American Bar Association (ABA)

Media Freedoms and Digital Rights Bench Book Consultant

American Bar Association (ABA)

Job Description

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.”

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