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Govt to study controversial bill further

By Thoboloko Ntšonyane

MASERU – The Minister of Information, Communications, Science, Technology, and Innovation Hon. Nthati Moorosi has this week withdrawn the controversial Computer Crimes and Cybersecurity Bill 2022, citing reason to study it further.

There has been increasing resistance from the civil society organizations (CSOs) and the public, voicing their need for government that had recently made a move to see the passing of the controversial bill into law, to heed to their concerns.

This became evident when the bill was included in the National Assembly order paper on Monday 23rd May for debate to adoption, a move taken as an attempt to reinstate the bill at the state at which it was before the dissolution of the 10th parliament.

On Monday the bill was withdrawn in parliament for further analysis and consultations when it was about to be debated, and the Minister was asked to withdraw it.

Access to the internet is no longer a luxury but now a necessity with increasingly growing cyberspace affording many to exploit the digital platforms for many reasons be it entertainment, shopping, work, and learning among others.

The importance of the internet was clearly manifest during the hard lockdowns wherein countries had introduced stiff measures to control peoples’ movements in order to curb the widespread of the deadly and infectious COVID-19 pandemic.

As in other jurisdictions, Lesotho had introduced a piece of legislation aimed at regulating the usage of the internet and online activities. Whereas this law aspires to arrest online criminal activities including financial crimes and terrorist activities, it has come under fire on account of “harsh” sentences against those who will contravene its provisions. 

The critics say the government could use this law to muzzle the dissenting voices against how it conducts its affairs.

The bill proposes hefty penalties upon conviction. It is further criticized for lack of consultation during its formation.

By way of background, this bill had been completed by the 10th parliament before its dissolution last year paving way for elections that ushered in the 11th parliament that will soon be seized with the bill.

When the parliament was dissolved the bill had already received Royal Assent according to the then Minister of Communications Tsoinyane Rapapa, but could not pass as it was one of the bills that the Constitutional Court ruled that it was formulated during the time which the parliament was unconstitutionally reconvened.

It would be recalled that when the life of the 10th parliament ended in July 2022, His Majesty was advised to recall the parliament and the then Prime Minister Dr Moeketsi Majoro had declared a state of emergency. It would have been passed as law had the now MISA Lesotho chairperson Kananelo Boloetse and Advocate Lintle Tuke not petitioned the Constitutional Court to overturn this decision which the court ruled in their favor, a ruling also sustained by the Appeal Court.

The ruling summarily terminated all business that was transacted in parliament during that time of “emergency”. It said, “they became corpses which a declaration of … emergency cannot resurrect.”

The government has initiated the bill at its stage at closure of parliament to “ensure that its citizens are protected against cyber-attacks and the enactment of the Computer Crime and Cybersecurity Bill, as an effort by Lesotho to combat computer crime, putting in place the appropriate punishment for it and thereby ensuring cybersecurity”. 

The fines proposed in the bill range from M500 000 equivalent $25 000 (USD) or three years imprisonment term minimum fine to M15 million approximately $771, 144 (USD).

Offense against what is called “critical information infrastructure or protected computer systems” attracts a M15 million penalty upon conviction or 25 years imprisonment term or both.

Media Institute of Southern Africa (MISA) Lesotho Chapter’s National Director Lekhetho Ntsukunyane fears that due to its “lack of clarity” on what illegal access means, its provisions could affect media freedom since their access to information may not be in the public domain.

He said the “penalties for wrongdoing, which the Bill metes out are not proportionate to the crimes committed” adding that “there is no clear criteria on how those penalties were determined”.

Ntsukunyane said MISA Lesotho published a statement on March 31st 2021 expressing “deep concern over no consultation” by the Ministry responsible with the relevant stakeholders during the bill formulation. He said it was only on June 7 the same year, when they had an opportunity to make their presentation before the Law Portfolio Committee that was handling this bill.

The National Director frowned upon the silence on “ill-intended” usage of mobile phone applications to create pornographic material which are normally distributed over different social media platforms.

During the 75th Ordinary Session of the African Commission on Human and People’s Right the Transformation Resource Centre (TRC)’s, a local think-tank and human rights advocacy body, Public Interest Litigation and Human Rights Officer Advocate Mokitimi Tšosane cautions of what he calls “overreach of enforcement powers”.

This bill, he said “suffocate[es]” the principle of a responsive democracy which is freedom of expression and speech and the right to be free from intrusions and interference by the State.

“In the Bill, the government risks excluding the general public from the greater information society in this information era. The Bill encompasses sections meant to undermine and erode the right to privacy, freedom from arbitrary search and seizure of property, freedom of expression and access to information, and right to a fair trial. These provisions have the potential to shrink the civic, media, and political spaces,” he said.

Advocate Tšosane went on to say that the government should “review and rework” all submissions made by all stakeholders including the public and private sector, as well as the legal profession, academia, and information security practitioners in line with section 20(a) of the constitution.

The TRC’s Public Interest Litigation and Human Rights Officer said sections meant to undermine the right to privacy, freedom from arbitrary search and seizure of property, freedom of expression and access to information, and right to a fair trial should be deleted entirely as “they have the potential to shrink the civic, media, and political spaces”.

He further highlighted that the bill should be informed by the revised principles of the African Commission on Human and People’s Rights (ACHPR) Declaration on Freedom of Expression and Access to Information which recognizes the internet as a right. It is also important to ensure that the Cyber Bill complies with the African Union Convention on Cyber Security and Personal Data Protection (Malabo Convention).

“Ensure that media is free and secure to ensure that media can play a role in promoting sustainable growth and regional integration,” he argued.

The former Minister of Communications, Rapapa said this law was enacted to “deter and threaten” people from committing cyber related crimes.

“How much does these four banks in Lesotho transfer through computer transactions, billions, the banks everything is computer transactions, so when we fine Vodacom [through their mobile money transfers], fine Standard Lesotho Bank, fine the computer expert [working in these companies] should we fine them M2 000?

“The answer is no because the industry… transacts billions that is why the punishments are this excessive and the advice lets refrain from committing crimes especially those that are deliberate,” he said.

Former Minister where the offense was “mistakenly” committed, the court will make pronouncement to that effect. He said there are people who are hell-bent to commit cybercrimes including that of trafficking in persons which is committed through the digital platforms.

He said those who contravene this law should be imprisoned as very few individuals are able to pay these steep fines that are imposed once found guilty by the competent court of law.

Rapapa said the people should instead petition the government to revise down the sentences if they feel they are too high.

According to the African Declaration group, a Pan-African initiative for promotion of human rights standards and principles of openness in the internet policy formulation and implementation in the continent, “the policy and legislative processes in most African countries lack meaningful mechanisms for inclusive participation, with the result that many critical stakeholders, particularly from civil society, are frequently excluded.

“The consequence has been the adoption of instruments which tend to invade privacy, repress freedom of expression online and violate other rights, such as the right to a fair hearing in a court of law. An analysis of these instruments shows that they often impose sanctions to punish certain types of behavior without the requirement for due process.”

Hon. Nthati Moorosi had not replied by the time of going to press due to other pressing ministerial duties, however she had acknowledged receipt of questions sent to her office, she has then agreed to talk to this paper and we will publish her responses once received. Therefore, in the next issue – Informative news – shall bring further information on the way forward regarding the bill. This follows several attempts to solicit the government’s reaction through the Minister of Information, Communications, Science, Technology, and Innovation. 

In 2016, the United Nations Human Rights Council called on the States Calls “to address security concerns on the Internet in accordance with their international human rights obligations to ensure protection of freedom of expression, freedom of association, privacy and other human rights online, including through national democratic, transparent institutions, based on the rule of law, in a way that ensures freedom and security on the Internet so that it can continue to be a vibrant force that generates economic, social and cultural development.”

The Southern African Development Community (SADC) has similar laws regulating cyberspace. Botswana enacted the ‘Cyber Crime and Computer Related Crimes Act 2018’, Zambia has the ‘Cyber Security and Cyber Crime Act 2021’, Eswatini has the ‘Computer Crime and Cyber Crime Act 2018’, Malawi has ‘Electronic Transactions and Cyber Security Act 2016’ and South Africa has ‘Cybercrimes Act 19 of 2020’.

According to Frederico Links the Research Associate at the Institute for Public Policy Research in Namibia, one of the striking features of these laws are characterized by “excessive and unaccountable discretionary executive or ministerial power [and] did not emerge from democratic, inclusive processes [during their formulation phase]”.

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