New proposal to change South Africa’s constitution

 ·10 Nov 2022

The Democratic Alliance has announced its intention to introduce a private members’ bill to parliament, seeking a change to South Africa’s constitution to entrench cyber protections in the country’s highest law.

Under the title of the Constitution Eighteenth Amendment Bill, 2022, the bill aims to change the constitution to make provision for the establishment of a new commissioner in South Africa to deal with cyber-related issues.

The title of the bill should not be confused with previous proposed constitutional amendments that have failed to be passed – such as the previous Constitution Eighteenth Amendment Bill, 2021, which sought to entrench land expropriation without compensation in the Constitution.

According to the DA’s explanatory note for the bill, cyber security and cyber threats did not play such a big part in the functioning of the country and the lives of individuals with the adoption of the Constitution in 1996.

However, cyber technology has now become increasingly central to government functioning and the provision of services to citizens.

“Proper cyber security is also fundamental to safeguarding many of the rights enshrined in the Bill of Rights and safeguarding our critical infrastructure and democracy,” it said.

“At present, personal information of individuals in possession of state departments is also not sufficiently protected against cyber-attacks. These attacks place private and public information at risk, which results in state-owned entities and the economy losing billions of rands to cybercrime.

“The state-owned entities currently tasked with addressing cybercrime are chronically underfunded or lack proper expertise to perform their function adequately. In addition, these entities are not sufficiently streamlined and often operate in silos across government departments.”

On top of this, the party said that it is vital that an entity that is directly accountable to parliament – and not to the national executive – be tasked with safeguarding these fundamental rights.

The bill proposes establishing the office of the Cyber Commissioner, which will be tasked with supporting and strengthening constitutional democracy in South Africa by advising, monitoring and establishing cyber security capabilities in the public sector and will work with tertiary institutions and the private sector to establish minimum good standards, build capacity and create awareness.

Cybercrime laws

South Africa already has laws in place to deal with cybercrime and related activity; however, they have faced criticism for being open to political abuse. Also, significant parts of the laws are still not in effect, leaving the door open for cybercriminals to take advantage.

President Cyril Ramaphosa signed the Cybercrimes Bill into law in June 2021, with parts of the laws taking effect from December 2021.

The parts of the law that are in effect include defining cybercrime, identifying the different types and giving the courts jurisdiction over them. The laws also empower the SAPS and other authorities to investigate such crimes and empower cabinet to make regulations around them.

Parts of the law that are not yet in effect include protections for people who are suffering from malicious content online and aspects dealing with the reporting of malicious players by service providers and financial institutions.

The sections of the Act that are not yet in operation are because they require regulations that are still to be finalised.

As defined by the act, cybercrimes include the unlawful access of computer systems and interception of data, unlawful acts in respect of software and hardware tools, and interference with
data or computer programs.

This also includes interference with computer data storage mediums or systems, but this section of the act has not yet come into effect.

Other cybercrimes include cyber fraud, forgery, extortion, aggravated offences, and theft of incorporeal property.

Acts of malicious communication include sending data messages that incite damage to property or violence, messages that threaten someone, and sharing messages with intimate images.

Read: How South Africa’s Cybercrimes Act will change how you use the internet

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