Section 14 of the Cybercrime Code Act 2016 is unusual in two ways: subsection (1) can be committed only by a child, and subsection (2) targets the operator.
Section 14(1) — the offence
A child who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, uses an electronic system or device to participate in a lottery or any gaming activity, whether or not by means of the internet, is guilty of a misdemeanour.
Penalty: (a) subject to the Juvenile Justice Act 2014, imprisonment for a term not exceeding seven years; or (b) prohibition from accessing and using ICTs or electronic systems or devices for the term of imprisonment imposed plus an additional two years; or (c) both.
The subsection begins “A child who ...”. Under section 2, a “child” is a person under the age of 18 years.
An adult who gambles online commits no offence under section 14. The Act addresses adult gambling only through the operator offence in subsection (2), and only where the gaming is made available to a child.
Note also “whether or not by means of the internet”. Gaming on a standalone machine, a local network, or an offline application is within the section as much as online gambling.
Age and criminal responsibility
A child under 10 is not criminally responsible (s 5(1)).
A child between 10 and 14 is not criminally responsible unless it is proved that at the time they had capacity to know that they ought not to do the act (s 5(2)).
Where any offence in the Act is committed by a child between 10 and 18, the Juvenile Justice Act 2014 applies (s 5(3)).
So the offence can in principle be committed by a child of 10, but only where the prosecution proves the capacity required by section 5(2). See the article on the age of criminal culpability.
A penalty structured for children
“Subject to the Juvenile Justice Act 2014” qualifies the imprisonment option expressly. The juvenile justice framework — its procedures, diversion options and dispositions — governs what actually happens.
No fine is available. Unlike almost every other offence in the Act, section 14(1) offers imprisonment, an ICT prohibition, or both — but no monetary penalty. That reflects the reality that a child rarely has means, and that fining a child usually means fining a parent.
The ICT prohibition is offered as a complete alternative. A court may impose the prohibition instead of imprisonment. For a gambling offence, a ban on using electronic systems or devices is a direct and proportionate response.
The order runs for the term of imprisonment imposed plus an additional two years. Where it is imposed as an alternative to imprisonment, the term of imprisonment that would have been imposed provides the measure.
For a child, a prohibition on accessing and using ICTs or electronic systems or devices is a substantial restriction — touching schooling, communication with family, and access to information. See the article on ICT prohibition orders, and note that section 1(2)(e) identifies freedom of movement under section 52 of the Constitution as one of the rights the Act restricts.
The definitions in section 14(3)
“Gaming or gaming activity” means all forms of gaming regulated under the Gaming Control Act 2007.
“Gaming operator” means the operator of an approved game under the Gaming Control Act 2007.
“Lottery” means a scheme for distributing prizes by lot or chance.
Gaming is tied to the Gaming Control Act. The offence covers all forms of gaming regulated under that Act. Activities outside its regulatory scope are not “gaming activity” for section 14 — though they may still be a lottery.
“Lottery” is defined independently and broadly — a scheme for distributing prizes by lot or chance. It is not tied to the Gaming Control Act, and it does not require money to be staked. Online prize draws, chance-based competitions and similar schemes fall within it.
The word “participate” is also wide: entering, playing or taking part is enough. Nothing turns on whether the child won or lost, or on the amount involved.
The operator’s offence
A gaming operator who knowingly or recklessly, and without lawful excuse, makes available to a child a lottery or other gaming activity through an electronic system or device commits a crime — carrying up to 25 years or K100,000 for a natural person and K1,000,000 for a body corporate.
That is a striking contrast: seven years and no fine for the child who plays; 25 years and K1,000,000 for the operator who lets them. See the article on gaming operators.
Practical points
- For parents. A child who gambles online is committing an offence. The practical protections are device controls, monitoring of payment methods, and conversation — and awareness that the operator, not only the child, is exposed.
- For schools. Section 14(1) reaches gaming on school devices and networks, since it applies whether or not by means of the internet.
- For operators. Effective age verification is not merely regulatory good practice; it is the difference between compliance and a 25-year offence.
- Summary trial. Section 14(1) is listed in Schedule 2, so it may be dealt with summarily by a District Court constituted by a Principal Magistrate. Section 14(2) is not.
- Other child provisions. The Act protects children elsewhere — section 18, section 19 and section 22. See protecting children online.
Sources
- Cybercrime Code Act 2016 — ss 1, 2, 5, 14, 18, 19, 22, 48; Schedule 2
- Juvenile Justice Act 2014; Gaming Control Act 2007
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.