Like any other country, Botswana has over the years experienced massive technological developments that completely changed the way business is conducted and people relate to each other. However, with these technological advances came major challenges, chief among them cyber crime.
To government, such challenges have highlighted the need to fast track review of existing legislature to align it to technological advances. When presenting on “IT security governance, legal and regulatory frameworks in Botswana” at the cyber security and internet summit in Gaborone last week, Advocate Abraham Keetshabe, General Counsel at the Office of the President said there is need to introduce technology neutral language to enable the law to keep pace with technological developments.
“The current laws do not meet the language test particularly when it comes to definitions. Botswana also needs to enact laws that will severely punish cyber criminals and send a strong message to would-be offenders. There is also need to align our legislature with international conventions on cyber security,” said Adv. Keetshabe.
While progress in the development of a legislative framework has been slow, there are noticeable achievements as efforts to enact relevant legislation have gained momentum. Adv. Keetshabe said new developments have necessitated amendments of specific legislation including Criminal Procedures and Evidence Act, Authentication of Documents Act and Foreign Documents Evidence Act. As recently as April 2014 Botswana had no legislative framework to facilitate and enable provision of e-services in Botswana.
“Laws tended to prohibit rather than promote use of ICT to provide services. For example, our legislation did not provide for recognition of electronic signatures, authenticity of documents and admissibility of electronic evidence,” he said.
However, these legal challenges are being addressed through development of simple, consistent and technology-neutral legislation which recognizes all ICT processes and transactions. The Electronic Communications and Transactions Act, No. 14 of 2014 has enabled legal recognition and validity of electronic commercial transactions. This will facilitate e-commerce as electronic transactions will now be equally recognised as paper based transactions. The Act gives electronic signatures the legal equivalence of handwritten signature, promotes a technology-neutral legal framework for creation of e-signatures; gives legal recognition to certificates created or issued locally or externally , promotes uniformity of legislation and supports commercial practices with legal coverage.
Both the Criminal Procedure and Evidence Act and the Evidence in Civil Proceedings Act provide for admissibility of documentary evidence, with no specific provision for records produced electronically. Therefore, hitherto, it has not been possible to tender evidence contained in electronic records. The Electronic Records (Evidence) Act No. 13 of 2014 seeks to address these shortcomings by making it possible for electronic records to be tendered as evidence. The Act permits admission of any evidence generated and stored in electronic form, such that courts of law will now be able to admit such records (eg affidavits) and all other documents signed electronically.
In recognition of the fact that e-commerce and e-services may result in abuse of personal data, the government of Botswana is drafting the Data Protection Act to ensure that personal data is not processed without the knowledge and consent of the owner. In future, government will also set up the Data Regulatory Authority which will 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.
“The Authority will also guard against unauthorised access, alteration, disclosure and destruction of personal data,” said Keetshabe.