The African Union Commission (AUC) is in the process of developing a Data Policy Framework for Africa. The process which is made possible by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) under the Data-Cipation programme, is being spearheaded by Research ICT Africa (RIA). Currently, RIA is in the process of carrying out a Consultation Engagement on the proposed Framework which is receiving submissions till 3pm EAT on 2 August 2021.

According to the RIA Consultation Engagement on the Policy, held on 29th July, 2021, it was noted that the proposed Policy seeks to respect, protect and fulfil human rights and provide a shared vision of a data realm that is achieved in a just and fair manner, whilst creating the safe and trusted digital environment necessary for the development of a sustainable and inclusive African digital economy and society.

The formulation of the Framework is based on the recommendation of the African Union’s Digital Transformation Strategy, which aims to use digital technology and innovation to transform African society and economy, promote African integration, promote inclusive economic growth and stimulate employment. The Strategy builds on the existing AUC initiatives and frameworks such as the Policy and Regulatory Initiative for Digital Africa (PRIDA), the African Continental Free Trade Area (AfCFTA and the Free Movement of Persons (FMP) to support the development of a Digital Single Market (DSM) for Africa, as part of the integration priorities of the African Union.

It will be guided by the African Charter on Human and Peoples Rights (the Banjul Charter) and African Union Convention on Cyber Security and Personal Data Protection (Malabo Convention). Article 9(1) of the Banjul Charter supports open data policies and increases access to data except where privacy and security considerations require otherwise. The right to equal access to public services (Article 13) requires that data sets used in administration must not be biased. The Malabo Convention requires that people have control over their personal data. The right to equality (Articles 2 & 3 of the Banjul Charter) requires that data may not be used to discriminate against a human person unfairly.

The Framework is envisioned to serve several purposes including:

1. Enabling states to cooperate on matters of data governance to achieve common objectives related to the sustainable development of their economies and societies
2. Informing and supporting the domestication of continental policy by African Countries; and
3. Enabling states, the private sector, civil society and intergovernmental organizations to coordinate their efforts on data issues across the continent in order to realize the digital market and compete more effectively in the global economy.  

It will take a form of high-level principles based guideline for countries to apply in the domestication of the data policy. The proposed Guiding Principles will be as follows:

Principles for the Member States

1. Cooperate and exchange data acknowledging data as a central input of global economy and of a flourishing African single market
2. Data policy shall enable an environment that encourages investment and innovation, human development
3. Data policy shall provide certainty based on the locus of control of data under different circumstances; and
4. Data Policy shall harmonize data regulation through domestication into national law within the scope offered by the Framework
5. Data sovereignty is recognized through the policy space for domestication of data policy.

The principles for Data System:

1. Data systems shall be trustworthy (quality, integrity, safe)
2. Data systems shall be equitable, addressing structural inequalities and offering opportunities to all Africans
3. Data systems shall be safe and secure
4. Whether private or public, data systems shall be designed and operationalized for the ethical treatment of data from the point of source to the end user.

Principles of Data

1. Codes of data ethics shall be co-created by those affected by them
2. Data shall not be used to discriminate unfairly.

Policy considerations:

The Policy will also take into consideration the fact that data is used in everyday life across the continent. Thus, according to the Consultation Engagement, the Framework will provide principle-based guidance to member states in their domestication of the continental data policy appropriate to their conditions. It will also take the following proposed policy considerations onboard:

1. Identifying preconditions for the optimization of public and commercial value of data
2. Creating conditions for investment, fair competition and innovation
3. Redressing uneven distribution of opportunities and harms associated with data access and value creation
4. Recognition of first, second and third generation rights
5. Require not only negative (compliance) regulation as in data protection but also positive policy intervention (economic regulation)
6. Requires collective/public interest considerations in the protection of data while protecting privacy
7. Globalized nature of data economy/economy/ecosystem requires global collaboration and active participation in global governance.

It was also noted that the Framework will not be a model law and will not create obligations and constraints on member states. It will be a policy instrument that outlines the principles underlying the Digital Transformation Strategy goals regarding the management of data within and across member states, and possible high-level methods to achieve them.