An Essay by:
Student, School of Law,
The University of Zambia,
30th June 2021
In the current digital era, the sky is truly the limit as everything is simply a button away. Zambia has around 13.9 million social media and 5.48 million internet users, with approximations of internet penetration levels of 29.4 per cent (Kemp, 2021). In 2016, a common concern among stakeholders for the need to introduce a Cyber Security and Cyber Crimes law that protects citizens in Cyberspace slowly emerged. These concerns were supported by the anonymous nature of the internet and the fact that when most people become technically aware, they tend to be exploitive and take advantage of others through cyberbullying, child pornography, spam, hate speech, hacking, fraud, and identity theft and intellectual property theft. These events left no facet of the country’s virtual reality spared. However, on 23 March 2021, the President of the Republic of Zambia, His Excellency Dr Edgar Chagwa Lungu, asserted the proposed controversial Cyber Security and Cyber Crimes Bill into law. This critique will first define the key terms, and focus on the prospects and shortcomings that this Cyber Act presents to Zambia’s electoral process.
Definition of terms
Cyber Security as defined by the US National Institute of Standards and Technology (2012), is the assemblage of tools, policies, security concepts, guidelines, risk management tactics, and technologies that are executed to safeguard the cyber environment and organization and user’s assets and the totality of transmitted or stored information in the cyberspace. Cybercrimes according to the Cyber Act No. 2 (2021) mean a crime committed, by or with the assistance of the simulated environment or state of connection or association with electronic communications or networks.
Initially, the Cyber Act protects everyone against cyberbullying. Cyberbullying is bullying that takes place over digital devices, including cell phones, computers, or tablets. It can include the distribution of personal or private information about someone triggering embarrassment or humiliation (Stop bullying, 2020). Furthermore, Cyberbullying tends to be a setback in cases involving politicians during election times as it can immensely influence the vote outcome. For example, during the 2016 United States of America Democratic National Committee election, alleged hackers leaked Hillary Clinton’s private emails on the internet. This proved to negatively affect the aspirant’s campaigns and overall general election results (Nakashima & Harris, 2018). However, the existence of this act ensures that such a case does not occur as it aims to put to book the perpetrators of such crimes.
The Act recognizes and protects citizens’ right to privacy in Cyberspace. Before this Act was adopted, citizens’ private information in the Cyberspace was prone to be preyed on by hackers, identity thieves and fraudsters without consequences. With this Act in place, everyone’s personal information is safeguarded as it outlines the consequences that will follow if one acts otherwise in Cyberspace. This aspect tended to be of significant importance during the 2021 voter registration period as citizens confidently provided the Electoral Commissioner’s system with their particulars without fear and doubt. Furthermore, the deterrence that this Act grants to potential offenders favours the Electoral Commission of Zambia (ECZ) to possibly use technological means to transmit polling station results to totalling centres.
The Act protects Critical Information Infrastructures (CII). According to the Act, a CII is any network, database or communication infrastructure whose incapacity would have a devastating consequence on national security, the economy or public safety. When these infrastructures are safe, the ECZ is empowered to come up with digital voting. Digital voting would mean that the ECZ will set up systems that allow voters to cast digital ballots. Digital ballots will not only ensure confidentiality, but also maintain public trust, as systems are impartial as compared to individuals, who sometimes might be persuaded, threatened or offered a bribe to manipulate the polls. Additionally, digital ballots ease the counting process and make it quick to obtain results (Garnett & James, 2020). Thus, with this Act the possibility of Zambia, joining the likes of India, Belgium and Italy to integrate digital systems into the electoral process is high.
The Act curbs fake news, abuse of social media and other Electronic Communication Services (EC Services). The impact of counterfeit news and abuse of social media platforms distorts public opinion and brings about misinformation. In every democracy, citizens have the right to access accurate information, especially during the voter registration period. Voter registration is a critical aspect of the electoral process that contributes to the establishment of the voter register. Its exercise ensures the citizens have access to accurate information concerning their universal suffrage, how to vote, the importance of elections, the effects of voter apathy, the criteria for voter eligibility, and other issues that pertain to the election. Henceforth, with this act, in effect, the turnout of voters in this coming election will likely increase as it has favoured the smooth running of the voter education process to produce more informed electorates.
On the other hand, this Act infringes on the freedom of the media under Section 54. In Zambia, the public media has been dubious when it comes to offering a free platform for all possible political criticisms. However, though often threatened, private media has been a platform for all, they provide open political debate, but with this Act in place, it’s a matter of time before they also become dubious. Because this Section seemingly attempts to curb fake news, but the provision leaves what is fake to the interpretation of law enforcers. Thus, the Section might be used to control both the private and public media publications to disadvantage the opposition, and further, be used to deny them access to freely influence and layout their manifesto to the masses as it asserts that law enforcers are the determiners of the truth.
The Act under Sections 38 and 40 takes away the right to privacy. As these Sections legalise widespread surveillance of the Cyberspace by the state without a court order and mandate EC Services providers to use systems that are technically capable of supporting and permitting the state to intercept communications, have access to the numerous EC Service providers’ subscribers’ details, and have these EC Service providers record all call-related information and forward it to the state (Chapter One Foundation, 2021). This is questionable and not a justifiable move, as it compromises the communications between the members of the public and invades their private information at discretion (Musonda & Mwamulima, 2021), hence, it infringes on the democratic aspect of citizens’ participation. Without citizens’ participation, there is no other mechanism through which the public will influence public opinion in the political system. Furthermore, these Sections are inconsistent with regional and international personal data protection convention and grant powers that are far too broad and can be used to trail political aims. For example, they can be used to de-campaign opposition party leaders based on the information gathered by EC Service providers, therefore they may give an upper hand to the ruling party.
The Act under Section 29 takes away the freedom of expression on the Cyberspace. As it grants law enforcement officers, or any other officer appointed by the Minister, broad powers to vocally request EC Services providers to intercept communications of citizens without a warrant or a court order. All based on a “reasonable belief” that there is a possibility of harm to a person or property, and the law enforcement officer does not need to provide proof of the basis of their belief (Chapter One Foundation, 2021), therefore, it takes away the freedom of expression. Freedom of expression cannot be freely exercised on laws based on hearsay. Through the freedom of expression on the Cyberspace, individuals express and receive ideas, whether private or public. However, with this Section, there is no assurance whether the powers it presents will be used effectively by law enforcers towards the forthcoming election to avoid infringing on citizens’ freedom of expression. Evidently, most law enforces in the past have demonstrated recklessness in the execution of some public laws. For example, I have misused the archaic Public Order Act from time to time during the election period to intimidate or disrupt rallies of opposition parties (Hichilema, 2021).
Lastly, the general autonomy that this Act grants the state in the Cyberspace raises the possibility of EC Services blackout. In Africa, governments have recently portrayed a habit of shutting down their EC Services to silence their citizens during the elections for various manipulative agendas. For example, network data from Netblock from 2020 to 2021 suggested that Burundi, Guinea, Tanzania, Uganda, The Republic of the Congo used this scheme during their electoral process to oppress their citizens. In Zambia, this scheme can now legally be executed by the state as this Act grants cyber inspectors” the power to investigate “Cybersecurity incidents” and “Cybersecurity threats”, but the definition of what totals to a “Cybersecurity threat” is not defined, whereas the description of a Cybersecurity incident is widely and poorly defined. Poorly defined or open-ended laws leave excessive room for these inspectors to provide their definition (Chapter One Foundation, 2021) or provide a definition influenced or coerced by the state. Therefore, an EC Services blackout may be induced, and if it is induced, the safety of those in charge of the electoral process and the public at large will not be assured.
In Conclusion, Zambia, as a developing country, needs this Cyber Act to govern its Cyberspace. The Act keeps up with the sophisticated Cybercrimes that the nation experiences in Cyberspace, such as cyberbullying, fraud and identity theft. The act further curbs misinformation recognises citizens’ rights on the Cyberspace, protects the state’s Critical Information Infrastructures, and these aspects of the Act favour the electoral process as discussed above. However, some sections of the Act are a threat to the country's electoral process as they contradict regional and international personal data protection conventions. For instance, as critiqued above, Section 54 infringes on the freedom of the media by leaving the determination of what is false to the state, Section 29 goes against the freedom of expression needed for a free and fair democratic election atmosphere, Sections 38 and 40 compromises citizen’s participation in public policies. Furthermore, the general autonomy that this Act grants the state on the cyberspace is a threat to the nation’s democracy, democracy cannot thrive on laws that are based on hearsay.
Nyambe, E.N. (2021) The Opportunities and Challenges that a Cyber Security and Cybercrimes Act may Present to the Electoral Process: A Zambian Perspective, Amulufeblog. Retrieved from: https://www.amulufeblog.com/2022/06/the-opportunities-and-challenges-that.html
Ajayi, E. F. G. (2016) Challenges to enforcement of cyber-crimes laws and policy, Journal of Internet and Information Systems, Vol. 6(1), pp. 1-12.
Chapter One Foundation. (2021) ‘ Cyber (In)Security: potential impact of the Cyber Security and Cyber Crimes Bill of 2021 on an already shrinking civic space in Zambia’. The Mast Online. Available at: https://bit.ly/3j2gMi0. (Accessed 13 June 2021)
Garnett, H.A and James, T.S. (2020) Cyber Elections in the Digital Age: Threats and Opportunities of Technology for Electoral Integrity. Election Law Journal, Vol 19 (2). DOI: 10.1089/elj.2020.0633
Hichilema, H. (2021) ‘Stop Zambia’s digital squeeze’. Mail & Guardian. Available at: https://mg.co.za/africa/2021-03-09-stop-zambias-digital-squeeze/. [Accessed 13 June 2021]
Kemp, S. (2021) Digital 2021: Zambia. Data Reportal. Available at: https://datareportal.com/reports/digital-2021-zambia. [Accessed 22 June 2021]
Musonda, B.C and Mwamulima, J. (2021) ‘Zambia: The Cyber Security and Cyber Crimes Act, 2021- key provisions and implications for service providers and private citizens. Bowmans. Available at: https://bit.ly/3vKspNh. [Accessed 13 June 2021]
Nakashima, E. and Harris, S. (2018) ‘How the Russians hacked the DNC and passed its emails to WikiLeaks’. The Washington Post. Available at: https://wapo.st/3gJ5luf. [Accessed 13 June 2021]
Netblock. (2020: 2021) ‘Tag: Africa’. Available at: https://netblocks.org/tag/africa. [Accessed 13 June 2021]
Stop bullying. (2020) ‘What Is Cyberbullying’. Available at: https://www.stopbullying.gov/cyberbullying/what-is-it. [Accessed 13 June 2021]
The Cybersecurity and Cybercrime Act. N.A.B. 2 (2021). The laws of Zambia. Available at: https://www.parliament.gov.zm/node/8832. [Accessed 13 June 2021]
US National Institute of Standards and Technology. (2012) Guide for Conducting Risk Assessments. Available at: https://csrc.nist.gov/publications/detail/sp/800-30/rev-1/final.