1.1  MEANING OF CYBER CRIMES

There is no a single definition on the concept of cybercrime, the definition or the understanding depend on the different issues for example the technological advancement of the state where the term is explained, the economic advancement and the occasion or purpose where the term is explained for example legal purposes, military purposes and Information communication purposes. Cybercrime may be defined to mean as any activity in which computers or networks are a tool, a target or a place of criminal activity[1].

But, there are other definition that tries to take into account of the objectives and intention to explain the concept to mean; computer-mediated activities which are either illegal or considered illicit by certain parties and which can be conducted through global electronic networks.[2]

On the other hand, cybercrimes as defined by the Oxford Dictionary to mean as an illegal activity that is done means of computers or internet[3].

Generally, cybercrimes means Cybercrimes can be defined as offences that are committed against individuals or groups of individuals through electronic means and telecommunication networks like internet chat rooms, emails, mobile phones by way of text messages[4].

Tanzania as one the developing countries in the world,had not left free from the atrocities of cybercrimes hence there were a need to enact the law that covers the arena of cybercrimes. Where from the 1995 Tanzania is had witnessed a number of changes in the laws where the journey had started in with the formulation of the ICT Policy of 1995, and thereafter with different national ICT policy of 2003, 2006 and of 2016[5]. Through these policies on the information communication technologies had acted as the starting stone to the enactment of cyber statutes.

Though the most remarkable changes was firstly witnessed by the ruling of the High Court of Tanzania in the case of Trust Bank Ltd vs Le-marsh Enterprises Ltd, Joseph MbuiMagari, Lawrance Macharia[6], where at in this case Hon. Nsekela J had firstly ruled on the best evidence rule, where the learned Judge had observed that Tanzania being not an island it should recognize the advancement of science and technology, hence the ways of conducting business changes, hence the laws of the land should imbalance those changes. On those decisions the learned Judge ruled on the views that the court should allow the admissibility of the electronic evidences.

1.2  CYBER POSITION IN UN SYSTEM

  1. BUDAPEST CONVENTION ON CYBERCRIMES 2000

Is binding international treaty signed on 23rd November 2001 and entered into force on 1st July 2004.  The purpose of this convention was to provide a harmonized approach to tackling cybercrime. Chapter 3 of the Convention sets out the principals by which each of the parties may assist another party with an investigation by mutual assistance. It imposed obligation to the states to adopt the legislative that regulate cyber offences.[7] It criminalizes the offences against confidentiality, integrity and availability of computer data system, fraud, forgery, child pornography and copyright infringement.[8] Article 24 sets of the procedure for extradition in relation to criminal offences sets out in Article 2 to 11 of the convention.

  1. THE COUNCIL OF EUROPE CONVENTION ON CYBERCRIME, 2004

The council of Europe Convention on Cybercrime was released for sign in November 2001 and move into force in July 2004. Allow member and non-member states to sign the treaty and to be only International Treaty Binding on the subject of Cybercrime. It represents guidelines for International wishing to develop security, legislation, ways to protect freedom and human rights against cybercrime. This is good idea for Council of Europe to allow a non-member states to join because it provides a framework of international cooperation to solve criminal problem in this digital world. The effective rules and protocol are established by convention to allow everybody to join and avoid no body to own demanding task of that problem. The rules minimize the risks and maximise right and freedom across cyberspace and remove intolerant nature committed through computer system.

  1. THE AFRICA UNION CONVENTION ON CYBERSPACE SECURITY AND PERSONAL DATA,2014

It was adopted 27th June, 2014 and signed 11th May, 2020. The convention requires all states to establish an independent administrative authority tasked with protecting personal data.[9] Article 12 goes on to call on member states to establish limits on the processing and storage of data, although it allows for exemptions in the public interest, placing particular emphasis on historical,  statistical and scientific need.

            The Convention further grants states the right to discontinue data processing, block particular aspects of collected data, and even temporary or permanently prohibit data processing in emergency situations that endanger fundamental rights and freedoms.

            Importantly, a member state may discontinue or block data processing only after an adversary proceeding.[10]

  1. THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) DIRECTIVE ON FIGHTING CYBERCRIME, 2011

It was adopted on 19th January 2007 purpose on the harmonization of the policies and regulatory framework on the information and Communication Technology. Article 24 analyses the various cybercrime offences such as theft, fraud, possession of stolen goods, breach of trust, extortion, terrorism and money laundering will constitute the degree of common law offences. The convention imposes punishment when member state found guilty of such offences analyzed under article 24.

  1. THE COMMONWEALTH OF INDEPENDENT STATES AGREEMENT ON COOPERATION IN COMBATING OFFENCES RELATED TO COMPUTER INFORMATION, 2001

The agreement was signed on 1st June 2001. The parties to the all commonwealth of independent states aiming to create the legal basis of cooperation of law enforcement and judicial authorities of the State parties of the agreement. Article 3 listed out criminal acts which amounted to cyber crimes; illegal use of computer programs, copyright violations, blocking or modification of information.[11]

  1. CYBER CRIMES IN OTHER JURISDICTION

In the whole world cyber laws are the newly branch of law that is highly motivated by the advancement of science and technology, which defines the economic level of the state and the citizen. The more the developed the nation is, the more the earlier it adopts cyber laws for example the European and American countries the first to adopt these law. While, the developing nations such as the East African countries did not adopt these laws until this decade. This is due to the society need of the law at a time.

The Cybercrimes Act[12] of Tanzania had come in to force in 2015, while Uganda was the first country to pass the first cyber law known as The Computer Misuse Act[13] of 2011 as the law governs cybercrimes in Uganda, on the other hand Kenya was the last country amongst east African countries to enact the law that governs cybercrimes called Computer Misuse and Cybercrimes Act[14].

  1. CYBER CRIMES IN KENYA

Kenya governed by principal Legislation known as Computer Misuse and Cybercrimes Act, 2018. Computer Misuse and Cybercrimes Act as itself provides that “AN ACT of Parliament to provide for offences relating to computer systems; to enable timely and effective detection, prohibition, prevention, response, investigation and prosecution of computer and cybercrimes; to facilitate international co-operation in dealing with computer and cybercrime matters; and for connected purposes”, this law from has specifically provide that it’s the law that aimed at creating the law which above from criminating the offences related to computer it also prohibit, prevent and respond to these offences. The Kenyan cybercrimes law have a step ahead from the Tanzania law by prohibiting and combating these crimes from happening while the other had only focuses on punishing the offences. When looking from jurisprudential point of view can show these two sates had express themselves on which method of punishment they believe in.

part IV of the Computer Misuse and Cybercrimes Act[15] had provided for the investigation procedures, where the law had mentioned who have the powers to investigate the crimes that had been shown by the same Act. The other law had not specifically established for the procedures as the law of Kenya.

  1. CYBER CRIMES IN AUSTRALIA

Likewise Kenya, also Australia are governed by Cyber Crimes Act. It covers a wide variety of offences that present a significant threat to Australians, including identity crime, computer hacking, botnet activity, computer-facilitated crime, and cyber intrusion directed at private and national infrastructure. Advances in technology have offered new opportunities for serious and organized crime, which use increasingly sophisticated methods to counter law enforcement efforts.

Section 478 provides for the offence of Authorized access to or modification of, restricted data.[16] The offence comprises three elements of proof. The offence is committed if: a person causes any unauthorized access to or modification of, restricted data.

  1. CYBER CRIMES IN MALASIA

Parliament enacted Computer Crime Act 1997 and Communication and Multimedia Act 1998 that act as safeguard against cyber-criminal activities in the country.

Malaysia Computer Crime Act 1997 (Annamalai, 1997) has been drafted to provide offenses relating to the misuse of computers and to complement existing criminal laws. ‘Hacking’ or ‘computer crime’ is not defined in the CCA, but the word used is ‘unauthorized access to computer material’. Section 3(1) provides that a person shall be guilty of an offence if – (a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer; (b) the access he intends to secure is unauthorized; and (c) he knows at the time when he causes the computer to perform the function that is the case. Persons found convicted of an offense within the proviso of Section 3 are liable to a fine not exceeding RM50,000 or to imprisonment not exceeding five years or to both (S. 4(1)(a) MCCA). Additional penalty is imposed if unauthorized access was used to commit or facilitate the commission of an offense involving fraud, dishonesty or which caused injury as defined by the Penal Code, (S. 4(1)(a) MCCA). The commission of the offense referred to need not be at the same time as the unauthorized entry. Persons convicted of an offense under section 4 are liable to a fine not exceeding RM50,000 or to imprisonment not exceeding 10 years or to both.  

  1. CYBER CRIMES IN USA

In the U.S cyber-security governed by Cyber Security Information Sharing Act concerns are tackled at the federal level through sector-specific statutes and regulations. The main cyber-security regulations include the 1996 Health Insurance Portability and Accountability Act (HIPAA), the 1999 Gramm-Leach-Bliley Act, and the Federal Information Security Management Act (FISMA). While the HIPAA addresses concerns in the health sector, The FISMA maintains cyber-security standards for federal government agencies and their contractors.  Some other statutes are specific to a single subject matter like the Veterans Affairs Information Security Enhancement Act[17], passed in 2006 and they focus closely on a single government agency, which, in this case is the Department of Veterans Affairs (VA). Besides, populous states like Massachusetts, New York and California already have diverse individual cyber laws.

Some laws, however, have been subject to criticism for being too regulatory and invasive. For instance, Computer Fraud and Abuse Act (CFAA) enacted by Congress in 1986, which makes it a crime to access and subsequently share protected information, have been widely criticized for being too restrictive and dis-incentivising legitimate security research[18]. The Electronic Communications Privacy Act was passed in 1986 allows the U.S. government to access electronic communications such as email, social media messages, and more with a subpoena.[19]

  1. CYBER CRIMES IN SOUTH AFRICA

The Cyber Crime Act in South Africa creates offences but also codifies and imposes penalties on cybercrimes and defines cybercrime as including, but not limited to, acts such as: the unlawful access to a computer or device such as a USB drive or an external hard drive; the illegal interception of data; the unlawful acquisition, possession, receipt or use of a password; and forgery, fraud and extortion online.

The Act criminalizes the disclosure of data messages which are harmful and the disclosure of data messages that contain intimate images and seeks to implement an integrated cyber security legislative framework to effectively deal with cybercrimes and address aspects pertaining to cyber security. The Act creates 20 new cybercrime offences and prescribes penalties related to cybercrime. It provides overarching legal authority on how to deal with cybercrimes, by regulating how these offences must be investigated which includes searching and gaining access to, or seizing items in relation to cybercrimes.Section 3 of the Act makes provision for offences relating to personal information (as defined in the POPI Act) including the abuse, misuse and the possession of personal information of another person or entity where there is reasonable suspicion that it was used, or may be used, to commit a cybercrime.

It provides for the establishment of a 24/7 point of contact for all cybercrime reporting, the establishment of various structures to deal with cybersecurity (which includes a cyber response committee, a cyber security centre and a national cybercrime centre). The Act imposes an obligation on electronic communications service providers (“ECSPs”) and financial institutions, such as banks, to report cyber offences within 72 hours of becoming aware of them. They must preserve any information which may be of assistance in the investigation and they are required to work with law enforcement, where applicable, in the investigation of cybercrimes

The Act further affords South African courts with jurisdiction to adjudicate over any act or omission alleged to constitute an offence under the Act and affecting a person in South Africa, even in instances where such a defined cybercrime is committed outside of South Africa.

1.4 CONCLUSION

Generally, the works point out the legal framework governing cyber crimes both the international, regional and domestic. All the work discussed the legislation from other jurisdiction like Kenya and Uganda. However, Tanzania cyber law did not specifically provide on how the international-cooperation could catered when the question arose, as what might be regarded as judicial notice is that ICT involves the global connectivity hence the connectedness between countries cannot be separated from the relationship. It would have been prudent for the laws of Tanzania to specifically provide on how it can be handled, though other laws can chip in a matter of principle such as Extradition Act[20] and The Mutual Assistance in Criminal Matters Act.

BIBLIOGRAPHY

READINGS

ITU publication, Understanding Cybercrime: Phenomena, Challenges and Legal Response, 2012,

The United Nations, Comprehensive Study on Cybercrimes the Draft of February 2013, New York 2013,

A.A. Mwingira, Elimination of Cybercrimes in Tanzania: Law and Practice, L.L.M Dissertation of Open University of Tanzania, 2013

WEBSITES

Oxford Dictionaries: https://en.oxforddictionaries.com/definition/cybercrime (accessed on May 6, 2019 at 0010)

Analysis of Cyber Laws in USA, UAE and Germany

POLICIES

INTERNATIONAL STATUTES

The Budapest Convention on Cybercrimes (2002)

The Africa Union Convention on Cyberspace and Personal Data

The Council of Europe Convention on Cybercrime, 2004

The Africa Union Convention on Cyberspace Security and Personal Data, 2014

LEGISLATION

The Cyber Crimes Act, 2015 (Tanzania)

The Cybercrimes Act (Australia)

The Computer Misuse and Cybercrimes Act, 2018, (Kenya)

The Cyber Crimes Act (Malaysia)

The Computer Misuse Act (Uganda)

CASE

Trust Bank Ltd vs Le-marsh Enterprises Ltd, Joseph MbuiMagari, Lawrance Macharia Case No.4 of 2000- High Court(Commercial Division) at Dar es Salaam.

[1]Supranote 1 at 17.

[2]Idem.

[3] Oxford Dictionaries: https://en.oxforddictionaries.com/definition/cybercrime (accessed on May 6, 2019 at 0010)

[4] A.A. Mwingira, Elimination of Cybercrimes in Tanzania: Law and Practice, L.L.M Dissertation of Open University of Tanzania, 2013 1.

[5]Tanzania National ICT Policies of 1995, 2003, 2006 and 2016.

[6]Case No.4 of 2000- High Court(Commercial Division) at Dar es Salaam.

[7] Article 2 of the Budapest Convention on Cybercrimes, 2000

[8] Idem, Article 2 and 11

[9] Article 11 of the Convention on the Africa Union Convention on Cyberspace Security and Personal Data, 2014

[10]Ibid Article 12(5)

[11] Ibid

[12]Supra note 19 and 10.

[13] No. 2 of 2011 of the Uganda laws.

[14]No. 5 of 2018 of Kenya laws.

[15]Idem

[16] Section 478 of Australia Cyber Crimes

[17] The Cyber security Information Sharing Act, USA

[18] https://enhelion.com/blogs/2020/11/24/analysis-of-cyber-laws-in-usa-uae-and-germany/ (accessed 29th January 2022)

[19] Ibid,

[20]Cap 368 [R.E 2002]