Many thanks GG, This is an emerging subject area that requires collaboration from our learned friends across the region. As it is we dont have a well established legal system on the continent to deal with cross border dispute resolution which forces us to resolve most our domain name related issues through WIPO. Two years ago i heard of an African initiative by lawyers to establish an institution that would tackle domain related issues. Can Victor Kapiyo or Grace Bomu appraise us on this if they are in the know? , i suppose we would need an African court for that purpose which would equally mean a set of laws or convention, like the one we are discussing to provide the basis of Judgement. Borrowing Ali's words a crime online is similar to a crime offline and should be subjected to due jurisprudence on merit. I think additional punishment might mean community service as well, we live that to the Judges ours is to agree on the basis of the judgements which is the law. On Thu, Nov 28, 2013 at 4:53 AM, Ali Hussein <ali@hussein.me.ke> wrote:
Grace and listers
Firstly let us address the issue of Double Criminality. According to Wikipedia:-
*Double criminality* (also known as *dual criminality*) is a requirement in the extradition <http://en.wikipedia.org/wiki/Extradition> law of many countries. It states that a suspect can be extradited from one country to stand trial for breaking a second country's laws *only* when a similar law exists in the extraditing country.
For example, if Country A has no laws against blasphemy<http://en.wikipedia.org/wiki/Blasphemy>, double criminality could prevent a suspect being extradited from Country A to face blasphemy charges in another country.
This is of course a double edged sword. The implication here on harmonization of regional laws is a red flag. What may be kosher in Zimbabwe may not pass muster in Kenya. I get the feeing here that the interest of the Citizenry is secondary to Government. I'm a strong proponent of less Government not more.
On the issue of additional punishment. I sometimes get the feeling that we think human behavior is different online as opposed to offline. Fraud is fraud whether off or online. Impersonation (as opposed to anonymity) is still impersonation and depending on why you are impersonating someone it still is a crime.
I honestly get confused on some of these issues. It's like saying we will have separate laws when you break the law at home, at work or in the bus!! Stealing is stealing, whether offline or online!! Murder is murder whether on the bus or in space!!
Lets simplify the penal code so that we don't have to create new laws every time a new medium of communication comes!
Ali Hussein
+254 0770 906375 / 0713 601113
"I fear the day technology will surpass human interaction. The world will have a generation of idiots". ~ Albert Einstein
Sent from my iPad
On Nov 28, 2013, at 12:56 AM, Grace Githaiga <ggithaiga@hotmail.com> wrote:
Good morning Listers
Today is day 4 and our *focus is on PROMOTING CYBERSECURITY AND COMBATING CYBERCRIME. *We raise two questions:
*Article III – 14: Harmonization*
*1) Member States have to undertake necessary measures to ensure that the legislative measures and / or regulations adopted to fight against cybercrime enhance the possibility of regional harmonization of these measures and respect the principle of double criminality.*
*Question*: *What is the principle of double criminality here?*
*Section II: Other penal sanctions*
*Article III – 48*
*Each Member State of the African Union have to take necessary legislative measures to ensure that, in the case of conviction for an offense committed by means of digital communication facility, the competent jurisdiction or the judge handling the case gives a ruling imposing additional punishment.*
*Question: * *What is the interpretation of additional punishment? Is this not granting of absolute powers to judges?*
We are almost getting there! Like Walu has reminded us, this is our opportunity to contribute and shape this debate. Over to you!
A great day to you all. Rgds GG
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