A fundamental human right is a right every person as a human being is supposed to enjoy as a form of basic needs whether rich or poor. This is inalienable and should not ordinarily be violated. So everybody once born in any part of the world starts on ground zero. These rights include but not limited to the right to life, the right to health, the right to education, the right to work, the right to take part in the cultural life of the community, the right to freedom of assembly and association, the right to freedom of thought and conscience as well as the right to freedom of opinion and expression.
In the traditional world as we have known it, freedom of movement requires us to walk or drive freely on the street to attend social gatherings by way of freedom of assembly and association, go to church by way of freedom of worship, go to school by way of right to education and cannot be violated without just cause if not in the interest of the society in general as specifically provided in the 1992 Constitution. If the streets are blocked, we cannot exercise these rights since it requires the right to move freely by having access to the streets.
In the digital world, the medium to e-worship, e-education, e-social gathering, e-work unlike the physical gathering in the traditional world is the Internet. So in effect we have to” walk or drive” through the Internet to exercise these fundamental human rights. If the Internet is blocked, we cannot exercise these rights since it requires the right to “move” freely by having access to the Internet.
In the traditional world, with respect to having an adequate standard of living, access to water and sanitation, electricity as well as right to food are recognized by the United Nations as human rights, thus reflecting the fundamental nature of these basics in every person’s life. States are therefore obliged to providing water and sanitation services, access to electricity as well as access to healthy adequate food.
To survive in the digital world, the Internet has become an indispensable tool, medium and enabler to actualizing our fundamental human rights with respect to having an adequate standard of living. If access to electricity, water and food are recognized rights, why should access to the Internet not be?
Let’s look at the interplay of some of the known fundamental human rights as recognized by law in the traditional world with Internet access in the digital world, draw parallels and some conclusions whether Internet access is a fundamental human right to be recognized by our courts implicitly under our existing Constitution and other laws or explicitly by any amendment of our Constitution as recognized by countries such as Finland.
Right to Adequate Standard of Living
The right to an adequate standard of living is the bedrock of all economic and social rights and this is espoused in some international human rights instruments that Ghana has signed and ratified. Article 25(1) of the Universal Declaration of Human Rights (UDHR) posits that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” .
Also under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to adequate food, clothing and housing, and to the continuous improvement of living conditions is an essential part of the right to an adequate standard of living.
Additionally, the Convention on the Rights of the Child (CRC) states in Article 27(1) that, States parties must recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
Article 14(2)(h) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides that women in the rural areas have the right to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.
The 1992 Constitution of Ghana also espouses same provision in Article 37 (6)(b). It provides that the State is to provide social assistance to the aged such as enable them to maintain a decent standard of living.
Adequate as used above means the availability, affordability, accessibility, quality, and safety. Decent as used in the 1992 Constitution cannot be far from the State creating the same enabling environment as in what adequate means.
To Tim Berners-Lee, the inventor of the World Wide Web, Internet access is akin to access to water and there is no doubt Internet access is a basic requirement for social inclusion, political and economic participation. It is believed that it was the impact of industrialization that made electricity became a human rights issue. Until access to electricity became a human right, it was seen as based on other human rights such as the right to housing, education and food hence a derived right. What about access to Internet in the digital age?
In recent times, once you book into a hotel room, the first most likely thing you do after switching on the lights or even at the reception is to ask for Internet access code. In our homes, water, electricity and Internet have become basic utilities for a decent standard of living. Most children nowadays do not care so much about shortage of water but let the Internet go off and they become restless since it has become a non-negotiable part of their social development and for an adequate standard of living.
Internet access improves our living conditions and easily falls under the ICESCR as an economic right, and like water, electricity and communication allows women in rural areas to enjoy adequate standard of living as required by CEDAW. It also allows the child to socially develop as required by the CRC as well as contributes towards adequate standard of living of all Ghanaians as required under the UDHR and our own 1992 Constitution. Should it be a human right as Ghana goes digital or perhaps remain a derived right? What do you think?
- Right to Freedom of Expression, Information and Association
Under the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Under the Convention on the Rights of the Child (CRC), the child has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice. Also the child has the rights to freedom of association and to freedom of peaceful assembly. Right to access information and material from a diversity of national and international sources. (arts 13,15,17). State parties under the CRC are to encourage the production and dissemination of children’s book and also children have the right to join or create groups and organizations. They have the right to meet with others and advocate for change and to give their opinion on issues that affect them. Under article 9 of CRC, State Parties must make sure persons with disability have the right to access information and communication technologies and systems including the Internet.
Under the Convention on the Rights of Persons with Disabilities (CRPD), there is a provision in Article 21 that obligates State Parties to ensure that persons with disabilities have the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice and should be in accessible formats and technologies appropriate to different kinds of disabilities.
Articles 9, 10, and 11 under the African Charter on Human and Peoples’ Rights (ACHPR) provides that State Parties must ensure that every individual shall have the right to receive information and shall have the right to express and disseminate his opinions within the law as well as the right to free association and assembly. In Article 13 of the same Charter, every citizen has the right to equal access to public service.
Under Article 21(1) of the 1992 Constitution of Ghana, freedom of speech and expression, freedom of assembly as well as freedom of association and to take part in demonstration are part of the general fundamental freedoms entrenched in the Constitution.
Ghana is embarking on e-government through a digitalization agenda which means public services are going to be accessed online. If the ACHPR requires every citizen to have equal access to public services. How is this going to be achieved without access to the Internet for all?
In the traditional world, actualizing the freedom of association and assembly, worship or demonstration as per the International Human Rights Conventions (UDHR, CRC, CRPD, ACHPR) and as entrenched in the 1992 Constitution, requires a face-to-face meeting in a physical location. In the digital world, actualizing the same rights requires a virtual meeting through applications such as whatsapp, skype, zoom and others. Do those rights cease to exist during a pandemic such as COVID-19 when face-to-face engagements are not possible? How is this going to be achieved without access to the Internet for all?
Right to Education and Cultural life on the Community
Under Article 27 of the Universal Declaration of Human Rights (UDHR), everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
Under the Convention on the Rights of Persons with Disabilities (CRPD), persons with disabilities have a right to education and an inclusive educational system at all levels and that they are not excluded from access to free and compulsory primary education, or from secondary education, on the basis of disability. Persons with disabilities are required to be supported, within the general education system, to facilitate their effective education.
Under Article 28 of the Convention on the Rights of the Child (CRC), every child has the right to education especially higher education must be made accessible to all in every appropriate means. Also under Article 31 of the CRC the child has the right to leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
Under Article 17 of the African Charter on Human and Peoples’ Rights (ACHPR), every individual has the right to education and to freely, take part in the cultural life of his community.
Under the 1992 Constitution, all persons are to have the right to academic freedom by way of equal educational opportunities and facilities and to achieving the full realization of that right, secondary education must be made generally available and accessible with higher education having equal accessibility to all.
In the traditional world, the meaning of equal educational opportunities and facilities, generally available and accessible secondary education and equal accessibility for higher education to all, will include to provide brick and mortar facilities like classrooms, libraries, good roads and transportation system especially in the rural areas for day students.
What happened to the educational system in Ghana during the COVID-19 pandemic? The right to education was violated for most children except for the privileged children in private schools who with access to the Internet in their homes were able to engage in distance learning on e-learning platforms and had access to e-libraries and e-books. Of course the government attempted to use the television channels to bridge the gap but that was not interactive and effective. Finland has recognized access to the Internet as a fundamental human right and what happened to their educational system? In March 2020, with just a few days’ notice, all schools including public schools were forced to switch to remote learning with some students in the process preferring learning at home as more effective than at school. They were able to do so because by the recognition of Internet access as a human right they have consciously put in place the needed Internet infrastructure for universal access and service.
The various International Conventions (UDHR, CRPD, CRC, ACHPR) including the 1992 Constitution requires every Ghanaian especially the child and persons with disability, to have access to education by whatever means and to take part in the cultural life of the community. Should this right of the Ghanaian be excluded in the digital world? I do not think so. Building an Internet infrastructure to access e-education is akin to building brick and mortar schools.
There is a school of thought that the Internet is a means to achieving a right and not a right in itself, an enabler with respect to e-work, e-worship, e-education etc which makes sense. However, even in the traditional world there are linkages between the various human rights making them interdependent, indivisible, interrelated and co-enablers. This means that violating for example the right to food has an impact on the right to health and education.
Likewise, Internet access in the digital world is also interdependent, indivisible, interrelated and a co-enabler with other rights as we know them and like food and water should in and of itself stand alone as a human right. Indeed, the only tool for the next generation of Ghanaians to quantum leap to be competitive with the developed countries is access to the Internet for all Ghanaians.
Ghana has ratified most of the International Human Rights Conventions and even if not specifically stated in the Constitution, under Article 33(5) of the 1992 Constitution, Internet access should be considered to be a right inherent in a democracy and intended to secure the freedom and dignity of man to be protected by the courts subject of course only to certain restrictions that are “in accordance with law” and “necessary in a democratic society” as with all other human rights.
As Ghana moves into e-government, e-economy with the digitalization agenda, the Internet is the only medium to access both public and private services. The political will for the recognition of Internet access as a legal right and part of the basic and fundamental human rights as enshrined in our Constitution is therefore non-negotiable. Of course, it will put financial obligations on any government to give universal access and service to the Internet in both the rural and urban areas but that is the inter-generational sacrifice we need to make today. Whilst building and expanding water and electricity infrastructure across the country, we must be adding Internet as well. Countries such as Estonia, Finland and France in a landmark HADOPI Case, have enshrined it in their legal framework as a fundamental human right and the benefits have shown during the COVID-19 pandemic. Why can’t we?
The author holds an EMBA (IT Management) an LLB and LLM (IT & Telecommunication) (visit : Kofianokye.blogspot.com, contact : [email protected])