Back Namibia

Status regarding Budapest Convention

Status regarding Budapest Convention

Status : NA Declarations and reservations : N/A See legal profile

Cybercrime policies/strategies

Cybercrime/Cybersecurity

No particular policies/strategies of Namibia deal directly with cybercrime. However, in February 2020 Namibia, with the assistance of the Commonwealth Secretariat, brainstormed on the components of its cybersecurity strategy. The related report is awaited from the Commonwealth Secretariat.

 

Other relevant policies/plans:

The Ministry of Information and Communication Technology Strategic Plan 2017-2022 has three relevant strategic objectives:

  1. accelerate ICT development, access and use for a smart, inclusive ICT Namibia;
  2. enhance unhindered access to information for an informed nation;
  3. enhance an enabling environment for high performance culture and effective service delivery.

 

The plan notes that the lack of awareness and means to address cybercrime are one of the key issues that has slowed the pace of ICT development, access and use. As a result, in order to meet their strategic objectives, MICT aims to ensure the development and implementation of mechanisms to protect the nation from cybercrime, in part by finalizing its cybercrime bill.

 

Namibia’s 5th National Development Plan (NDP5: 2017 – 2022) By 2022, lists as one of its key goals ensuring that Namibia has universal access to information, affordable communication and technology infrastructure and services by 2022. The NDP5 recognizes that access in rural areas is one of the main challenges in this sense, as a result of the combined impact of the uneven access to electricity and high unit costs for rolling out ICT infrastructure in a vast geographic area. The expansion and modernization of its ICT infrastructure will include the promotion of e-services, including e-governance, and innovation.

 

Lastly, the Harambee Prosperity Plan (HPP 2016 – 2020) also addresses ICT from an infrastructural perspective. Important additional ICT challenges noted in the HPP as compared to the NDP5 are noted as the low ICT literacy and understanding of the relevance of ICT, as well as high import taxes on ICT equipment. Unfortunately, a number of key action points have still not have been reached by the set deadlines:

  • finalizing the ETA and the Cybercrime Law by 2016 (however the ETA/ Electronic Transactions Act was finalized in 2019);
  • establishment of a Computer Emergency Response Team (CERT) by February 2017.

Overarching ICT Policy 2009

Information security and privacy: The Government promotes legislation for information security, data protection and the protection of privacy. The Government will guard information privacy; and only intercept and monitor information of national importance. To ensure the interface between technology and rights to privacy are well regulated, collection and protection of data will comply with international standards.

 

Draft Data Protection Policy (2013)

This Draft Policy seeks to protect the right to privacy of Namibian citizens, as well as to protect Namibian citizens against abuse of their data and personal information and to regulate cross-border flow of personal data.

Cybercrime legislation

State of cybercrime legislation

Namibia’s government is in the process of finalizing its cybercrime related legislation in the form of a package of bills, including the Electronic Transactions Act 4 of 2019, a Cybercrime Bill (draft) and Data Protection Bill (2013 draft). Until recently, Namibia used the Computer Evidence Act 32 of 1985 to adjudicate cases involving electronic evidence. This has been repealed by the Electronic Transactions Act 4 of 2019 (OG 5152).

Substantive law

The Electronic Transactions Act 4 of 2019 / ETA (GG 7068), which has repealed the Computer Evidence Act 32 of 1985, provides for the legal recognition of electronic transactions and the admissibility of electronic evidence, as well as consumer protection in electronic commerce. The ETA makes provisions for the following areas:

  • electronic transactions;
  • consumer protection;
  • online marketing;
  • e-government services;
  • cryptography providers;
  • internet service provider liability.

Cybercrime

The government of Namibia worked together with the International Telecommunication Union (ITU) on the country’s cybercrime bill (2013), which is currently in draft form as part of the Support for Harmonization of the ICT Policies in Sub-Sahara Africa (HIPSSA) project. The draft bill has been reviewed by the Council of Europe and received comments for further alignment with the Budapest Convention on Cybercrime following the latest mission on legislative drafting on 27-28 February 2020. The bill is currently under review by Namibia’s government.

Procedural law

Namibia’s draft Cybercrime Bill, currently under final review by the government, includes provisions for searches, seizures and forfeiture, production orders, preservation, interception and the use of forensic tools. Thus, it provides most of the procedural powers required under the Budapest Convention on Cybercrime. However, the legislation does not lay out the scope of the procedural powers, and some of the powers seem to apply only with respect to investigation of offences under the Namibia Cybercrime Bill and not more broadly to the collection of evidence in electronic form for other criminal offences that could incorporate this type of evidence. It is also missing procedural powers specific to traffic data.

Safeguards

The Constitution (1990) protects fundamental rights and freedoms of its citizens.

 

Namibia has ratified the Convention on the Rights of the Child (1990) and has acceded to Articles 2 and 3 of the UN Optional Protocol to The Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which requires the creation of offences under criminal law against the sale of children, prostitution of children and child pornography, including any attempts to commit such an act. It also obliges conformity with international instruments regarding child adoption.

 

Namibia has also ratified the following international human rights treaties:

Related laws and regulations

Data Protection

Namibia has not enacted comprehensive data privacy legislation. However, various sector-specific laws are in place to protect client information, including in the legal and banking sectors (e.g. Financial Intelligence Act 13 of 2012; Industrial Property Act 1 of 2012; Copyright and Neighbouring Rights Protection Act 6 of 1994).

 

Namibia recognizes the right to privacy as a fundamental human right under Article 13 of its Constitution. Accordingly, all persons have a right to privacy in their homes and communications. The right to privacy is limited as required by law and in the interest of protecting:

  • national security and public safety;
  • the nation’s economy;
  • health and morals;
  • against disorder and crime;
  • the rights and freedoms of others.

As mentioned above, Namibia currently has a draft bill from 2013 which proposes the establishment of a data protection authority and seeks to create provisions for the use, processing and collection of personal information in order to protect citizens’ right to privacy. The bill has been reviewed by the Council of Europe and has received comments for alignment with Convention 108+ following the latest Council of Europe mission to Namibia in 24-26 February 2020.

 

Legislation and regulations

Specialised institutions

International cooperation

Competent authorities and channels

Legal Framework

 

Competent authorities and channels

Extradition:

 

Central authority for MLA:

 

Namibia does not currently have a 24/7 point of contact for cybercrime/mutual legal assistance.

Jurisprudence/case law

Arangies and Another v Unitrans Namibia and Another (I 347/2013) [2019] NAHCMD 196 (18 June 2019) the judge tossed the computer evidence material to the case out based on the Computer Evidence Act 32 of 1985, stating “Perhaps, it is time for the legislature to review the provisions of the Computer Evidence Act, 1985 (the Act) or to enact new legislation more suitable for what has doubtless been exponential and unprecedented developments since the Act was enacted.”

 

S v Ningisa & Others 2013 (2) HC 504 (SC) (Act applicable only to civil proceedings, as it explicitly states, and not relevant to criminal proceedings): admissibility of computer print-outs (using the Computer Evidence Act 32 of 1985).

 

Rally for Democracy and Progress & Others v Electoral Commission & Others 2013 (2) NR 390 (HC), Case No. SA 12/2011: refers to the Computer Evidence Act 32 of 1985 to review the applicants’ complaints which requested annulling the results of the National Assembly’s November 2009 elections because of a long list of irregularities.

 

The High Court Of Namibia: The State Versus Onias Marume, (High Court Review Case N0.:753/06) Coram: Hoff, J Et Van Niekerk, J, Delivered on: 2006-12-19, Case No. 120/06: defendant was convicted on two counts of violation of the Copyright and Neighbouring Rights Protection Act 6 of 1994 and ordered to pay fines or serve concurrent prison sentences of up to 18 months.

Sources and links

News

Reports and research

Databases and institutions

Print Namibia
Tools on Cybercrime & Electronic Evidence Empowering You!

These profiles do not necessarily reflect official positions of the States covered or of the Council of Europe. 

Contribute

  Are you aware of the latest legislative or policy developments on cybercrime and electronic evidence?

  Share this information with us helping to keep this platform up to date.

Useful links