By Ragan M. Conteh
The new Cybercrime Bill has transformed the Minister of Information and Communications into a demi-god and Chief Judge of the state. The Minister of Information and Communications is given excessive and uncontrolled powers under the Cybercrime Bill.
He appears to be a demi-god and Chief Judge under the said law, which is responsible for not only strategic appointments but also punishing offenders of the Cybercrime law after they would have been convicted by the courts.
In Section 25 (1) of the bill, for example, the minister is given powers to prescribe punishments that should be meted out on convicted persons by way of regulations, which is overtly ridiculous, to say the least.
Such a provision is tantamount to a coronation of the Minister of Information and Communications as Judge or Chief Justice of Sierra Leone.
Extending judicial functions, of an executive authority, is not only dangerous but defeats the principles of Separation of Powers, Rule of Law and democratic good governance within the state.
While it is safe to say that best practices, across the world, do allow for a minister to formulate regulations that give effect to legislations, the same may not be true for granting the minister enormous powers to prescribe punishments for convicted persons under the Cybercrime Bill. This is certainly overstretching the issue.
Sentencing of convicted persons is an exclusive reserve work of the judiciary, enforced by magistrates and judges in accordance with the law or sentencing guidelines. The Minister of Information and Communications does not merit the legal expertise and acumen.
It is important to also emphasize that the Minister of Information and Communications is a politician. And with such powers, at his disposal, he might use them with disaffection to silence opposition politicians, journalists, interest bodies and civil rights activists who may be critical about the excesses of the government to which he is a stakeholder.
The excessive and unlimited powers, given to the police or other authorized persons regarding search and seizure of stored computer data, like the Minister of Information and Communications, are also dangerous under this bill.
For example, under Section 5 of the said bill, the police or another authorized person is given unrestrained powers to institute search and seizure of computer system, program, data and computer data storage materials through an order of a judge of the High Court for the purposes of serving as evidence in a criminal investigation or proceedings.
Under the proposed bill, it is irrelevant as to whether the seizure of such data, computer system or storage material breach confidentiality rules or not. Once the police or other authorized person has been able to secure this order from the court, he will now have the powers to compel any person or entity to produce certain data or information, be it confidential or not.
Without any iota of doubt, this provision of the Bill has the potential to undermine the right to privacy and confidentiality, which often characterizes certain professional people like medical doctors, lawyers and journalists, etc., compelling them to produce documents that ought to have remained confidential.
Furthermore, by Section 5(4) of the bill, a police officer or other authorized person, in the midst of conducting his search warrant or seizure, may even extend his search for data information to a third party whom he reasonably believes has the data in his possession.
The bill does not require the police officer or other authorized person to resort to the court, again, for a separate order to extend search warrant and seizure to third parties. This is a clear lacuna that will definitely create room for endless human rights violations of the individual privacy rights of citizens. The search warrant and seizure might continue unabated.
The bill does not define who an authorized person is. While the proposed Cybercrime Bill gives many powers to an ‘authorized person,’ in the area of search and seizure, it is interesting to note however that an authorized person is not defined under the interpretation section of the bill.
This omission leaves room for speculations as to who this authorized person will be. Such authorized persons might even include forest guards, marshals, ONS officers, OSD officers and so on and so forth. The proposed Cybercrime Bill contains offences with no accompanied penalties and sanctions.
Another lacuna, which exists under this proposed bill, could be seen from the fact that the drafters failed to explicitly prescribe penalties for the many criminal offences mentioned under the bill. It is best practice, under legislative drafting, for legislations that create offences to equally provide for sanctions and punishments in the event of any breach.
This is to ensure that convicted persons are not over-punished or under-punished for the commission of an offence. Sadly, to note however, such is not the case in this contested Cybercrime Bill.
There is nowhere in the bill where expressed penalties are stated for offences committed under it. This lacuna, in our humble estimation, undermines fair sentencing of an accused in the criminal justice system and further opens room for arbitrariness and highhandedness in dealing with offenders of this law.