An Essay by:
Nyambe E.N
Student, School of Law,
The University of Zambia,
Lusaka, Zambia.
emmanuelnyambe52@gmail.com
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.
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Reference: 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
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