The Draft Computer crime and Cyber-crime Bill is a milestone in many ways than one. It seeks to break new ground in as far as the legal relationship between the individual in Zimbabwe and 'technology' are concerned. It will not be too harsh to exclaim that laws on Cyber-crime were long overdue considering that the first Global steps to address this monster of technology were taken in 2004 when the world's leading states convened for the Budapest Convention on Cyber Crime that eventually became an international treaty which came into force on the 1st of July 2004. The three statutes, in Zimbabwe that presently exist to curb unwanted behaviour in the cyber space are:
- The Postal and Telecommunications Act [Chapter 12:05]
- The Censorship and Entertainments Controls Act [Chapter 10:04]
- The Criminal Law (codification and reform) Act [Chapter 9:23]
these statutes were enacted before the advent of the technological boom that saw the introduction of (amongst other things) social media platforms such as Facebook, Whatsapp and twitter. As a matter of fact, considering the technological advancements that have visited our communities, the statutes are a far cry from being relevant to the legal needs of society today. It is therefore from this background that a reading of this article must be focused. However, the focus must not be solely towards the celebration of the impending law. Key questions always arise when new law is suggested by the law makers. For instance, why now? Are there any peculiar motivations in enacting the law now? Will the law itself, the length and breadth of it improve the life of the ordinary citizen? Does the law pass the constitutionality test? This article will not answer those questions. It will only give you the law that you should expect in a more understandable format from the Bill itself. A brief comment will be made on the Bill to pave way for legal discourse on the ultimate propriety of the proposed law itself.
The Bill is certainly a Criminal law instrument. Various positive conduct including acts of omissions are criminalized under this Bill. Most crimes however, from the bill are yet to be given their specific penalties. What will be viewed as criminal under Part II of this bill include:
- Unlawful access of a computer system. (a computer system is defined as a device or a group of inter connected devices one of which, pursuant to a programme performs automatic processsing of data.) basically a PC or laptop is captured in this definition. This conduct will probably include simply gaining access to a person's laptop without prior permission. Whether or not you access personal files or you simply watch a movie will be factors considered in aggravation or in mitigation, after your conviction of course.
- Infringing security measures of a computer system. This will basically cover any form of hacking.
- Interception by technical means any non public transmission to, from or within a computer system.
- Damaging or deteriorating any computer data without lawful excuse
- Deleting computer data without lawful excuse
- Rendering computer data useless, ineffective or meaningless
- Obstructing, interrupting or interfering with any person in the lawful use of computer data.
- Fraudulent or mischievous creation, altering or manipulation of data in a computer system
- Intentional communication of any data from a computer system to a person who does not have rights of access to such data.
- Creating and activating a programme that is designed to destroy, mutilate, modify or remove data from a computer system (viruses)
- Destruction of computer storage mediums.
- Production, distribution, making available, procuring and possesing of Child Pornography in a computer system.
- Production, offers, distributes, procures, posseses pornography in a computer system.
- Creation of identity documents to be used for criminal purposes.
- Using language, through a computer system that tends to lower the reputation of people in public (Defamation)
- Making available to any person or the public through a computer system any material which approves acts of crimes against humanity or incites or commands any person to commit a crime against humanity.
- Initiation of the transmission of multiple electronic messages with the intent to deceive users as to the source of the message.
- Disclosure of details of investigations.
- Violating intellectual property rights through a computer system (plagiarism)
- Harrassing, coercing, intimidating, causing emotional distress to any person through a computer system. (Cyber Bullying)
The Courts in Zimbabwe (presumably beginning from Magistrates court up to the Supreme Court) shall have Jurisdiction to try an offence committed under the Bill in the following circumstances:
- If there is an act or omission committed wholly or partly in the territory of Zimbabwe
- If there is an act or omission on a ship or aircraft registered in Zimbabwe
- If there is an act or omission by a national of Zimbabwe outside the territory of Zimbabwe if the conduct will constitute an offence under the laws of the country in which the offence was committed.
- Extradition shall be possible for any person who commits a crime outside the territory of Zimbabwe.
3. Warrants of search and seizure
Police officers may make an application, supported by affidavit to a magistrate for the search and seizure of any place reasonably believed to have a computer system which has data to be used as evidence. The police officers can also be allowed access to a computer system for the purpose of obtaining evidence in investigations. What is critical to note here is that there has to be an Application to a magistrate seeking such authority to search and/or seize any article for the purpose of this Act.
4. Assistance to police officers to obtain data from computer systems
Anyone in Zimbabwe with the knowhow on the functioning of a computer system but who is not a suspect in a crime must assist in investigations if reasonably required to do so by the relevant authority. This means that computer experts or professionals must expect phone calls from the State's investigating agents summoning them to assist in investigations on a wide range of matters without expectation of a fee. This particular resource provision was probably introduced to curb the "competence" deficiency that might exist in the relevant state agents' in as far as technological sophistication may be concerned.
5. On the Law of evidence
The Draft bill presents a potentially new dispensation with regards to admissibility of evidence concerning proving facts when crimes under this Bill are being tried. As the learned authors, Schwikkard and Van Der Merwe note in their book, Principles of Evidence 3 rd Edition, Juta, 2010 at page 45
"The rule is that any evidence which is relevant is admissible unless there is another rule of evidence which excludes it. Relevance is therefore not the sole test for admissibility of evidence"
Clearly from the above, there have been relevant bits of messages that have been excluded from being used buy a judicial officer due to various exceptions to admissibility such as hearsay and privilege. From a technological standpoint, whatsapp, facebook and twitter messages are likely to be excluded from being admissible evidence because of their malleable nature (easy to manipulate). However, it appears the courts had already decided to be progressive as shown by the case of Cherise Wheeler v Timothy Egglestone HH-99-16 wherein Chitakunye J did not oppose an attachment of a transcript of whatsapp messages on an Application but actually relied on it. The admissibility of evidence from a computer system in the draft bill is not limited to proving facts of the commission of crimes under the act alone. It goes on to allow the admissibility of evidence from a computer system even in the proceedings of an offence against a law of Zimbabwe. This is a significant issue.
Section 28 of the Draft Bill reads: "In proceedings of an offence against a law of Zimbabwe the fact that such evidence has been generated by a computer system shall not by itself prevent the evidence from being admissible. Strikingly subsection (2) interestingly preempts that there will be a new law to provide for electronic evidence.
On Pre Legislation of law
From section 28 of the Draft Bill there will be a new law which will be called the Electronic Transactions and Communications Act. This law is presumably meant (amongst other things) to provide for the mechanisms of admitting evidence from computers and presumably other technological gadgets. There is currently a Bill on this law seeking to pass its various hurdles. How another law is to pass whilst depended on the future existence of another law may be difficult to understand to the ordinary person and this in itself presents a lot of questions. Can law be pre-legislated in that manner? Is there a specific evil that needs to be urgently addressed such that las can be out with such haste? There will be need to discuss these points in view of the good law checklist that has been formulated as follows:
- Law must be certain: even from the Bill, we ought to have a clear indication of what to expect.
- Law must be enforceable: there is no point in creating a law that cannot be followed up on or implemented.
- Retrospectivity: the law must not apply retrospectively
- Constitutionality: all law inconsistent with the Constitution is void o the extent of the inconsistency. This is the starting point. If it violates any Constitutional provisions then the law runs foul the supreme law of the country.
- Cost and benefit: the varying scope of costs incurred in preparing and setting up a framework of the law must be outweighed by the wide range of benefits.
- International obligations: if the law falls under particular international obligation, it must comply with the same.
- Delegation of various authority by law; when the law gives delegated authority to do anything, such delegation must be consistent with the Parent Act and above all the Constitution. The delegated powers must also be checked.
This is the law that we must expect should it be passed and assented to by the president. There are much more practical circumstances to be anticipated and witnessed if the law comes into force. As for now it is always good to appreciate the prospective law as it currently is. This is not the final product but at best the bill will only be polished and there will not be any major changes. This article is also not exhaustive but hopefully meaningful legal discourse on the bill will be held with a view of discussing the merits or lack thereof to the proposed legislation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.