Thursday, January 19, 2017
Fight against cybercrime is here to stay (By Faustine Kapama)
A bill for such law was moved by the Attorney General, the government’s chief legal advisor before the National Assembly in April 2015 where it was widely discussed before being endorsed and later accorded presidential assent to become a law of the land. The objectives of Cybercrimes Act No. 14 of 2015 include, among others, to provide a framework for the protection of individual rights and freedoms against cybercrimes and provide mechanism and framework of combating cybercrimes. Also to establish offences and punishments relating to cybercrimes and to outline rules and procedures for the investigation and prosecutions, to provide for rules on the liability of service providers in relation to crimes and to provide protection of the national economy, financial services against cybercrimes. The endorsement of the law was received with criticisms from a section of Tanzanians with Advocate Jebra Kambole, believing that such legislation was bad law, went extra miles by knocking doors of the High Court to have several provisions contained therein annulled. He specifically attacked eight provisions, notably Sections 4, 5, 6, 7, 8, 9, 10, 11, 14, 19, 21, 22, 31, 32, 33, 34, 35, 37, 38 and 50 of the Act, alleging that they contravened several Articles under the constitution, notably the right to communication and the right to bed hear for individuals. The grounds upon which Mr Kabole, the petitioner, relied upon ranged from subjective and arbitrary interpretations and application of the Cybercrimes Act by law enforcement organs, infringement of the right to privacy, restriction of the right to freedom of communication and denial of right to be heard. He had complained that lack of interpretation of words used in some of provisions under the Act, notably unlawfully, intentional, unauthorised person, or data, or information, or access could lead to arbitrary arrest and unjustified actions by the law enforcement organs on various offences. According to him, such provisions were unconstitutional in that they infringed his right to seek, receive and, or disseminate information guaranteed under Articles 16, 17 (1), 18, 21 (1) and (2) of the Constitution of United Republic of Tanzania. The arguments advanced by the petitioner were vehemently contested by the Principal State Attorney Alesia Mbuya, for the Attorney General, who was the respondent in the matter, that the petitioner had wrongly interpreted the provisions under the Cybercrimes Act because they are in order with the parent law of the land. A panel comprising Judges John Ruhangisa, Winfrida Korosso and Lugano Mwandambo was assigned to determine the constitutionality of the widely criticised law by some activists and ruled that the grounds advanced by Mr Kambole lacked merits. In determining the matter, the judges were guided by three issues, including whether sections 4 and 5 of the Cybercrimes Act, violates the right to seek, receive and disseminate information as per Article 18 of the Constitution of the United Republic of Tanzania. They wanted also to know whether sections 6, 7, 8, 9, 10, 11, 14, 19, 22 and 22 of the Act violated the right to liberty enshrined under Article 17 of the Constitution ad that whether sections 38 and 50 of the Act were against Article 13 of the Constitution on individual’s right to be heard. In determining the first issue, the judges pointed out that the provisions address situations when a person accesses another person’s computer system or cause the computer system to be accessed unlawfully and to become subject to contravening section 4 of the Cybercrimes Act. What is prohibited by section 5 of the Act, they said, is the intentional and unlawful remaining to computer system to access the computer system, therefore the right to information for one individual has to consider other fundamental rights of others as propounded. “Whilst we appreciate that [protection of public interest should not delineate other fundamental rights like the right to information, right to movement, right to be heard, it is important to remember that any right is subject to limitation,” the judges say. They said further that it should be remembered that section 4 of the Act is subject to the application of the Criminal Procedure Act, which regulates criminal proceedings and consequently law enforcers will not only apply the Cybercrimes Act in disregard of other applicable procedures already in existence. “There is no gainsaying therefore that the provisions of section 4 and 5 of the Act aim at curbing personal attacks and persecution of individuals through use of social media and prevention of cybercrimes, (they) are an attempt to provide framework for all citizens to enjoy that righty,” they said. As regard to the second issue, the judges held that the petitioner’s arguments were speculative to the extent of asking the court to make a determination on constitutionality of the sections on the potential risk of arbitrary application of law by law enforcement organs. “We are of the view that looking at the said Act objectively one will not fail to find sections which define and describe offences. The sections provide for ingredients of offence and the sentence for each of offences. The provisions cannot be widely drafted to net everyone,” they said. The judges ruled that sections 4, 5, 6,7,8,9,14,19, 21 and 22 of the Act complained of by petitioner fall within the parameters of Article 17 (2) of the Constitution of United Republic of Tanzania and, therefore, they could not be construed to be repugnant to or inconsistent with such Article of the parent law. As for the third issue, the petitioner challenged sections 38 and 50 of the Act that they violated Articles 13 of the Constitution over the right to be heard. He had contended that Section 38 allows any application by an authority for a hearing in court to be made ex-parte (in absence of the adverse party). But the judges noted that matters envisaged under section 38 of the Act relate to search and seizure, disclosure of data, expedited preservation, disclosure and collection of traffic data and content data. According to them, such matters cover at investigation stage. “Under such circumstances, we are, with respect, unable to see any merit in the petitioners’ argument because we do not think that investigation is the final stage in determining the rights of the said individual or service provider where the said data is retrieved from,” they said. Regarding section 50 of the Act, which empowers the Director of Public Prosecutions (DPP) to compound some offences committed without due considering to the need of the suspect, the judges agreed with the petitioner that it curtail the right to be heard under Article 13 (6) (a) of the Constitution. They noted that the actions by the DPP are given finality and not amenable to appeal if a suspect voluntarily confessed commission of the offence and such actions are given the status of the High Court order on one part, but on the other part are unique in sense that the aggrieved person could not appeal. “We find this to be an anomaly. Exercising powers vested in this court by Article 30 (5) of the Constitution and section 13 (2) of the Basic Rights Duties and Enforcement Act, we direct the government through the Attorney General within the period of 12 months to correct the anomaly. “……failing which the provision should be scrapped off of the statute books for infringing the fundamental right to be heard under Article 13 (6) (a). ” The Director of Government Information Services, Dr Hassan Abbas, describe the judgment as a remarkable one. He says most activists and other stakeholders who raised alarm on the Act had no read the law keenly to appreciate its good intentions in preventing the people from various cyber criminals. “The judgment is another showcase that the Government of Tanzania had very good and obvious intentions in enacting the law way back in 2015. Everyone should now continue to observing the law,” he points out. Cybercrime is a challenging offence, which need a global agenda following the advancement of Information and Communication Technology (ICT). Cybercrime is not a new thing, as it has been there since 20th century due to the development and use of ICTs. The development of ICTs was expected to connect Africa to the rest of world and establish it as part of the global community. This endeavor exposed Africa to the unintended consequences of the internet (cybercrime). According to Principal State Attorney Josephat Mkizungo, the manifestations of cybercrime, along with its far reaching and potentially devastating capacity have brought challenges to the governments. He says that this is due to the fact that the existing laws and institutions were unable to keep up with its alarming rate of growth. Mr Mkizungo, a trial attorney from the Director of Public Prosecutions (DPP) Office, says the advancement of the ICTs has made cybercrime a global agenda. Therefore, he says, fighting cybercrime calls for cooperation on an international scale.