THE REGULATION OF MODERN INFORMATION AND COMMUNICATION TECHNOLOGIES (ICTS) IN CAMEROON
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The name of the author: Fonjock Harris Kunju
Title of the dissertation Defended in the University of Buea-Cameroon in 2022: THE REGULATION OF MODERN INFORMATION AND COMMUNICATION TECHNOLOGIES (ICTS) IN CAMEROON
The year of publication at HRLRC: April 2, 2023
Name of the Website: Human Rights and Legal Research Centre,
The URL or link: https://hrlrc.org/2023/04/02/the-regulation-of-modern-information-and-communication-technologies-icts-in-cameroon/
ABSTRACT
The introduction of ICT’s has brought about remarkable advantages to Cameroon and the world at large. A lot of cyber criminality and insecurity has also sprung up following its advancement. It is against this backdrop that this research aims at examining the effectiveness of modern information and communication regulations in Cameroon. Data was obtained by the use of a qualitative research methodology with findings revealing the existence of several Cameroonian laws and various policy implementation and legal enforcement institutions regulating modern ICTs. This notwithstanding, the rate of cyber insecurity and criminality is alarming. Without prejudice to the effectiveness of the existing laws in place to combat crimes committed using modern ICT’s, the scourge persists because of jurisdictional challenges, under reporting of cases, bribery and corruption, difficulties in identifying criminals, extradition challenges and challenges regarding the nature of evidence. It is therefore recommended that the Cameroonian government trains law enforcement officers on the investigation and prosecution of modern ICT crimes, collaborate with other key players in the IT sector, commit herself in the crusade against bribery and corruption, educate the citizenry on modern ICTs and above all synergize with other nations at the regional and international level to enact a regional or international instrument regulating modern ICT’s.
Keywords: Regulation, ICT’s, Cyber, Internet, Digital Form, Social Networking.
TABLE OF CONTENTS
CHAPTER ONE
GENERAL INTRODUCTION
1.1 BACKGROUND TO THE STUDY.. 1
1.2 STATEMENT OF THE PROBLEM… 6
1.3.1 General Research Question. 8
1.3.2 Specific Research Questions. 8
1.4.1 General Research Objective. 9
1.7 THEORETICAL FRAMEWORK.. 14
1.7.2 The Command Law Theory. 16
1.7.3 The Triple-Pronged Theory. 17
1.8. JUSTIFICATION FOR THE STUDY.. 18
1.9 SIGNIFICANCE OF THE STUDY.. 19
1.11 LIMITATIONS OF THE STUDY.. 20
1.12 CONCEPTUAL DEFINITION OF KEY TERMS.. 21
1.13 SYNOPSIS OF CHAPTERS.. 24
LIST OF CASES
Domestic Cases
The People of Cameroon v. Kadji Valery Court of First Instance Buea/011A/2013 (Unreported).
The People of Cameroon v. Tamukum Fonjiyang Ferdinand and Song Charles Waindim CFIB/015/2012 unreported
Foreign Cases
Alade v Alemuloke (1988) 1 N. W. L. R. (pt. 69) 207.
Davis v. HSBC Bank Nevada, N.A., et at. No. 10-56488 (9th Cir.2012).
Jerez v. JD Closeouts 943 N.Y.Sd 392 (2012).
Quinn v Robinson783 F.2d 776 (9th Cir. 1971).
R v Governor of Brixton Prison, Ex Parte Schtraks Re Ezeta, Matter of Doherty(1973) 2 WLR 746.
Schtraks v Government of Israel(1964) AC 556, 582-584.
Soering V. The United Kingdom 1/19/161/217, Council of Europe: European Court of Human Rights, 7 july 1989.
Volker & Murkus Schecke v. Land Hessen (C-92/09).
World-Wide Volkswagen v. Woodson444 U.S. 286 (1980).
TABLE OF STATUES
National Statutes
Law No 96/06 of the 18th of January 1996 to institute the Cameroonian Constitution.
Law no 98/014 of July 14 1998 governing telecommunications.
Law No 2010/012 of 21 December 2010 on Cyber Security and Cyber Criminality.
Law No 2010/013 of December 21, 2010 on electronic Communications.
Law No. 2010/021 of the 21 December 2010 Governing E-Commerce.
Law No. 2011/012 of the 06 May 2011 on Consumer Protection.
Decree No 2012/180 of the 10th of April 2012 on the organization and functioning of the National Agency for ICT’s.
Decree No 2012/203 of the 20th of April 2012 on the organization and functioning of the Telecommunication Regulatory Agency.
Decree No 2012/1638/pm of 14th June 2012 on the establishment and/or exploitation of networks at the provision of electronic communication services subject to an approval regime.
Decree No 2012/1639/pm of the 14th of June 2012 on the conditions of Declarations as well as of exploitation of networks and infrastructures subject to the declaration regime.
Decree No 2012/1640/pm of the 14th of June 2012 on the conditions of access to electronic communication network open to the public and the sharing of infrastructures.
Decree No 2012/1643/pm of 14th June 2012 on the conditions and modalities of security audit of electronic communication and information system network.
Decree No 2012/309 of 26th June 2012 on the modalities of managing the special funds for electronic security activities.
Decree 2013/0400/pm of the 27th of February 2013 on the modalities of declaration and authorization, as well as the conditions to get certification view of the provision, export, import, or use of means and services of cryptography.
Decree No 2013/0398/pm of 27 the February 2013 the setting up of universal service and the development of electronic communications.
Decree No 2013/0399/pm of the 27th of February 2013 on the modalities of the protection of consumers of services of electronic communication.
Decree No 2013/0401/pm of the 27th February 2013 on the reparation of performance bonus regarding penalties ordered against telecom operators.
International Conventions
The 1948 Universal Declaration on Human Rights.
The 1976 International Covenant on Civil and Political Rights.
LIST OF ABBREVIATION
ART Agence de la Regulation de Telecommunication
CAMPOST Cameroon Postal Services
CAMTEL Cameroon Telecommunications
CFA Colonies Francaise
CIRT Computer Incident Response Team
COVID 19 Corona Virus 2019
ECHR European Commission for Human Rights
ICT Information and Communication Technology
INTERPOL International Police
IP Internet Protocol
IT Information Technology
ITU International Telecommunication Union
MINCOM Ministry of Communication
MINPOSTEL Ministry of Post and Telecommunication
MTN Mobile Telephone Network
NAI National Agency for ICT’s
NASPT National Advanced School of Posts and Telecommunications
NCC National Council of Communication
SQCA Standard and Quality Control Agency
CHAPTER ONE
GENERAL INTRODUCTION
1.0 INTRODUCTION
This chapter being the first provides an introductory overview to the study. It embodies the background to the study, the statement of problem, the research questions and objectives, the research methodology, the literature review, theoretical framework, justification and significance of the study, the scope of the study, its limitations, conceptual definition of key terms and synopsis of the chapters. This chapter therefore sets the pace for this research.
1.1 BACKGROUND TO THE STUDY
The introduction of ICT’s has brought about considerable advantages to the people of Cameroon and the rest of the world. That is why many regulatory agencies have emerged with the objective to regulate communication via the internet and other communication platforms. Communication technology embodies all devices that allow people and organizations to interact in the digital world.[1] It refers to technology that provides access to information through electronic communication. It also entails the diverse set of technological tools and resource used to communicate, create, decimate, store and manage information.[2] These include; the internet, wireless networks, cell phones and other communication media.[3]
In the past few decades ICT’s have provided the society with a vast umbrella of new communication capabilities. People can communicate in real time with others in different countries using technologies such as instant messaging, voice and video conferencing via social networking websites like Facebook allow users from all over the world to remain in contact and communicate on regular basis.
Modern ICT’s have created a global village in which people communicate with others across the globe as if it were next door. For this reason ICT is always studied in the context of how modern communication affects society.[4]
The development of modern ICT’s has led to significant social, economic and legal changes. Law regulates particular technologies and solves conflicts and co-ordination problems related to these technologies.[5] This means that there are also new risks which must be managed. Law is a method of technological risk management and plays a constantly increasing role in that regard.[6]
The information age and the ICT society is shaped by rising significance of information ethics. The changes in ICT are about to be deepened and reinforced as our societies develop towards inter-connected and inter-dependent network societies. All these complexities pose enormous challenges in for the regulation of this particular area of the society.[7] Due to the advancement and gross use of ICT’s nowadays, there is a need for communication to protect privacy, confidentiality and social welfare of individual and organizations.
The introduction of ICT could be tracked back when human beings started to use objects to communicate with one another. There are four main periods in history that divide the era of ICT’s, namely; Pre mechanical, Mechanical, Electromechanical and electronicperiods.[8] In the Pre mechanical period humans started communicating with one another using words and pictograms curved in rocks (micrographics). Sumerian Pictogram dates back 3100BC that showing the earliest form of communication among humans.
The Pre mechanical Period; it happened around 1450 BCE to 1450 CE. Humans started communicating with one another using words and pictograms curved in rocks. Paper from papyrus plant was invented; storing of information was revolutionized. Paper were compiled and bound together, eventually giving birth to books. Books needed to be compiled and stored in areas; hence libraries were created. Libraries were considered as the first data centers in history. Humans started using numerical system during the late stage of this period. The most popular device created in this period is said to have come from China- the Abacus which was the first device to process information.[9]
The Mechanical period served as a bridge between our current period and the pre mechanical period. It started around 1450-1840. The interest in automating and speeding up numerical calculations grew during this period. The machines driven by mechanical means such as steam and gears dominated information processing and calculation. The mechanical calculator, “Pascaline” was the highlight of this period. It was invented by the famous French mathematician Blaise Pascal along with Wilhelm Shickard. Charles Babbage analytical Engine, which is considered as the first programmable mechanical computer, was also invented during this period, Charles Babbage “father of computers”.[10]
The Electromechanical period started around 1840-1940. It makes the use of electricity for information handling and transfer bloomed. This period saw the use of telegraph to transmit information over long distances. The telephone was later invented, enabling voice transmission over long distances. Humans started to control electricity using vacuum tubes in devices that eventually led to the development to the development of today’s electronic gadgets. The telegraphy which is the first electrical communication device was invented during this era. In 1876, Alexander Graham Bell was granted patent for the telephone.[11]
The Electronic Period started in the 1940s up to present day. The highlight of this period is focused on the advent of solid state devices/electronic devices. There are four main event found in this period, these are: the late vacuum tubes period; the transistors period, the integrated circuits period and computer processors period. Computers are evolving from basic textual interfaces to Graphical User Interfaces. The result of developed methods of connectivity for sharing processed information stored in computers and processing devices is the internet or the World Wide Web.
The last few decades have witnessed a tremendous and phenomenal growth in the field of ICT in education and has also influenced the life of people especially students in some way or the other. Modern ICT’s are arguably the technology era that has the strongest impact on society during the past 60years. The technology is visibly present in our use of computers, smart phones, information search, robotics, and intelligent agents, but, has an even greater impact as an enabling technology foe a large number of application areas, such as medicine and healthcare, energy production and distribution, finance, public management and transport logistics to name a few.[12]
With the advancement of ICT, a lot of cyber criminality and insecurity has sprung up especially in the developing world including Cameroon. Cameroon is one of the countries in the world that have accepted the use of the internet and other technological tools to engage in personal and business activities. This wide acceptance of internet in Cameroon has led to an increase in computer crimes and security threats in the country. Cybercrimes come as a result of fraudulent electronic emails, identity theft, cyber harassment, scamming and hacking. Many Cameroonians use the internet as a means of extortion resulting to a threat to the lives of Cameroonians, the economy and the reputation of the nation in the international scene.[13] Thus, there is a need of an ICT legislation to regulate and govern ICT’s users.
In this light, Cameroon has put in place an institutional and regulatory framework to better regulate modern ICT’s. These legislations include inter alia: the Law No 98/014 of July 14, 1998 governing telecommunications, Law No 2010/013 of December 21, 2010 on e-Communications and its amendment in April 2015 Law No 2010/012 of December 21, 2010 on Cyber Security and Cybercrime and Law No 2010/021 of December 21 2010 governing e-Commerce.[14] Institutional mechanisms such as the Ministry of Post and Telecommunications, The Ministry of Communication, the Telecommunication Regulatory Board and even our national courts have been put in place to better regulate modern ICT’s.
However, despite the existence of this regulatory framework, the rate of Cyber Criminality and other related crimes has become palpable in Cameroon. Against this backdrop, this thesis examines the regulatory challenges in modern ICT’s in Cameroon. In so doing, the study examines the regulatory measures put in place to regulate modern ICT’s. Also the study suggest good and necessary recommendations to improve the quality of ICT’s as well as its regulation and maintenance. Thus this paper brings a broad view of the regulation of modern Information technologies.
1.2 STATEMENT OF THE PROBLEM
Cameroon, as well as, other developing countries face the same legal challenges when it comes to governing ICT’s. Despite all the legislative organs and laws set up by the Cameroonian government on ICT’s, there are a lot of loop holes in the Information and Communication legislative sector. Cyber criminality has become the illegal profession and source of living for most youths in Cameroon today.
With the growing trend of cyber related crimes, it is obvious that the Cameroonian cyber law has not adequately deterred perpetrators from committing crimes. With this, one may describe the law as window dressing and can be circumvented. According to the National Agency for ICT’s (ANTIC), over 90% of software and operating systems used in Cameroon are hacked including email addresses and social media accounts of businesses, individuals and government members resulting to lamentable losses for operators, individuals, businesses, and the state.[15]
In fact, with the upsurge of the Anglophone crisis, unverified information was constantly being published online. In most cases, separatist fighters used modern ICT’s as mediums to create tensions and propagate the struggle. This made the Cameroonian government to impose internet shutdown in the North West and South West Regions of the country on the 17th of January 2017 – 21 April 2017.[16] After 93 days without internet services, the government reinstated internet in these two Regions. Such measures taken by the Cameroonian Government owes to the non-adherence to laws regulating modern ICT’s in the country.
In addition, there is lack of awareness on information and communication legislations. In a country where there are opportunity to educate the entire population on cyber criminality and the tactics used by perpetrators does not usually present itself, it is easier for most culprits to get venture and get away without being caught as was the case of The People of Cameroon v. Tamukum Fonjiyang Ferdinand and Song Charles Waindim[17] where the accused were examined by the examining magistrate for publication of false information that they puppies to sell when in fact they did not have. After full hearing and consideration of evidence before the Buea court of First Instance, the accused were found not guilty of cybercrime (pet scam) and so were consequently acquitted.
Despite the existence of good laws in Cameroon, the majority of Cameroonians are not aware of the existence of the law.[18] Institutional wise, the National Agency for the Regulation of Information which was created with the aim to regulate the activities of modern ICT’s and its organs are not known by most Cameroonian citizens. This is because these agencies are highly confidentiality and not taught in schools. Despite all the support and finance provided by the government to sponsor the National Agency for ICT’s and other Information technology legislative organs, why there is the rapid growth of crimes related to ICT’s. Hence, how effective is the National Agency for ICT’s and her related organs in the Regulation of ICT’s in Cameroon.
Furthermore, the regulatory framework is incomplete. There is a need for control and follow up system that need to be perpetuated in the ICT’s system. There is the presence of poor and inadequate infrastructures leading to a rather low penetration rate for the segments of fixed mobile telephone and internet notably in rural area. In addition, there is the snag of insufficient financial resources to sustain the setting up a reliable and solid telecommunications infrastructure. In spite of the liberalization of the sector these infrastructures are rarely taken over by the private operators and as a matter of fact under national sovereignty.
1.3 RESEARCH QUESTIONS
Based on the problems identified the following research questions shall be posed.
1.3.1 General Research Question
How effective are modern ICT’s regulated in Cameroon?
1.3.2 Specific Research Questions
- What is the concept of ICT?
- What legal and institutional mechanisms regulate ICT’s in Cameroon?
- What are the challenges in the regulation of ICT’s Cameroon?
- Which policy recommendations are needed to improve the regulation of modern ICT’s in Cameroon?
1.4 RESEARCH OBJECTIVES
1.4.1 General Research Objective
- To examine the effectiveness of modern Information and Communication regulations in Cameroon.
1.4.2 Specific Objectives
- To analyze the concept of ICT.
- To examine the Legal and Institutional frameworks regulating modern ICT’s in Cameroon.
- To examine the institutional mechanisms regulating ICT’s in Cameroon.
- To investigate on the various challenges in the regulation of ICT’s in Cameroon.
- To propose relevant recommendations that will improve on modern ICT’s regulation in Cameroon.
1.5 RESEARCH METHODOLOGY
Although an essential legal research, the study dwells on the regulatory challenges to new ICT’s in Cameroon. The research is predominantly doctrinal but interviews which is an empirical method I also adopted. The method used is content analysis of primary and secondary sources of data information. As primary sources of data information, the researcher makes use of case law, treaties, legislations, direct observations and policy documents. These sources will be interpreted in an in-depth manner so as to better appreciate the trends in ICT’s in Cameroon.
In addition, the research involves the use of textbooks, journal articles, reports and online sources as secondary sources of information. This approach will go a long way to enable the researcher better comprehend the study. It is from the review of secondary sources that the researcher can draw insights of what other authors both within and without of the Nation have written on this particular area of scholarly interest. In fact, this approach stimulates a better understanding of the context of the study and also formulates and guides the study. Equally, an examination or analysis of the relevant laws and international instruments relating to new ICT’s can only be studied by making use of primary and secondary sources of information.
Finally, the study employs limited interviews whereby some workers at the Telecommunication Regulatory Board, users of modern ICT facilities and legal practitioners were interviewed in order to get understanding of their views on the regulatory challenges on ICT’s Law in Cameroon.
1.6 LITERATURE REVIEW
There exist a vast school of writings and school of thoughts about ICT’s in the world and Cameroon. The themes of ICT’s which most authors write are based either on the developing nature, evolution, ethics, successes or challenges of ICT’s.
Other authors have also looked at the regulatory challenges plaguing this particular area of the law with plausible solutions accorded in their scholarly works. In furtherance of thus research work there is need to analyze existing relevant literature on the subject of ICT regulation. It is worthy of note that a plethora of writings exist in this regard. However, since it will be impossible to analyze all existing literature on this subject, few authors’ opinion will be considered.
According to Ujah M. Abu[19], communication has passed through a long stretch of scientific sophistication. The ICT’s has a significant impact on all human endeavors and area of interaction. This work not only shows the historical antecedents of ICT in Cameroon but goes further to show the legal framework governing this particular area and the hitherto challenges that plague Cameroons’ regulatory framework on modern ICT’s.
Boraine and Ngaundje Leno[20] provides the various mechanisms employed by the Cameroonian Government in the fight against crimes committed using modern ICT’s. These authors are of the opinion that with the upsurge of the Anglophone crisis, individuals, businesses and the Cameroonian government are increasingly becoming victims of cyber related security and cyber criminality. Combatants have used modern ICT’s to propagate false information concerning their opponents, threatened the masses thereby creating fear and uncertainties. It is against this backdrop that this study not only provides the regulatory framework governing modern ICT’s but goes further to demonstrate some of those challenges that affects adherence to the various laws regulating modern ICT’s.
Furthermore, Anne Chinasa Mpamah[21] provides a brief summary on the regulatory framework of modern ICT in Nigeria. He notes the effects of policy in the telecommunication industry and as well as the conduct of the regulator required by law. He concludes that the Nigerian regulatory Agency is not effective and efficient in the regulation of modern ICT. she therefore suggests as panacea to these problems the need for an effective, efficient and independent regulatory agency. This present work aligns very much with that of Chinasa but goes further to identify other hindrances safe for institutional inefficiencies that affects Nigeria’s regulatory framework on Modern ICT.
Mena Ajakpovi[22] makes significant contribution under cyber law and trademarks. He examines the thin border of domain name and trademarks. He raises the need for the international community to keep pace with the global trend of business and laws on ICT. In other words, international Organizations such as the World Intellectual Property Organization (WIPO) must ensure that users of modern ICT adhere to intellectual property laws so as to curb the hitherto challenges plaguing modern ICT.
Furthermore, Ikengha K.E. Oraegbunam[23] examines critically the nature of internet in relation to its facility for committing crimes. He mentions the fact that the internet is open, global, inexpensive, decentralized, abundant and interactive. All these qualities make it prone to cyber criminality. Moreover, the increasing over dependence on computer systems and the shapeless nature of cyberspace to identify and prosecute criminals. He submits that there is the dire need for the legislature to pursue process in science and technology and make laws that lack behind in same.
Kalu Grace Njasi[24] examines the legal and institutional framework for ICT’s in Nigeria. She observes that the evolution of ICT has metamorphose in recent times such that information can easily be disseminated across vast expanse of oceans and without any personal and physical links between communicators. This according to her necessitates the imposition of legal and institutional measures which meets up with modern challenges plaguing this area.
Anthony Taubman ,[25]observes that there are some distinct regulatory issues on modern ICT, the most being the question of who to manage the essential backbone and architecture of the internet. He observes the existence of an avalanche of institutional mechanism regulating this particular area of scholarly interest. But disdains the fact that no umbrella institution is in charge of this aspect.
Adejoke Oyewunmi [26]examines the challenges and impacts of ICT in diverse aspects of commerce, banking and business activities. He also discusses the emerging legal responses to this challenges aimed at safeguarding the security and integrity of online transactions. A commendable feature of his article is the analysis of existing and emerging legal, policy and institutional responses to ICT in Nigeria.
Most ICT’s authors in Cameroon write on the nature and evolution of ICT’s and leave out the regulation of ICT’s. This is a common aspect with most pre 2000 writers on ICT’s. Whereas, post 2000 writers such as Professor Asongwe Patricia focus on the regulation and regulatory challenges of ICT’s in Cameroon.
Most government publications on Information Communication Technology view Information Communication Technology as a blessing to the people of Cameroon whereas most private publications view it as a curse to the Cameroonian people. While government publications focus mostly on the aspect on the fixed telephone, mobile network and postal services, most private publications focus on the aspect of cyber criminality and cyber insecurity.
- Gaps in Literature
Credence and credibility should be accorded to the authors hitherto mentioned in the literature review. There is no gainsaying to the fact that their works act as stimulus for further research one of which being the present. This is based on the fact that a dichotomy exists between the aforementioned and the present. In other words, gaps exist.
Firstly, it is worth mentioning, though obvious that most of the afore-mention literatures were written by foreign authors, most of who emanate from the Nigerian Jurisdiction with practically few from the Cameroonian jurisdiction. This research unlike the afore-mentioned is being undertaken by a Cameroonian.
Moreover, authors measured in analyzing the various substantive laws regulating modern ICT’s with little or nothing being mentioned about the challenges envisaged in the enactment of these laws. This present study not only provides the various substantive law governing modern ICT’s in Cameroon but goes further to expound on the challenges envisaged in the enactment of these laws.
Finally, this study not only analyzes the various substantive laws regulating modern ICT’s but goes further to expound on the various institutional arrangements such as the National Communication council, the Ministry of Post and Telecommunications and even our national courts which implements governments laws on modern ICT’s.
1.7 THEORETICAL FRAMEWORK
This research on Modern ICT’s Regulation fits within three broad theories: the Penal Theory, the Command law Theory of John Austin, and the Tripple Pronged Theory of Henry Shue.
1.7.1 The Penal Theory
The study touches the Penal Theory which can be interpreted as being utilitarian and retributive.[27] The utilitarian part seeks to punish the offender for the general welfare of society, thus, legal sanctions are supposed to deter the offender and minimize the rate of crime. The retributive part regards the offenders’ wrongdoings as deserving punishment whose amount should be proportionate to the extent of wrongdoing.
Based on this theory, individuals who resort to using modern ICT’s to commit crimes should be punished for the general welfare of the society. The reason for the imposition of sanction is to ensure custody, coercion and correction, to prevention, deterrence and reform.[28] Laws regulating modern ICT’s must have coercion. As such, they must constraint and have force. It must compel users of modern ICT’s to use these technologies in a manner that will not facilitate the commission of a crime.
Again, one underlying principle of the Penal Theory is the fact the idea of prevention. As such ICT laws must deter offenders and potential offenders from committing crimes using its various mediums of communication. It must also deter offenders. The imposition of high sanctions on offenders will go a long way to deter offenders from using this medium to commit crimes.
Above all, the penal theory is undergirded by the principle of reform. Defaulters of ICT laws must not only be sentenced but should more importantly be reformed. As such, the Government should not only ensure that defaulters of ICT laws are sentenced but should more importantly ensure that they serve and come out from prison as changed men.
Based on the ideas, this research is therefore underpinned by the Penal Theory as the imposition of penalties on defaulters of modern ICT laws will go a long way to ensure respectability of these laws and even facilitate the sanction of perpetrators.
1.7.2 The Command Law Theory
The command law theory was developed by John Austin[29]. This theory is regarded as the command theory of law because the concept of command lies at its core: to Austin, law is the command of the sovereign, back by a threat of sanction in the event of non-compliance. Legality, on this account is determined by the source of the norm, not the merit of its substance.[30]
Thus, the answer to the question “what is law?” is answered by resort to fact not value. The theory therefore gives a central place to political power through the concept of sovereignty. The relevant social fact that confers validity, to Austin is promulgation by a sovereign willing to impose sanction for non-compliance.[31]
Austin in a nutshell avers that law is a command which obliges a person or a group of persons to a group of conduct. Being a command, the commander must be able to inflict punishment should the command be ignored. Every law must be supported by sanctions however small. A command is therefore law if two conditions are satisfied which are the commands must be general and the commander must owe over no obedience to others.
Contemporarily, cyber criminality continue to gain grounds. Despite the existence of laws against this social ill, it still continue to thrive. If these laws are not viewed by the perpetrators as commands the practice will continue to thrive. The state of Cameroon must therefore enact harsher laws and impose sanctions on defaulters. All in all laws on ICT should be conceived as commands and for it to be regarded as such, the legislator must enact harsher laws and impose penalties on defaulters.
1.7.3 The Triple-Pronged Theory
The triple pronged theory was developed by Henry Shue and advances the trio duties of the State which is to protect, respect and fulfill Human Rights.[32] The theory was further developed by great scholars such as Adam Beth.[33] According to Adam Beth, the duty to respect is essentially the duty not to infringe upon a person’s rights. The duty to protect on the other hand entails putting in place measures to ensure that entities do not infringe the rights of others while the duty to fulfill requires positive steps aimed at realizing those rights.[34]
Henry Shue’s tripartite analysis was affirmed by the Maastricht Guidelines on the violation of Economic, Social, and Cultural Rights in 1997 as representing the contemporary status of international law.[35]
Today, the role of the government to ensure the protection, respect and fulfillment of consumers rights in the cyber space has become a daunting task as users of modern information and communication mediums resort to committing al sorts of crimes in the cyber space. The state of Cameroon in trying to protect the rights of users of cyber space must enact laws which protects the rights of the citizenry. These laws must be followed by adequate enforcement mechanisms for its implementation.
The state must also ensure that operators of modern ICT’s respect the rights of other consumers. This right include amongst others the rights to privacy. If this is done, the multiple challenges affecting ICT’s in Cameroon will be redressed.
Finally, the triple pronged theory imposes on the Government the duty to fulfill Human Rights. The Government as such must therefore ensure that the various regulatory mechanisms governing modern ICT’s be implemented. These laws remain shallow codes if implemented to the later.
1.8. JUSTIFICATION FOR THE STUDY
From the literature reviewed, it is evident that most writers on ICT’s often approach the area terms of either the Crimes committed by cyber criminals, or the various laws sanctioning these crimes, or the various problems plaguing new ICT’s. Although they try to study the various regulatory mechanisms on new ICT’s, a clear identification of the various regulatory challenges are never stated.
The regulation of new ICT’s is an issue that needs urgent and careful attention. The issue of Cyber criminality has become palpable in the world and in Cameroon in particular. While ICT’s devices are being used by many to facilitate and decimate information, several fraudsters misuse Information Communication Technology in order to enrich themselves illegally. With this becoming a new normal in Cameroon, there is need for these regulatory challenges on modern ICT’s to be highlighted and possible recommendations to curtail these challenges. This research therefore goes a long way to bring to lamplight these regulatory challenges and possible solutions thereto.
1.9 SIGNIFICANCE OF THE STUDY
The necessity of this study cannot be over emphasized. It is common for some states to enact laws and ratify international Conventions which they will hardly implement despite the fact that the Constitution of most states place treaty obligations superior to National Law obligations.[36] It becomes even more challenging when the enactment of these laws and treaties themselves becomes a herculean task.
Moreover, knowledge on modern ICT’s will benefit its users and keep them from information technology crimes. The following stakeholders stand to benefit from this research; policy makers, users of ICT’s, the National Communication Agency and obviously the Government of Cameroon.
Firstly, policy makers after viewing this research will find out new ways on how to better regulate ICT’s in Cameroon.
Secondly, this work will help Cameroonians to stay aloof of internet and communication crimes. It will further help Cameroonians to have a mastery of the laws and institutions governing ICT’s in Cameroon.
To Academia, this work would serve as stimulant for further research in the area of Modern ICT’s. It would also serve as a useful source of information for future works on modern ICT’s in Cameroon.
Finally, this work will help the National communication Agency, the Cameroonian Government and other institutions on how to combat crimes relating to ICT’s.
1.10. SCOPE OF THE STUDY
This work is based on the regulation of ICT’s in Cameroon. It lays emphasis on the Laws governing ICT’s in Cameroon and provides the various challenges encountered in the regulation of new ICT’s.
The setting of this work on a large scale in the national territory of Cameroon and on a smaller scale South West region. This is because the case study is located in Cameroon and the National Agency for ICT’s has a regional branch in Buea south West region.
Even though, ICT’s dates back to 8400 BC, this work which is centered on Modern ICT’s regulations has in terms of time frame, 1984 – 2020 where Cameroon still faces a wide range of challenges in the regulation of modern ICT’s. The reasons for choosing this period is that ICT laws in Cameroon gained prominence only from the 1980’s.
1.11 LIMITATIONS OF THE STUDY
Like every research endeavor, this research had its own challenges and limitations. Prominent amongst which were;
The unavailability of Cameroonian Data posed as one of the major problems encountered during this research. The laws were relatively available but the text of application not always available even from those who ought to have them. The internet which acts as a medium to facilitate research has very limited material on Information Communication Technology regulations in Cameroon. As such, obtaining documents relating to the regulation of ICT’s became very strenuous. This is due to the confidential nature of such documents. Thus the researcher could not lay his hands on that fruitful information.
Moreover, the outbreak of COVID-19 and the barrier measures put in place by the World Health Organization and the Cameroonian Government has been a great limitation to the study due to the fear to interact with people as usual in order to obtain relevant information for the research. The pandemic which led to the shutdown of all learning institutions slowed down the pace of the research.
In addition, most of the few Cameroonian write-up’s on the regulation of ICT’s are in the French language. Thus making translation and apprehension difficult for the researcher. Financial constraints posed a problem for the researcher especially in visiting and accessing information and communication regulatory institutes.
Another impediment to the smooth running of this research has been the power outage in the town of Buea, place where the research is undertaken. Coupled with the poor internet connection, the researcher has encountered difficulties in obtaining relevant materials online and quickly. Hence leading to a somewhat slow research
Finally, the researcher experienced difficulties in getting Cameroonian cases on this subject matter.
1.12 CONCEPTUAL DEFINITION OF KEY TERMS
Before delving in to the research proper, it is important to define some principal key terms; 1. Regulation, ICT’s, Cyber, Internet and Digital form. Since their meaning and interpretations differ depending on the context in which they are used, their meaning in the framework of this study is important.
1.12.1 Regulation
Regulations are rules and administrative codes issued by Governmental agencies at all levels.[37] Because they are adopted under authority granted by statutes, they are enforceable under the law and often include penalties for violation.[38]
Regulation in this thesis would therefore mean a rule or order prescribed by a superior or competent authority relating to action of those under its control.[39]
1.12.2. ICT’s
ICT’s (ICT’s) is a broader term for Information Technology (IT), which refers to all communication technologies, including internet, wireless networks, cell phones, computers, software, middleware, video-conferencing, social networking and other media applications and services enabling users to access, retrieve, store, transmit, and manipulate information in a digital form.[40]
ICT’s: it is an extensional term for information technology that stresses the role of unified communications and the integration of telecommunications (telephone lines and wireless signals) and computers.[41]It is technology that provides access to information through communication.[42]
According to the Oxford Advanced Learners Dictionary 8th Edition, ICT’s is the use of computers, the internet, video and other technology as a subject at school. ICT’s is an extensional term that stresses the role of unified communications and the integration of telecommunications and computers as well as necessary enterprise hardware and software. ICT’s is a digital processing and utilization of information by the use of computers. It comprises of the storage, retrieval, conversion and transmission of Information.[43]
1.12.3. Cyber
The word “cyber” denotes a relationship with information technology (IT), that is computers. It relates to all aspects of computing, including storing data, protecting data, transmitting data, and linking data.[44] The three most used terms featuring “cyber” are; cyberattack, cybercrime and cyberspace. Cyberattack is any attempt to disrupt, disable, destroy, or control a computing environment or to access controlled information. Cybercrime on the other hand denotes any crime which is carried out using information technology or which targets information technology. Cyberspace will therefore entail the environment where data storage and communication using computer network occur.[45]
1.12.4 Internet
Internet is defined as electronic communication network that connects computer networks and organizational computer facilities around the world.[46] It is a system architecture that has revolutionalized communications and methods of commerce by allowing various computer networks around the world to interconnect.[47]
Sometimes referred to as the “network of networks”, the internet emerged in the United States in the 1970s but did not become visible to the general public until the early 1990s. Statistics reveals that about 4.5billion people, or more than half of the worlds population, were estimated to have access to internet. The internet provides a capability so powerful and general that it can be used for almost any purpose that depends on information, and it is accessible by every individual who connects to one of its constituent networks as it supports human communication via social media, electronic mail, “chat rooms”, newsgroups, audio and video transmissions and allows people to work collaboratively at many different locations.[48]
1.12.5 Digital Form
A digital form is an electronic version of a paper form. Using digital forms gives you access to any form in any location. It eliminates the costs of printing, storing and distribution of paper form. The forms can be filled in faster and they are more accurate. It allows its user to store all collected data quickly, efficiently and in an organized manner.[49]
1.12.6 Social Networking
Social networking is the use of internet-based social media sites to stay connected with friends, family, colleagues, customers, or clients.[50] Social networking can have a social purpose, a business purpose or both through sites like Facebook, Twitter, LinkedIn, and Instagram. It has become a sufficient base for marketers seeking to engage customers. Despite some stiff competition, Facebook remains the largest and most popular social network, with 2.8 billion people using the platform on monthly basis.
1.13 SYNOPSIS OF CHAPTERS
This research is made up of five distinct chapters. Chapter one provides an introductory overview to the study. It embodies the background to the study, the statement of the problem, research questions and research objectives, the research methodology, literature review, theoretical framework, justifications for the study, significance of the research, the scope of the study, limitations of the study, the conceptual definition of key terms and the synopsis of other chapters
Chapter two dwells on the concept and evolution of ICT’s in Cameroon. It provides a detailed analysis of this concept, its evolution, types and impacts on the Cameroonian economy.
Chapter three explores the various legal and institutional arrangements regulating modern ICT’s in Cameroon. It analyzes the various domestic and international laws regulating modern ICT’s and investigates on the role played by policy implementation institutions and legal enforcement institutions in the regulation of modern ICT’s in Cameroon.
The scope of Chapters Four is geared towards the various challenges envisaged in the regulation of modern ICT’s in Cameroon.
Chapter five which is the last chapter comprises of the summary of findings, conclusions and recommendations of the study. Here, several recommendations are made to various stakeholders so as to improve the rate of ICT’s regulations in Cameroon.
About the Athor:
Fonjock Harris Kunju is a devoted scholar in the legal fields of Information Technologies, Cyber criminality and Business law with a Masters in business law and undergraduate degree in English Common Law at the University of Buea. He is currently a Doctoral Research student in law at the University of Buea Cameroon.
Tel: 680438375
Email: harrisfonjock@gmail.com
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[1] What is information and communication technology: available at https://www.igi-global.com/dictionary/information-and-communication ,(visited, 05/06/2020).
[2] Ranjan K. Biswas, “A study on Status of ICT use in various Teachers training Institutes of Tribal Area”, (2017), International Jouirnal of Advanced Education Research., Vol. 2. Issue.6, P. 375-379: 375.
[3] Definition of ICT’s: available at https://teachterms.com, (visited, 05/06/2020).
[4] Marget Haughley: The Impact of ICT on the work of the School Principal (2002) IFIP Conference on Information Technology in Educational Management, ITEM 2002: PP 63-71.
[5] Tuomas Poysti , «ICT and Legal Principles : Sources and Paradigmes of Information Law », Available at : https://www.scandinavianlaw.se/pdf/47-26.pdf&ved (Accessed on the 6/06/2020).
[6] Ibid
[7] Ibid
[8]Erwin Marlon S., “ICT Lessons: History of Computer”, Available at https://www.slideshare.net/mobile/mentosrenz27/historical-background-of-ict&ved (Accessed on the 6/06/2020).
[9] Ibid
[10] “History of ICT” https://wiki.nus.edu.sg/display/cs1105groupreports/History (Accessed on the 07/06/2020)
[11] Dias Saker, «History of ICT (ICT’s)», Available at, https://www.sutori.com/story/history-of-information-and-communication-technology&ved (Accessed on the 8/07/2020)
[12]HD AIBARA, “INTRODUCTION Information and communications Technology (ICT), (2017”, Available at, https://shodhgangotri.inflibnet.ac.in/bitstream&ved (Accessed on the 08/07/2020)
[13] Mafany Victor Ngando, “Combating Cyber Crimes in Cameroon”, 2019, Available at: https://www.kinsmenadvocates.services/combatig-cybercrimes-in-cameroon/&ved (Accessed on the 28/07/2020)
[14] Simone Toussi, “Overview of Cameroon’s Digital Landscape”, 2019, Available at: https://cipesa.org/2019/09/overview-of-cameroons-digital-landscape/&ved (Accessed on the 12/07/2020).
[15]Asongmo, “Cameroon is a Country vulnerable to cyber-criminality”, Available at: https.//www.google.com/amp/s/www.businessincameroon.com/index.php (Accessed on the 28/07/2020)
[16]https://gz.com/africa/892433/cameroon-shut-down-the-internet-in-anglophone-regions-like-bamenda-buea/amp/&red (visited on the 20th of February 2020).
[17] CFIB/015/2012 unreported
[18] Andre Boraine & Ngaundje Leno Doris, “The Fight against Cyber Crime in Cameroon”, International Journal of Computer(IJC), 2019, Volume 35, No, 1 PP 87 -100.
[19] Ujah M.Abu, “ICT’s and the Legal Practice, Prospects and Challenges”.,(2014) vol 9, no 1, University of Jos Law Journal. Pages 46-55.
[20] Andre Boraine & Ngaundje Leno Doris, “The Fight Against Cybercrime in Cameroon”, International Journal of Computer (IJC), 2009, Volume 35, No 1, pp 87 – 100
[21] Anne Chinasa Mpamah, “The telecommunication industry and the policy making process: an Appraisal under the Nigerian Communication Act 2003”, (2014), University of Jos Law Journal, vol 9 No.2, pp299-316
[22] Mena Ajapokvi, “Domain Names And Trademarks in Nigeria”, (2001), Modern Practice Journal of Finance and Investment law. Pp202-207.
[23] Ikengha K.E.Oraegbunam, “The Internet and its Facility for Criminality: Some unique difficulties for prosecution”(2014), Nnamdi Azikiwe University Journal of International Law and Jurisprudence pp12- 26.
[24] Kalu Grace Njasi, An Appraisal of the legal institutional framework for the Regulation of ICT’s in Nigeria., unpublished LLB thesis, Faculty of Laws, University of Uyo, 2018
[25] Anthony Taubman, International Governance and the Internet, in Edwards, L &Wealde, C(eds), Law and the internet,(3rd Edition Hart Publishing Limited Oxford USA) 2009.
[26] Adejoke Oyewunmi, “The ICT Revolution and Commercial Sectors in Nigeria: Impacts and legal inventions” 2013, British Journal of Arts and Science , pp 234-247.
[27] C.L.Ten Crime, “Guilt and Punishment: A philosophical Introduction”, (Oxford: Clarendon Press 19-87). P. 2
[28] G. Hawkins., “The Prison” in Killenger et al, “Penology: The evolution of corrections in America”, Chicago: West Publishing series. (1979).
[29] John Austin was a 19th century British legal philosopher who formulated the first systematic alternative to both natural law theories of law till utilitarian approaches to law. Austin analytic approach to law offered an account of the concept of law, that is, what law is. This was termed “legal positivism” because it set out to describe “what law is” in terms of what human posited it was. Austin theory of law is a form of analytic jurisprudence insofar as it is concerned with providing necessary and sufficient conditions for the existence of law.
[30] J. Austine, The Province of Jurisprudence Determined, (London; Weidenfield and Nicolson), 1971, P. 1.
[31] John Austin, Ibid.
[32] Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy., Priceton, NJ: Priceton University Press., (1980)
[33] A. Mc. Beth, “Breaching the Vacuum; A consolidation of the role of International Human Rights Law in the operations of International Financial Institutions”, (2006), The International Journal of Human Rights, No.8, Vol. 10, P. 389 -391.
[34] Ibid
[35] Maastricht Guidelines on the violation of Economic, Social and Cultural Rights, reprinted in Human Rights Quarterly. Vol. 20 (1998), p.691.
[36] See Section 45 of the Cameroonian Constitution
[37] USLEGAL., “Regulations Law and Legal Definition”, Available at, https://definitions.uslegal.com/r/regulations/&ved (Accessed on the 25th/09/2020).
[38] Ibid
[39] A.G Bryan., “Black Law Dictionary”, 7th Ed. USA, West Publishing co. 1999.
[40] ICT’s (ICT); Available at: http://aims.fao.org/information-and-communication-technologies-ict&ved (Accessed on the 9/07/2020)
[41] https://en.m.wikipedia.org>wiki>information and communication technology.
[42] https://techterms.com>definition of ICT’s.
[43] Ifueko Omoigui Okoru: “Emmerging issues in Tax Administration: The Way Forward”, Lecture delivered at the 4Th National Conference of the Department of Finance, Faculty of Busines Administration, University of Lagos on July 12th 2011
[44] What Does Cyber Mean?, Available online at www.cyberdefinitions.com/definition_of_cyber.html&ved (Accessed on the 29/07/2021)
[45] Ibid.
[46] Merriam Webster, Definition of Internet, Available online at www.merriam-webster.com/dictionary/internet&ved (Accessed on the 28th/07/2021
[47] Robert Kahn , Internet Computer Network, (2021), Available at, www.britannica.com/technology/internet&ved (Accessed on the 28th/07/2021)
[48] Ibid.
[49] Sophie Smith, What is a Digital Form? Available at: https://moreapp.com/en/blog/digital-form/&ved (Accessed on the 29th/07/2021)
[50] Will Kenton & Julius Mansa, Social Networking, (2021), Available at www.investopedia.com/terms/s/social-networking.asp&ved (Accessed on the 29th/07/2021)
Berinyuy Cajetan is the founder and publisher of Human Rights and Legal Research Centre (HRLRC) since 2017. He has intensive experience in strategic communications for Civil Society Organizations, campaign and advocacy, and social issues. He has an intensive experiencing in human rights monitoring, documentation and reporting.
