Introduction
With support from USAID, the PROGRESS Consortium is currently implementing the
Advancing Rights in Southern Africa (ARISA) Program to improve the recognition,
awareness, and enforcement of human rights in the region, including protection of the region’s
most vulnerable and marginalized groups. The Progress Consortium is made up of Freedom
House, the American Bar Association (ABA), Internews and PACT. The ARISA Program will
run for a period of five (5) years with a focus on the following thematic issues which have been
identified as crucial for the promotion of human rights in the region:
● Women’s customary land rights;
● Indigenous Peoples’ rights;
● Media freedoms and digital rights and;
● The rights of human rights defenders as a cross-cutting theme.
The ABA is responsible for the success of the ARISA Program’s Intermediate Result No.2,
which is to “Strengthen the capacity of regional and local civil society actors to seek redress
of rights violations.” In line with this objective and in partnership with the Southern Africa
Chief Justices Forum (SACJF) and the Democratic Governance and Rights Unit (DGRU) at
the University of Cape Town, the ABA seeks the services of a consultant to develop a bench
book on media freedoms and digital rights in Southern Africa and subsequently train selected
members of judiciaries in Southern Africa on the utilization of the bench book. The expectation
is that the bench book will assist judiciaries in the region in managing digital rights cases
coming for trial. The development of the bench book and the training will be implemented
under the ARISA Program’s thematic area on Media Freedoms and Digital Rights.
Background
Digital rights are essentially human rights in the internet era. The focus of digital rights such
as the right to privacy and freedom of expression are foundational rights in the Universal
Declaration of Human Rights. The same rights are equally protected in the African Charter on
Human and Peoples’ Rights and the different constitutions of Southern African Development
Community (SADC) countries. Both the African Commission on Human and Peoples’ Rights1
and the United Nations2 have emphasised that the same rights that people have offline must be
protected online. In line with this reality, the ARISA Program through the ABA has been
implementing different programs and activities in the region to advance this area of the law
and human rights. One such activity was the judicial symposium on Digitization and Internet
Governance held in Nairobi, Kenya from 21-22 April 2022. Co-hosted by different partners
including ARISA, the International Commission of Jurists (ICJ), the Media Institute for
Southern Africa (MISA), the American Bar Association Rule of Law Initiative (ABA ROLI),
the Kenya Judiciary Academy (KJA) and the Southern Africa Chief Justices Forum (SACJF),
the symposium brought together chief justices from twelve (12) jurisdictions as well as judges
of high/superior courts from the Eastern and Southern Africa region.
All parties at the symposium recognized that the realm of media freedoms, digital rights,
digitization and internet governance were developing and evolving areas of the law. In many
jurisdictions in the region, the legal frameworks and jurisprudence addressing these rights are
still being developed. Guided by instruments such as the African Union Convention on Cyber
Security and Personal Data Protection and the Budapest Convention on Cybercrime,3 many of
the countries in Southern Africa have or are in the process of developing their computer crimes,
cybercrimes, and data protection laws. The SADC Secretariat, with support from the
International Telecommunications Union (ITCU), has also developed three Model Laws: on
Computer Crimes and Cybercrime, on Data Protection, and on Electronic Transactions and ECommerce
to guide member states in the development of related laws. Acknowledging the
evolving and developing nature of this area of the law and human rights, the participating
judiciaries noted the need for the development of a bench book on digital law and rights to
ensure proper adjudication of cases in both criminal and civil proceedings. It is in this context
that the proposed bench book will be developed, with the ARISA Program partnering the
SACJF and the DGRU in this initiative.
Objectives of the Assignment
The objective of this consultancy is to develop a bench book that will serve as a guide to
judiciaries in Southern Africa regarding digital law and rights. The bench book will be a
resource manual addressing different aspects of digital law and rights such as protection of
human rights in the management of criminal cases related to digital rights, e.g. computer crimes
and cybercrimes. The book should include relevant statutes, case law, and other persuasive
authority for judges to weigh the protection of citizens’ online rights such as the right to privacy
and freedom of expression, against regional governments’ measures to protect their
cyberspaces and implement computer crimes, cybercrimes, data protection, electronic
commerce, terrorism, and related security laws impacted by access to the internet, computers,
and citizens’ online activities.
Although the bench book will be a regional resource expected to apply to any of the
jurisdictions in Southern Africa, it will also provide jurisdiction specific information and
resources to ensure that it is a readily available, relevant, and quick reference resource to
judiciaries in the different countries when handling digital law and rights and related cases. It
will therefore fuse regional and international standards and approaches with relevant national
perspectives from the eight ARISA Program countries namely; South Africa, Mozambique,
Angola, Namibia, Botswana, Lesotho, Eswatini and Madagascar
Key Activities and Deliverables4
The consultant/s will be required to undertake the following activities and produce the
following deliverables:
1) Develop an Inception Report detailing the methodology and workplan to be used in
undertaking the assignment, and an outline of the bench book;
2) Undertake desk research and legal and policy analysis to identify available computer
crimes, cybercrimes, data protection, e-commerce and related digital laws and their
application by the courts in Southern Africa;
3) Identify case law from higher/superior courts in Southern Africa on computer crimes,
cybercrimes, data protection, e-commerce and related digital laws and its impact on
protection of digital and online rights. The DRGU will provide case identification
support;
4) Engage judiciaries, the legal profession and other stakeholders in identified countries
in Southern Africa to understand their views and obtain recommendations on
approaches that can be used by the courts in handling computer crimes, cybercrimes,
data protection, e-commerce and related digital laws. The SACJF will provide
assistance in setting up consultative meetings with the judiciaries and the ABA will
provide support in setting up consultative meetings with members of the legal
profession;
5) Using the findings of the desk research, legal and policy analysis, case law review and
stakeholder interviews, develop a bench book detailing best practice and
recommendations on handling computer crimes, cybercrimes, data protection and
related digital laws and rights in Southern Africa. (Examples of bench books will be
made available to the successful candidate/s.)
6) Using the bench book and related materials, undertake a training of trainers for 20-25
people, targeting judges responsible for training and personnel responsible for
information technology from each regional jurisdiction’s judiciary5; and
7) Produce a training of trainers workshop report within 5 days of the conclusion of the
training workshop.
Qualifications and Experience
1) Bachelor’s and/or Master’s Degree in Law or Human Rights;
2) At least 10-15 years of professional experience at national, regional or international
levels working on human rights and access to justice/justice delivery.
3) Candidates must demonstrate a strong understanding and knowledge of computer
crimes, cybercrimes, data protection and related digital laws in Southern Africa and
internationally;
4) Good understanding of the judicial structures in different Southern African
jurisdictions;
5) Experience working as a practicing lawyer, judge or in judicial training will be a distinct
advantage;
6) Experience in legislative drafting or legal research will be a distinct advantage;
7) Fluency in speaking, writing and reading English. A working knowledge of French
and/or Portuguese preferred.
How to apply
APPLICATION PROCEDURE:
Interested and qualified applicants must submit their applications to faith.munyati@abaroli.org
by 15 May 2023. The application must contain a curriculum vitae and an application letter
demonstrating the applicant’s qualifications and experience and how these fit within the scope
of the proposed assignment.
The applications must be clearly marked “Consultancy: Development of Bench Book and
Training of Trainers.”