harmonization framework for elaws and ejustice by dawo oguny
TRANSCRIPT
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8/8/2019 Harmonization Framework for eLaws and eJustice by Dawo Oguny
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EAST AFRICAN COMMUNITY
Workshop on Cyberlaws and E-Justice
Dayo OgunyemiAttorney and Consultant
CAG/EMC [email protected]
Presentation:
Cyberlaws & Regional Harmonization
25 April, 2006
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Cyberlaws & E-Justice
Cyberlaws
- Focuses on enhancing a jurisdictions legal system by
establishing laws that reflect and deal with the
technological changes that permeate society
E-Justice
- Centers on technological enhancements to a
jurisdictions judicial system to extend the
capabilities of that system to process and deliver
While distinct, these two areas have significant
cross-cutting issues - particularly with respect to
awareness raising, capacity building and access to
technological tools for the judiciary, the bar, and
the general public
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Policies and laws in Regional Context
Adjudication and dispute resolution mechanisms
- Competence to handle electronic issues
- Efficacy
- Convenience to parties
Cyber-crime monitoring and law enforcement
- Fraud
- Money laundering
All these raise issues of capacity building within the
judiciary and law enforcement that may well bebest borne on a regional basis because of resource
constraints
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Roles for RECs in Cyberlaw Formulation
Provide context within which political
commitment to trade facilitation can be
promoted
Provide basis for harmonizing underlying
laws and regulations from the onset
Means of resolving thorny issues like:
- Jurisdiction
- Choice of law
- Trust enhancers like crime prevention and prosecution as
well as dispute resolution fora and mechanisms
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RECs and Cyberlaws: Critical Issues
Substantive Scope: what areas are to be
covered
Harmonization options
Formulation
- Process and participants
Implementation
- Process and participants
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Legislative scope for Cyberlaws
E-Commerce
E-contracting/transaction laws
E-signature laws
E-Access:
E-records
E-evidence
Laws Protecting Parties, Transactions, Systems & Data
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Core Legal Issues
E-contracting/transaction Laws
- Create equivalency between paper and electronic
documents (in private and public laws).
E-Signature Laws
- Create equivalency between electronic and ordinarysignatures as to effect in commerce
Sample Legislation
- UNCITRAL model E-Commerce law (1996)
- UNCITRAL
model E-signature law (2001)
- UNCITRAL Electronic contracting preliminary draft convention (2003)
- National Conference of Commissioners on Uniform State
Laws(NCCUSL) Uniform Electronic Transaction Act (1999)
- EU Electronic Signature Directive (1999)
- US E-Sign Act (2000)
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E-Access
E-records
- Dealing with the processing and
retention of electronic data
E-evidence
- Dealing with the admissibility of
electronic evidence in courts
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Laws Protecting Parties, Transactions, Systems and Data
These are laws that seek to create
confidence among parties engaging in
electronic transactions by addressing the
rights and interests in the underlying
exchange of goods and services;
They include cyber-crime laws, intellectual
property laws (expanded to include
database protection and domain name
law), privacy frameworks, consumerprotection.
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Harmonization Options
Degree to which national sovereigntyis ceded to REC
Four broad options:
- Centralized harmonization
- Separated Jurisdiction
- Centralized Policy/National implementation
- Decentralized harmonization
In practice, a mix of the above
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Various Approaches to Harmonization SADC
REC-level Model laws, informed by legislation
passed by early adopters
ECOWAS
- Intent to implement greenfield legislation at
REC-level, national efforts starting to pop up
EU
- Directives and guidelines (degree of uniformity
less because of existing body of legislation)
US
- Federal legislation to pre-empt divergent
implementations of various e-laws
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EAC Approach to Harmonization
EAC enabling factors:
- Uniquely placed because of common
language, socio-political history
- Comparable levels of E-readiness(Infrastructure, Access to IT, etc)
- Manageable number of states
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Critical steps towards a regional framework
Determine who stakeholders are, include
them in the formulation and
implementation processes and address
their various needs
Determine a workable scope reflectingpriorities and constraints
Catalog and understand status of existing
cyberlaw efforts at national and regional
levels
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Stakeholders
General public
Private sector
Judiciary
Legislators
Executive
Attorneys General
Domestic Bar
Law enforcement
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Stakeholders Needs
Awareness raising
Capacity building (need to invest at least
as much in people as in hardware &
software)
Access to infrastructure & tools
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Translating policy into practice
Formulating (Determining what to do)
- Truly reflecting local needs
- Resource and capacity constraints
Implementing (Doing it)
- Political will and commitment
- More intractable than formulating
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Translating policy into practice (II)
While the approach of different RECs will
necessarily reflect unique facts -
capabilities and constraints, it is clear that
legal professionals within the REC have a
leading role to play
At a minimum, these critical stakeholders
in the EAC will include:
- Attorneys General
- Counsel to the Community
- Members of the National Bar
- Representatives of private sector
- Civil Society
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Translating policy into practice (III)
The ECOWAS plan to develop a legal
framework should shed some light,
although the EACs experience may well
differ based on availability of resources
and its strong cohesiveness
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ECOWASLegal Framework Phases
Phase I
- Draft model e-contracting/transactions bill
- Draft model e-signature bill
- Consult with stakeholders governments,
private sector and civil society (as
representatives of citizen/consumers)- Adopt model e-contracting/transactions and
e-signature legislation for region
- Engage in capacity building for the judiciary
and regional legal professionals
- Create awareness campaign for decisionmakers in the public and private sectors as
well as the general citizenry
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ECOWASLegal Framework Phases
Phase II
- Develop cyber-crime and related policy and
legislation in conjunction with relevant
regional agencies and national specialized
law enforcement agencies
- Develop data and electronic security laws- Formulate tax policy on e-commerce
- Engage in capacity building for the judiciary
and regional law enforcement and legal
professionals
- Create awareness campaign for decisionmakers in the public and private sectors as
well as the general citizenry
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ECOWASLegal Framework Phases
Phase III
- Develop e-payment regulations/legislation
with input from payment agents, consumer
representatives and merchant representatives
- Develop online consumer protection laws
- Develop data protection and privacy policy andlegislation
- Engage in capacity building for financial
services players, financial regulators, judiciary
and regional legal professionals
- Create awareness campaign for decisionmakers in the public and private sectors as
well as the general citizenry
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ECOWASLegal Framework Phases
Phase IV
- Review existing national laws with view to:
creating electronic records bill
creating electronic evidence/admissibility bill
amending copyright, trade mark and other
relevant IP law, including trade secrets and
database protection laws
Develop domain name or cyber-squatting law
(with particular reference to the Madrid
protocol on trademarks)
- Engage in capacity building for creative communities,
knowledge industry participants, judiciary and
regional legal professionals
- Create awareness campaign for decision makers in the
public and private sectors as well as the general
citizenry