[kictanet] [ISOC_KE] Day 4: PROMOTING CYBERSECURITY AND COMBATING CYBERCRIME

Thu Nov 28 17:03:04 EAT 2013

I think the explanation on double criminality shared by Ali is clear. The
clause on double criminality basically restates a principle of
international criminal law which is generally well accepted and implemented
here. It is both a sword and a shield. As a sword, to ensure that criminals
are prosecuted for crimes they commit in foreign jurisdictions and as a
shield, to ensure that individuals are not extradited to other
jurisdictions to face charges for activities which are not criminal in
their home countries.

Plus we must remember that states remain sovereign and may or may not
extradite or punish criminal suspects if they so feel. That said, the
emerging trend today is to incorporate provisions that would require states
to either surrender the suspects to a state wishing to prosecute or in the
alternative, prosecute such persons in their own courts. Therefore, its
important for states to harmonise their legislation with regard to cyber
crimes so that such persons may not get away on the basis of double
criminality.

On additional punishment, I think that the intention is to enhance
punishment provided by law for offences which are committed by digital
communication. Hence, the effect would be that judges would be required
where there is only a minimum sentence provided, to enhance the sentence to
the maximum, a higher sentence or order additional punishment where the law
so provides. Magistrates and Judges already have this power when
sentencing, and as such this would serve as a further deterrent against
criminals and discourage judicial officers from ordering the minimum
penalties provided.

Lastly, the Nairobi Centre for International Arbitration was established
January vide the Nairobi Centre for International Arbitration Act and its
board appointed by the President in June this year. Its key functions
include: promoting and encouraging international commercial arbitration;
administering domestic and international arbitration, as well as other
alternative dispute resolution (ADR) techniques, under its auspices etc.
I'm not sure whether the court is fully functional or competent to hear
domain name disputes at the moment, given that its still quite new and it
may take some time before people take such cases before it.

LSK is also in the process of establishing a similar venture, but plans are
still at their nascent stages.

Victor

Victor Kapiyo, LL.B

====================================================
*“Your attitude, not your aptitude, will determine your altitude” Zig
Ziglar*

On 28 November 2013 10:47, Ali Hussein <ali at hussein.me.ke> wrote:

> Ngigi
>
> You are quite correct.
>
> The principle though also applies even in the analogue world hence
> extradition laws are usually complex. The point I'm making is that the
> legal experts must start thinking out of the box and simplify this. I'm
> sure some list way back when TV and Radio was the new new thing were
> debating the same issues. Us humans are now going for holidays in
> space..Soon we may be inhabiting those far off places..we must be prepared
> across the board including a new way of looking at laws and enforcing them.
>
> Ali Hussein
>
> +254 0770 906375 / 0713 601113
>
> "I fear the day technology will surpass human interaction. The world will
> have a generation of idiots".  ~ Albert Einstein
>
> Sent from my iPad
>
> On Nov 28, 2013, at 9:52 AM, Ngigi Waithaka <ngigi at at.co.ke> wrote:
>
> Ali,
>
> Been following this debate about crimes either done 'Analogue', old way or
> 'Digital', new way.
>
> I do feel with the coming of the Intermet age, crime is not as straight
> forward. Let me use an example.
>
> If I woke up today walked to The Daily Nation and published an article
> calling Ali a thief, I think by the laws of this country I stand to get
> sued for Slander.
>
> Now, if I flew to country X far far away, that doesn't have similiar laws,
> say Fiji Islands, and called Ali a thief, would Ali sue me? I think
> probably not. I am not even in Kenya and in the country I am in its not a
> crime to do so.
>
> Now, here is the interesting aspect; what if I was in Kenya, wrote a
> letter saying Alex is a thief, sent it to Fiji Islands and had it published
> there? Would I get sued for a crime?
>
> I look at the Internet as the latter scenario; where we publish blogs,
> host them in far away countries (Fiji Islands) and then go ahead and
> unleash vitriol on anyone we like. But, are our actions Criminal and by
> what Law?
>
> If you look at it, what crime is might not be that obvious afterall.
>
> Waithaka Ngigi
> A1.iO
>
> Waithaka Ngigi
>
> Alliance Technologies
> Nairobi, Kenya
>
> www.A1.io
> Grace and listers
>
> Firstly let us address the issue of Double Criminality. According to
> Wikipedia:-
>
> *Double criminality* (also known as *dual criminality*) is a requirement
> in the extradition <http://en.wikipedia.org/wiki/Extradition> law of many
> countries. It states that a suspect can be extradited from one country to
> stand trial for breaking a second country's laws *only* when a similar
> law exists in the extraditing country.
>
> For example, if Country A has no laws against blasphemy<http://en.wikipedia.org/wiki/Blasphemy>,
> double criminality could prevent a suspect being extradited from Country A
> to face blasphemy charges in another country.
>
>
> This is of course a double edged sword.  The implication here on
> harmonization of regional laws is a red flag. What may be kosher in
> Zimbabwe may not pass muster in Kenya. I get the feeing here that the
> interest of the Citizenry is secondary to Government. I'm a strong
> proponent of less Government not more.
>
> On the issue of additional punishment. I sometimes get the feeling that we
> think human behavior is different online as opposed to offline. Fraud is
> fraud whether off or online. Impersonation (as opposed to anonymity) is
> still impersonation and depending on why you are impersonating someone it
> still is a crime.
>
> I honestly get confused on some of these issues. It's like saying we will
> have separate laws when you break the law at home, at work or in the bus!!
> Stealing is stealing, whether offline or online!! Murder is murder whether
> on the bus or in space!!
>
> Lets simplify the penal code so that we don't have to create new laws
> every time a new medium of communication comes!
>
> Ali Hussein
>
> +254 0770 906375 / 0713 601113
>
> "I fear the day technology will surpass human interaction. The world will
> have a generation of idiots".  ~ Albert Einstein
>
> Sent from my iPad
>
> On Nov 28, 2013, at 12:56 AM, Grace Githaiga <ggithaiga at hotmail.com>
> wrote:
>
>  Good morning Listers
>
> Today is day 4 and our *focus is on PROMOTING CYBERSECURITY AND COMBATING
> CYBERCRIME. *We raise two questions:
>
>    *Article III – 14: Harmonization*
>
> *1) Member States have to undertake necessary measures to ensure that the
> legislative measures and / or regulations adopted to fight against
> cybercrime enhance the possibility of regional harmonization of these
> measures and respect the principle of double criminality.*
>
>
> *Question*: *What is the principle of double criminality here?*
>
>
>
> *Section II: Other penal sanctions*
>
>  *Article III – 48*
>
> *Each Member State of the African Union have to take necessary legislative
> measures to ensure that, in the case of conviction for an offense committed
> by means of digital communication facility, the competent jurisdiction or
> the judge handling the case gives a ruling imposing additional punishment.*
>
>
>  *Question: * *What is the interpretation of additional punishment? Is
> this not granting of absolute powers to judges?*
>
> We are almost getting there! Like Walu has reminded us, this is our
> opportunity to contribute and shape this debate.  Over to you!
>
> A great day to you all.
> Rgds
> GG
>
>
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