harmonization framework for elaws and ejustice by dawo oguny

8/8/2019 Harmonization Framework for eLaws and eJustice by Dawo Oguny

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EAST AFRICAN COMMUNITY

Workshop on Cyberlaws and E-Justice

Dayo OgunyemiAttorney and Consultant

CAG/EMC [email protected]

Presentation:

Cyberlaws & Regional Harmonization

25 April, 2006


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Cyberlaws & E-Justice

Cyberlaws

- Focuses on enhancing a jurisdictions legal system by

establishing laws that reflect and deal with the

technological changes that permeate society

E-Justice

- Centers on technological enhancements to a

jurisdictions 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 bebest 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 ordinarysignatures 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)

- US E-Sign Act (2000)


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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, consumerprotection.


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Harmonization Options

Degree to which national sovereigntyis 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 reflectingpriorities 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

- Civil Society


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Translating policy into practice (III)

The ECOWAS plan to develop a legal

framework should shed some light,

although the EACs experience may well

differ based on availability of resources

and its strong cohesiveness


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ECOWASLegal 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 decisionmakers in the public and private sectors as

well as the general citizenry


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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




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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 andlegislation

- Engage in capacity building for financial

services players, financial regulators, judiciary

and regional legal professionals




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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

harmonization framework for elaws and ejustice by dawo oguny

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