International Telecommunication Union HIPSSA Project Support for Harmonization of the ICT Policies in Sub-Sahara Africa, Workshop on the SADC Harmonized.

InternationalTelecommunicationUnion

HIPSSA ProjectHIPSSA Project

Support for Harmonization of the ICT Policies Support for Harmonization of the ICT Policies in Sub-Sahara Africa, in Sub-Sahara Africa,

Workshop on the SADC Harmonized Legal Framework for Cyber Workshop on the SADC Harmonized Legal Framework for Cyber Security Gaborone Botswana 27Security Gaborone Botswana 27thth February-3 February-3rdrd March 2012 March 2012

Presentation on Presentation on e-transaction and e-commerce e-transaction and e-commerce assessment Reportassessment Report

Présenter: Adam Mambi, Régional Légal Expert on e-transaction& e-Commerce

Summary of the ContentSummary of the Content1)Background /Introduction2)Executive Summary3)review and Analysis of National

Legislation on E-Commerce and Electronic Transaction of SADC Member States (15 Countries)

4)Key Legal issues to be discussed

5.Key Legal issues to be discussed

Definitions   Legal effect of electronic communications Legal recognition of electronic documents Requirements of writing Electronic Signature Cryptography providers for digital signatures Legal recognition of original information Electronic contracts Time and place of communications Admissibility and evidentiary weight of electronic

communications E-government services Consumer Protection Consumer Protection Service Provider Liability

Summary of the Content……Summary of the Content……

5) Comparative Law Analysis (15 Countries) 6) Comparative with Best Practices and

Regional Trends 7) General Assessments of Regional Texts 8)Summary of Assessment of Regional Texts 9)Conclusion and recommendations 10)Summary Chart of results of this

comparative analysis/Key Elements and Status

1.Background

What is e-transaction? -transactions conducted electronically e.g.

communications, Govt services online etc E-transaction may include e-commerce, m-

commerce, e-signatures, etcWhat is e-commerce? use of electronic systems to engage in

commercial activities-B2B, B2C, C2C, C2G use of production information in electronic

forms instead of paper, for business or government operations

Executive Summary Purpose-to provide an analysis of the key issues and

common principles reflected in ICT regulatory and legislative frameworks relating to e-commerce and electronic transactions in the SADC Member States

Review of laws to identify relevant trends and key issues on e-commerce and electronic transactions

provide the basis for comparison with other countries within SADC, and eventual gap analysis to facilitate harmonization of policies and laws

Relevant Laws are identified and highlight key legal issues that facilitate e-commerce as compared to international and other regional best practises.

Brief observation from the study(situation analysis)

The study reveals that only few HIPSSA beneficiary countries in SADC that have some laws or provisions either directly or indirectly recognize electronic transactions and e-commerce.

Countries: The Republic of South Africa, Mauritius Seychelles Zambia

Other Countries with e-transaction and e-commerce related laws

1. Countries with Draft Laws/Bills on e-transaction and e-commerce related laws

Namibia 2. Countries with some related

Laws: Botswana, Zimbabwe, Tanzania,

Review and Analysis of National Legislation on E-Transaction and E-Commerce and of SADC Member

States (15 Countries)

1) The Republic of Angola-No Law Related Law: The Basic Telecommunications Law 2) The Republic of Botswana-No Law Related Laws: Consumer Protection Act of 1999, The

Telecommunications Act, 1996, Cybercrime and Computer Related Crimes, Chapter 08:06

3)Democratic Republic of Congo (DRC)-No Law4)The Kingdom of Lesotho-No Law Related Laws: Telecommunications Authority Act 20005)The Republic of Madagascar-No Law6)The Republic of Malawi-No Law Related Laws: Telecommunications Act, 1998 7) The Republic of Mauritius- Comprehensive Laws on e-transaction

& ecommerce: (1) The Electronic Transactions Act . Addressees key issues related to e-transactions & e-commerce

(1) The Electronic Transactions Act 2000-Mauritius: Adequately provides key issues on e-transactions and e-commerce

(2) The Data Protection Act, 2004 -No specific law on consumer protection8) The Republic of Mozambique-No Law Related laws: The Telecommunications Act (Law 22/929) The Republic of Namibia-No Law but has Bill on Use of Electronic

Transactions and Communications since 2010. Related laws: Payment System Management Act, 2003 (Act No. 18

of 2003)10) The Republic of Seychelles: Comprehensive Laws on e-

transaction & ecommerce: (1) The Electronic Transactions Act 2001. Addressees key issues related to e-transactions & e-commerce

11)The Republic of South Africa-Comprehensive Laws on e-transaction & ecommerce: (1) The Electronic Transactions Act 2001.

Addressees key issues related to e-transactions & e-commerce including Consumer Protection

Related laws: Consumer Protection Act, 12) The Kingdom of Swaziland-No Law 13) The United Republic of Tanzania-No Specific Law: Related Laws: Electronic and Postal Communications

Act,2010. Tanzania Communications Regulatory Authority Act, 2003 Miscellaneous Amendments Act, 2007

The Republic of Zambia- Comprehensive Law on e-transaction & ecommerce: (1) The Electronic Transactions Act 2001.

Addressees key issues related to e-transactions & e-commerce including Consumer Protection

The Republic of Zimbabwe-No Specific Law Related Laws: (1)The Postal and

Telecommunications Act 2000 (2) the Interceptions of Communications Act, 2008 (3) Access to Information and protection of Privacy Act, 2004

General Assessments and comparative analysis of Regional Texts

Assessment has been based on best practises. Generally, four countries namely Mauritius,

Seychelles, South Africa and Namibia has specific laws that address key issues on e-transactions and e-commerce. The frameworks provide for comprehensive language utilised to effect policy best practice

However, the laws in Mauritius and Seychelles do not have specific provisions on consumer protection online.

The Law in Seychelles do not have specific provisions admissibility of electronic evidence

Unlike other jurisdictions under SADC Member States, The Republic of South Africa and Zambia have clearly addressed consumer or customer protection provisions of a “cooling off” period within which consumers may withdraw the online contract without penalty

The Republic of Namibia has the Draft Bill with provisions that recognizes key issues on e-transactions and e-commerce

 BEST PRACTICES ON ELECTRONIC TRANSACTIONS AND

ELECTRONIC COMMERCE IN SADC The review of national legalisation from fifteen SADC Member

States has observed some divergences and similarities on the key issues related to electronic transactions and electronic commerce

Some of these issues analysed include: Definition of key terms, E-signatures, E-contracts, Electronic-communications, E-evidence, consumer protection, Intermediaries and Telecommunications Providers

While some few countries have legislation that address the above issues other courtiers do not have legislation.

Additional, even the countries that were found having legislation on electronic transactions and e-commerce, have differently addressed key issues

Best practises that can be learnt from countries that have laws on e-transactions and e-Commerce

Countries: Republic of South Africa, Zambia, Mauritius and Seychelles

Legislation/Laws from the Republic of South Africa and Zambia can be used as best practises in the sense that all issues related to cyber security such as e-transaction, e-commerce, cyber crimes, data protection and consumer protection are all provided in one law.

Definition key concepts elements: there are some unique definitions from other countries legislation that can be regarded as best practises

e-government: While Republic of South Africa, Zambia and Mauritius have the provision on e-government services, the Republic of Seychelles has used the word electronic governance which is wider than e-government.

The legislation of Seychelles can be used as best practice by other countries.

e-signature: Mauritius has the best provision of law on electronic signatures that any other country in the region.

Zambia has unique provision on the use of advanced electronic signatures

Consumer protection: The Republic of South Africa and Zambia have clearly addressed consumer

E-contracts: Mauritius All elements of electronic contracts are best addressed . The Electronic Transaction Act, 2000 has gone further by providing for declaration of intent of parties in agreement under electronic environments.

SUMMARY CHART OF RESULTS OF THE COMPARATIVE ANALYSIS/Key Elements

and Status

Country Legal effect of e-

transactions

Legal

requirement

for the

validity of e-

document

Contracts

Formation

e-signatures Consumer

protection

Intermediaries and

Telecommunications

Providers

Angola NONE NONE NONE NONE NONE NONE

*Botswana NONE NONE NONE NONE NONE GOOD/LIMIT

DRC NONE NONE NONE NONE NONE NONE

Lesotho NONE NONE NONE NONE NONE NONE

Madagascar NONE NONE NONE NONE NONE NONE

Malawi NONE NONE NONE NONE NONE NONE

Mauritius GOOD GOOD GOOD GOOD POOR GOOD (FAIR)

Mozambique NONE NONE NONE NONE LIMITED NONE

*Namibia GOOD GOOD GOOD GOOD (FAIR) GOOD/

LIMITED

GOOD/LIMITED

Seychelles GOOD GOOD LIMITED GOOD POOR GOOD/LIMIED

S. Africa GOOD GOOD GOOD GOOD/LIMIT GOOD GOOD

Swaziland NONE NONE NONE NONE NONE NONE

Tanzania NONE NONE NONE LIMITED LIMITED GOOD

Zambia GOOD GOOD GOOD GOOD GOOD GOOD (FAIR)

Zimbabwe NONE NONE NONE NONE LIMITED NONE

Conclusion Assessment of laws have been made in 15

SADC Members States Only four Countries were found having

specific Laws on e-transactions and e-commerce. These are Mauritius, Seychelles, South Africa and Zambia

Other Countries have Bills or developing cyber laws

THANK YOU: ADAM MAMBI