Cybersecurity and Cybercrime
Laws in the SADC Region

https://zimbabwe.misa.org

omission constituting an offence under this Act
has been committed wholly or in part – (a) within
the territory of the Kingdom of Lesotho; or (b)
on a ship or aircraft registered in the Kingdom
of Lesotho; or (c) by a national of the Kingdom of
Lesotho outside the jurisdiction of any country;
or (d) by a national of the Kingdom of Lesotho
outside the territory of the Kingdom of Lesotho,
if the person’s conduct would also constitute an
offence under a law of the country where the
offence was committed”. It acknowledges that
electronic evidence is admissible in the courts
of law.

The objectives of the law are to “to make
provision for electronic transactions; for the
establishment and functions of the Malawi
Computer Emergency Response Team (MCERT);
to make provision for criminalizing offences
related to computer systems and information
communication technologies; and provide for
investigation, collection and use of electronic
evidence; and for matters connected therewith
and incidental thereto”. Section 2 of the Africa
defines “computer system” as “a device or a group
of interconnected or related devices, one or more
of which performs automatic processing of data
pursuant to a program”. As such, this particular
definition corresponds with the definition under
the Budapest Convention. Under section 92 of the
Act, “hacking” refers to, “Any person who hacks
into any computer system...commits an offence””
Section 87(3) of the Act punishes any person
who “intercepts any data without authority or
permission to do so.” Interestingly, there is no
statutory definition of the term “intercept” in
the Act. The criminalisation encompasses issues
such as recording, listening to or monitoring
of the content of a computer communication,
as well as the procuring of the content of data.
The interception must be done to data during its
transmission to, from, and within a computer
system.

It also provides a set of procedural instruments
necessary to investigate cybercrime such as
the protection of integrity of computer data
during an investigation. The Bill empowers a
judge or magistrate with authority to “issue
a warrant authorising a [law enforcement or
police officer, with such assistance as may be
necessary, to enter the place to search and seize
the thing or computer data including search
or similarly access: (i) a computer system or
part of it and computer data stored therein; and
(ii) a computer-data storage medium in which
computer data may be stored”.
Unlike other pieces of legislation on cybercrime,
the draft Bill points out that the internet service
providers have no obligation to monitor data
“which it transmits or stores; or actively seek
facts or circumstances indicating an unlawful
activity”. As a result, this clause limits the
liability of internet service providers to criminal
liability. This is important for the protection of
the right to privacy as enshrined the Constitution
of the Kingdom of Lesotho.

Malawi
Ma l aw i’s E lec t ron ic T ra n sac t ion s a nd
Cyber Security Act came into effect in 2016.

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The Act defines a data controller as “a person
who, acting either alone or in common with
other persons, determines the purpose for which,
and the manner in which, any personal data is
processed, or is to be processed and thus, controls
and is responsible for the keeping and using of
personal data, and the term includes a person
who collects, processes or stores personal data”.
It also explains data subject as “a person from
whom data relating to that person is collected,
processed or stored by a data controller”. The Act
acknowledges the admissibility and evidential

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