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Preventing and Combating Cybercrime in East Africa

Lessons from Europe's Cybercrime Frameworks

Mwiburi, Abel Juma

Schriften zum Strafrechtsvergleich, Vol. 5

(2019)

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Abstract

The focus of this book is to examine the effectiveness of the measures currently employed in East Africa as a region, and in the individual Member States in dealing with cybercrime and how best the same can be modified to prevent and combat cybercrime in the region. So, the subsequent analysis in this book is done with a view of drawing some lessons from Europe’s cybercime regimes. In so doing, the book is set to critically examine the role of the law in preventing and combating cybercrime in East Africa; investigate the extent to which the current laws address the problem of cybercrime and ICT governance and regulation in the East African region at country and regional levels; examine the level and extent of cooperation required among the EAC partners in fighting cybercrime; analyze legal and institutional challenges on ICT governance and regulation in East Africa and globally with a view of creating a crime-free environment for the Internet and computer users; and examine the best ways through which the East Africa region can ensure efficient regulation of ICT through a regime that will prevent and combat cybercrime without necessarily inhibiting social, political and economic development. (From the Introduction)

Table of Contents

Section Title Page Action Price
Foreword 7
Acknowledgements 9
Table of Contents 11
List of Tables 16
List of Abbreviations and Acronyms 17
Chapter 1: General Introduction 19
A. General Introduction and Background 19
B. Cybercrime as a Challenge in East Africa and Beyond 21
C. Focus of the Book 23
Chapter 2 : Cyberspace as an Emerging Phenomenon \rin Criminal Jurisprudence 25
A. Introductory Remarks 25
B. Understanding Cyberspace, Computer Crime, and Cybercrime 26
I. Cyberspace 26
II. Computer Crime and Cybercrime 28
C. Nature and Evolution of Modern Cybercrime 30
I. Nature of Cybercrime 30
II. Evolution of Modern Cybercrime 31
1. The Era of Mainframe Computers 32
2. Evolution of Networked Computers 32
3. The Epoch of Personal Computers and the Internet 33
D. Forms of Cyber Criminality 34
I. Categorization by Individuals and Experts 34
II. Categorization by Institutions 37
III. General Observations from the Categorization 38
E. Features of Cybercrimes 39
I. Cybercrimes are Committed in Computer Environment 39
II. Veil of Anonymity 40
III. Requirement of Technical Knowledge 41
IV. Cybercrimes are Easy to Commit 41
V. Cybercrime as a Cross-Border Phenomenon 42
F. Approaches to Cyberspace and ICT Governance 43
I. Regulation by Norms 45
II. Regulation by Law 46
III. Regulation by Market Forces 46
IV. Regulation by Code or Architecture 47
V. Pillars of Cybersecurity 47
G. Contemporary Issues and Challenges on Cyberspace 48
I. Borderlessness and Jurisdictional Issues 49
II. Harmonization of Laws 49
III. Speedy Technological Developments and Flexibility 51
IV. Striking a Balance between Regulation and Enjoyment of Individual Rights 52
V. Increased Criminal Capability and Child Protection 53
VI. Anonymity and Lack of Statistics 54
H. Concluding Remarks 55
Chapter 3: Systemic and Institutional Synergies Among the East African Community, the European Union and the Council of Europe 57
A. Introductory Remarks 57
B. The East African Community 57
I. The East African Community in Historical Perspectives 57
II. Revival of the East African Community 61
III. Principles Governing the East African Community 63
IV. The East African Community’s Organs and Institutions 65
V. Scope and Competences of the East African Community 69
C. The European Union 71
I. History and Establishment of the European Union 71
II. Principles Governing the European Union 78
III. European Union’s Organs and Institutions 80
IV. Competencies and Functions of the European Union 83
D. The Council of Europe 88
I. History and Establishment of the Council of Europe 88
II. Principles Governing the Council of Europe 91
III. Council of Europe’s Organs and Institutions 91
IV. Competences and Functions of the Council of Europe 93
E. Synergies among the East African Community, the European Union, and the Council of Europe as Intergovernmental Organizations 94
F. Concluding Remarks 96
Chapter 4: The War Against Cybercrime: Europe’s Legal and Institutional Frameworks 100
A. Introductory Remarks 100
B. General Background to the Cooperation in Criminal Matters among the Council of Europe Member States 101
C. The Council of Europe Convention on Cybercrime 102
I. Harmonization of Rules and Criminalization of Some Acts 104
II. Criminal Procedural Issues 107
III. International Cooperation in Cybercrime and Related Matters 108
IV. The Additional Protocol to the Convention on Cybercrime, Concerning the Criminalization of Acts of a Racist and Xenophobic Nature Committed through Computer Systems 109
D. Institutions under the Council of Europe Cybercrime Framework 111
I. European Committee on Crime Problems (CDPC) 111
II. Cybercrime Convention Committee (T-CY) 113
III. Directorate of Information Society and Action against Crime 115
IV. Cybercrime Programme Office of the Council of Europe (C-PROC) 115
E. Historical and Legal Basis of Cooperation in Penal Matters among the EU Member States 117
F. An Overview of the European Union’s Cybercrime Framework 121
I. The European Union’s Cybercrime Legal Framework 121
1. Council Framework Decision on Combating Fraud and Counterfeiting of Non-Cash Means of Payment 122
2. Council Framework Decision on Combating the Sexual Exploitation of Children and Child Pornography 123
3. Framework Decision on Attacks against Information Systems 125
4. Directive of the European Parliament and the Council on Attacks against Information Systems and Replacing Council Framework Decision 2005 / 222 / JHA 126
5. Council Framework Decision on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law 128
G. Cyberlaw Enforcement Mechanisms and Institutions under the European Union 129
I. The European Arrest Warrant (EAW) 129
II. The European Police College (CEPOL) 130
III. The European Police Office (Europol) 131
IV. Eurojust 133
V. European Union Agency for Network and Information Security (ENISA) 134
VI. European Crime Prevention Network (EUCPN) 135
H. Concluding Remarks 137
Chapter 5: Preventing and Combating Cybercrime in East Africa: Legal and Institutional Frameworks 139
A. Introductory Remarks 139
B. Rationale for Approximation and Harmonization of Criminal Laws in the EAC 141
C. Legal Basis for Harmonization and Approximation of Laws in the EAC Framework 143
D. An Overview of the EAC’s Anti-Cybercrime Framework 144
I. Policy and Legislative Measures Adopted in the EAC Region 145
1. The EAC Customs Management Act, 2004 145
2. The Regional e-Government Framework, 2006 146
3. The EAC Legal Framework for Cyberlaws, 2008 147
4. The EAC Protocol on Peace and Security, 2013 149
II. Anti-Cybercrime Institutions in the EAC 150
1. The East African Communications Organisation (EACO) 150
2. The EAC Cyberlaws Task Force 152
E. Individual Countries’ Cyberspace Frameworks 153
I. Cybercrime Policy, Laws and Institutions in Tanzania 153
1. The National Information and Communications Technologies Policy, 2003 154
2. The Electronic and Postal Communications Act, 2010 156
3. The Cybercrime Act, 2015 157
4. Tanzania Communications Regulatory Authority 162
5. Tanzania Cybercrime Unit 163
II. Cybercrime Policies, Laws and Institutions in Kenya 164
1. National Information and Communications Technology Policy, 2006 165
2. The Kenya Information and Communications Act, 1998 166
3. The National Cybersecurity Strategy, 2014 168
4. The Communications Authority of Kenya 169
5. Kenya Cybercrime Unit 170
III. Cybercrime Policies, Laws and Institutions in Uganda 170
1. The National Information and Communications Technology Policy for Uganda, 2014 170
2. National Information Security Strategy, 2011 172
3. The Computer Misuse Act, 2011 173
4. The Uganda Communications Commission 180
5. The National Information Technology Authority, Uganda 181
6. Uganda Cybercrime Unit 182
F. Concluding Remarks 182
Chapter 6: Comparative Assessment of Anti-Cybercrime Initiatives between Europe and East Africa 184
A. Introductory Remarks 184
B. Basic Integration Frameworks among the EAC, EU, and CoE 184
C. Approximation and Harmonization of Laws in Europe and East Africa 186
D. Comparison of the Efficiency and Efficacy of Anti-Cybercrime Legislative Measures in Europe and East Africa 188
I. Substantive Cybercrime Provisions 188
II. Proportionality of Sanctions and Other Dissuasive Measures against Offenders 198
E. Efficiency and Efficacy of Anti-Cybercrime Enforcement and Institutional Mechanisms in Europe and East Africa 205
I. Anti-Cybercrime Watchdog and Coordination Institutions and Mechanisms in Europe and the EAC 206
II. Other Anti-Cybercrime Institutions 209
F. Concluding Remarks 213
Chapter 7: General Conclusion 215
References 220
List of Cases 231
List of Legislation 232
Online Materials 235
Subject Index 240