MASERU – The Computer Crime and Cyber Security Bill of 2021 will trample on the constitutional rights and civil liberties of the citizens if it is passed in its current form, two leading free speech and rights to information groups have said.
The National Assembly has referred the Bill to the Prime Minister’s Ministries and Departments Portfolio Committee to conduct extensive public engagements in order to get public input on the Bill.
Public participation is a democratic process that ensures law makers listen to the voices of the people when crafting laws.
The Media Institute of Southern African (MISA) Lesotho Chapter and the Transformation Resource Centre (TRC) fear it will be a tragedy for Basotho if the Bill is passed in its present form.
MISA Lesotho and TRC made their separate submissions to the portfolio committee on Monday and Tuesday respectively, this week.
“The most prominent characteristic of the Bill is that it does not strike a balance between civil liberties and the government interest in ‘national security’ and law enforcement,” TRC said.
“The government, through its created agency, assumes extreme and extensive powers in policing cyberspace. The government powers in terms of the Bill are arbitrary and limitations of the rights and freedoms not demonstrably justifiable,” it added.
MISA Lesotho said there was need to separate between computer crime and cyber security, two major sets of crimes, which it said are comprehensive enough to constitute two legal frameworks.
“The challenge has been to conflate the two,” MISA Lesotho National Director, Lekhetho Ntsukunyane, told the committee.
Ntsukunyane said his organisation’s comprehensive analysis of the Bill realised that in considering illegal access to computer data, the Bill did not provide a clear definition of illegal access.
“Section 21 of the Bill deals with illegal access, but it does so in vague terms. Therefore, the recommendation is that illegal access should be clearly defined under the interpretation section and there must also be clear provisions in the law,” he said.
The Bill was presented to parliament by then Minister of Communications, Science and Technology, Keketso Sello, on March 23, this year.
The presentation was met with outrage from activist groups, with MISA Lesotho releasing a statement saying it was “extremely worried” that the Bill was drafted by the Ministry of Communications, Science and Technology “without consulting all the parties that would be affected by the said bill once it becomes law”.
“We, at MISA Lesotho believe that every important law such as Computer Crime and Cyber Security Law, should undergo genuine and inclusive consultations with every potentially affected group before it gets adopted,” MISA Lesotho said in a statement.
It said such consultations should take place at all key stages in the legislative process – and not only when there is already a fully drafted legislative text.
It further indicated that it was concerned that when the Computer Crime and Cyber Security Law is adopted in a hurried manner without meaningful dialogue with all potentially affected parties, civil society and the expert community “it is likely to be ineffective, incomplete, contradictory and in breach of fundamental human rights and freedoms”.
It added: “When the law results in human rights violations because its impact on human rights was not fully foreseen and assessed during its development, it can lead to potentially costly legal challenges initiated by victims and interested groups.”
“The same law”, it added, “may soon also need to be amended or replaced”.
The Bill is for an Act that will make provision for offences relating to the misuse of electronic communication devices and electronic networks, regulate jurisdiction and powers of investigation, search, access and seizure and collection of evidence in respect of computer crime.
The Act will also make provision for the designation and protection of critical information infrastructure, impose obligations on electronic communications service providers and financial institutions to assist in the investigations of cybercrimes and report such crimes.
On Tuesday, TRC told the parliament’s portfolio committee that essentially, the Bill disregarded right to privacy, right to fair trial, freedom of expression and freedom from arbitrary seizure of property.
“The Bill comes as a trap targeting cyber users especially dissidents and will shrink the media, civic and political space. In its current form, the Bill will surely not pass the constitutional muster/ constitutional scrutiny,” it said.
“The Assange-Wikileaks and Edward Snowden episodes demonstrate the dangers of extensive absolutist arbitrary powers to law enforcement agencies in the name of obscure concept of national security,” it added.
TRC further presented to the committee that the Bill justified overreach of enforcement powers suffocating the very essence of a responsive democracy – Freedom of Expression and Speech.
In the process, it explained, the government risked excluding the general public from the greater information society in this information era.
“As it stands, the Bill is not as progressive as it is portrayed but it is rather an oppressive tool. Just like the Internal Security Act which was used to justify arbitrary human rights violations of oppressive regimes in the 1980s, the current Bill leaves room for abuse,” it added.
MISA Lesotho recommended that the scope of the Bill should be expanded beyond computer and computer software “but take cognisance of other electronic devices such as a smart phones”.
It said the Bill should also consider other cybercrimes inflicted on media consumers such as harassment, stalking and bullying among punishable cyber offenses.
“The fines and penalties imposed for the various cybercrimes have to be revisited as the rationale behind putting a certain offense is not clear,” it said.