The issues and the challenges include the following:
- the informational imbalance between people and the enterprises and the administration processing the information;
- the risks in violating the rights of persons in the collection and processing of personal data;
- the absence of an adequate and normative institutional framework for processing the violations.
B. State of progress on the draft guidelines
In order to address the issues and challenges, the guidelines focus on the following aspects:
- the limitation of the rights of the official processing of the collection, utilization and transmission of personal data;
- the recognition of new principles and rights to ensure transparency in the processing of information;
- the establishment of an independent administrative authority to guarantee respect for the principles and the rights conferred.
CHAPTER III: DRAFT GUIDELINES ON ELECTRONIC TRADE A. Issues and challenges
The principal issues and challenges include the following:
• a legal framework to satisfy the expectations of the electronic commerce operators;
• the absence of recognition of electronic signature (see countries as exceptions and UEMOA);
• the absence of a satisfactory organization on electronic commerce relations (rights and responsibilities of service providers);
• insufficient protection for consumers.
7 B. State of progress on the guidelines
In order to address these issues and challenges, the guidelines focus on the following aspects:
• the recognition of principle of freedom to supply all services and products through electronic networks with some changes for consumer production;
• the recognition of the validity of electronic signature;
• the definition of the obligations and responsibilities of service providers (ban on unsolicited publicity).
CHAPTER 1V: DRAFT GUIDELINES ON FIGHTING CYBER CRIME A. Issues and challenges
The principal issues and challenges include the following:
• the emergence of new forms of computer crimes;
i) the use of computer as a means of committing conventional offences;
ii) the use of computer to commit a criminal offence; through the violation of its information system.
• the absence of criminal responsibilities for legal entities (see exceptions);
• the lack of adaptation of criminal procedure rules to determine guilt and the seizure of the computer and telematic equipment;
• the risk of violating fundamental human rights in the search for the efficiency of the enquiry.
B. State of progress on the guidelines
In order to address these issues and challenges, the guidelines focus on the following aspects:
• Criminal Law;
• The formulation of a policy reflecting the adoption of new and specific ICT offences and the adaptation of some offences, sanctions and the system of criminal responsibility;
• Criminal Procedure;
• The updating of criminal procedure in the light of ICT;
• The reconciliation between the requirements of the efficiency of the enquiry and the respect for fundamental human rights;
• The specification of the framework amendment in the conventional procedure vis a vis ICT;
• The specification of the conditions for the institution of specific procedures on cyber crime.
PART II: ACTION PLAN
The action plan is presented as an Excel table in a synoptic manner with each type of activity to be implemented and identifying the:
• The principal objectives depicting the principal recommendations focusing on results.
• The activities to be undertaken: these activities are clearly defined with maximum possible precision so that the various forms of participatory activity for their success could be planned.
• Priority: three priorities were selected for each of the measures identified.
- Priority 1 should focus on the crucial measures in the process of creating an enabling environment for ICT development in West Africa which consequently deserve immediate attention. This priority corresponds to the four (4) principal texts to be finalized and diligently adopted;
- Priority 2 brings together the actions considered as important in the process already mentioned. This priority corresponds to the support measures for the effectiveness and efficiency of the guidelines;
- Priority 3 defines the actions considered as important to ensure coherence of the texts with the regional and international environment. It maps out the approaches to be undertaken at the regional and international level to ensure permanent coherence between the UEMOA-ECOWAS harmonization strategy with the other regional and international initiatives.
• The timeframe during which the activity will be carried out: this is defined by taking into account the challenges to be addressed in relation to the optimal schedule for the adoption of the texts taking into account the procedures in force and the programme of the regional organizations involved. These timeframes should be specified with the participatory authorities.
• The implementing agencies: ECA, UEMOA, ECOWAS and the other stakeholders participating in the process (REC, private sector, civil society, universities, media, experts etc). The services of the competent government bodies will be requested within the framework of a participatory and inclusive approach for the adoption and
9 enforcement of the texts as well as the services of all stakeholders (public, private, societal) for ownership of the texts and the guarantee of their effectiveness.
• The indicators and the verification sources will determine the implementation of the action plan.
The substance of the action plan is the affirmation of an African leadership and a goodwill to manage the reform of the ICT legal framework in West Africa. This is reflected by:
1. A clear and fully assumed political goodwill;
2. The implementation of appropriate strategies;
3. The goodwill to establish a legal framework of trust.
In order to ensure the success of the harmonization process, the governance reform should take into account the following three levels in the precision of its performance indicator:
1. ECOWAS-UEMOA
The focus will be placed particularly on the following actions:
• The adoption of the guidelines and integration into the community laws (UEMOA orientations, ECOWAS additional protocol);
• The meeting on the implementation conditions (legal, financial, infrastructures, human resources);
• The participation in the harmonization of the African Plan (AU, OHADA);
• The monitoring of the activities at the international level (UN, WTO, ITU, UNESCO, WIPO etc).
2. COUNTRY LEVEL
The focus will be placed on the following actions:
• The pursuance of reforms at country level;
• The adoption of regulatory texts to complement the guidelines;
• The establishment of institutions proposed by the guidelines;
• The sensitization and training of stakeholders;
• The meeting on the conditions for implementation (legal, financial, infrastructures, human resources).
3. IN AFRICA/OTHER REGIONS (RECs)
The focus will be placed on the following actions:
• The exchange of information;
• The organization of workshops to share experience and replicate through comparison and the exchange of experience on best practices;
• The joint participation in the harmonization activities in Africa and the monitoring of the activities at the international level.
The Action Plan that follows focuses on four objectives and contains all the recommendations made during the workshop held in Lome in 2007. These recommendations aim at:
1. FINALIZING THE DRAFT GUIDELINES
2. DILIGENTLY ADOPTING THE GUIDELINES AND PROMOTING THEIR
IMPLEMENTATION
3. ENSURING THE EFFECTIVENESS AND EFFICIENCY OF THE GUIDELINES
4. PROMOTING THE EXCHANGE OF EXPERIENCE AND CAPITALIZING ON BEST PRACTICES
ANNEXES – SEE LISTS
ANNEX 1 – PLAN OF ACTION ANNEX 2 – DRAFT GUIDELINES
ANNEX 3 – REPORT OF THE 2007 LOME WORKSHOP ANNEX 4 – STUDY TERMS OF REFERENCE