joshua Mwendo, says Malawians should be sufficiently alerted on how to progressively use social media.
He also cautions authorities against using the Electronic Transactions and Cyber Security Act to clamp down on their “their enemies”.
“There is no denying that a lot of important information is being distributed on social media. As such, it would be unfortunate to shrink people’s rights in this digital era. This is not to say those who abuse their digital rights should be condoned,” Mwendo warns.
On the other hand, he adds that his organisation is worried that authorities seem to be very willing to use the Cyber Security law to punish “dissidents”.
According Mwendo, while the spirit behind the introduction of the Act was obviously good, the likelihood of some “overzealous” officers using it to persecute others cannot be ignored.
“That is why we need to step up conversations on the same. We need to start to seriously engage stakeholders, including citizens themselves, on issues which border on their digital rights. They are human rights,” he said.