The Influence of the GDPR on African Data Protection Standards: A Path Toward Digital Sovereignty or a New Form of Regulatory Dominance?

1. The Evolution of Data Protection in Europe and Its Ripple Effects in Africa

There have been several noteworthy turning points in Europe's journey to establish data protection laws during the 21st century. Notably, the 1980 Organization for Economic Cooperation and Development (OECD) Guidelines on the Protection of Privacy & Data Flows of Personal Data and Convention 108/1981, laid the groundwork for subsequent developments.

However, it's essential to recognize earlier events. The German state of Hesse passed the first data protection legislation in 1970 and in 1973, the world’s first national data protection laws were enacted by the Swedish government.? By 1978, Germany had implemented its Data Protection Act. Furthermore, by 1979, several other European countries had similar laws or addressed data protection within their constitutions.

These early efforts set the stage for subsequent legal developments, including the adoption of the Data Protection Directive, (DPD), which aimed at safeguarding individuals’ privacy rights and facilitating cross-border information flow, and the General Data Protection Regulation (GDPR) in April 2016, which was borne out of the need to align inconsistencies across member states of the European Union as regards their interpretation of the Directive, as well as addressing some of the gaps and ensure the law is fit for purpose in addressing modern technologies.?

As Europe developed a data protection regime, African nations have been observing and, in many situations, aligning their legislative frameworks with these international standards. With its wide territorial reach and stringent requirements, the GDPR is a model worthy of emulation on one hand, but may also simultaneously act as a barrier for African countries seeking to forge their paths in the digital sphere.?

There have been coordinated attempts across the continent of Africa to adopt a unified strategy for personal data protection. Multinational African conferences have resulted in the development of four key regional and sub-regional data protection frameworks: The African Union or Malabo Convention on Cybersecurity and Personal Data Protection (2014), the ECOWAS Supplementary Act on Personal Data Protection, the Southern African Development Community (SADC) Data Protection Model Law (2012), and the East African Community (EAC) Legal Framework for Cyber Laws (2008) (Phase I). Furthermore, the drafting of the African Declaration on Internet Rights and Freedoms could be seen as a big step forward, resulting from broad multi-stakeholder consultation.

The anticipated impact of privacy regulations in Africa, remains unrealized, primarily due to implementation challenges, such as the non-uniform adoption of the African Union Convention on Cyber Security and Personal Data Protection, which leads to a complex landscape of up to thirty-eight(38) different data protection laws to navigate. This is compounded by a fragmented regulatory environment that hinders a cohesive digital market, weak enforcement mechanisms as indicated by the World Justice Project, worsened security concerns from increased state surveillance during the COVID-19 pandemic, laws that undermine data protection rights through enhanced surveillance and data collection, and a broader assault on digital rights, including internet shutdowns and the criminalization of online expression. These factors collectively impede the harmonization and effective application of data protection regulations across the continent.

Owing to the reluctance of many African nations to endorse one key policy, the focus has shifted towards the development of national data protection laws as the principal strategy for enhancing data protection within their borders. As of January 2024, this observation is reflected in the fact that thirty-seven (37) out of the 55 African countries have enacted data protection laws, representing about 66% of the continent. This includes recent additions like Rwanda, which has joined the ranks of countries prioritizing the safeguarding of personal data within their legal frameworks on the African continent. This movement towards establishing legal frameworks for data protection in Africa indeed reflects a significant trend towards aligning with international standards, particularly the GDPR, which is evident in the principles and structures of their laws. For example, the GDPR and the Protection of Personal Information Act (POPIA) of South Africa, and the Data Protection Regulation (NDPR) of Nigeria are similar in that they place equal emphasis on consent, data subject rights, and accountability measures.

Nevertheless, there are also notable differences, like the absence of pseudonymized data consideration in NDPR or the lack of data portability rights in POPIA, which the GDPR includes.

It is therefore possible to maintain that the GDPR, while influential, is not a universal remedy for data protection laws worldwide. The Seychelles' first Data Protection Act (DPA 2002), enacted in 2003, highlighting the significance of context-aware adaptation by drawing from general principles of its Civil Code and provisions of other legislation, serves as a compelling example of how Africans can make choices despite the GDPR's significant insights.

With African nations integrating GDPR principles into their legal frameworks, there is a need for careful adjustments to fit their unique socio-economic, cultural, and legal landscapes. This tailored approach ensures that personal data protection is not only compliant with global standards but also resonant with regional practices and local challenges.?

Despite the GDPR’s role as a benchmark, its implementation has not been without hurdles. The difficulties that Data Protection Authorities (DPAs) have faced, ranging from the distribution of resources to the acquisition of expertise, have brought to light how difficult it is to enforce data protection laws even in the EU.

Consequently, regions adopting GDPR-inspired regulations must do so with a nuanced understanding of their distinct environments. The evolution of data protection laws should be seen as an ongoing journey towards equilibrium, learning from the GDPR’s structure while moulding it to address African local necessities. The ultimate aim is to create a legal ecosystem that upholds data protection rights and supports international cooperation and compliance.

This necessitates a harmonious blend of global data protection standards with indigenous methodologies, ensuring that the laws are not only effective but also contextually relevant.

2. The GDPR's Territorial Reach and Its Implications for Africa

A special characteristic of the GDPR is its extraterritorial application, which is indeed a significant aspect of its global influence. It applies to all organizations processing the personal data of individuals within the EU and those outside the EU (Article 3, GDPR).

In response to the GDPR, several African nations have adopted similar data protection provisions, extending their data protection laws beyond their borders to some extent. For example, as described in Chapter 2, Section 3, South Africa's POPIA extends its jurisdiction to foreign companies that process personal data in South Africa.

Additionally, it applies to companies located outside South Africa if they engage in data processing using automated or non-automated means within the country. The extraterritorial nature of most data protection laws on the continent, which are being adopted more frequently, is highlighted by the fact that all business transactions and activities involving the processing of personal data of natural persons who, for example, Nigerian citizens are subject to Nigeria's NDPR, whether or not that citizen resides inside or outside of Nigeria (Regulation 1.2).

Despite the obvious resemblances between the GDPR and certain extraterritorial data protection laws on the African continent mentioned above, there are a few more similarities that are worth noticing when examining the implications of the GDPR on Africa.?

To protect personal data and uphold individual rights, both the GDPR and African data protection laws place a strong emphasis on getting consent, putting data security measures in place, and guaranteeing the rights of data subjects. These laws hold data controllers and processors accountable, limiting the processing of data to specified, explicit, and legitimate purposes.

Moreover, they grant individuals certain rights over their data, such as the right to access, correct, and delete personal data. Clear and affirmative consent is required for the processing of personal data, and both sets of laws mandate that appropriate technical and organizational measures must be taken to ensure a high level of security for personal data.

Regulatory authorities are established under both the GDPR and African data protection laws to oversee compliance and enforce the laws. Additionally, both regulate the transfer of personal data across borders, ensuring that data is protected when transferred outside of the jurisdiction.

Aside from the aforementioned similarities, there are a few noteworthy distinctions that draw attention to how the GDPR has been domesticated in the process of harmonizing African data protection laws with its standards.?

While the GDPR boasts an extraterritorial reach, affecting organizations globally that handle EU residents’ data, African data protection laws generally operate within their jurisdictions, lacking the same international scope. For instance, the GDPR considers pseudonymized data as personal data (Article 4(5)), thus subjecting it to regulatory requirements, whereas laws like Nigeria’s NDPR do not treat pseudonymized data equivalently. Pseudonymized data policies in Nigeria are impacted by the nation's emphasis on balancing the need for data protection with the development of a digital economy and data-driven innovation.

By not equating pseudonymized data with personal data, the NDPA offers more flexibility for local organizations to use personal data for analysis and processing, provided that the privacy of individuals is not compromised and the data cannot be attributed to a specific individual without additional information.?

Additionally, the GDPR requires parental consent before processing a child's personal data that is under 16 or, in some circumstances, under 13. POPIA expands this requirement to include all individuals under the age of 18. Because of societal and legal factors in South Africa that view people under the age of 18 as lacking the legal capacity to act or make decisions on their own without the help of a competent person, POPIA offers a higher level of protection for children's personal information.

This strategy is per the Children's Act of 2005 of South Africa, which acknowledges that minors under the age of 18 are entitled to parental or guardian consent for a range of legal actions. The distinction in age requirements between the GDPR and POPIA highlights how crucial it is to comprehend local legal frameworks and cultural norms regarding data protection, particularly regarding minors in South Africa. To guarantee the ethical and legal handling of children's personal information, organizations that conduct business in South Africa or that handle the personal data of South African citizens are required to adhere to POPIA's requirements.

Thus, POPIA can be considered to take precedence over the GDPR in ensuring the ethical and legal handling of children's personal information within the jurisdiction of South Africa or concerning South African citizens.?

Another notable distinction within the GDPR is that it enables people to move their personal data between services, which gives them the right to data portability, which is not included in POPIA. This is due in part to the fact that data portability was not a common or significant concept when the GDPR was being drafted, and POPIA was passed before the GDPR.

It is also because certain local entities in the South African ecosystem find it difficult to comply with data portability rights because they can be complicated and necessitate a sophisticated digital infrastructure.

Moreover, Rwanda’s approach to data protection, is manifested through its Law relating to the protection of personal data and privacy, reflects a tailored response to the nation’s specific challenges. Unlike the GDPR, which does not mandate registration with a supervisory authority, Rwanda requires all entities processing personal data to register with the National Cyber Security Authority (NCSA). This registration ensures accountability and transparency, allowing for a more secure and privacy-conscious environment for both users and businesses in the country.?

Finally, when it comes to ensuring compliance with data protection standards, the GDPR imposes on controllers the duty to conduct impact assessments (Data Protection Impact Assessment, DPIA) as stipulated under Article 35 of the GDPR, a stipulation not specified by POPIA.

The lack of a DPIA requirement in POPIA does not indicate a lower level of protection, but rather an alternative strategy for accomplishing data protection goals that take into account the unique legal and social context of South Africa and might not require the same degree of intricate regulatory requirements. These nuances significantly impact organizations operating across different jurisdictions, making it pivotal for them to grasp the GDPR and local data protection laws to ensure comprehensive compliance when managing personal data.?

While there are clear similarities amongst these laws, there are also some African laws that are distinct in their rights, taking into account the local communities in which they operate, and these laws most often supersede the GDPR, as observed when it comes to POPIA and minors, suggesting that African policymakers become more cautious of local realities when domesticating these international standards.

For African businesses operating in or aiming to access the European market, GDPR compliance is indeed critical. The cost of compliance can be significant and varies based on several factors, including the size of the organization, the volume of data processed, and the complexity of data operations. When we consider the landscape of African businesses, particularly the fact that small businesses make up 90% of all businesses on the continent, and Sub-Saharan Africa boasts a staggering 44 million micro, small, and medium enterprises (MSMEs), the challenges of GDPR compliance become starkly apparent.

The sheer volume of these businesses, coupled with the World Bank’s statistics, paints a picture of a vibrant, entrepreneurial heartbeat in Africa. Yet, when we juxtapose this against the projected compliance costs from a PwC study—where a mid-sized business with 500 employees might spend, on average, €1.3 million on GDPR compliance—the scale tips towards an almost prohibitive expense.

This figure is not just high; it’s potentially crippling for the growth and global integration of African businesses.

The GDPR, while a gold standard for data protection, comes with a price tag that seems to disregard the economic stress and realities of African businesses. Compliance isn’t just a matter of ticking boxes; it’s a significant investment in systems, training, legal counsel, and operational changes.

For many African businesses, these are resources that could otherwise fuel expansion, innovation, and local development. The question then becomes: How can African businesses, especially MSMEs, realistically achieve GDPR compliance without compromising their growth? The answer isn’t straightforward, but it certainly calls for a dialogue on creating more accessible pathways to compliance that recognize the unique economic landscapes of African nations.

It’s all about finding a balance that allows African businesses to protect personal data and participate in the global market without the burden of compliance costs overshadowing their potential.?

The absence of local expertise in GDPR can also pose a challenge. While many African data protection laws were modelled on the EU’s earlier data protection legislation, there are still significant differences that require local expertise to navigate. This is particularly true when it comes to GDPR compliance details, which are not fully addressed by local laws.

Moreover, the recent establishment of Rwanda’s data protection law exemplifies the nascent stage of data governance in the region. It accentuates the imperative to enhance the capabilities of local regulatory bodies, ensuring they are equipped to navigate and enforce the complexities of such comprehensive data protection regulations. This capacity-building is important for the effective implementation and harmonization of data privacy standards across Africa.

Not only are high costs and insufficient expertise major obstacles to GDPR compliance for African businesses; but the absence of existing local data protection frameworks and supporting services in many African countries still stands a significant hurdle simply because, without established local frameworks, African businesses lack a foundational basis for understanding and implementing complex international regulations like the GDPR meaning that businesses must start from scratch, which can be overwhelming and resource-intensive.

The GDPR in itself is a clear example of the potential difficulty African countries sometimes face in maintaining their own rules and inherent practices. Sure, lining up with GDPR standards can really up our game in data protection and increase consumer trust.

But here is the catch: it is not always appropriate for international rules to just steamroll over African laws and the unique business or cultural nuances in specific countries or on the continent. We are walking a tightrope; trying to keep up with global norms while ensuring we do not lose what makes us. Legislators are therefore tasked with fusing these international ideas with our distinctive local flavour to create functional and culturally appropriate laws.

An associated phenomenon referred to as the "Brussels Effect" describes how the European Union (EU) shapes international markets and establishes laws that are embraced globally, even beyond its boundaries. This phenomenon arises from the fact that multinational corporations find it more feasible to comply with the strict regulations of the European Union throughout their entire operations, as opposed to implementing disparate standards for various markets.

The ubiquitous impact of the GDPR, a clear example of the Brussels Effect, suggests a dynamic of regulatory hegemony where EU standards become global norms. Essentially, Brussels (the headquarters of the EU) makes the rules for the EU, which are automatically adopted elsewhere without criticism or amendment. It is as if the rest of the world just falls in line and accepts whatever is legislated- in this case, data protection - as the unofficial rulebook globally.?

The assimilation of GDPR-like frameworks within African jurisdictions should not merely be perceived as yielding to external mandates. Rather, it presents a strategic avenue for African nations to articulate their positions unanimously, within the international digital economy.

By embracing such standards, African states can fortify digital rights and open new economic vistas, thereby actively participating in shaping the discourse and practices of global data governance.

However, it's important to strike a balance between adopting global best practices, such as those found in the GDPR, and ensuring that our laws reflect our local reality. There are provisions under some African laws that have operational effects not found in the GDPR. For example, the African Union's Data Policy Framework supports the principle of data sovereignty but advises against broad data localization requirements.

Instead, it suggests localization for certain categories of data to ensure a broad flow of data in line with policies such as the African Continental Free Trade Area Agreement (AfCTA). Additionally, in shaping their data protection landscape, African nations have placed a significant emphasis on the collective rights of the community. This is a departure from the GDPR's individual-centric model.

The establishment of data trusts and the concept of data stewardship are essential to this approach, as they are not explicitly mentioned in the GDPR but are integral to the African perspective on data governance. The 2010 ECOWAS Supplementary Act on Personal Data Protection further highlights the region's tailored approach to data protection, with specific provisions for data access rights, compulsory data processing declarations, sensitive data authorization, and foundational principles for personal data processing.

These clauses demonstrate how African nations have approached data protection issues locally in a way that is distinct from other approaches.?

Therefore, instead of merely replicating the GDPR, African nations can take the opportunity to adopt the good practices it offers while tailoring them to suit local needs and priorities. This approach not only ensures compliance with international standards but also reflects the specific socio-economic, cultural, and legal environments within African countries.

By doing so, African states can achieve a balance between safeguarding digital rights, promoting economic growth, and ensuring the effective protection of personal data in a manner that is both globally relevant and locally appropriate.

Critics argue that the direct importation of these laws may not always resonate with the collective ethos and privacy perceptions inherent in African societies, where community interests traditionally supersede individual privacy concerns. Matching up with the EU's strict GDPR while keeping Africa's unique character in mind is akin to mixing a complex recipe. Each African country has its ingredients - legal systems, cultures, and economic conditions - so there's no one-size-fits-all recipe that works everywhere.?

3. Pan-African Initiatives

In the past few years, Africa has seen a significant rise in digital innovation and initiatives that rely on data. This has brought to light the need for strong data governance systems. To meet the digital era's challenges and seize its opportunities, various pan-African efforts have been launched.

These efforts aim to foster cooperation, standardize policies, and enhance data security throughout the continent. Led by entities like the African Union, regional economic groups, and global partners, these initiatives demonstrate Africa's dedication to leveraging data for economic and social growth, while also protecting individual rights.?

The African Union (AU) took steps forward in 2011 with a draft convention aimed at developing a strong legislative framework for cybersecurity, to standardize data protection regulations among member nations. This draft was revised, resulting in the adoption of the AU Convention on Cybersecurity and Personal Data Protection in 2014 during the AU Summit in Malabo, Equatorial Guinea. The convention, with its comprehensive preamble and 38 articles ratified by 15 AU member states, aims to strengthen data protection & cybersecurity practices to enhance the free flow of information across the continent.

The convention outlines the establishment of independent national authorities to ensure compliance with data protection standards, highlighting their important role in public education regarding data rights. This move towards independent oversight aims to ensure impartiality and effectiveness in data protection efforts across Africa. Consider it laying the foundation for a uniform data protection strategy throughout Africa.

Just think of how much more smoothly things could go if all of Africa's nations had the same legal framework regarding data. Companies could conduct cross-border business without having to deal with a complex web of regulations. Furthermore, the digital economy would benefit from having a strong foundation that safeguards individual rights and data flow.

Another move worth noticing is the AU Data Policy Framework. This strategic endeavour, endorsed by the African Union's Executive Council in February 2022, aims to harness the potential of the data revolution for inclusive and sustainable development across the continent. The framework emphasizes the free and secure flow of data while safeguarding human rights, upholding security, and ensuring equitable access and sharing of benefits.

By creating a consolidated data environment and harmonized digital data governance systems, the AU Data Policy Framework paves the way for a Digital Single Market for Africa, fostering an environment where tech start-ups and e-businesses can thrive. One of the key strengths of this framework lies in its inclusive and transformational approach. It seeks to empower people, institutions, and businesses, boost intra-Africa digital trade, and contribute to economic integration efforts.

Additionally, the framework raises awareness of data protection and privacy issues, promotes research and innovation, and reinforces Africa's united stance in multilateral discussions on data-related areas. Importantly, it is designed to build trust in the data ecosystem and preserve the sovereignty and ownership of states over their data.

Furthermore, the Digital Trade Protocol under the African Continental Free Trade Area (AfCFTA), adopted in February 2024, introduces a data component that is crucial for the digital economy in Africa. This protocol aims to establish rules and standards for digital trade, enhancing cooperation on digital matters among State Parties, and creating a transparent, secure, and trusted digital trade ecosystem. Looking at the AU Data Policy Framework and the GDPR, we find notable differences.?

For instance, while the GDPR is a regulation within the EU that sets guidelines for the collection and processing of personal information, the AU framework is broader, focusing on the overall data economy and governance. Unlike the GDPR, which distinguishes between data controllers and data processors, the AU framework does not make such distinctions. Instead, it focuses on data categorization and classifies data into two main categories; Personal data and Non-personal data.

Moreover, the AU framework is tailored to the African context, addressing the unique challenges and opportunities for data governance on the continent. It represents a forward-looking policy that aligns with the African Union's vision for a digitally integrated Africa.

Regional Economic Communities (RECs) stand as the cornerstone regional governance entities championing economic and social progression. They function across diverse African territories, encompassing West Africa through ECOWAS, Southern Africa via SADC, East Africa with EAC, and Central Africa under the aegis of ECCAS.

Since 2005, RECs have been actively working on model data protection frameworks to prevent fragmentation of national laws and regulations related to data protection. ECOWAS, for example, has established a comprehensive data protection framework that serves as a model for its member states with the aim of standardizing data protection laws and practices across West Africa, ensuring that all countries in the region adhere to a common set of principles and regulations. By harmonizing ICT-related laws, RECs create a conducive environment for data governance. Their collective efforts contribute to a more integrated and inclusive digital economy in Africa, fostering collaboration and innovation across the continent.

Finally, collaborative initiatives spearheaded by global partners such as the UN Economic Commission for Africa (UNECA) play a very important role in influencing Africa's data governance landscape. UNECA's collaboration with the Global Partnership for Sustainable Development Data highlights a joint effort to tackle and address pressing challenges. Their joint focus on ensuring the availability of timely and accurate data has proven instrumental in facilitating informed decision-making, resource allocation, and crisis management across the continent. Emphasizing the necessity of robust data systems capable of withstanding shocks, UNECA advocates for the development of resilient infrastructure that can furnish reliable information even in emergencies, thus reinforcing Africa's capacity for effective data governance.

But it is not just about business; it's about positioning Africa on the global stage, showing that we're serious about data protection and that we can set an example for others. It's an opportunity to harmonize our laws and make a difference.

4. Future Prospects and Recommendations

Africa is gradually feeling the need to create a more conducive environment for the rapid flow of data as the continent moves toward more robust privacy laws. With the ultimate goal of achieving a common understanding and a single digital market, the African Union (AU) is leading the charge on initiatives to develop regulations that support a standardized digital environment among African nations.

Policymakers must exercise caution, though, to make sure that these rules complement rather than impede economic growth by taking into account the distinctive circumstances of each African country.?

Despite being hailed as a groundbreaking achievement for the EU, the GDPR has faced criticism and discussions for potential amendments. While setting high standards for data protection, its implementation has encountered challenges, including ambiguities and associated costs for businesses. Enforcement of the GDPR by the EU's DPAs has also faced challenges, with reports indicating that only a fraction of complaints receive adequate attention, raising concerns about enforcement capacity.

Additionally, variations in the interpretation and application of the GDPR among EU member states persist, necessitating interventions by the European Data Protection Board (EDPB) to address inconsistencies.?

As Africa charts its data protection journey, the goal is to develop laws that not only empower economic growth but also safeguard individual rights in the digital age. What's needed here is a solid data governance framework that's in sync with a well-thought-out data strategy. This is key for asserting data sovereignty and boosting Africa's edge in the digital era, along with fostering collaboration across countries.?

So, we are looking at a future where Africa's digital and privacy laws are not just stronger, but also smart enough to fuel growth and innovation, intentionally striking that perfect balance, where innovation isn't just flying high but also weaving through the important checkpoints of data privacy. Similar to guiding a kite - letting it ride the winds of progress but always holding onto the string of data security.

5. Conclusion

If we want to maintain data availability, usability, integrity, and security across the continent, it will depend on how correctly we develop this framework. Not only is a strong framework necessary, but we also need well-defined technical protocols, strong data infrastructure, laws and regulations that work, and organizations that support the ethical and safe use of data while maintaining data protection.

As African nations embark on their data governance journeys, they can glean positive lessons from the GDPR's emphasis on protecting personal data. For instance, the GDPR's facilitation of cross-border data flows presents an enticing prospect for Africa's economic integration and innovation.

Harmonizing data protection laws across African borders can unlock the potential for seamless data exchange, stimulate intra-African trade, and attract foreign investment. However, amidst these opportunities, it is important to navigate the nuances of local realities. Africa's diverse landscape, characterized by varying levels of digital infrastructure and legal frameworks, demands a context-aware approach to data governance. Policymakers must tailor regulations to address historical legacies and socio-economic disparities, ensuring that data protection laws resonate with the continent's unique identity and needs.

In this operational context, African countries are presented with a dual imperative: to learn from the GDPR's successes and adapt them judiciously to local contexts.

By striking a balance between innovation and individual rights, African policymakers can craft data governance frameworks that propel growth while safeguarding privacy. As Africa shapes its data future, the GDPR serves as a guiding light, illuminating pathways for effective governance that honour global best practices while preserving the continent's distinct identity. It is within this intersection of global insights and local realities that Africa can forge a resilient and inclusive data governance landscape, empowering its citizens and charting a course towards sustainable progress.?