Telecom Operators Are Trapped In Africa’s Internet Shutdowns: Can They Fight Back
Telecom operators are trapped in Africa’s internet shutdowns: Can they fight back?
According to a statement from the local MTN subsidiary, Eswatini ended its internet blackout last Thursday. From June 29, access to all social media and online platforms was restricted in the country.
“After carefully assessing the directive and in accordance with its licence conditions and the Group's digital human rights due diligence framework, MTN Eswatini implemented the directive,” MTN Group said in a statement, confirming that it had received an order from the Communications Commission suspending internet services.
The internet blackout came as the small southern African kingdom battled violent protests calling for the abolition of a monarchy that had lasted more than three decades. The ban was not unprecedented in Africa and is indicative of how authoritarians on the continent react to calls for regime change.
Several African countries have imposed some form of internet blockade or total blackout in recent years, despite the significant economic costs. However, the costs go beyond financial, given that internet shutdowns are frequently imposed in the region during protests and elections. There is a high probability that several lives will be lost, people will be seriously injured, and ballot boxes will be stolen during such blackouts.
Complicity in compliance?
African heads of state are the primary proponents of internet censorship in Africa. However, telecom companies have come under increased scrutiny for their role in enforcing the orders.
As Africa's largest mobile network operator, operating in more than a third of the continent's countries, MTN has been involved in numerous internet restrictions and has also faced legal battles as a result.
The company, along with other operators, was sued in Sudan two years ago for complying with the transitional military government's orders to shut down the internet. They were charged with complicity in the subsequent human rights violations. MTN was one of several respondents in a court application seeking to reinstate internet services in Eswatini following the most recent ban.
Thuli Makama of the Institute for Democracy and Leadership (Ideal), the non-governmental organization that brought the lawsuit on behalf of various youth organizations in Eswatini, argued that by complying with the government's directive to restrict internet access, the MTN Group was "complicit" in the kingdom's political crisis.
Makama believes that all parties – including telecom companies – that participate in internet shutdowns contribute to human rights violations, whether directly or indirectly. If governments are the central characters, telecom firms are the supporting cast.
Can the industry push back?
Several times in Africa, network operators have been urged to challenge government-issued internet restriction orders rather than simply implementing them as they come.
A University of Pretoria research paper identifies the private sector, particularly internet service providers, as "critical actors" in containing the common ploy employed by African governments.
One of the numerous ways telecom companies have been advised to challenge such orders in court is to challenge their legality. However, taking on African leaders, the majority of whom have authoritarian tendencies, may be a "waste of time" and "political suicide" for businesses, according to Michael Ohens, an independent digital policy expert.
“Ideally, they should be able to challenge African governments' directives. “Anything, including government orders, is subject to challenge,” he told TechCabal in a phone interview.
“However, the structure of any democratic constitution and the powers it vests in the executive presuppose a commitment to the rule of law and the preservation of the nation's unity, however subjective that commitment may be.”
Such provisions, he explained, can be viewed as "constitutional loopholes or blindsides" that a government can exploit. This means that the president can issue an executive order banning the internet if it is perceived to be a threat to national security, regardless of whether the perception is accurate.
Similarly, the government may revoke the license of any telecom operator that violates the directive. Furthermore, no other reason can suffice in court to overcome national security concerns.
“Because courts are bound by laws and not necessarily by justice, it may be difficult to successfully challenge a directive like this in court,” Ohens said. “As a result, opposing internet ban directives would be a waste of time and political suicide for telecommunications companies. The operators are aware of this and will not attempt it, particularly in an African country. This is not a prudent business move.”
If telecom companies can’t challenge governments, who can?
Legal and political organizations have so far been ineffective in preventing internet bans in Africa or holding the primary perpetrators accountable.
Courts have played a significant role in providing redress on a few occasions – as in the cases of Zimbabwe, Sudan, and Togo. In these instances, civil society organizations such as AccessNow were the primary litigants against governments.
According to Ohens, civil rights activists are better equipped than network operators to fight internet bans based on human rights violations. This is because the latter does not have a "business case" against internet restrictions and the shutdowns do not pose a significant threat to their businesses.
While internet shutdowns are inconvenient for users and costly for small businesses that rely heavily on digital channels to conduct business, they have little effect on the telecom companies that help impose them. Although network operators would lose revenue from potential data subscriptions if people could access the internet, the majority of revenue is generated by telephony/call services.
As of January, Nigeria had approximately 188 million mobile or SIM connections. According to DataReportal, less than two-thirds (104 million) of regular mobile service users were internet users.
“When the internet is down, people tend to revert to regular phone calls and other non-data services, which means the telcos continue to earn money,” Ohens explained. “As a result, they lack a business rationale or concern, and it is clear that the internet ban does not necessarily pose a significant threat to revenue. And even if it does affect them in some way, nothing can overcome legal concerns about national security.”
MTN's statement citing "license conditions" demonstrates that telecom companies – helpless and trapped in a conflict between the state and its citizens – have little leverage against government directives ordering internet shutdown.
However, Ohens notes that network operators can be transparent and willing to share information during instances of internet blackouts.
“It was only after MTN Eswatini was sued that the South African Group issued a statement confirming the government's directive to block internet access. That is of no assistance to you,” he stated. “From the start, being open and transparent helps establish credibility when confronted with allegations of complicity.”
