Development of ICT Legal Framework in Botswana

1. ICT PITSO 2012 DEVELOPMENT OF ICT LEGAL AND REGULATORY FRAMEWORK IN BOTSWANA Presented by: Advocate Abraham M Keetshabe General Counsel Office of the President 10 September 2012

2. Maitlamo Pillars National Connectivity ICTs in Homes and Communities Learning & HR Development ICT Driven Economic Development e-Government Technical Infrastructure Legislative Infrastructure e-Health

3. Development of legal & regulatory framework is at embryonic stage, work having started in earnest in the year 2010.

4. Introduction • Maitlamo, Botswana’s National Information and Communications Policy was approved by the National Assembly in August 2007. • Policy provides Botswana with a clear and compelling roadmap that will drive social, economic, cultural and political transformation in the years ahead through the effective use of ICT. • Policy complements and builds upon Vision 2016 and provides many of the key strategies essential for achieving Botswana’s national development targets. • Policy provides that national connectivity will help draw communities closer together and facilitate economic growth and development in all regions of the country. Batswana will have access to information that will assist them in their everyday lives. • On-line information on employment, community development, healthcare, education and government services all feature prominently in the Policy’s recommendations. Increased levels of e-commerce will enable local companies to compete in the global marketplace, and the development of a vibrant and entrepreneurial ICT sector will create further employment, greater economic diversification and boost investor confidence.

5. Absence of Legislative Framework • No legislative framework to facilitate and enable the provision of e-services. • Current laws tend to prohibit, rather than promote the use of ICT to provide services. For example, the legislation does not provide for recognition of electronic signatures, authenticity of electronic documents and admissibility of electronic evidence, to name a few. • These legal challenges must be addressed through the development of simple, consistent and technology-neutral legislation which recognizes all ICT processes and transactions - include recognition of electronic signatures as a valid authentication method for electronic transactions and give confidence to consumers, the business community and Government agencies participating in electronic transactions. • It is intended to address the existing gap by providing the same protective legal infrastructure that exists for paper-based transactions. Electronic signatures are an integral part of an authentication scheme and legislation dealing with electronic signatures, as well as the institutional capacity to deal with the recognition and approval of such.

6. Maitlamo on Legislative Infrastructure Paragraph 6.8.5 of the Maitlamo Policy provides that: • “Specific initiatives for the Connectivity Laws and Policies Programme include: • Media neutral legislation to deal with electronic documents (e-Commerce legislation); •  Amendments to specific legislation, including the Criminal Procedure and Evidence Act, the Authentication of Documents Act, and the Foreign Documents Evidence Act; •  Development of policy and possibly legislation dealing with electronic signatures; and •  Development of policy and possibly a combination of legislation and industry codes of conduct to deal with the protection of personal privacy, particularly in the context of cross-border data flow, health care and financial services and transactions.” • The e-Legislation programme gives meaning to this Policy.

7. Development of e-Legislation Priorities PHASE I • Data Protection – new legislation required • Electronic Commerce - new legislation required • Electronic signatures - new legislation required • Cybercrime and Computer Related Crimes Act – review Act • Electronic Evidence Bill – review existing Bill

8. Electronic Signatures • Development of legislative framework to introduce, recognise, define and provide for legal recognition of electronic signatures in Botswana; • To reverse the current legal position and prohibit discrimination against electronic signatures; • Specifically to establish that as long as an electronic signature meets a set of specific requirements, it is equally valid and carries the same weight as a handwritten signature and cannot be denied legal effect just because it was created electronically; • that electronic signatures meet all existing requirements for handwritten signatures and a reliable electronic signature should satisfy any law that requires a signature for a document subject to reasonable exceptions; that there should be rules to prove the reliability of an electronic signature.

9. Electronic Commerce • Existing legislation does not provide for recognition of electronic transactions, including electronic funds transfer (EFT), which practice is very common in our local commercial banks, including both the Bank of Botswana and the Office of the Accountant General, authenticity of electronic documents and admissibility of electronic evidence, to mention a few. • These legal challenges must be addressed, hence; • The development of simple, consistent and technology-neutral legislation which recognizes all ICT processes and transactions. • Should include recognition of electronic transactions as valid and legal transactions, with the same force and effect as paper based transactions. This will give confidence to consumers and the business community and in many ways enhance economic development of the country.

10. Electronic Commerce • Legislation to provide that: • No record should be denied legal effect just because it is in the form of an electronic record; • Where there is existing law requiring information to be in writing, an electronic record would satisfy that rule if it is accessible for subsequent reference; • The rules of contract should apply equally to electronic transactions; • Information given in electronic record form should not be denied legal effect merely on the basis that it is in electronic form; • A reliable electronic record should be legally valid and enforceable subject to reasonable exceptions; and • To provide for recognition of functionally equivalent foreign certificates and signatures. • Consumer is deemed to be a weaker party and ought to be more protected

11. Personal Data Protection • Examples of "personal data" are: address, credit card number, bank statements, criminal record, etc. • Main purpose of data protection legislation is to ensure that personal data is not processed without the knowledge and, except in certain cases, the consent of the data subject; • To ensure that personal data which is processed is accurate, and to enforce a set of standards for the processing of such information. • This legislation sets out principles of good information handling so as to guarantee the protection of personal information. It protects the individual’s right to privacy with respect to the processing of data and ensures that personal data is only processed in accordance with set requirements.

12. Principles of Personal Data Protection • Personal data is processed fairly and lawfully; • Always processed in accordance with good practice; • Only collected for specific, explicitly stated and legitimate purpose; • Not processed for any purpose which is incompatible with that for which the information was originally collected; • Personal data that is processed is adequate and relevant in relation to the purposes of processing; • Personal data that is processed is correct, and if necessary, up to date; • All reasonable measures are taken to complete, correct, block or erase data to the extent that such data is incomplete or incorrect, having regard to the purposes for which they are processed; • Data Collectors such as educational institutions, employers and banks are obliged to inform individuals of the reasons for collecting information about them; that individuals are assured that the data collected will not be used for any purpose other than that which has been specified by the data collector; that explicit consent from individuals is necessary in order to process sensitive personal data ( data that reveals race, ethnic origin, political opinion, religious or philosophical beliefs, health, sex life);

13. Data Regulatory Authority • The Office of Commissioner for Data Protection be established and amongst others, the Commissioner be responsible for supervising implementation and enforcement of the Data Protection Act, with particular emphasis on ensuring that the individual’s right to privacy is protected and upheld and that processing is done in such a way that data is secure as well as to guard against unauthorised access, alteration, disclosure, destruction of personal data and that it is processed in a manner consistent with the law. • Further, the law seeks to establish a Tribunal whose primary function is to hear appeals from any person aggrieved by a decision of the Commissioner for Data Protection.

14. Crime in the Cyber Space • Cybercrime and Computer Related Crimes Act came into force on 28/12/2007. Cyber crime understands no boundaries and may collapse the economy of any country. • Deals with crime perpetrated through computer systems • Covers unauthorised access to a computer or computer system, unauthorised interference with data, accessing computer system with intent to commit an offence, and generally deals with cyber fraud. • The Act has been identified for review as a priority under phase I.

15. Admissibility of Electronic Evidence • Current laws do make provision for documentary evidence especially in original form which would exclude admissibility of records generated in electronic form. • Electronic evidence legislation will permit admission of any evidence generated and stored in electronic form and courts of law will be able to admit such records when tendered as part of evidence. • Courts will also be able to accept affidavits and all other documents signed electronically. In other words “best evidence rule” will now apply to electronic records.

16. Timelines and Conclusion • Botswana’s competitiveness has been on a decline. • While the reasons may be many and varied, there is no doubt that in the absence of such legislation, Botswana’s competitiveness cannot improve. • Having this in mind, it is clear that urgency is required in enacting this legislation, and in this regard, it is anticipated that the legislation will be in place not later than mid-2013.

17. ‘ The Road to a Capable State’ Questions and/or Answers Thank You