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

Fri Nov 29 01:46:00 EAT 2013

Thanks Barrack, Ali, Kapiyo, Wangari and Ngigi.

@Ali, thanks for providing us with clear explanation of what
double criminality is all about, and taking note  that it may be difficult to prosecute an
offense in a country that lacks a law meant to nail an offender. Further, the information
about the South African Government signing the Protection of Personal
Information Act 2013 is useful and in
particular that it paves the way for the regulator and other
administrative aspects to gear up for policing the Act. 

@Kapiyo,  your
point about states being sovereign and that a
state may or may not extradite or punish criminal suspects in terms of
double criminality is noted. Additionally, we take note of your suggestion on the
importance for states to harmonise cyber legislation to forestall persons
getting away on the basis of double criminality. Thanks also for
shedding light on the interpretation of concept of additional punishment and
the fact that magistrates and Judges already posses this power when sentencing.
It is now clear that the aim is to serve as a further deterrent against criminals
as well as discourage judicial officers from ordering the minimum penalties
available. 

@ Ngigi, you raise a good question that in my opinion
calls for further discussion namely that when we  publish blogs,
host them in far away countries and then go ahead and let loose vitriol on
those we don’t like, is this action seen as criminal and if so by what Law?
I hope the legal minds on this mailing list can shed light on this one. 

@ Barrack, I totally agree that cybersecurity is an emerging
area that requires collaboration by various stakeholders across the region. You
are concerned that the Continent lacks a legal
system to deal with cross border dispute resolution which forces people to resolve
most of the domain name related issues through WIPO.  @Kapiyo has provided the information
about the Nairobi Centre for International Arbitration which was
established in January with one of its main functions being to offer alternative
dispute resolution (ADR) techniques. Would you find out if it handles
domain name related concerns?

@Wangari, you hypothesize that
if all AU countries had similar cybersecurity guidelines, would countries then
need to extradite? Well, it is a concern and I hope it can be answered by any
of the listers. 

Thank you all for keeping
this debate vibrant. I encourage you to still contribute if you have more ideas
on the issues raised. Please feel free to go back to previous questions and
lets debate them.

Warmly

GG
Date: Thu, 28 Nov 2013 17:03:04 +0300
From: vkapiyo at gmail.com
To: kictanet at lists.kictanet.or.ke
CC: isoc at orion.my.co.ke
Subject: Re: [ISOC_KE] [kictanet] Day 4: PROMOTING CYBERSECURITY AND	COMBATING CYBERCRIME

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 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, 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.RgdsGG 		 	   		  

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