Harmonization of the legal framework governing ICTs in West African states (UEMOA-ECOWAS): final version of guidelines and action plan

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HARMONIZATION OF THE LEGAL FRAMEWORK GOVERNING ICTs IN WEST AFRICAN STATES

Economic Community of West African States

United Nations Economic Commission for Africa

West African Economic and Monetary Union

HARMONIZATION OF THE LEGAL FRAMEWORK GOVERNING ICTs IN WEST AFRICAN STATES

(UEMOA-ECOWAS

)

Final version of Guidelines and Action Plan

Abdoullah Cisse

University Lecturer and Consultant

December 2007

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i TABLE OF CONTENT

Summary and Principal Recommendations ... ii

1. Summary ... ii

2. Principal Recommendations ... ii

Introduction ... 1

A. Revisiting the context ... 1

B. Methodology ... 2

Part One: Presentation of the Draft Guidelines ... 4

Chapter I: Draft General Guidelines on the Harmonization of the Legal and Regulatory Framework Governing ICTs ... 5

A. Issues and challenges ... 5

B. State of progress on the draft guidelines... 5

Chapter II: Draft Guidelines on the Protection of Personal Data ... 6

Chapter III: Draft Guidelines on Electronic Trade ... 6

Chapter IV: Draft Guidelines on Fighting Cyber crime ... 7

B. State of progress on the guidelines ... 7

Part Two: Plan of Action ... 8 ANNEXES - PLEASE SEE THE INDEXES

ANNEX 1: PLAN OF ACTION ANNEX 2: DRAFT GUIDELINES

ANNEX 3: THE REPORT OF THE LOME WORKSHOP 2007 ANNEX 4: STUDY TERMS OF REFERENCE

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SUMMARY AND PRINCIPAL RECOMMENDATIONS 1. Summary

A reviewof the legal and institutional framework of ICTs in West Africa has confirmed the existence of potentials which, if developed, could contribute to the considerable improvement of the quality of life of Africans as well as to the building of an inclusive and unified information society, the mobilization of the available resources and the establishment of an appropriate harmonized framework suited to the UEMOA-CEDEAO space.

However, the attainment of this goal requires enlightened leadership to address the challenges confronting the African societies to participate responsibly in the knowledge economy and in the implementation of the appropriate economic development strategies, creation of a secure environment as well as the optimal development of mobilized resources and of course, the establishment of a harmonized and enabling legal framework for the development of ICTs.

With such determination, it is possible to control the risks and dangers likely to compromise the future of the continent, namely: increased marginalization and vulnerability of Africa, the widening of the gaps: digital, scientific, technological, social and economic, worsening “poor governance” and legal and judicial insecurity.

Taking all these parameters into consideration will initiate the consolidation phase of the

first draft guidelines on the organization of the legal framework of ICTs in the UEMOA-ECOWAS space (general rules, electronic trade, the fight against cyber crime and the

protection of personal data) through an action plan aimed at the effective and efficient adoption of a new legal system within the framework of dynamic African cooperation.

2. Principal recommendations

The principal recommendations are as follows:

1. To finalize the guidelines;

2. To carry out diligently the guidelines and promote their implementation;

3. To ensure the existence of effective and efficient conditions for the guidelines;

4. To promote the exchange of experiences and to capitalize on best practices.

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INTRODUCTION

The definition of a harmonized legal framework (see report of 26 December 2006) led to the formulation of guidelines in conformity with the recommendations put forward by the Validation Workshop held in Ouagadougou in December 2006.

The draft guidelines were submitted for validation to the actors in the design process and improved upon by the consultant taking into account the various amendments made at the reconstruction workshop held in Lome on 10 and 11 December 2007. Revisiting the context facilitated an understanding of the methodology adopted and the relevance of the proposed texts.

A. Revisiting the context

This phase of the mission is the logical extension of the following processes which crystallized the major actions in the harmonization of the legal framework of ICTs in the UEMOA-ECOWAS space:

1. The ECA-ECOWAS memorandum of understanding (MOU) on the areas of collaboration between the two organizations in February 2004 : trade liberalization and facilitation among the countries of the subregion including e-commerce;

2. The implementation of the Actio n Plan adopted by the World Summit on the Information Society and the AISI;

3. The implementation of the African Regional Action Plan on the Knowledge Economy (PARAES);

4. The adoption by ECOWAS of the Declaration on the Information Society in June 2006 in Abuja and the need to develop a legal framework and a regional strategy;

5. The adoption by UEMOA and ECOWAS of the guidelines on telecommunication interconnections;

6. The study on the training of an e-commerce framework for ECOWAS and Ghana;

7. The study on the harmonization framework (diagnosis and harmonization strategy) validated in December 2006 in Ouagadougou.

The improvement in the legal integration on ICTs in the UEMOA-ECOWAS space aims particularly at:

1. Developing the harmonized legal framework in the priority areas: e-commerce, exchange of electronic data, e-payments, the protection of personal data etc.

2. Establishing a secure environment to facilitate the development activities of ICTs and the building of the Information Society through the simplificatio n of the practices and procedures and attracting direct foreign investments in the subregion.

3. Assisting the member states which have not yet developed this framework and providing the appropriate draft texts for their evolutionary environment.

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B. Methodology

In conformity with the recommendations made at the workshop held in Ouagadougou in 2006, it is principally aimed at the establishment of a consultation framework on the harmonization of ICT law. This general framework aims at preserving the overall coherence of the legal framework of trust to be put in place. This trust framework should be:

• Secure : ensuring maximum conformity between the technical and legal security;

• Organized: regulating the basic factors of the sectors concerned;

• Predictable: preve nting conflict and its effective resolution when they do arise;

• Protecting the spot interests particularly the interests of consumers and inventors (intellectual propriety);

• Integration into the world order; linkage between the national, community and international order.

This framework should in particular cover the following principal aspects:

• Definition of the strategic guidelines;

• Definition of the institutional framework and the establishment of a trust infrastructure;

• Consultation and validation missions of the texts to be formulated;

• Monitoring and evaluation missions of the implementation of the decisions and the integration of the texts into the national legislation;

• Fundamental principles of the Information Society;

• Role of stakeholders ; public, private, societal;

• Partnership: national, regional, international;

• Incentives: commercial, fiscal, customs;

• Legal integration process.

In this framework it was decided to formulate the following priority texts:

• Guidelines of the ICT legal framework in the UEMOA-ECOWAS space;

• Organization of e-commerce including intellectual propriety, online publicity and consumer protection;

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• Protection of personal data;

• Fight against cyber crime.

These contexts cover principal sectors in which harmonization should be initiated as demonstrated in the preliminary studies (O.DAYO) and the study on the harmonization framework (A.Cisse) already carried out.

During the formulation of each text, account was taken of the need to pursue the harmonization of terminology. It was also taken into account during the formulation of the texts on the achievements and the draft international, regional and national guidelines (Comparative Law and Conventional Law UNCDIT, UEMOA and ECOWAS Law, OHADA Law, IPO Law).

Furthermore, the enterprises in the private sector (particularly banks and community enterprises) and civil society organizations participated in the design and the validation of draft texts and took an active part in the 2006 and 2007 workshops held in Ouagadougou and Lome respectively.

Finally, the countries and the regional organizations are urged to pursue reforms in the harmonization process to avoid unnecessary duplications or superfluous initiatives.

This approach does not exclude in any way the goodwill to reinforce the ongoing harmonization. Consequently, in the telecommunications sector and in the fight against money laundering, it will be necessary to pursue harmonization and capitalize on the gains and safeguard the coherence. Emphasis should be placed on the harmonization of national legislation with international commitments. Similarly, it is crucial to follow the other ongoing draft harmonization guideline processes in the other regional economic communities (RECs) and the African Union.

In an effo rt to preserve the coherence of the overall legal framework and develop complementarity between regional organizations, attention and vigilance should be focused on the ongoing harmonization guidelines that have been developed by organizations with countries as members of UEMOA; OHADA on e-commerce. OPI on intellectual propriety and the International Organization for Francophonie on telecommunications.

This report has 2 (two) parts:

• The first part is the guidelines with a focus on the issues and challenges to be addressed;

• The second part is the Action Plan for the adoption of effective and efficient guidelines.

The following documents are attached as annex:

• The Action Plan

• The improved draft guidelines in the light of the amendments made during the 2007 Lome workshop

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• The version presented during the 2007 Lome Workshop PART I: PRESENTATION OF THE DRAFT GUIDELINES

The draft guidelines are within the general framework which takes into account the issues and challenges which should be addressed by all countries in the world.

The issues are several and complex but three should be mentioned:

1. The building of an Information Society in West Africa

This challenge can only be successfully addressed on condition that its resolution could produce:

• an inclusive and unified information society with respect for human dignity and meeting the expectations of the African population;

• use of ICT for poverty reduction;

• development of ICT and access to all Africans;

• guarantee of the legal security of persons and goods in the cyber space.

2. The support for an African contribution to the knowledge economy

In order to be efficient and effective, the African contribution to the knowledge economy should first of all be a reality reinforced through:

• the guarantee of access to information which is considered as basic commodity in the information society;

• the aptitude to create original and relevant knowledge so that information becomes an economic resource and through research- innovation, creating employment and reducing poverty;

• the application of the knowledge developed corresponding to resource development to meet the expectations of the people.

3. The establishment of a legal environment of trust

All the guidelines should contribute to the establishment of an enabling environment for the development of ICT in West Africa. In order to be appropriate, this environment should be based on a legal framework with the following characteristics:

• Predictable: the rules in force are known a priori as well as the prevention of conflicts and the resolution of conflicts taking into account the sustainable technological evolution;

• Organized: regulated by all the relevant sectors;

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• Protecting: the interest and rights of consumers and intellectual propriety on the civil and pena l code;

• Secure: ensuring conformity between the requirements of the legal and technological security;

• Integrated into the international order: ensuring rational linkage between the national, regional and global level.

With this precise general framework, emphasis should now be placed on the specific issues and challenges in each area covered by the guidelines which meet the principal orientations of these guidelines.

CHAPTER I: DRAFT GENERAL GUIDELINES ON THE HARMONIZATION OF THE LEGAL AND REGULATORY FRAMEWORK GOVERNING ICTs

A. Issues and challenges

The principal issues and challenges include the following:

• Inadequate readability of the strategic guidelines on ICT in the UEMOA-ECOWAS space;

• Lack of precision of the legal and institutional framework to serve as platform for the regulation of ICT;

• Lack of precision on the role of the various stakeholders;

• Insufficient planning of reform activities for the definition of an appropriate legal framework;

• Absence of a monitoring and evaluation mechanism of the legislations.

B. State of progress on the draft guidelines

In order to address these issues and challenges, the guidelines focus on the following aspects:

- the principles of the harmonization of the regulatory framework and the terminology are raised;

- an institutional framework is proposed to take into account the strategic issues;

- the rights and responsibilities of the stakeholders are specified;

- reform activities are planned with a provision of incentives.

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CHAPTER II: DRAFT GUIDELINES ON THE PROTECTION OF PERSONAL DATA A. Issues and challenges

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

• 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.

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7 B. State of progress on the guidelines

• 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 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

• 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;

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• 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

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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).

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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