Looking Back to Forge Ahead: Challenges of Developing an “African Conception” of Privacy
In this post for the FPF Blog, Mercy King’ori explores the cultural and societal underpinnings of “privacy” in Africa, looking throughout history, from pre-colonial times, and beyond the modern external influences on the legislative processes resulting in general data protection laws across the continent. The first essential point to start off from is understanding that Africa is not a monolith, it is multi-cultural and context differs across communities. Thus any generalizations in this blog post should be read in this light.
Introduction
Few things depend on context, like privacy, which strongly hinges on how people within various communities and other social organizations perceive it. While the need for privacy may be universal, the particularities of its social acceptance and articulation differ depending on cultural norms that vary among communities. Whitman succinctly captured the cultural cause of the diverse forms of privacy when he posited that “culture informs greatly the different intuitive sensibilities that cause people to feel that a practice is privacy invasive while others do not feel that way”. 1
For example, in delineating the root cause of the differences in privacy expectations among Americans and Europeans, Whitman traces the emergence of the need for privacy among Europeans to the need for dignity, while for Americans, such a need emerged from the desire to express their freedom. By contrast, cultural practices in communities in other parts of the world may take a different view of privacy, such as the Japanese, who historically regarded privacy as a symbol of self-centeredness2.
In Africa, the formal understanding of privacy is still evolving. Given the influential nature of European and American cultures and institutions to the current world order, their conceptions of privacy have been greatly relied on to characterize the need for privacy in Africa.
This has not been without consequences for the recipient societies. In Africa, where the recognition of privacy did not emerge from the need to achieve dignity and liberty (two values that are elusive in most of Africa’s history), scholars3 who use the European or American concept of the term as an implicit frame of reference have concluded that the need for privacy was largely absent on the continent, especially when contrasted with communal concepts such as Ubuntu of South Africa which place the community before the individual. However, as privacy discussions continue to grow in prominence in Africa, the question of whether an African conception of privacy that takes into account the cultural nuances such as strong kinship bonds continue to emerge.
This blog seeks to explore the cultural underpinnings and evolution of privacy in Africa both by examining the historical and modern challenges to fully developing a notion of privacy that takes into account the distinctiveness of the communities in the continent and whether such a conception can exist.
To do so, it begins with a discussion and critique of the dominant notion that was strongly held regarding the existence of privacy in Africa as well as the societal and historical context under which such a notion may have emerged. This is followed by an account of the events (historical and current) that have influenced the development (or lack thereof) of an African conception of privacy. Such an examination provides two key insights:
- There is anecdotal evidence that privacy historically existed in Africa, albeit in a subtle form. However, its full emergence may have been encumbered by external and internal influences that the continent was and continues to be subjected to.
- As a result, this context allowed for the dominant position (that privacy was largely absent in Africa) to take root. This, in turn, provided a vacuum that made adopting Western conceptions of privacy possible until now.
To conclude, the blog discusses whether a conception of privacy from an African perspective is even possible at this point and whether such a conception is needed given the previous hindered attempts at developing an African conception of privacy.
Dominant Discourse on Privacy in Africa
For a long time, it was claimed that privacy was not valued in Africa. This dominant position can be attributed to the misperception that the communal and collectivist nature of most traditional African communities that marked the pre-colonial era meant that there was no privacy. This stance implied that an individual could not order their lives without the consent of the community.4 In most traditional African societies, the idea of personhood based on individualism was seen as conflicting with accepted social norms, especially those that involved a shared sense of interdependence. For most communities, a person’s identity depended on the community identity. From this lens, the close kinship in most African societies appears from the most mundane aspects of life to the most complex issues such as communal land ownership.
This understanding of communal life (and the secondary place of individualism) in Africa has influenced how privacy is understood in Africa. Indeed, when individualism forms the basis of the conceptualization of privacy, it is clear why many who adopt such a framework accept as true that privacy did not meaningfully exist in Africa. Privacy in a communal way of life was still not imagined and played a negligible role in how the early discourse around privacy and data protection evolved, which solidified the dominant discourse about Africa that still shapes some perceptions today.
However, the idea that African societies lacked individualism (as one of the determinants of the need for privacy) and therefore did not meaningfully articulate a concept of privacy needs to be challenged. While it is still unclear on the extensive role individualism played in structuring social relations in these societies, there is evidence that it did exist in some form in pre-colonial Africa. For example, when communities grew and different interests emerged, the individual began to isolate against the collective. Family members would leave their communal ways of living in pursuit of self-reliance and personal initiatives. 5 6
Furthermore, the absence of information on the definitive nature of privacy in this era may also follow from how communities primarily passed down knowledge. In pre-colonial Africa, oral traditions held a major place7 as a means of disseminating information and communal customs. Traditionally, messages were passed down orally from one generation to another, often in the form of proverbs, songs, folktales and other narrations. Such messages helped people make sense of the world and were used to teach children and adults about important aspects of their culture, including privacy. For instance, the Agikuyu, an ethnic community in East Africa, have a proverb that speaks to the need to preserve privacy for matters of the home (“Cia mucii itiumaga ndira” – Home affairs must not go into the open).
However, weaknesses in record-keeping due to the dominance of oral traditions8 may have limited the availability of anecdotal evidence of privacy in traditional African communities and hampered efforts to formalize it into a more nuanced account of its evolution in the continent. Notably, such limitations in written evidence have also affected many other aspects of African society beyond privacy. One effect of this may be that certain cultural values were elevated beyond others, with the former being translated into laws. This could explain the absence of the right to privacy in the African Charter on Human and People’s Rights, while collective rights form a unique aspect of the Charter.9 Because of this, while African social order manifested features of individuality, communal living became more discernible than individualism to outside observers and consequently led to perceptions that privacy played little role in pre-colonial Africa. The arrival of colonialism reinforced these views, albeit in a different way, and greatly altered the indigenous development of privacy on the continent.
Colonialism, Post-Colonialism, Independence, and Privacy
The colonial era was and remains an impactful period of time for most African communities in many ways, including privacy. The events of this period adversely affected any efforts to recognize privacy as a fundamental societal value. Colonialism began with the partition of Africa that gave rise to the formal geographical boundaries that currently exist. This gave new shape, meaning, and direction to the inherent kinship bonds within communities, which began to disintegrate as a result of colonial strategies such as divide and rule.
There was resistance to the colonial practices that set out to tear down the communal structures of the time.10 As the focus was on protecting the communal way of living, aspects of individualism discussed above seem to have remained intact within many communities.11 From a privacy perspective, this was a conducive condition–as individualism among disrupted communities remained intact. However, the imperialistic circumstances of the time made it unlikely that privacy and its related value of autonomy would be asserted. The power imbalances that existed between the indigenous communities and colonial governments created an unconducive environment for the development of a shared understanding and rights-respecting notion of privacy.
Colonial administrations contributed to many gross violations towards the dignity of community members. For example, in Kenya, the British introduced in 1920 through the Native Registration Amendment Ordinance, a means of identification, the Kipande system.12 This involved the use of an identity document that contained the personal details, fingerprints, area of residence, and employment records of the holder–categories of information that modern privacy and data protection law considers personal and sensitive personal data. The identity document was issued to male Africans who worked in settler farms to administer a labor registration system. Holders of a kipande were required to wear it around their necks, clearly identifying their information and status as a farm worker to colonial administrators.
At the time of its use, this paternalistic system caused an uproar and generated much resentment –both towards the oppressive means it embodied and the larger relationship between the settlers and Africans it represented.13 The holders viewed it as a symbol of humiliation and a loss of self-identity14, and many political associations of the time denounced it as a form of repression and control.15 Indeed, the Kipande system was a true reflection of the modern understanding of a surveillance system, one that could have generated concerns based on modern-day privacy principles.16 The fact that its opponents did not articulate their resentment around a conception of privacy reflects a missed opportunity for communities at the time to develop their own expectations of privacy. Intrusive identification systems still pose privacy challenges in many parts of the continent.
Fast forward to when most African countries gained independence around the 1960s and 1970s. Independence created new legal structures such as Constitutions and Bill of Rights that were not indigenous to African communities. Prior to 1950, colonial administrations in many colonies did not consider Bills of Rights seriously, especially in those under British rule.17 This was primarily due to the official policy of rejecting a rights-based approach in constitutional ordering.18 For example, Ghana’s 1957 independence Constitution did not include a Bill of Rights. Nevertheless, there was emerging international consensus regarding human rights which began to create an atmosphere that was conducive to the adoption of Bills of Rights in the colonies post independence.19 Thus when the British government granted independence to these countries, the Constitutions were created with a Bill of Rights.20 At the time Europe was ratifying conventions such as the European Convention on Human Rights and transposing similar principles to their colonies.21 The introduction of human rights to colonial dependencies saw the introduction of the right to privacy making it the initial formal reference to privacy in most African countries.
Privacy Interlude: The fall of Independence Constitutions, rise of authoritarian governments and the revival of constitutional arrangements
Soon after independence, the reins of leadership were handed over to the founding fathers of Africa. Under political pressure, these leaders abrogated the independence Constitutions on grounds that Western forms of government couldn’t flourish in Africa as they are based on alien principles.22 To be sure, the ambitions of those in power and the general geopolitical conditions of the time aggravated the failure of the Constitutions more than any intrinsic flaws in the Constitutions themselves.23 Regardless, this saw parts of Constitutions, such as those guaranteeing privacy rights, eliminated.
Later on, in the 1970s and 1980s, when economic crises hit Africa, Structural Adjustment Programs (SAPs) and stabilization policies for the purpose of economic development were introduced. SAPs involved the transfer of funds to different African economies tied to the fulfillment of certain conditions.24 One of the conditions concerned the reinstatement of Bills of Rights, which in turn saw the reintroduction of the right to privacy in many Constitutions.25
An African Conception of Privacy in the face of Globalization?
The period that followed has been crucial for privacy and data protection in Africa. As African societies became more active participants in the globalized world order, legal efforts to shape the perceptions of the need for privacy have increased in frequency and importance, as seen in the growing number of privacy and data protection laws. Privacy in Africa is now not only viewed through the lens of individualism (seen as gaining prominence over collective living).
There are two main motivating factors for the expanded need for privacy. First, privacy is crucial to protect people from human rights violations resulting from technological advances. Second, privacy has emerged as a key requirement for Africa’s participation in the global digital economy. This desire to participate in global trade facilitated by information technology has influenced many countries to adopt a regulatory system that reduces legal hurdles and uncertainty.26 In order to accomplish this, many African states have been inspired by privacy laws that have grown to represent internationally accepted best practices such as the OECD Guidelines on the Protection of Privacy and Transborder Data Flows, the defunct EU Data Protection Directive of 1995, and its modern version, the EU General Data Protection Regulation (GDPR), or Council of Europe’s Convention 108 and 108+. Bearing in mind the difference between privacy and data protection, information privacy in many countries is now protected under comprehensive data protection laws, while a handful of countries have made the distinction between privacy and data protection directly in their laws. This process has been aided by development partners such as the EU Commission under the HIPSSA-ITU project, which sought to harmonize information and communication laws in Sub-Saharan Africa and saw at least two regional data protection frameworks modeled from the EU Directive of 1995.
This process of transplanting the language and body of foreign privacy and data protection laws has dealt a serious blow to attempts to develop an African conception of privacy, notwithstanding the challenges of implementing such a transplanted structure. On the one hand, the source of the challenges of implementation is not clear. Could it be the introduction of laws that do not reflect our knowledge of and commitment to the underlying values or a mere lack of political will? Arguably, it may be too early to determine this as most laws are still nascent. On the other hand, transplanting can be defended in light of changing perceptions of privacy, as more Africans become aware of the need for privacy protection as a means to protect their dignity and defend their freedoms, especially from the excesses of governments. It is on this basis that many criticize existing privacy and data protection laws as containing illusory and ineffective safeguards.27
Nonetheless, the infusion of indigenous aspects into privacy and data protection laws indicates that perhaps all is not lost. The Malabo Convention, the continental treaty on data protection and cybersecurity, contains provisions that mandate the recognition of communal rights in the creation of data protection laws.28 Similarly, indications of class action suits (pointing to recognition of privacy violations affecting groups of people) that permit communities to assert their right to privacy can be found under SADC Model law of Southern Africa29 as well as the ECCAS Model Law/CEMAC Directive of Central Africa30. Such efforts elucidate the types of African cultural aspects that should be considered when implementing a privacy and data protection framework. However, this has not cascaded down into many national frameworks, which mostly rely on legal instruments adopted from Europe.
Given the evolution of privacy in Africa, whether Africa will ever develop its own foundation of privacy or whether an African conception of privacy is necessary at this point remain open questions. Can the external and internal influences that Africa has experienced help define the socio-political foundations of privacy, like Europe and the U.S., whose values of privacy were founded on ideals with histories reaching back to the revolutionary era of the 18th century? Or has Africa leapfrogged into a conception of privacy that actually suits the stringent privacy requirements of the time? The jury is still out.
1 James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty
https://www.yalelawjournal.org/article/the-two-western-cultures-of-privacy-dignity-versus-liberty
2 Hiroshi Miyashita, The evolving concept of data privacy in Japanese law https://academic.oup.com/idpl/article/1/4/229/731520
3 Hanno Olinger, Western Privacy and/or Ubuntu? Some Critical Comments on the Influences in the Forthcoming Data Privacy Bill in South Africa, 2016 https://www.tandfonline.com/doi/abs/10.1080/10572317.2007.10762729 “Ubuntu can be described as a community-based mindset in which the welfare of the group is greater than the welfare of a single individual in the group.”
4 Alex B. Makulilo, African Data Privacy Laws https://link.springer.com/book/10.1007/978-3-319-47317-8
5 Ibrahim Anoba, A Libertarian Thought on Individualism and African Morality, https://www.africanliberty.org/2017/05/21/a-libertarian-thought-on-individualism-and-african-morality-by-ibrahim-anoba/
6 Adeshina Afolayan, Individualism, Communitarianism and African Philosophy: A Review Essay on Exploring the Ethics of Individualism and Communitarianism, https://news.clas.ufl.edu/individualism-communitarianism-and-african-philosophy-a-review-essay-on-exploring-the-ethics-of-individualism-and-communitarianism/
7 Traces of written history can be found in African countries such as the great Timbuktu manuscripts of Mali https://artsandculture.google.com/experiment/the-timbuktu-manuscripts/BQE6pL2U3Qsu2A?hl=en
8 Acquinatta N. Zimu-Biyela, Taking Stock of Oral History Archives in a Village in KwaZulu-Natal Province, South Africa: Are Preservation and Publishing Feasible? http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0259-94222022000300013&lng=en&nrm=iso
9 Article 17 (2), African Charter on Human and People’s Rights (1981).
10 Barabra Potthast-Jutkeit, The history of family and colonialism: Examples from Africa, Latin America, and the Caribbean https://www.tandfonline.com/doi/abs/10.1016/S1081-602X%2897%2990001-4
11 Walter D. Mignolo, How Colonialism Preempted Modernity https://www.tandfonline.com/doi/abs/10.1080/03086534.2011.598039?journalCode=fich20
12 Jaap van der Straaten, Hundred Years of Servitude. From Kipande to Huduma Namba in Kenya https://www.readcube.com/articles/10.2139%2Fssrn.3543457
13 Kipande Registration System (Kenya) https://api.parliament.uk/historic-hansard/commons/1946/jul/31/kipande-registration-system-kenya
14 Amos J. Beyan, The Development of Kikuyu Politics During the Depression, 1930-1939 https://www.jstor.org/stable/45193123
15 Idem
16 Howard Stein, Structural Adjustment and the African Crisis: A Theoretical Appraisal, https://www.jstor.org/stable/40325948
17 Charles O. H. Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories, https://academic.oup.com/icon/article/7/2/355/758671
18 Idem
19 Idem
20 Idem
21 Idem
22 Victor T. Levine, The Fall and Rise of Constitutionalism in West Africa https://www.jstor.org/stable/161678
23 Idem
24 Howard Stein and Machiko Nissanke, Structural Adjustment and the African Crisis: A Theoretical Appraisal https://www.jstor.org/stable/40325948
25 Nicola Gennaioli and Ilia Rainer, The Modern Impact of Precolonial Centralization in Africa https://www.jstor.org/stable/40216120
26 See the HIPPSA-ITU project for Harmonization of ICT Policies in Sub-Saharan Africa
27 Ogheneruemu Oneyibo, A Zimbabwean Data Protection Act to rule them all. Or not https://techpoint.africa/2021/12/17/zimbabwe-data-protection-act/
28 Article 8(2), Malabo Convention
29 Article 40, SADC Model law
30 Article 38 ECCAS Model Law/ CEMAC Directive
