AU Cyber-security Convention ignores practical reality

"If you steal from one author it is plagiarism; if you steal from many it is research."

These words of Wilson Mizner, an American Playwright and entrepreneur, came to my mind as I drove along Nairobi's Peponi Road on a rainy day at 6am.

The Westgate and surrounding areas have been fenced off. However, there is a little hole in the mabati fence, through which one can see several street boys going in and out. They are taking the scrap metal piled up on the former street parking lot opposite the shopping mall.

These men are not few. Following Mezner’s logic we would not call it stealing, but entrepreneurship. After all, they make good use of the scrap metal and while helping to clear the messy mountain.

The cheekiness with which these people seem to go in and out through the little hole cannot but be noticed by passers-by. Certainly, in their consciences there is something amiss. The fact is, this uncomfortable looting spirit that has permeated our society is not entirely new. It happens whenever law and order breaks down.

More worrying is that it can also happen when law and order are in place, and even worse, it may happen because the law encourages it or turns a blind eye to it. This has been the case when unreasonable perks, excessive allowances and exaggerated phone bills are claimed or unsuitably paid from the public budget.

Man has an uncomfortable addiction and an irresistible tendency to take what is belongs to others; what is public property. We usually fall into this trap to justify a false sense of justice, of retribution or what life has 'unfairly' denied me.

It is the convenient redefinition of Common Good and Common Goods.

NDUMBERI

Sometimes I wonder what the obituary of some people would look like: He is survived by a plot in Ndumberi, two vehicles (one Datsun pick-up and his dear KVQ Mercedes), two flats in Umoja, and a stolen beautiful flat-screen Sony TV set.

Life loses its meaning when there is no legacy to strive for. It becomes flat… and looting is not only justified but necessary. The greatest worry is that looting is not only material. There are other types of looting, on a bigger scale and with more dramatic consequences, such as the looting of intellectual property.

Dr Isaac Rutenberg, an intellectual property expert, and his counterpart Lilian Makanga are quite concerned about the Draft AU Convention on the Confidence and Security in Cyberspace (DAUCCSC, or AUCC for short).

Rutenberg argues that it is a sweeping Convention that would touch on virtually every aspect of electronic culture. Inside the 52-page Convention are lurking provisions for just about everybody to dislike.

If right now you are asking, “What is the AUCC?” you are not alone. Indeed, a major problem with the AUCC is that so few people, companies, and organisations even know of its existence, yet it is scheduled to be passed by the AU in January 2014.

From a civil society perspective, the primary problem with the AUCC is the non-inclusive way in which it was created. AU experts and government officials drafted the convention with the help of UN officials, but largely excluded any substantial consultation with the private sector or civil society.

The result is a Convention that sounds reasonable on paper but ignores practical realities.

COSTLY BURDENS

Businesses will dislike the AUCC because it places substantial and costly burdens on Internet Service Providers, electronic banking (including mobile money) providers, and anybody engaging on online advertising.

Just about everyone will dislike the AUCC because it gives “investigative judges” (i.e., the judiciary) nearly unlimited power to seize and indefinitely hold electronic records and other electronic evidence if the judge suspects that a crime has been committed.

The AUCC provides few limitations or guidelines on this awesome power, and ignores that fact that most African countries lack cyber-forensic capacity.

The AUCC is a prime example of law making without local research; without first asking some basic questions. Are the necessary structures in place to implement this law? Will the law do more harm than good to the online community?

The AU has done this before. In 2012 the AU attempted to create a Pan-African Intellectual Property Office, again largely without consulting anybody in the private sector. After much noise made by stakeholders through petitions and letters, the AU backed down and has delayed the effort.

A private sector initiative to stop ratification of the AUCC is similarly now underway, with support from the likes of Google, iHub, iLab-Africa, and the Centre for Intellectual Property and Information Technology Law (CIPIT) at Strathmore Law School. Time is short (adoption of the AUCC is scheduled for January), but it is still possible to have some sensible voices heard by the AU.

Rutenberg and Makanga are worried. The AU is setting the stage for the looting of ideas in a continent pregnant with them. This will just impose a new burden on creativity.

A society that goes into looting sprees, where goods, ideas, public or private funds are vanished needs help. Patricia Murungami usually summarises this in a short striking question: Are you living your resume or your eulogy? I guess the same question can be posed to the African Union.