Malawi drafts new ICT bill

By Gregory Gondwe, Blantyre, Malawi

Malawi has finished drafting new Information and Communications Technology (ICT) Bill expected to completely overhaul its approach to this new technological phenomenon.

The final draft of the ‘Electronic Transactions and Management Bill 2013’ which BiztechAfrica has seen, encompasses eleven issues that will fill the gaps that have been haunting operations in Malawi’s ICT sector.

In the order of presentation in the Bill, issues tackled include the Legal recognition of electronic messages; Proceedings applicable to the conclusion of electronic contracts; Legal responsibility of various actors; Consumer protection with respect to e-commerce; Taxation; Online financial services; and Encryption.

The Bill has also dealt with the issues of Cyber criminality; Data protection; Domain name; and E-Government.

In its preamble, the Bill acknowledges that the development of the information society has registered considerable progress in the ICT sector.

“Most significant steps of these changes are networks digitalization, components miniaturization and more recently the development of the Internet and mobile telephones,” it says. 

According to these opening words in the Bill, Malawi is convinced that its predominantly agro-based economy can rapidly grow and diversify through participation in the information society and that in order to fully benefit from the information revolution, Malawi needs to modernize various sectors of its economy using ICT. 

The main objective of the Government, it says, is to have Malawi benefit from a true technological leap which may speed up its economic growth by enabling the development of new economic activities due to the implementation of a secure legal framework regulating the use of ICT. 

Upon realising that Malawi’s current legal framework’s applicability does not provide economic actors and citizens with a secure and reliable legal environment which is however essential to the development of electronic transactions, Government has decided to come up with the bill which of course will culminate into law.

“Consequently, the Government wishes to enact a Bill which will enable the development of the information society in the country within a legal framework,” the introductory remarks of the final draft bill states matter of factly. 

Whenever possible, it says, current legal and regulatory texts shall remain applicable to situations involving ICT but nevertheless, ICT has created new legal issues which require specific legal answers.

Under ‘Legal recognition of electronic messages’ the bill says this recognition does not exist as such in the current legal framework in Malawi, whereas it is a condition to the development of electronic transactions in the country.  

“Any written document and any signature should be possibly created and stored in an electronic manner.   Electronic documents should have the same legal probative force as paper documents,” it says.  

On the ‘Proceedings applicable to the conclusion of electronic contracts’ it observes that rules regulating the conclusion of contracts need to be specified and clarified in order to ensure security with respect to electronic transactions.

While under ‘Legal responsibility of various actors’ the bill says with respect to the Internet, as it is the case regarding television, radio, or written press, the freedom of speech should be limited by certain principles of public order. 

The Bill defines precisely the responsibility of technical service providers and editors of online contents.

‘Consumer protection with respect to e-commerce’ will tackle online purchase of services or goods which it says require the adoption of specific provisions in addition to classical consumer rules.

Consequently, it says, the Bill provides for specific obligations lying on professionals regarding the display of information and online advertising.

The bill has also tackled the run-away issue of ‘Taxation’ where it is explaining to detail the circumstances under which value added tax and customs fees can apply to e-transactions.

On ‘Online financial services’ the Bill spells the importance and the specificity of the risks of these services which it says have driven the Government to introduce very strict provisions regulating the online provision of financial and banking services.

The Bill also looks at ‘Encryption’ where specific provisions have been laid down to ensure the security of digital economy. 

In particular, the Bill provides for the legal framework regulating encryption in conformity with international best practices.

It also deals with the issue of ‘Cyber criminality’ where it sets out the principles for combating crimes in the e-environment and establishes a dedicated institution, the Malawi in full first and abbreviate Computer Emergency Response Team (“Malawi CERT”), to fight against cyber threats and attacks.

The Bill is also providing ‘Data protection’ with specific provisions in order to regulate online collection of personal information regarding users and imposing systematic information on the purposes of the data processing and the rights of the data subject.

The ‘Domain name’ which also been a thorn in the flesh of ICT sector in Malawi has also been dealt with in the Bill and sets out rules in accordance with international principles saying the management of the registration of domain names is essential to the development of the e-economy.

E-Government has been included after being excluded in the country’s first Bill of this kind called the E-Bill.  The Bill reiterates the obligation for administrators to do their best efforts to promote the development of online public services and facilitate the use of ICT in Malawi.

The E-Government department in the office of the President and Cabinet was not ready to comment on whether this draft bill and the E-Bill recently adopted by government is one and the same. 

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