Dear President Edgar Lungu,
Following the passing of the third reading of the Zambia Cybersecurity and Cybercrimes Bill 2021 on the floor of Parliament on 9th March 2021. Paradigm Initiative calls on you to defer the signing of the Zambia Cybersecurity and Cybercrimes Bill of 2021 as it has the potential to severely infringe upon fundamental human rights of citizens, such as the right to access information, the right to freedom of expression, right to privacy, and the right to associate and assemble online.
Paradigm Initiative (PIN) is a social enterprise that builds ICT-enabled support systems and advocates for digital rights in order to improve the livelihoods of under-served young Africans. Our digital rights advocacy program is focused on the development of public policy for internet freedom in Africa, with offices in Abuja, Nigeria (covering the Anglophone West Africa region); Yaoundé, Cameroon (Central Africa); Arusha, Tanzania (East Africa) and Lusaka, Zambia (Southern Africa). Our digital rights advocacy efforts include media campaigns, coalition building, capacity building, research, report writing, hosting the annual bi-lingual pan-African Digital Rights and Inclusion Forum, and promotion of Digital Rights and Freedom legislation.
While we note the progressive provisions and the need for a law that protects citizens against cybercrime and fosters cybersecurity, we also wish to remind the Zambian government of its constitutional, regional and international obligations to protect the civil liberties of Zambians.
Specifically, we wish to remind the government of its constitutional obligations to safeguard;
- Freedom of Expression and Access to information under Article 20 which provides for the sharing and receiving of information without interference, whether public or private
- Freedom of Assembly and Association under Article 21 which provides for freedom of assembly and association without hindrance
- Privacy under Article 17 guarantees the protection of privacy of home and property and no person shall be subjected to the search of their person, property, or the entry by others on their premises unless by the subject’s consent
We wish to also remind the government of its international obligations to safeguard and promote;
- Freedom of Expression under Article 19(2) of the International Covenant on Civil and Political Rights. The UN Human Rights Committee states that “any restrictions on the operation of websites, blogs, or any other internet-based electronic or other such information dissemination systems” must comply with Article 19”.
- Privacy under Article 17 (1) of the International Covenant on Civil and Political Rights, which states that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.”
Further, Zambia’s regional obligations to the following regional instruments on freedom of expression and access to information; African Charter on Human and People’s Rights, Windhoek Declaration, African Platform on Access to Information, and the Declaration of Principles on Freedom of Expression.
The Cybersecurity and Cybercrimes Bill of 2021 in its current form is anti-freedom of expression, anti-freedom of assembly, anti-freedom of association, and anti-privacy and presents several problematic clauses that infringe on digital rights and may provide avenues for abuse and in the long run will be detrimental to the work of human rights defenders, civil society, bloggers, journalist and ordinary citizens who provide the necessary checks and balances.
- Section 54 prohibits the publication of false information, criminalizing “false” news or “false” content will stifle independent media, especially those with critical voices, create a climate of censorship and undermined public debate thereby weakening democracy, and limit legitimate information sharing by those who use the internet for civic work and to expand democracy. Moreover, a similar provision in the Penal Code was declared unconstitutional by the High Court in 2014.
- Sections 9 and 11 provide excessive powers to cyber inspectors who are mandated to monitor, inspect, search and seize with a warrant, however, there are no limits as to the nature, scope, or duration of warrants.
- Sections 6, 7, 8, 13, and 14 of the bill create two new bodies to address cybersecurity and cybercrimes, give the ‘Authority’ power to appoint “cyber inspectors, the ‘Director-General’ of the ‘Authority’ to appoint ‘cybersecurity technical experts, as well as provide vast powers for the ‘Authority’ and ‘Minister’ who are put in charge of the new bodies that have the power to control virtually all internet activity in Zambia without appropriate safeguards to oversee such actions.
- Section 7 of the bill establishes the National Cybersecurity Advisory and Coordinating Council constituted of part-time experts in cybersecurity and cybercrime. The provision however does not state the qualifications nor the criteria for selecting these part-time experts. This gives way for the Council to be made up of partial people who may use it as a tool for surveillance.
- Section 29 grants law enforcement officers to verbally request service providers to intercept communications of citizens without a warrant if they have a reasonable belief that there is the possibility of cybercrime. This gives room for interception of the private communications of citizens on very vague grounds that have no relation to cybersecurity.
- Section 65 seeks to criminalise hate speech with broad provisions that state that any statement directed at a particular group that is interpreted as hostile may amount to hate speech and interpretation of this is left to law enforcement officers.
Overall the bill grants excess powers to law enforcement officers and provides inadequate judicial oversight for surveillance activities, and this threatens the right to privacy, freedom of expression, and other digital rights.
Furthermore, we note that Cabinet approved ratification of the African Union Convention on Cybersecurity and Personal Data Protection 2014 (Malabo Convention), therefore we urge the government to consider deferring the bill until such a time when the Malabo Convention is fully ratified in Zambia as a commitment to the protocols set out in the Convention to protect critical ICT infrastructure, personal data and to encourage the free flow of information and contribute to a developed and credible digital space in Africa. In addition, to consider aligning the bill to global best practice standards including but not limited to the provisions of the Budapest Convention on Cybercrimes of 2001.
While we commend the efforts made to foster stakeholder consultation, we, however, wish to register our displeasure at the ‘last-minute’ manner in which stakeholders were engaged and informed of internal legislative review meetings and the rushed manner in which the bill was read on the floor of Parliament through a motion to suspend Standing Order 100 of the National Assembly of Zambia’s Standing Orders 2016. These measures did not give the public and Members of Parliament ample time to propose objections or amendments to the pieces of legislation.
In closing, we strongly urge you- President Lungu, to withhold signing the Cybersecurity and Cybercrimes Bill of 2021 until after the August 2021 general elections to allow for more consultations with stakeholders and subsequent amendment of the worrisome clauses.
For more information about contact: media[at]paradigmhq[.]org