Data Governance

The African Continent Free Trade Area (‘AfCFTA’) Protocol on Digital Trade (AfCFTA DTP) presents a significant opportunity to strengthen African digital solidarity. It could also advance a cohesive and strong African consensus and voice on digital trade regulation. This is especially significant, as Africa is relatively silent in global digital trade dialogues today. Building on the international law concept of international community and its African philosophical equivalent, Ubuntu, we offer a framing device to anchor digital solidarity and develop robust and inclusive Africa-centred digital trade norms. We first explore the relevance of community values in developing a regulatory framework for cross-border data flows in trade agreements, and then examine how shared values and digital solidarity can facilitate the development of a cohesive privacy and data protection regulatory framework in Africa.

In a 2018 paper, Casella and Formenti rely on work undertaken by the United Nations Conference on Trade and Development (UNCTAD) to illustrate the differences between the FDI patterns observed among large multinational enterprises (MNEs) depending on their ‘internet intensity’. They map UNCTAD’s digital framework into a conceptual matrix positioning digital categories on the basis of their internet intensity (the internet intensity matrix or IIM), along two dimensions: production and operations, on the one hand, and commercialization and sales, on the other. The IIM distinguishes between purely digital multinational enterprises, non-digital MNEs and a group of ‘mixed model’ MNEs which falls somewhere between the two extremes. Their subsequent analysis and findings is where things get interesting: as it turns out, digital MNEs have a share of foreign sales that is more than 2.5 times the share of foreign assets compared to traditional, non-digital MNEs. In other words, digital firms do not tend to invest a great deal in markets abroad in order to secure foreign sales. This is despite the fact that many of the world’s largest digital MNEs often make in excess of half of their sales abroad.

Kenya should consider the impact of strict data localization measures on digital trade. Kenya should also sign and ratify the Malabo convention before requiring other countries to do so as a means of meeting the adequacy requirement its data protection regulations proposes. This action will signify Kenya’s commitment to intra-African partnership and will enhance cooperation in the continent. In addition, Kenya should consider concluding reciprocal (bilateral) data protection agreements with specific countries to promote trade as it settles its broader international and regional treaty framework position.

The unrestricted movement of data is a key enabler of the digital economy. However, the development of data protection and data localisation policies is becoming one major area of concern for international trade and investment. Among the mechanisms for protecting individuals is data localisation. This requires that data or a copy thereof (both personal and non-personal) should only be stored and processed locally and should not be exported for processing. The import of this, for instance, is that all data generated within Nigeria must be confined to the boundaries of Nigeria, effectively restricting the flow of data. While localisation of data has significant economic and social benefits, it is also associated with several unintended (negative) consequences, especially from an economic perspective. This is especially true for developing countries like Nigeria that is moving towards greater data localisation with several policies skewed in that direction. This contribution briefly examines the implications of Nigeria’s increasing move towards data localisation on its regional obligations for the promotion of free trade in Africa.

The limit of cross border flow of personal data is broadly referred to as data localisation and is often justified based on five main concerns. These include the protection of personal data, access to data by local law enforcement, ensuring national security, advancing local economic competitiveness and levelling the regulatory playing field. However, a closer look at these justifications reveal the impact of data localisation on free trade, increase in transaction costs and the efficiency of corporations, stifling of innovation, and hampering of economic growth. With global data flows raising global GDP, it is necessary to ask, what policy trade-offs are necessary to balance the legitimate concerns of countries against the unintended consequences that the impact of data localisation causes? There are four issues relating to the economic impacts of data localisation that emerging regulation in Africa needs to address. These are data ownership and its value, competition, trade, and foreign direct investment.

September 23, 2021

The Legal Dimension of Using Data Science for Health Discovery and Innovation in Africa

This research project will investigate five critical themes over a three-year period: (1) modes of informed consent to the use of data; (2) the nature and content of individual and community rights in genomic data; (3) the use of persons' geospatial data for public health surveillance; (4) the cross-border sharing of data; and (5) the use of data as basis for Artificial Intelligence (AI).

While RCEP creates a modified data governance template, it remains within the logic of 20th century treaty language and design. Meanwhile, a normative reevaluation of international economic law is overdue and ongoing. Depending on whether international economic law’s arc will continue to bend towards economic efficiency and aggregate welfare gains rather than planetary environmental sustainability, individual human flourishing, and justice, future international economic law may need to change in form and substance. To make treaties data-ready for the 21st century, more dynamism, flexibility, and experimentation are desirable.