Introduction 

The discourse on Business and Human Rights in Africa regarding technology governance is undergoing a major decolonial shift. Rather than simply adopting Western-inspired legal frameworks, it is moving toward more localized and context-sensitive forms of governance that challenge the epistemological foundations of global technology regulation. This shift aims to unsettle entrenched power structures and address the systemic inequalities that shape the regulation of multinational corporations.

In this blog, I argue that the decolonial turn in BHR and technology governance can stall when too much emphasis is placed on hard law, which is often vulnerable to dilution, compromise, and lobbying. I propose stepping back as a viable alternative, one that encourages courts and civil society organizations to draw on history as a safeguard against unchecked corporate influence. I also examine recent decisions by regulators and courts in Kenya and Uganda to show how this approach can strengthen a decolonial turn in BHR discourse on technology governance.

Indeed, recent jurisprudence from Uganda and Kenya points to a future in which African states do not wait for new instruments, such as a global BHR treaty, before pursuing accountability. Instead, African experience suggests that immediate, context-specific legal action offers a more effective path to decolonial governance. This contribution, therefore, calls on relevant actors to adopt innovative legal interpretation and historical awareness to close gaps in the law and strengthen regulation.

Decoloniality in human rights discourse

Decolonial studies are pervasive in human rights discourse. As an obvious disruptor of the status quo in rights guarantees, agenda, and research, it has attracted the attention of many scholars and jurists. Remarkably, these stakeholders hold diverse views on its motivation, pathways, and the end goal, all held together by the fulcrum of decoloniality.

The manner in which coloniality expresses itself in the context of technology and governance has been variously termed as techno-coloniality, digital colonialism, or better still, an antithesis to data sovereignty. The differences in terminology are not inherently contradictory. Still, they are highly useful for widening understanding of the legacy of colonialism, especially in the Global South and its developments, both in terms of infrastructure and governance approaches.

Why BHR discourse is under renewed  decolonial scrutiny

The growth of business and human rights (BHR) frameworks in the Global South has coincided with digital transformation and the spread of technology-governance laws. As a result, BHR discourse, including legal frameworks, scholarship, and litigation, has come under closer examination. Decolonial critiques have been especially important, questioning both the field’s reliance on the CSR concept and its dominant assumption that states are equally positioned to regulate multinational corporations. This is for several reasons.

First, as more African states adopt BHR National Action Plans, the intersection between BHR and technology governance is likely to become more prominent. Secondly, the emergence of BHR coincides with the decolonial turn in scholarship. Early scholarship on technology law, especially data protection, focused largely on the impact of the GDPR on African legal systems, including the long arm of GDPR and what Bradford has called the Brussels effect. More recent scholarship has moved beyond those concerns to question the epistemological assumptions behind these frameworks and to call for systemic change. This shift supports more localized and situated forms of governance that take the knowledge of indigenous, subjugated, and colonized communities seriously.

At the time these discussions were gathering momentum amongst scholars, I was privileged to attend the first global data law conference organized in Accra, Ghana in 2022, where the way forward for regulation in Africa was discussed. Lukman Abdulrauf later presented a book chapter following the conference, in which he compellingly argued for Africanizing law rather than adopting an African approach to Western-inspired laws. Boshe and Goberna have further suggested that this should mean contextualizing and situating the law. However, if law and its sources are themselves shaped by coloniality, then the decolonial perspectives advanced by Lukman, Boshe, and Goberna take us only part of the way. 

How, then, do we complete the picture? At a time of intense focus on adopting new legal texts, methinks decoloniality calls for a step back. It reminds us that governance is shaped not only by new laws but also by engagement with history. In my view, this is one of the most powerful contributions of decolonial thought, especially because it offers both a defence against and a response to the influence of lobbyists and unchecked corporate interests that undeniably continue to shape the application of BHR discourse to technology governance.

Through the BHR discourse, at least as it relates to the obsession with adopting legal texts, there are a plethora of encouraging cases in which courts and CSOs have chosen to draw on historical tools and moral conscience to confront coloniality. These evolving jurisprudence and experiences illustrate that a decolonial approach to legal interpretation calls on judges to be innovative, even where the law contains gaps. 

In African contexts, these developments, though piecemeal and in tier rather than fetal stages, matter because the very promise of future instruments, such as a BHR treaty, can sometimes delay accountability by creating the illusion that corporate abuse will be fully addressed once new legislation is adopted. Recent deal to water down provisions of the European AI Act and the compromise surrounding the European CSDDD offer a regional comparative glimpse on how waiting for the final text of the law may not deliver the just governance it promises.

The following section highlights notable case studies that demonstrate their contributions and what they portend for an Africa-centric pivot in the BHR discourse on technology governance.

How African courts are taking the lead in the  decolonial pivot in BHR discourse 

Across African jurisdictions, a growing body of cases shows that attention to history and context can help resolve serious disputes within BHR discourse.

Let us consider the context briefly. Tochetto and I have argued elsewhere that through the complex corporate structures adopted by big tech, coloniality reverberates in both its form and its effects. The African regulators are not only recognizing this fact but also forging a way out. 

In one case, which I had previously analyzed on the Afronomics Law Blog, I presented a key case from Kenya on the rollout and implementation of a digital ID programme. The key observation was that, though the programme was adopted 9 years after the Constitution of Kenya was promulgated in 2010, the Court, in deciding Ex Parte Katiba Institute and Another, applied legal innovation to infer the duty to perform a data protection impact assessment from the Constitution itself when a data protection law had not been passed. This legal innovation was based on the historical exploitation of the privacy right in Kenya, which led the court to make an inference that would not ordinarily be granted, given the very stringent rules against the retrospective application of the law.

The Nubian Rights Forum cases decided in Kenya in 2019 also established a State duty to protect human rights in the implementation of a digital ID programme whose providers are outside Kenya. The decision to stop the implementation of a digital ID project on its tracks inspired the CSOs to pursue IDEMIA in a civil suit under the French Duty of Vigilance Act. The outcome of the suit has led IDEMIA to review its vigilance plan, among other things, by committing to the rights protection standards set out in the African Charter on Human and Peoples’ Rights, 1981. This was an outstanding achievement because, for the first time, IDEMIA allowed itself to be bound by the elaborate provision of a Charter which provides for people’s rights and the three generational rights, thus expanding the French company’s duty to respect human rights under the African human rights system

In 2024, Ugandan data protection regulator decided SSekamwa Frank and 3 Others v Google LLC, holding that Google LLC could be liable in Uganda as both a data controller and a data processor. The decision was significant because it found the foreign company responsible for privacy and related rights violations arising from its processing of personal data, including browsing history and location data, and for cross-border data transfers made without the safeguards required under Uganda’s Data Protection and Privacy Act, 2019. From a BHR perspective, the ruling was especially important because it clarified the compliance obligations of offshore entities and rejected Google’s argument that the law on cross-border data transfers applies only to data controllers established or resident in Uganda.

In the same year, 2024, the Kenyan Employment and Labour Relations Court considered whether Meta could be sued for the alleged poor working conditions of content moderators working for Sama, a Meta contractor. The allegations of company’s abuse of the workers from the Global South have been claimed to be an advancement ofc colonial trends of exploitation, often leveraging on the gaps in the law.  The case was a significant step toward confronting the colonial trend by establishing a foundational finding that Met, a US-based company, could be sued for its violations. The decolonial impact of this decision was also significant, as the court rejected Meta’s claim that Kenyan courts lacked jurisdiction to hear the matter. At the time of such a claim, Facebook had earlier, in 2020, agreed to settle a class suit for content moderators in the US, and the assertions clearly bore the badge of colonial exploitation of labour and related resources.

Concluding observations

The arguments developed in this blog warn against ‘waiting for the law’ as a colonial trap that can delay urgent human rights protection. The African turn shows that active legal innovation and engagement with history are more effective tools of decoloniality than simply awaiting future international treaties or domestic statutes, even though such hard-law protections still matter.

The cases discussed reflect a decolonial turn in four main ways.

Firstly, they directly challenge colonial patterns of exploitation in the technology sector, especially in labour and resource practices across the Global South. Decisions allowing foreign big-tech companies to be sued in local courts for harms against local workers disrupt the unequal power structures that have long shielded multinational corporations from domestic legal accountability.

Secondly, African states and courts are increasingly relying on historical precedent and existing legal tools rather than waiting for new legislation. The Kenyan court’s decision in Ex Parte Katiba Institute is a leading example.

Thirdly, judicial interpretation is also working in tandem with CSO activism to build international accountability mechanisms. This collaboration produced a landmark outcome in the Nubian Rights Forum and IDEMIA matters.

Lastly, Rulings such as Sekamwa Frank v Google LLC are important because they affirm digital sovereignty against foreign entities that process Africans’ data without adequate safeguards.