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Cybersecurity and Cybercrime
Laws in the SADC Region

The Convention emphasises the need for States
to adopt the principle of double criminality
(dual criminality) when rendering cross-border
assistance on cyber security issues without
creating any mechanisms for Member States
to fulfill extradition and mutual assistance
requests in the absence of an extradition treaty
or mutual assistance arrangement on the basis of
dual criminality. Article 28: 1 of the Convention
provides that: “State parties shall ensure that the
legislative measures and/or regulations adopted
to fight against cybercrime will strengthen the
possibility of regional harmonisation of these
measures and respect the principle of double
criminal liability”.

Article 11 of the Convention calls upon Member
States to establish independent National
Protection Authorities. It outlines the duties and
powers of National Protection Authorities. In
Article 13, it outlines the principles governing
the processing of personal data. These include:
consent and legitimacy of personal data
processing, lawfulness and fairness in personal
data processing, purpose, relevance and storage
of processed personal data, accuracy of personal
data, transparency of personal data processing,
and confidentiality and security of personal data
processing. It discusses the rights of the data
subject such as right to information, right to
access, right to object, and right of rectification
or erasure. It outlines that the personal data
controller has obligations to ensure that processed
data is confidential, secure, sustainable, and that
storage is not too long.

Unlike the Budapest Convention, the Malabo
Convention explicitly defines some of key
terms such as child pornography, computer
system, cryptology, cryptology tools, cryptology
service provider, data controller, data subject,
double criminality, electronic communication,
electronic mail, electronic signature, encryption,
personal data, racism and xenophobia in
information and telecommunication, sensitive
data, and third party. For the purposes of this
report, Article 8 of the Convention which deals
with personal data explicitly points out that:
Each party shall commit itself to establishing
a legal framework aimed at strengthening
fundamental rights and public freedoms
particularly the protection of physical data, and
punish any violation of privacy without prejudice
to the principle of free flow of personal data
It adds that:
The mechanism so established shall ensure
that any form of data processing respects the
fundamental freedoms and rights of natural
persons while recognizing the prerogatives of
the State, the rights of local communities and
the purposes for which the businesses were
established.

Article 25 of the Convention empowers member
states “to adopt legislative and/or regulatory
measures as it deems necessary to confer specific
responsibilities on institutions, either newly
established or pre-existing, as well as on the
designated officials of the said institutions, with a
view to conferring on them a statutory and legal
capacity to act in all aspects of cyber security
application”. However there is a caveat to this
provision as the Convention clearly explains that,
“each State Party shall ensure that measures so
adopted will not infringe on the rights of citizens
guaranteed under the national constitution and
internal laws, and protected by international
conventions, particularly the African Charter
on Human and Peoples’ Rights, and other basic
rights such as freedom of expression, the right
to privacy and the right to a fair hearing, among
others.”
The AU Convention provide for a sub-set of
procedural powers that are also contained in
the Budapest Convention and that are useful
for investigating and prosecuting cybercrime

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