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Ubena John

Ubena John

.
The High Court of Tanzania, AFRILTI
Title: LL.D. in Law and Information Technology,
Judge of the High Court of Tanzania

Presentation

Ubena has been teaching law for almost a decade. His speciality is legislative techniques, in particular the design of legislative and regulatory solutions to address various legal and regulatory problems brought by emerging Information and Communications Technologies.

In 2009, Ubena joined the Swedish Law and Informatics Research Institute (IRI) to work on his doctoral thesis. The thesis was successfully completed on March 11, 2015. He has also been teaching in the Master Program Law and IT at Stockholm University. Before joining IRI, Ubena was teaching at the Faculty of Law, Mzumbe University, Tanzania from 2005-2009. He also practiced law in the High Court of Tanzania and courts subordinate thereto from 2008-2009. Ubena has been coordinating the collaboration between the Swedish Law and Informatics Research Institute and the Faculty of Law at Mzumbe University. He is also one of the founders of The African Law and Technolgy Institute (AFRILTI). In 2021 Ubena was appointed Judge of the High Court of Tanzania by the President of the United Republic of Tanzania.

Doctoral Dissertation

Doctoral project (completed on March 11, 2015):
How to Regulate Information and Communications Technology? A Jurisprudential Inquiry into Legislative and Regulatory Techniques
The study investigated three problem areas, digital copyright, Voice over Internet Protocol and net neutrality principle. In examining these problem areas various legislative and regulatory approaches that have been employed were analysed.

ICT transformations have enabled emergence of new goods, services and applications that have changed the way behaviours are conducted. Moreover, ICT goods have been transformed into services, blurring the legal categories and frequently creating conflicts of interests and imbalances. In other cases fundamental rights have been threatened.

Three questions were raised and examined. 1. Whether old ICT applications/services e.g. traditional telephone services and new ICT goods and services e.g. Skype VoIP should be regulated in the same way? 2. How can Legislative Techniques (LTs) and New Regulatory Culture (NRC) support and improve such regulatory framework? 3. What standards should be used to assess good/effective LTs and NRC i.e. standards for assessing effectiveness of LTs and NRC used and the outcome of the process? According to international legal instruments and constitutions of democratic states, the standards for assessing effectiveness of LTs are functional effectiveness, the Rule of Law, legality principle rules governing law making, and fundamental rights.

The findings indicated that the traditional legislative techniques (TLTs) based on command and control regulation and operating through banning certain applications or criminalising certain behaviours risks stifling innovation, and expanding the imbalances, as well as facing practical ineffectiveness.

Moreover, the emerging NRC reflecting various regulatory approaches, legalistic, technical measures of protection, complementary strategies based on freedom of contract, proactive ones based on economic incentives, disclosures, and a shift from behaviour norms to duty of care norms, has potentialities (e.g. supporting innovation and safeguarding right holders interests) and risks (e.g. restricting access to information and lacking transparency hence contradicting the Rule of Law).

The conclusion drawn is that the understanding of the NRC is essential in enabling the regulation to balance ICT innovations, and other interests such as the Rule of law and fundamental rights. Further to that the approach adopted to regulate a particular application or service depends on the purpose of a particular regulation, regulatory techniques’ functional effectiveness, conformity to the Rule of Law and respect to fundamental rights. Status of the project: completed.

The dissertation is available at Jure.se 

Publications
  1. Ubena John, ICT as a solution to delay of cases in the administration of justice in Tanzania, The Tanzania Lawyer Journal (JTLS), vol. 2 , 2008, pp.116-130.
  2. Ubena John, IT Law: Why Tanzania Needs Electronic Communication Legislation, the Law Reformer Journal, the Journal of the Law Reform Commission of Tanzania, Vol.2 (1), 2009, pp.17-26.
  3. Ubena John, IT Law: ICT and Lawyers’ Advertisement in Tanzania. ‘The Lawyer’ the journal of the Bar Association of Tanzania Mainland -Tanganyika Law Society (TLS), 1 JTLS, 2009, pp.95-107.
  4. Ubena, J., Legislative Techniques and ICT-wake of law keeping pace with technology. In Tala, J., & Pakarinen, A., (eds.), Better Regulation-A Critical Assessment, Proceedings from the International Conference on Legislative Studies in Helsinki 2010, Hakapaino Oy, Helsinki, National Research Institute of Legal Policy, 2010, pp.171-191.
  5. Ubena John, Why we should watch ICT Vendors-A case of Blackberry Smartphone, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1655149
  6. Ubena John, Privacy-a forgotten right in Tanzania, Tanzania Lawyer, Journal by TLS, 1JTLS, 2012, pp.72-114.
  7. Ubena John, E-documents & E-signatures in Tanzania: Their Role, Status, and the Future. In Bwalya, K., & Zulu, (eds.), A handbook of Research on e-Government in Emerging Economies: Adoption, E-Participation, and Legal Frameworks, Vol.1, Hershey, PA, USA, IGI, 2012pp. 90-122.
  8. Ubena John, Application of Legislative Techniques in ICT regulation: In (Greenstein, S. & Svantesson, D. (eds.), Internationalisatio of Law in the Digital Information Society, Nordic Year Book of Law and Informatics 2010-2012, Ex Tuto Publishing, Copenhagen, 2013, pp. 371-379.
  9. Ubena John, A critique of legal framework facilitating access to government information in Tanzania. In Bwalya, K., et al. (eds.), Digital Access and E-Government: Perspectives from Developing and Emerging Countries, IGI Global Hershey, PA, 2014, pp. 125-150 doi:10.4018/978-1-4666-5868-4.ch009.
  10. Ubena John, Automation of Law and Decision Making, The Tanzania Lawyer Journal, 1 JTLS, 2015,pp.158-176.
  11. Ubena John, How to Regulate Information and Communications Technology? A Jurisprudential Inquiry into Legislative and Regulatory Techniques, Jure AB, Stockholm, 2015. ISBN: 978-91-7223-604-2.