By Matṧeliso Phulane
Two civil society organisations have banded to lambast at some section of the Computer Crime and Cyber Security Bill 2022 describing them as “unclear” and requiring to them to be expunged.
The Bill was drafted by the ministry of communications, science and technology and was circulated by the authority of the then minister of communications Tṧoinyane Rapapa earlier this year.
The dissatisfaction emerged during last Friday’s meeting between the Transformation Resource Centre (TRC) and the Media Institute of Southern Africa-Lesotho Chapter (MISA Lesotho) where the organisations deliberated on the Bill.
Discontent with some of the Bill’s sections, the public interest litigation officer of the TRC, Mokitimi Tṧosane said the Bill was drafted without any consultations. He thought it is clouded in conceptual and definitional deficits.
“The Bill is constitutionally flawed as it does not consider the basic constitutional rights and freedoms to privacy, fair trial, and expression. While the country needs progressive cyber legislations, the current legislation has oppressive elements through which a government bent on excluding the general public from the greater information society in this information era can utilise.
“Therefore, it is vital that the Bill be revised and reworked with regard to all comments received from all stakeholders including the public and private sector as well as the legal profession, academia and information security practitioners, “ Tṧosane said.
He explained that according to Section 43 of the Bill, “publication of false information, a person who publishes information or data presented in a picture, text, symbol or any other form in a computer system knowing that such information or data is false, deceptive, misleading, or inaccurate and with intent to threaten, abuse, insult, mislead or deceive the public, or conceals commission of such an offence, commits an offence and is liable, on conviction, to a fine not exceeding M500,000 or imprisonment for a term not exceeding five years or both.”
Again, he thought Section 43 has effects of bringing back criminal defamation.
He remembered: “In terms of the Constitutional Court ruling in Basildon Peta v The Minister of Law and Constitutional Affairs and Human Rights and Others, CC/11/2016 criminal defamationis no longer part of our law. It is recommended that the entire section be deleted because it is likely to be abused and threaten freedom of expression.
“This section flies in the face of a multiplicity of ordinarily allowed, tolerated, and countenanced ways of society poking fun at itself for comic effect, social commentary and political satire or caricature; and it is likely to be abused by powerful groups against socially constructive exertions of the categories like conventional and social media including citizen journalism, artists and cartoonists, and even mainstream scholars.
“Currently, the Bill justifies overreach of enforcement powers suffocating the very essence of a responsive democracy – Freedom of Expression and Speech. In the process, the government risks excluding the general public from the greater information society in this information,” he added.
He also quoted Section 12(7) of the Constitution that states that “no person who is tried for a criminal offence shall be compelled to give evidence at the trial.”
“Under our Criminal law, a person who is charged with a criminal offence is presumed to be innocent until proven guilty”. The “presumption of innocence” is an important part of the foundation of the judicial system.
“This is widely known as the fundamental principal or “golden thread” of our criminal law that is related to the burden of proof. Simply defined, the burden of proof describes requirement that the Crown must provide sufficient evidence in court to convince a legal authority that their side of the case brought forward is conclusively proven to be true and accurate,” he added.
Suggesting that in criminal law the burden of proof lies completely with the Crown. There is no doubt that it is a heavy and onerous burden and completely favours the accused noting that the Crown has to prove beyond a reasonable doubt that the accused has committed a crime.
T’sṧosane clearly said the defendant “does not have to prove that he or she is innocent because the presumption of innocence in favour of the accused. It is always the underlying assumption afforded to all individuals unless and until the prosecution is able to prove the case against them beyond a reasonable doubt. “
While Section 59 is useful in requiring that a law enforcement officer must obtain a search and seizure warrant, it is an error to give the officer discretion to extend the warrant to cover areas and facilities and objects not detailed in the warrant, he suggested.
At the meeting, the national director of MISA Lesotho, Lekhetho Ntsukunyane said as MISA Lesotho presented its views on the Bill to the Parliamentary Portfolio Committee specifically indicating some flaws in the document.
He said the Bill combines two sets of crimes which are computer and cyber security crimes making it so unclear as to the difference between the two.
Ntsukunyane said the issue of illegal access to information is not clearly described on the Bill as it fails to say what illegal access is.
“As a result, it may be difficult for media to operate as a lot of information they publish is accessed from the internet.
“Lack of clarity on what illegal access means may affect media freedom as their access to information that may ordinarily be in the public domain or has to be accessed by the media may be deemed illegal,” Ntsukunyane higlighted
He added that the Bill was silent on the ill intend usage of mobile phone applications to create new scenes or access internet for the purposes of exposing sexual explicit materials and distributed over social media platforms.
“The Bill does not also say much on protection of a child in terms on things posted on the internet. It does not also define a child in terms of the age,” he expressed
Ntsukunyane urged for alteration of some sections of the Bill and highlighting that the ministry of communications has pledged to draft a new Bill otherwise threatening an action if the matter is not adhered to by relevant authorities.
