Experts warn against ‘emotional’ review of cyber law

In the midst of calls to repeal the Electronic Transactions and Cyber Security Act because government is allegedly using it to stifle dissent, legal experts have warned against using emotions to change laws.

The legal minds, including Malawi Law Society (MLS), have instead called for increased awareness of the law to both police and the public regarding its application.

The calls followed the arrests of three prominent people—human rights activist-cum-comedian Bon Kalindo, Rumphi East legislator Kamlepo Kalua and Livingstonia CCAP Synod cleric the Reverend Kondwani Chimbirima Gondwe—for allegedly producing material with potential to disturb peace.

Reacting to the arrests using the 2016 law, civil society organisations (CSOs) called for its review on the basis that the State was abusing the piece of legislation.

But in separate interviews yesterday, MLS and individual lawyers said the law itself is not a challenge.

MLS president Patrick Mpaka on Wednesday said it is not necessary to repeal the law, but urged law enforcement agents to acquaint themselves with the law.

He also said there is need to apply the Constitution and court pronouncements defining standards before making such kind of arrests.

On whether the State is abusing the law as CSOs suggest, Mpaka said: “Most likely the arrest is a violation of human rights considering the many judicial pronouncements on the subject of freedom of expression, opinion and assembly in democracy.

“Yes, the arrests are quite strange because the courts have consistently offered guidance to regime after regime that in a democratic dispensation under the 1994 Constitution, the kind of  peace and quietness that these arrests envisage is not in line with the Constitution and is unlawful.”

In a separate interview yesterday, human rights lawyer Justin Dzonzi described the calls for repeal of the law as “emotional”, arguing a policy decision should not be made in the midst of an emotional event.

He said: “It is like if you have rains for three or four consecutive days, it is only natural for you to need a break from the rain and yet if it were to stop raining altogether you would also regret it. So, you do not make a policy decision in the midst of emotional events like we are going through.”

Dzonzi said he did not find anything strange with the arrests, arguing that spreading of false news has always been a crime.

“Even in the absence of the Electronic Transactions and Cyber Security Act, the Penal Code also prohibits the spreading of false news.

“It has also been a civil wrong for anyone to defame another person, for example. So, this practice has never been legal—not here in Malawi, not anywhere on earth,” he said, further calling for awareness of the law.

However, Dzonzi said the arrests are less sensitive to the circumstances under which the people are making the statements.

He said: “The tragic loss of vice-president Saulos Chilima and eight others created a great sense of loss and the need for answers is automatic.

“The State would have used its discretion not to go after people who are grieving.

 On his part, Legal Affairs Committee of Parliament chairperson Peter Dimba said there is need for civic education on cybercrime law and freedom of expression.

He said people need to exercise their freedom of expression without infringing on the rights of others.

Among other things, the Electronic Transactions and Cyber Security Act makes provision for electronic transactions and for the investigation, collection and use of electronic evidence.

It also makes provision for criminalising offences related to computer systems and information and communications technologies.