EAST AFRICAN COMMUNITY

Workshop on Cyberlaws and E-Justice

Presentation:
“Cyberlaws & Regional Harmonization”
25 April, 2006

Dayo Ogunyemi
Attorney and Consultant
CAG/EMC Matrix
dayo@counseladvisory.com
Cyberlaws & E-Justice
 Cyberlaws
- Focuses on enhancing a jurisdiction’s legal system by
establishing laws that reflect and deal with the
technological changes that permeate society

 E-Justice

- Centers on technological enhancements to a

jurisdiction’s judicial system to extend the
capabilities of that system to process and deliver

 While distinct, these two areas have significant

cross-cutting issues - particularly with respect to
awareness raising, capacity building and access to
technological tools for the judiciary, the bar, and
the general public
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Policies and laws in Regional Context
 Adjudication and dispute resolution mechanisms
- Competence to handle electronic issues

- Efficacy

- Convenience to parties

 Cyber-crime monitoring and law enforcement

- Fraud

- Money laundering

 All these raise issues of capacity building within the

judiciary and law enforcement that may well be
best borne on a regional basis because of resource
constraints

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Roles for RECs in Cyberlaw Formulation
 Provide context within which political
commitment to trade facilitation can be
promoted

 Provide basis for harmonizing underlying

laws and regulations from the onset

 Means of resolving thorny issues like:

- Jurisdiction

- Choice of law

- Trust enhancers like crime prevention and prosecution as

well as dispute resolution fora and mechanisms

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RECs and Cyberlaws: Critical Issues
 Substantive Scope: what areas are to be
covered

 Harmonization options

 Formulation

- Process and participants

 Implementation

- Process and participants

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Legislative scope for Cyberlaws
E-Commerce

 E-contracting/transaction laws

 E-signature laws

E-Access:

 E-records

 E-evidence

Laws Protecting Parties, Transactions, Systems &

Data

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Core Legal Issues
 E-contracting/transaction Laws
- Create equivalency between paper and electronic
documents (in private and public laws).

 E-Signature Laws
- Create equivalency between electronic and ordinary
signatures as to effect in commerce

 Sample Legislation
- UNCITRAL model E-Commerce law (1996)

- UNCITRAL model E-signature law (2001)

- UNCITRAL Electronic contracting preliminary draft convention (2003)

- National Conference of Commissioners on Uniform State

Laws(NCCUSL) Uniform Electronic Transaction Act (1999)

- EU Electronic Signature Directive (1999)

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- US E-Sign Act (2000)
E-Access
 E-records

- Dealing with the processing and

retention of electronic data

 E-evidence

- Dealing with the admissibility of

electronic evidence in courts

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Laws Protecting Parties, Transactions, Systems and Data

 These are laws that seek to create

confidence among parties engaging in
electronic transactions by addressing the
rights and interests in the underlying
exchange of goods and services;

 They include cyber-crime laws, intellectual

property laws (expanded to include
database protection and domain name
law), privacy frameworks, consumer
protection.

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Harmonization Options
 Degree to which national sovereignty
is ceded to REC

 Four broad options:

- Centralized harmonization

- Separated Jurisdiction

- Centralized Policy/National implementation

- Decentralized harmonization

 In practice, a mix of the above

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Various Approaches to Harmonization
 SADC

REC-level Model laws, informed by legislation

passed by early adopters

 ECOWAS

- Intent to implement greenfield legislation at

REC-level, national efforts starting to pop up

 EU

- Directives and guidelines (degree of uniformity

less because of existing body of legislation)

 US

- Federal legislation to pre-empt divergent

implementations of various e-laws
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EAC Approach to Harmonization
 EAC enabling factors:

- Uniquely placed because of common

language, socio-political history

- Comparable levels of E-readiness

(Infrastructure, Access to IT, etc)

- Manageable number of states

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Critical steps towards a regional framework

 Determine who stakeholders are, include

them in the formulation and
implementation processes and address
their various needs

 Determine a workable scope reflecting

priorities and constraints

 Catalog and understand status of existing

cyberlaw efforts at national and regional
levels

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Stakeholders
 General public

 Private sector

 Judiciary

 Legislators

 Executive

 Attorneys General

 Domestic Bar

 Law enforcement
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Stakeholders’ Needs
 Awareness raising

 Capacity building (need to invest at least

as much in people as in hardware &
software)

 Access to infrastructure & tools

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Translating policy into practice
 Formulating (Determining what to do)

- Truly reflecting local needs

- Resource and capacity constraints

 Implementing (Doing it)

- Political will and commitment

- More intractable than formulating

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Translating policy into practice (II)
 While the approach of different RECs will
necessarily reflect unique facts -
capabilities and constraints, it is clear that
legal professionals within the REC have a
leading role to play

 At a minimum, these critical stakeholders

in the EAC will include:
- Attorneys General

- Counsel to the Community

- Members of the National Bar

- Representatives of private sector

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- Civil Society
Translating policy into practice (III)
 The ECOWAS plan to develop a legal
framework should shed some light,
although the EAC’s experience may well
differ based on availability of resources
and its strong cohesiveness

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ECOWAS Legal Framework Phases
 Phase I
- Draft model e-contracting/transactions bill
- Draft model e-signature bill
- Consult with stakeholders – governments,
private sector and civil society (as
representatives of citizen/consumers)
- Adopt model e-contracting/transactions and
e-signature legislation for region
- Engage in capacity building for the judiciary
and regional legal professionals
- Create awareness campaign for decision
makers in the public and private sectors as
well as the general citizenry

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ECOWAS Legal Framework Phases
 Phase II
- Develop cyber-crime and related policy and
legislation in conjunction with relevant
regional agencies and national specialized
law enforcement agencies
- Develop data and electronic security laws
- Formulate tax policy on e-commerce
- Engage in capacity building for the judiciary
and regional law enforcement and legal
professionals
- Create awareness campaign for decision
makers in the public and private sectors as
well as the general citizenry

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ECOWAS Legal Framework Phases
 Phase III
- Develop e-payment regulations/legislation with
input from payment agents, consumer
representatives and merchant representatives
- Develop online consumer protection laws
- Develop data protection and privacy policy and
legislation
- Engage in capacity building for financial
services players, financial regulators, judiciary
and regional legal professionals
- Create awareness campaign for decision
makers in the public and private sectors as
well as the general citizenry

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ECOWAS Legal Framework Phases
 Phase IV
- Review existing national laws with view to:
• creating electronic records bill
• creating electronic evidence/admissibility bill
• amending copyright, trade mark and other
relevant IP law, including trade secrets and
database protection laws
• Develop domain name or cyber-squatting law
(with particular reference to the Madrid
protocol on trademarks)
- Engage in capacity building for creative communities,
knowledge industry participants, judiciary and
regional legal professionals
- Create awareness campaign for decision makers in the
public and private sectors as well as the general
citizenry 22