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MBABANE – In SiSwati, sinani shaca (Woe unto you)!  

Government has crafted the Computer Crime and Cybercrime Bill of 2020, which carries a heavy penalty for fake news perpetrators, who risk being fined E10 million for this offence.

The Bill states that any person, who publishes any statement or fake news through any medium, including social media with the intention to deceive any other person or group of persons, commits an offence. It is spelt out in this proposed legislation that the fake news pusher shall be liable on conviction to a fine not exceeding E10 million or imprisonment not exceeding 10 years or both. It effectively means the court, if the Bill passes without alterations, can order an offender to pay E10 million and serve 10 years in jail concurrently.

The Bill was issued in an Extraordinary Gazette on August 19, 2020. This could be the first law, if it would pass, to carry a heavy penalty in monetary terms.   The heavy monetary penalty is contained in Section 19 of the Bill, which will be piloted in Parliament by Manqoba Khumalo, the acting Minister of Information, Communication and Technology or the substantive minister, Princess Sikhanyiso. According to the Bill, fake news means a form of news or statement through any medium, including social media, with intention to deceive another person or persons. Other people who could be in for a high jump are architects and perpetrators of cyberstalking in this kingdom.

 If found guilty and convicted, they face a fine not exceeding E10 million or a jail sentence not exceeding 10 years.  Cyberstalking is defined in the Bill as the use of the internet or other electronic means to inflict repeated unwarranted actions on a natural or juristic person (s). Such action may include false accusations, defamation, slander, libel, monitoring, identity theft, threats, vandalism, solicitation for sex, or gathering information that may be used to threaten, embarrass or harass, which may result in mental or corporate abuse. On the other hand, the offence of cyberbullying could carry a fine not exceeding E5 million or imprisonment of up to five years. Cyberbullying means the use of electronic communication to bully a person typically by sending messages of an intimidating or threatening nature.  If the Bill is passed by Parliament without changes, courts shall have jurisdiction to try any offence under this proposed law committed by a national of this country within and outside the territory of the Kingdom of Eswatini, if the person’s conduct would also constitute an offence under a law of the country where the offence was committed. The Times SUNDAY can also mention that government has singled out Zweli Martin Dlamini as being responsible for fake news. This is not to suggest that Dlamini pushes the fake news agenda, but is simply stating what government has previously said about him.  


Attacking a political system

Government wants to criminalise cyberterrorism, which, if a person commits, could be liable on conviction to pay a fine not exceeding E15 million. 

It is provided in Section 13 that a person who without justification or legal excuse, using a computer system, commits an offence if he or she – 

(a) Deliberately recruits, trains, provides training material, information or means to individuals or groups of people to join or unknown terrorist groups driven by political ideologies, religion or hate of political systems. With the intention of forcing change or causing fear to general society;

(b) Funds or raises funds for cyberterrorism purposes;

(c) Spreads or promotes the interests of such organisations;

(d) Accesses or causes to be accessed websites or information sources of such organisations;

(d) Through conventional methods, launches massive attacks on telecommunications or computer networks or 

(f) Launches attacks using physical devices, computer programmes or other electronic means to – 

(i) Render the financial or banking system of the country or a city unusable; 

(ii) Compromise the defence systems of the country; or 

(iii) Seriously disrupts or interfere with the operations of the electricity grid, aviation control systems, tax management systems, elections management systems, population register, government payroll and cabinet systems;  

Cyberterrorism, according to the Bill, means deliberate actions perpetrated using computer systems with the intention to cause serious harm in human lives, way of life, infrastructure or the economy or cause fear or terror in a community, nation or group of nations. 


No fine in child pornography 

Those to be involved in child pornography will be sentenced to 25 years without an option of a fine. This is pornography done through a computer system. It is provided in the Bill that any person convicted of extortion could be ordered by the court to pay a fine of up to 20 times the amount sought to be extorted. The extorter can be sentenced to imprisonment not exceeding 10 years.

In this situation, it effectively means the extorter can be ordered to pay E20 million if he forces the victim to part with E1 million or could be ordered to pay E100 000 if he wants the other person to part with E5 000. Government has made it clear in this proposal for the new law that any person who intentionally and unlawfully uses the internet, email or any other computer system platform to commit the act of extortion on another person, natural or juristic commits an offence. Extortion, as defined in the proposed legislation, means an act of demanding favour or benefit from a person through coercion or arising from an advantage one holds over the victim, by threatening to inflict harm to his person, family members, reputation or property by unleashing the advantage he holds over the victim.

Others in sheer trouble if the Bill passes in its original form are those who intentionally or without lawful excuse commit or participate in the website defacement belonging to another entity.   

This offence attracts a fine not exceeding E10 million, and imprisonment of up to 10 years. Website defacement, according to the Bill, means the act of attacking a website by changing the visual appearance, adding, changing, deleting or replacing content by a party or parties not authorised by the website owner.


E15m fine for hate speech 

Government has also included in a provision in the Bill, which seeks to deal with hate speech, racist and xenophobic material. A person who intentionally and without lawful excuse or justification or in excess of a lawful excuse or justification shall be fined up to E15 million or serve a jail term not exceeding 15 years if he or she engages in the following – 

(a) Produces racist, hate speech or xenophobic material with the intention of distributing it through a computer system; 

(b) Offers or makes available racist, hate speech or xenophobic material through a computer system;

(c) Distributes or transmits racist, hate speech or xenophobic material through a computer system;

Section 2 of the Bill (under interpretations) defines a computer system or information system as a device or a group of interconnected or related devices, one or more of which, pursuant to a programme, performs automatic processing data or any other function. 

It is also a serious offence to intentionally and publicly, through a computer system, use language that harms the reputation or feelings of – 

(a) Persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors or 

(b) A group of persons which is distinguished by any of these characteristics.

A person who commits the above offence is liable on conviction to a fine not exceeding E10 million or to imprisonment not exceeding 20 years or both.


E1 billion fine, 50 yrs in jail 

The heaviest fine has to do with the commission of the offence of genocide and crimes against humanity as it carries E1 billion and 50 years in jail. 

The proposed law does not define genocide and crimes against humanity. It is stated in Section 23 that any person who distributes or otherwise makes available through a computer system to the public or to another person material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity commits an offence. It goes further to state that the acts constituting genocide or crimes against humanity could aid, induces or incites others to commit such acts or incites, instigates, commands or procures any other person to commit genocide or crimes against humanity. In international law (Criminal Court – International Criminal Court) could be defined as the notion that encompasses crimes such as murder, extermination, rape, persecution and all other inhumane acts of  a similar character (wilfully causing great suffering, or serious injury to body or to mental or physical health), committed  as part of a widespread or systematic attack directed against any civil population, with the knowledge of the attack. The definition of ‘crimes against humanity’ is codified in Article 7 of the Rome Statute of the International Criminal Court (ICC).

Trafficking in humans, endangered species or illegal merchandise is liable on conviction to a fine not exceeding E10 million or 10 years in jail.


Journalists under siege 

Section 27 somehow relates directly or indirectly to the duties of journalists as it criminalises disclosure of details of an investigation. It is said that a service provider that receives an order related to a criminal investigation, which explicitly stipulates that confidentiality is to be maintained or such obligation is stated by law commits an offence carrying a fine of E1 million if he or she discloses – 

(a) The fact that an Order has been made;

(b) Anything done under the Order;

(c) Any data collected or recorded under the Order; 

If the Bill passes, the person who contravenes Section 27 can also be imprisoned for three years.

A person who harasses others using means of electronic communication commits an offence that carries a penalty of E10 million as well or jail sentence of up to 10 years.  The harassment entails coercing, intimidating, insulting, causing emotional distress to a person. This the person does through a computer system to support hostile behaviour.


E100m fine  

Section 26 (2) provides that a person could be fined E100 million if he or she causes or launches an attack with data traffic on a computer system or network so as to overwhelm the network resources, resulting in slowed or denied service. The guilty party can alternatively serve a jail term of up to 20 years.


Bring it on – PUDEMO 

Wandile Dludlu, the Secretary General of the People’s United Democratic Movement (PUDEMO), said PUDEMO had seen all manner of draconian laws being put forward by this regime. He said this proposed legislation was joining a plethora of others. However, Dludlu declared PUDEMO’s readiness to dump it in the dustbin of history like the Suppression of the Terrorism Act, 1973 Decree, 60-day Detention Without Trial, and other pieces of legislation. He said it was a pity that tiny countries like Seychelles and Mauritius were pushing for global economic power whereas Eswatini of similar size was answering these questions – “how to use the police? How do law drafters come up with legislations to suppress people?” 

The secretary general said Seychelles and Mauritius were human success stories because of their sound leadership while Eswatini continues to be a charity case. He said PUDEMO was happy that such laws were being promulgated in front of emaSwati and diplomatic partners such as United States Embassy and European Union (EU).

“We have been raising concerns to the EU and US over their continuous bankrolling of this political regime. Why are they keeping it active when it violates human rights?” Dludlu alleged.

He said they were not scared of this proposed law as it was intended to silence people expressing their views in the computer space. He said government managed to muzzle the radio and television, but would never be able to muzzle the computer space.

Vuyisile Hlatshwayo, the Executive Director of the Eswatini Chapter of Media Institute of Southern Africa (MISA), asked to go through the Bill before he commented on the issue as it looked as though they were faced with a huge challenge.

“From what I hear from you, the fines are ridiculous, who has E10 million in this country? But, let me read the whole Bill, I will revert back to you for detailed comment,” he said.

Welcome Siyabonga Dlamini, the President of the Eswatini National Association of Journalists (SNAJ), said his organisation would always welcome legislation that advances good and ethical practice of the profession, but frowns upon laws that infringe on freedom of the press and expression.

Dlamini hoped the proposed law on computer crime and cybercrime was not intended to muzzle the media or victimise individuals considered holding dissenting views or beliefs from those of the government.


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