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Proclamation No. 761/2012 Telecom Fraud Offence Proclamation

You can get the pdf version on the following link

http://www.abyssinialaw.com/uploads/761.pdf

Proclamation No. 761/2012

Telecom Fraud Offence Proclamation

WHEREAS, considering that telecom fraud is increasing and wide-spreading from time to time thereby encumbering the telecom industry to play an essential role in the implementation of peace, democratization and development programs of the country;

WHEREAS, recognizing that telecom fraud is a serious threat to the national security beyond economic losses;

WHEREAS, it has became imperative to legislate adequate legal provisions since the laws presently in force in the country are not sufficient to prevent and control telecom fraud;

NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows:

PART ONE GENERAL

1. Short Title

This Proclamation may be cited as the “Telecom Fraud Offence Proclamation No. 761/2012”

2. Definitions

In this Proclamation, unless the context otherwise requires:

1/ “telecom service” means public switched telecom service, cellular mobile service, internet service, satellite telephone service, data communication service, telecom-centers or resale service, mobile or fixed private radio service, very small aperture terminal (VSAT) service, cable installation and maintenance service, telecom switches installation and maintenance service, the transmission or reception through the agency of- electricity or electromagnetism of any sounds, signs, signals, writing, images or intelligence of any nature by wire, radio, optical fiber, satellite or other electromagnetic systems or any other service designated as telecom service by the Ministry; and may not include broadcasting service and intercom connection;

2/ “telecom equipment” means any apparatus used or intended to be used for telecom service, and includes its accessory and software;

3/ “call-back service” means the use of dial tone of a foreign telecom operator for international connection without the knowledge of the domestic telecom operator or fraudulently making international calls in to apparent domestic calls and shall include services that are identified as call-back by the International Telecommunication Union;

4/ “Ministry” means the Ministry of Communication and Information Technology;

5/ “telecom service provider” means the Ethio-Telecom or any other person authorized to provide telecom service;

6/ “police” means the Federal Police or, as the case may be, regional state police;

7/ “regional state” means any state referred to in Article 47 (1) of the Constitution of the Federal Democratic Republic of Ethiopia and includes the Addis Ababa and Dire Dawa city administrations;

8/ “person” means a physical or juridical person

9/ any expression in the masculine gender includes the feminine.

PART TWO

TELECOM FRAUD OFFENCES

3. Offences Related to Telecom Equipment
1/ Without prejudice to the provision of sub-article (3) of this Article, whosoever manufactures, assembles, imports or offers for sale any telecom equipment without obtaining prior permit from the Ministry commits an offence and shall be punishable with rigorous imprisonment from 10 to 15 years and with fine from Birr 100,000 to Birr 150,000.

21 Without prejudice to the provision of sub-article (3) of this Article, whosoever uses or holds any telecom equipment without obtaining prior permit from the Ministry commits an offence and shall be punishable with rigorous imprisonment from 1 to 4 years and with fine from Birr 10.000 to Birr 40.000.

3/ The Ministry shall, in consultation with concerned bodies, prescribe types of telecom equipment the manufacturing, assembling, importation, sale or the use of which may not require permits, and set their technical standards.

4. Offences Related to the Provision of Telecom Service

Whosoever provides telecom service without having a valid license issued in accordance with the appropriate laws commits an offence and shall be punishable with rigorous imprisonment from 7 to 15 years and with fine equal to three times the revenue estimated to have been earned by the person during the period of time he provided the service.

5. Offences Related to Interception and Access

Whosoever without the authorization of the service provider or lawful user, or any other competent authority:

1/ obstructs or interferes with any telecom network, service or system;

2/ intercepts or illegally obtains access to any telecom system: or

3/ intercepts, alters, destroys or otherwise damages the contents of telephone calls, data, identification code or any other personal information of subscribers:

commits an offence and shall be punishable with rigorous imprisonment from 10 to 15 years and with fine from Birr 100.000 to Birr 150.000.

6. Using Telecom Service for Illegal Purpose

Whosoever:

1/ uses or causes the use of any telecom network or apparatus to disseminate any terrorizing message connected with a crime punishable under the Anti-Terrorism Proclamation No. 652/2009, or obscene message punishable under the Criminal Code; or

2/ uses or causes the use of the telecom service or infrastructure provided by the telecom service provider for illegal purpose;

commits an offence and shall be punishable with rigorous imprisonment from 3 to 8 years and with fine from Birr 30,000 to Birr 80.000

Offence Related to Fraud of Service Charge

Whosoever:

1/ fraudulently obtains telecom service without payment of a lawful charge thereof; or

2/ obtains telecom service by means of fraudulent payment charged lo another person;

commits an offence and shall be punishable rigorous imprisonment from 5 to 10 years and with fine equal to three times the charge estimated to have been avoided by the act.

8. Offences Related to Call-Back Service

1/ Whosoever provides call-back service commits an offence and shall be punishable with rigorous imprisonment from 5 to 10 years and with fine equal to five times the revenue estimated to have been earned by the person during the period of time he provided the call back service.

2/ Whosoever intentionally or by negligence obtains any call-back service shall be punishable with imprisonment from 3 months to 2 years and with fine from Birr 2.500 to Birr 20.000.

9. Offences Related to Illegal Telecom Operators

1/ Whosoever:

a) establishes any telecom infrastructure other than the telecom infrastructure established by the telecom service provider; or

b) bypasses the telecom infrastructure established by the telecom service provider and provides any domestic or international telecom service;

commits an offence and shall be punishable rigorous imprisonment from 10 to 20 years and with fine equal lo ten times the revenue estimated to have been earned by him during the period of time he provided the service.

2/ Whosoever intentionally or by negligence obtains any telecom service from an illegal operator stipulated under sub-article (1) of this Article commits an offence and shall be punishable with imprisonment from 3 months to 2 years and with fine from Birr 2.500 to Birr 20,000.

10. Other Offences

1/ Whosoever illegally manipulates or duplicates SIM cards, credit cards, subscriber identification numbers or data or sales or otherwise distributes illegally duplicated SIM cards, credit cards, subscriber identification numbers or data commits an offence and shall be punishable with rigorous imprisonment from 10 to 15 years and with fine from Birr 100.000 to Birr 150,000.

2/ Whosoever:

a/ by connecting any equipment to a public pay telephone or by using any other means obtains services which are not normally available through the public pay telephone; or

b/ obtains or causes others lo obtain telecom service from the telecom service provider by presenting false or forged service agreement or by fraudulently using the identity code of another person or by using any other fraudulent means;

commits an offence and shall be punishable with rigorous imprisonment from 3 to 8 years and with fine from Birr 30,000 to Birr 80(000

3/ Whosoever provides telephone call or fax services through the internet commits an offence and shall be punishable with rigorous imprisonment from 3 to 8 years and with fine equal lo five limes the revenue estimated lo have been earned by him during the period of time he provided the service.

4/ Whosoever intentionally or by negligence obtains the service stipulated under sub- article (3) of this Article commits an offence and shall be punishable with imprisonment from 3 months to 2 years and with fine from Birr 2,500 to Birr 20.000.

11. Offence Committed by Juridical Person

Where any juridical person commits an offence stipulated under this Proclamation, it shall be punishable with a fine the amount of which shall be equal to ten times the fine stipulated for the offence.

12. Confiscation of Property

The court, in deciding the penalty of an offender under this Proclamation, shall give additional order for the confiscation of any telecom equipment used in the perpetration of the offence.

PART THREE

MISCELLANEOUS PROVISIONS

13. Establishment of Technical Task Force

In order to prevent, investigate and control telecom fraud offence a national technical task force comprising members drawn from the concerned bodies shall be established.

14. Covert Search

Police may request the court in writing for coven search warrant where a telecom fraud offence has been committed or where he has reasonable ground that a telecom fraud is likely to be commuted.

15. Admissibility of Evidence

Without prejudice to the admissibility of oilier evidences to be produced in accordance with the Criminal Procedure Code and other relevant laws, the following shall be admissible in court in relation to telecom fraud offences:

1/ digital or electronic evidences;

2/ evidences gathered through interception or surveillance; and

3/ information obtained through interception conducted by foreign law enforcement bodies.

16. Jurisdiction

The Federal High Court shall have first instance jurisdiction over telecom fraud offences provided under this Proclamation.

17. Repealed and Inapplicable Laws
1/ Sub- article (1), (2) and (3) of Article 25 of the Telecommunication Proclamation No. 49/1996 (as amended by Proclamation No, 281/2002) are hereby repealed.

2/ No law or customary practice shall, in so far as it is inconsistent with this Proclamation, be applicable with respect to matters provided for under this Proclamation.

18. Power to Issue Regulation

The Council of Ministers may issue regulation necessary for the implementation of this Proclamation.

19. Effective Date
This Proclamation shall come into force on the date of publication in the Federal Negarii Gazela.

Done at Addis Ababa, this 4″‘ day of September, 2012

G1RMA WOLDEGIORGIS

PRESIDENT OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA

PROCLAMATION NO. 49/1996 A PROCLAMATION TO PROVIDE FOR THE REGULATION OF TELECOMMUNICATIONS

PROCLAMATION NO. 49/1996

A PROCLAMATION TO PROVIDE FOR THE

REGULATION OF TELECOMMUNICATIONS

WHEREAS, telecommunication service performs an essential role in the Country’s economic and social development;

WHEREAS, the establishment of a separate regulatory organ other than the operator and the prescription of regulatory provisions are found necessary to make the telecommunication service more efficient and reliable;

NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby Proclaimed as follows:

PART ONE

GENERAL

1. Short Title

This Proclamation may be cited as the “Telecommunication Proclamation No. 49/1996”.

2. Definitions

In this Proclamation, unless the context requires otherwise:
1) “telecommunication” means the emission, transmission or reception, through the agency of electricity or electromagnetism, of any sounds, signs, signals, writing, images or intelligence of any nature by wire, radio, optical or other electromagnetic systems whether or not such signs, signals, writing, images, sounds or intelligence have been subjected to rearrangement, computation or other processes by any means in the course of their transmission, emission or reception;
2) “telecommunication line” means any wire, cable, tower, mast, antenna, pole or any other structure or equipment used or intended to be used in connection with a telecommunication system;
3) “basic telecommunication service” means telephone, telegram or telex service;
4) “telecommunication equipment” includes any appliance, apparatus or accessory used or intended to be used for telecommunication services;
5) “TVRO” means an apparatus used only for the reception of satellite television broadcasts;
6) “call-back service” means the use of dial tone of a foreign telecommunication operator for international connections without the knowledge of the domestic telecommunication operator;
7) “Ministry” and “Minister” means the Ministry and Minister of Transport and communication, respectively:
8) “person” means a natural or a juridical person.

PART TWO

THE TELECOMMUNICATION AGENCY

3. Establishment

1) The Ethiopian Telecommunication Agency ( hereinafter “the Agency”) is hereby established as an autonomous federal agency having its own legal personality.
2) The Agency shall be accountable to the Ministry.

4. Head Office

The Agency shall have its head office in Addis Ababa and may have branch offices elsewhere as may be necessary.

5. Objectives

The objectives of the Agency shall be to promote the development of high quality, efficient, reliable and affordable telecommunication services.

6. Powers and Duties
The Agency shall have the following powers and duties:

1) to ensure that telecommunication services are operated in a manner that will best serve and contribute to the Country’s economic and social development;

2) to specify technical standards and procedures for the provision of telecommunication services;

3) to ensure that telecommunication services conform to the specified standards of quality;
4) to regulate tariffs relating to basic telecommunication services;

5) to license and supervise operators of telecommunication services;
6) to regulate types of telecommunication equipment which may be connected to a telecommunication system;
7) to authorize and supervise the use of frequencies allotted to Ethiopia;
8) where authorized by the Minister, subject to the appropriate laws and government directives, to represent the Government in international conferences and international organizations concerned with telecommunications; and to follow up the implementation of treaties dealing with telecommunications to which Ethiopia is a party.

9) to collaborate with educational institutions in order to promote technical education in the fields of telecommunications;

10) to collect licence fees in accordance with the rate approved by the Ministry;

11) to own property, to enter into contracts and to sue and be sued in its own name;

12) to perform such other related activities as may be necessary for the attainment of its objectives.

7. Management of the Agency

1) The Agency shall have a General Manager, to be appointed by the Government upon the recommendation of the Minister, and the necessary staff;

2) The General Manger shall be the chief executive officer of the Agency and shall, subject to the general directives of the Minister, direct and administer the activities of the Agency;

3) Without limiting the generality of sub-Article (2) of this Article, the General Manager shall:

(a) exercise the powers and duties of the Agency specified under Article 6 of this Proclamation;

(b) employ and administer the employees of the Agency in accordance with directives approved by the Government following the basic principles of the federal civil service laws;

(c) prepare and submit to the Ministry the programme and budget of the Agency; and implement same upon approval;

(d) effect expenditure in accordance with the budget approved for the Agency;

(e) represent the Agency in all its dealings with third parties;

(f) prepare and submit to the Ministry the activity and financial reports of the Agency.

4) The General Manager may delegate part of his powers and duties to the employees of the Agency to the extent necessary for the efficient performance of the activities of the Agency; provided, however, that in the case of an employee who acts on behalf of the General Manager for more than thirty days. Prior approval of the Minister shall be required.

8. Budget
1) The budget of the Agency shall be drawn from the following sources:

(a) government subsidy;

(b) license fees;

(c) any other source.

2) The fund referred to in sub-Article (1) of this Article shall be deposited in a bank account opened in the name of the Agency and be expended for the carrying out of the activities of the Agency.

9. Books of Accounts
1) The Agency shall keep complete and accurate books of accounts.

2) The books of accounts and other financial documents of the Agency shall be audited annually by the Auditor General or by an auditor designated by him.

PART THREE

REQUIREMENT AND CONDITIONS OF LICENCE

10. Operator’s Licence

1) No person may operate a telecommunication service without obtaining licence from the Agency.

2) No licence shall be required for the use of telecommunication systems or telecommunication equipment by the police, the armed forces and any other services directly employed by the State for national security.

11. Conditions of Licence

1) A licence to operate a telecommunication service may be subject to such conditions as the Agency considers necessary for promoting the objectives stated in Article 5 of this Proclamation.

2) Without limiting the generality of sub-Article(1) of this Article, a licence may include the following conditions:

(a) the provision of services to rural or other specified areas;

(b) requiring an operator to publish in such manner as may be specified in the licence a notice stating the charges and other terms and conditions that are to be applicable to services provided;

(c) provision of service on priority basis to the Government or specified organizations;

(d) criteria for setting tariffs regarding the service ;

(e) requiring an operator to comply with such technical standards or requirements including service performance standards as may be specified in the licence.

3) The Agency may modify any condition of a licence if it considers it in the public interest to do so.

12. Tariffs

The tariffs applicable to basic telecommunication services shall be studied by the Agency and submitted to the Government for approval.

13. Technical Standards

1) The Agency may determine technical standards regarding telecommunications including customer premises equipment.

2) Any directive issued for the determination of standard shall be published in such manner as the Agency may direct.

14. Approval of Equipment

1) The Agency may, by public notice, specify any telecommunication equipment that requires the Agency’s approval before it may be connected to a telecommunication system;

2) Without prejudice to sub-Article (1) of this Article, the following equipment require the approval of the Agency:

(a) radio communication equipment;

(b) TVRO

3) The Agency shall consider the following criteria in approving types of telecommunication equipment:

(a) safety to life and health;

(b) maintenance of the telecommunication network including conditions regarding data protection;

(c) electromagnetic compatibility;

(d) appropriate use of electromagnetic frequency spectrum;

(e) interpretability between the telecommunication equipment and the telecommunications networks;

(f) other considerations which the Agency may determine by directives.

4) It is prohibited to manufacture, import or distribute, without obtaining prior approval, telecommunications equipment that require the approval of the Agency.

15. Radiocommunications

1) The Agency shall be responsible for the management and authorization of the use of frequencies allocated to Ethiopia in accordance with international conventions.

2) No person shall, except in accordance with a permit obtained from the Agency, possess, install or operate radiocommunication apparatus.

3) The provisions of sub-Article (2) of this Article shall not be applicable to radio apparatus for use by the police, the armed forces and any other services directly employed by the State.

16. Assignment of Frequency

1) The Agency may assign frequencies to be used for telecommunications, radiocommunication services and radio and television broadcasting;

2) The Agency shall coordinate the use of frequencies both locally and internationally; and monitor the proper use of same;

3) In deciding upon an application for assignment of frequencies, regard shall be made to the present use and future needs of the Country;

4) Frequencies may be assigned to different persons on time-sharing basis.

17. Power to Inspect

1) The Agency may assign inspectors to ascertain that the requirements of this Proclamation and its decisions made hereunder are complied with.

2) An inspector assigned pursuant to sub-Article (1) of this Article, may enter and inspect, during working hours, the premises of a telecommunication operator or any place on which he believes on reasonable grounds there is any radio apparatus.

3) An inspector shall have the power to inspect any telecommunication equipment and to examine and make copies of any relevant documents.

4) An inspector shall show his identification card before entering any place for inspection.

PART FOUR

USE OF LAND AND BUILDINGS

FOR TELECOMMUNICATION LINES

18. The Use of Land and Buildings

1) Any telecommunication operator may enter any land and perform all acts necessary for the purpose of installing, repairing, improving, examining and altering or removing a telecommunication line.

2) Where a telecommunication line is essentially to pass upon any building the telecommunication operator may install such line in such manner that the installation shall in no way damage the building.

3) Any telecommunication operator may cut down any tree or branch which may in any way cause damage to or is likely to impede a telecommunication line.

4) Before entering any place for purposes specified in sub- Article (1) or (2) of this Article, an operator shall give a ten – day written notice to the possessor of the land or owner of the building stating the nature of the acts intended to be done.

5) If the possessor of the land or the owner of the building has any objection against the performance of the intended act, he may lodge his objection with the Agency within the notice period specified under sub-Article (4) of this Article.

6) The Agency may upon giving each party an opportunity to be heard, uphold the objection or authorize, either unconditionally or subject to such conditions as it thinks fit, the performance of the intended acts.

19. Removal or Alteration of Telecommunication Line

1) The possessor of land or the owner of a building used by an operator for the installation of a telecommunication line pursuant to Article 18 of this Proclamation may, if he has good cause, apply to the Agency requesting the removal or alteration of the telecommunication line.

2) Upon ascertaining the existence of good cause in submitting an application under sub Article (1) of this Article and the existence of alternatives for the installation of the telecommunication line, the Agency may order the removal of the line or the alteration of its position.

20. Compensation

1) A telecommunication operator shall be liable for the payment of fair compensation to the possessor of land or the owner of a building to whom it has inflicted damages in the course of exercising its power to use land or building.

2) A person who has caused the removal or alteration of a telecommunication line pursuant to Article 19 of this Proclamation shall be liable for the payment of fair compensation to the telecommunication operator.

21. Compulsory Acquisition of Land
An operator may compulsorily acquire any privately possessed lands for public use in accordance with the law.

PART FIVE

MISCELLANEOUS PROVISIONS

22. Town Plans

1) Any town Plan shall clearly indicate lines of telecommunication networks.

2) Any telecommunication operator shall follow the town plan in installing a telecommunication line.

23. Other constructions

1) Any construction or excavation work or permanent fixtures of any nature in the vicinity of a telecommunication line shall require the prior consent of the telecommunication operator.

2) The telecommunication operator shall have the duty to respond, within thirty days, to a request submitted to it pursuant to sub-Article (1) of this Article.

3) Where the telecommunication operator unduly withholds its consent, the Agency may authorize the carrying out of the activities referred to in sub-Article(1) of this Article where it ascertains that they will not cause damage or any impediment to the telecommunication line.

4) Any construction work or fixtures of permanent nature shall be at least two meters away from the installation of a telecommunication line;

5) When any construction work is hindering an existing telecommunication line, the operator may, by giving thirty days notice, request the owner or the possessor to remove it.

6) If the owner or possessor fails to remove the construction work, the operator shall have the right to remove it.

24. Prohibitions
1) No person is allowed to connect or disconnect telecommunication lines other than authorized employees of an operator or a person licensed by the Agency.

2) The use of call-back service is prohibited.

25. penalties

1) Any person who has contravened the provisions of Article 15(2) or 24(2) of this Proclamation shall be punishable with rigorous imprisonment from two to five years and with fine not exceeding Birr 10,000.

2) Without prejudice to the provisions of sub-Article (1) of this Article, any radio communication apparatus, a TVRO or any other telecommunication equipment that require the authorization of the Agency shall be forfeited to the Agency if found in the possession of a person who has not obtained the necessary approval from the Agency.

3) Any person who contravenes other provisions of this Proclamation shall be punished in accordance with the Penal Code.

26. Repeal
The following are hereby repealed:
1) the Declaration of Telephones Proclamation No. 55/1944;

2) the Maintenance of Telephone Services Proclamation No. 114/1950;

3) the Imperial Board of Telecommunications establishment Proclamation No. 131/1952.

27. Effective Date
This Proclamation shall enter into force as of the 28th day of November, 1996.

Done at Addis Ababa, this 28th day of November, 1996.

Negaso Gidada (Dr.)

President of the Federal Democratic

Republic of Ethiopia