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e-RECORDS SYMPOSIUM, PHAKALANE

DEVELOPING CYBER LEGISLATION IN BOTSWANA - UPDATE

Presented by:

Adv. Abraham M Keetshabe

General Counsel

Office of the President

29 July 2015

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AGENDA

1. Maitlamo (National ICT) Policy of 2007

2. Maitlamo Policy on Legislative Infrastructure

3. e-Legislation Priorities

4. Electronic Communications and Transactions - Act No. 14 of 2014

5. Electronic Records (Evidence) Act – Act No. 13 of 2014

6. Personal Data Protection

7. Data Regulatory Authority

8. Cybercrime and Computer Related Crimes Act

9. Conclusion

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Maitlamo, Botswana’s National Information and Communications

Policy was approved by the National Assembly in August 2007.

Policy provides Botswana with a clear and compelling roadmap that will

drive social, economic, cultural and political transformation in the years

ahead through the effective use of ICT.

Policy complements and builds upon Vision 2016 and provides many of

the key strategies essential for achieving Botswana’s national

development targets.

Policy provides that national connectivity will help draw communities

closer together and facilitate economic growth and development in all

regions of the country. Batswana will have access to information that

will assist them in their everyday lives.

Maitlamo (National ICT) Policy of 2007

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On-line information on employment, community development,

healthcare, education and government services all feature prominently in

the Policy’s recommendations. Increased levels of e-commerce will

enable local companies to compete in the global marketplace, and the

development of a vibrant and entrepreneurial ICT sector will create

further employment, greater economic diversification and boost investor

confidence.

ICTs:

Offer opportunities for accelerated development, creation of

wealth and economic diversification;

Reduce duplicated effort;

Facilitate rapid transformation;

Promote efficiency and effectiveness in achieving intended

outcomes.

National ICT Policy - Continued

National ICT Policy Development

The development of the National ICT Policy of Botswana actively involved a

wide range of participants from the public and private sectors, as well as the

civil society. A National Steering Committee and seven Taskforces,

comprising experts from around the country, were established to assist with

this important effort. The Taskforces examined effective application of ICT in

the following areas:

• Community Access and Development

• Government

• Learning

• Health

• Economic Development and Growth of the ICT Sector

• Infrastructure and Security

• Legislation and Policy. 5

Maitlamo Pillars

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Paragraph 6.8.5 of the Maitlamo Policy provides that:

“Specific initiatives for the Connectivity Laws and Policies Programme include:

Media neutral legislation to deal with electronic documents (e-Commerce

legislation);

Amendments to specific legislation, including the Criminal Procedure and

Evidence Act, the Authentication of Documents Act, and the Foreign Documents

Evidence Act;

Development of policy and possibly legislation dealing with electronic

signatures; and

Development of policy and possibly a combination of legislation and industry

codes of conduct to deal with the protection of personal privacy, particularly in

the context of cross-border data flow, health care and financial services and

transactions.”

The Botswana Government e-Legislation programme gives meaning to this

Policy.

Maitlamo on Legislative Infrastructure

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Development of legal & regulatory

framework is at embryonic stage, work

having started in earnest in the year 2010.

Development of Legislative Framework

Up until as recently as April 2014, no legislative framework to facilitate and

enable the provision of e-services existed in Botswana.

Laws tended to prohibit, rather than promote the use of ICT to provide services.

For example, the legislation did not provide for recognition of electronic

signatures, authenticity of electronic documents and admissibility of electronic

evidence, to name a few.

These legal challenges are being addressed through the development of simple,

consistent and technology-neutral legislation which recognizes all ICT processes

and transactions - including recognition of electronic signatures as a valid

authentication method for electronic transactions and give confidence to

consumers, the business community and Government agencies participating in

electronic transactions.

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PHASE I

Data Protection – new legislation required – drafting ongoing

Electronic Commerce - new legislation required - done

Electronic signatures - new legislation required – done

These 2 combined = Electronic Communications &

Transactions Act No. 14 of 2014

Cybercrime and Computer Related Crimes Act – review

existing Act - ongoing

Electronic Evidence Bill – review existing Bill – done

e-Legislation Priorities

Electronic Commerce & Electronic Signatures

Development of legislative framework to introduce, recognise, define

and provide for legal recognition of electronic signatures in Botswana;

To reverse the current legal position and prohibit discrimination against

electronic signatures;

Specifically to establish that as long as an electronic signature meets a

set of specific requirements, it is equally valid and carries the same

weight as a handwritten signature and cannot be denied legal effect

just because it was created electronically;

That electronic signatures meet all existing requirements for

handwritten signatures and a reliable electronic signature should satisfy

any law that requires a signature for a document subject to reasonable

exceptions; that there should be rules to prove the reliability of an

electronic signature.

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Electronic Communications and Transactions Act, No.

14 of 2014 - Synopsis

The Act facilitates the use of electronic means of communication so as to

enable:

Legal recognition and validity of electronic commercial transactions

conducted internally and externally,

Recognition, promotion and implementation of information

technologies which facilitate electronic commerce,

Electronic transactions to be recognised in the same manner as paper

based transactions,

The promotion of a legal framework to support electronic commercial

practices, including the formation and conclusion of legal contracts through

electronic means;

The promotion and adoption of information technologies in relation to

electronic transactions;

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Gives electronic signatures the legal equivalence to the handwritten signature;

Promotes a technology-neutral legal framework for the creation of e-signatures;

Gives legal recognition to certificates created or issued locally or externally;

Provides functional equivalence of electronic information to written

information such that certain legal requirements for information retention,

presentation of information or information admissible as evidence is recognised

regardless of form; and

Promotes uniformity of legislation and supports commercial practices with legal

coverage.

Consumer is deemed to be a weaker party and ought to be more protected.

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Electronic Records (Evidence) Act No. 13 of 2014

Both the Criminal Procedure and Evidence Act and the Evidence in Civil Proceedings

Act provide for the admissibility of documentary evidence, but only in general terms

with no specific provision for the admissibility of records produced by an electronic

records system.

Therefore, hitherto, it has not been possible to tender evidence contained in electronic

records. This legislation seeks to address this shortcoming by –

making it possible for records produced by an electronic records system, in the Act

referred to as “electronic records” to be tendered in evidence in legal proceedings; and

altering the ordinary rules of law relating to authentication and best evidence in

admissibility of electronic records

This legislation permits admission of any evidence generated and stored in electronic

form and courts of law will now be able to admit such records when tendered as part of

evidence.

Courts will also be able to accept affidavits and all other documents signed

electronically. In other words “best evidence rule” will now apply to electronic

records (section 7 of the Act).

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Role of BOCRA

Section 6 of the Act provides that BOCRA shall be “the certifying authority” – it

plays a leading role in settling matters of integrity of the “electronic records

system”.

BOCRA has therefore been singled out as the authority responsible for

overseeing and approving the process of generating electronic records. BOCRA

certifies and confirms the authenticity, and hence the admissibility as evidence of

proof of the originality of the contents of an electronic record.

Again, the emphasis here is on the process that is used to generate an electronic

record. Authenticity here is associated not with the document in issue but rather

with the method , system or process that was used to generate the document.

In order to conclude and give legitimacy to this process, the Minister is required

to promulgate regulations. The purpose of the regulations is to operationalise the

Act. They provide the necessary guidance in certifying the integrity of an

electronic records system . Drafting of the Regulations is ongoing.

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Role of Records Manager

A Records Manager is responsible for:

developing, monitoring and reviewing the organisation's records management

policy, programme, procedures, standards and guidelines;

dissemination of information in relation to these;

the design and implementation of records systems

the management of active, semi-active and non-current records, in consultation

with the National Archives.

The new legislation does not in any way alter or affect these functions.

Any electronic records management system should place security of records at

the top of the agenda.

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Personal Data Protection The Government of Botswana recognises that the introduction of electronic

commerce and e-services will bring about increased opportunities for the abuse of

personal data. For this reason, the drafting of the Data Protection Act has been

identified as a priority.

A draft of the Bill has been completed and consultations are ongoing.

Examples of "personal data" are: address, national identity card, credit card number,

bank statements, criminal record, etc.

Main purpose of data protection legislation is to ensure that personal data is not

processed without the knowledge and, except in certain cases, the consent of the data

subject;

To ensure that personal data which is processed is accurate, and to enforce a set of

standards for the processing of such information.

This legislation sets out principles of good information handling so as to guarantee

the protection of personal information. It protects the individual’s right to privacy

with respect to the processing of data and ensures that personal data is only processed

in accordance with set requirements.

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Principles of Personal Data Protection

The Bill covers the well known principles of personal data protection:

Personal data is processed fairly and lawfully;

Always processed in accordance with good practice;

Only collected for specific, explicitly stated and legitimate purpose;

Not processed for any purpose which is incompatible with that for which the information was

originally collected;

Personal data that is processed is adequate and relevant in relation to the purposes of

processing;

Personal data that is processed is correct, and if necessary, up to date;

All reasonable measures are taken to complete, correct, block or erase data to the extent that

such data is incomplete or incorrect, having regard to the purposes for which they are

processed;

Data Collectors such as educational institutions, employers and banks are obliged to inform

individuals of the reasons for collecting information about them; that individuals are assured

that the data collected will not be used for any purpose other than that which has been specified

by the data collector; that explicit consent from individuals is necessary in order to process

sensitive personal data ( data that reveals race, ethnic origin, political opinion, religious or

philosophical beliefs, health, sex life); 18

Data Regulatory Authority

The Office of Commissioner of Data Protection be established and

amongst others, the Commissioner be responsible for supervising

implementation and enforcement of the Data Protection Act, with

particular emphasis on ensuring that the individual’s right to

privacy is protected and upheld and that processing is done in such

a way that data is secure as well as to guard against unauthorised

access, alteration, disclosure, destruction of personal data and that

it is processed in a manner consistent with the law.

Further, the law seeks to establish a Tribunal whose primary

function is to hear appeals from any person aggrieved by a

decision of the Commissioner of Data Protection.

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Cyber Crime

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Cybercrime and Computer Related Crimes Act came into force

on 28/12/2007. Cyber crime by its nature knows of no

boundaries and may collapse the economy of any country.

The Act deals with crime perpetrated through computer systems

Covers unauthorised access to a computer or computer system,

unauthorised interference with data, accessing computer system

with intent to commit an offence, and generally deals with cyber

fraud.

The Act has been identified for review as a priority under phase

I of the e-legislation programme of the Government of

Botswana .

Conclusion

Progress in the development of a legislative framework has

been slow but there are noticeable achievements.

Efforts to enact the relevant legislation have gained

momentum and will continue.

The completion of phase I of the Government e-legislation

programme should pave way to the commencement of the

second phase of the programme, which includes review of key

financial legislation mainly to facilitate electronic commerce;

and the enactment of freedom of information legislation.

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Thank You

Questions and/or Answers

‘The Road to Prosperity for all