Abstract

GUMBU, Takunda  and  NHEKAIRO, Panashe. Africa in the digital age: a case for the right to be forgotten under the African Charter on Human and Peoples' Rights. AHRY [online]. 2023, vol.7, pp.94-115. ISSN 2663-323X.  http://dx.doi.org/10.29053/2523-1367/2023/v7a5.

This article advances that the right to be forgotten (RTBF), which affords individuals a legal tool to erasure of personal digital data under certain circumstances, is an essential right in the digital age. It discusses the RTBF and traces its development to the European Union (EU) jurisprudence. The article argues that, although the RTBF was developed under the EU jurisprudence and despite it being not expressly recognised under the African Charter on Human and Peoples' Rights (Charter), it can be read into the Charter through three methods. First, it can be read into the Charter through the SERAC principle, namely, that some unenumerated rights are implied by the African Charter, as set in the Commission's decision in Social and Economic Rights Action Centre and Center for Economic and Social Rights v Nigeria. Second, the right can be read into the Charter through the progressive application principle as envisaged by articles 60 and 61 of the Charter. Third, the RTBF can also be read into the Charter by employing article 31 of Vienna Convention on the Law of Treaties. The article submits that although some African countries have made tentative steps in adopting the RTBF in their domestic jurisdiction and despite the recognition of the right in some of the continent's instruments, its recognition in the African human rights system is fragmented. This fragmentation hinders adequate protection of the right. The article ultimately argues that the superior status that the African Charter enjoys in the African human rights system justifies the need for the RTBF to be read into the Charter to ensure adequate protection and to create a pathway for robust law reforms related to the protection and autonomy over personal data in Africa's national jurisdictions.

Keywords : right to be forgotten; African Charter on Human and Peoples' Rights; privacy; personal data; digital age.

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