THE CYBER CRIME AND CYBER SECURITY IN TANZANIA

CYBER CRIME AND CYBER SECURITY LAW

Prepared by

KHAFIDHI, Hassan Sadra

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INTRODUCTION

Tanzania is a union and Republic State, whereby two independent and sovereign
States,Tanganyika and Zanzibar surrendered their powers voluntarily to form the union
ofTanzania on26th April, 1964. The union was made through the formal and specific
Agreements, these agreements are known as Articles of Union. Legislature according to the 1977
United Republic of Tanzania Constitution has the legal mandate to enact the laws. The law
relating to union matters according to article 64(1) and (4)(a) of the Constitution applies to both
parts of the Union after such Act expresses itself that it becomes in operation in Tanzania
Mainland as well as in Zanzibar as it has been stipulated under (4)(a) of article 64 of the
Constitution. Due to such fact, in 2015 The Cyber Crimes Act which operates in both parts of
the Union was enacted by the Parliament

CYER LAW BACKGROUND

The first National ICT policy was formulated in 2003. The intention of the policy was to speedup
for providing more services to the public through the use of tools of ICT. Nevertheless, since the
ICT tools are used by several people through their routines, truly the number of crimes will
increase. Due to the existence of the policy, it led to the enactment of the Act relating to cyber
crimes. Furthermore the Tanzanian legal system made improvement by accepting the online
evidence where by initially it was not accepted.

CYBERCRIME LAW IN TANZANIA

The government drafted a bill and presented before the Table in February, 2015 focusing on how
to combat and protect the commit ion of cyber crime in Tanzania. But some people especially
opposition parties became dis satisfactory with such enactment claiming that the intended Act
tends to deprive of the freedom of information to the individuals. However the Government
stated that the main intentions and objectives of the Bill is to protect sensitive infrastructures,
reduce vulnerability and cyber bullying, and minimize the damage that cuber-attacks may cause.
As a result the President on 25th April, 2015 assented it and no sooner had the responsible
Minister published it in the Government gazette than it came into force.

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The cyber crime Law in Tanzania, the Act No. 14/2015, currently is the one among the Penal
laws governing the freedom of expression. It is the intention of Tanzanian Government to enact
this Act purposely to combat the cyber crimes committed in different ways including online
unethical conducts, violation of intellectual property. But some people opposed the enactment for
this Act since they claimed it is against the constitutional provision, article 18 stipulating about
the freedom of expression to the individuals. The article provides;

“Every person

(a) Has a freedom of opinion and expression of his ideas;

(b) Has a right to seek, receive and ,disseminate information regardless of national
boundaries;
(c) Has the has the freedom to communicate and freedom with protection from

Interference from his communication; and

(d) Has a right to be informed t all times of various important events of life and
activities of the people and also of the issues of importance to the society.

The opposers claimed that this constitutional right can not be deprived of from the individuals
unless the conditions set under article 30 of the constitution including defense, public safety,
public peace, public morality, public health, authority and independence or authority of the court,
confidential information, national interests and enhancement of public benefits as some of the
factors be met. To the side of Government, addressing the journalists on the enactment of the
Act, the Minister responsible for science and Technology said that the main purpose of the Act is
to provide some provisions criminalizing offenses relating to both computer and communication
technology. Also the Act tends to show how the investigation can be made by using electronic
system.

OFFENSES AND GENERAL PUNISHMENT

The Act under Part II, section 4 to section 29, illegalizes illegal access to a computer system,
illegal interception in a computer system, illegal remaining in a computer system, illegal data

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interference in computer system, data espionage, illegal system interference, illegal devices,
forgery related to computer, fraud related to computer, Publishing child pornography and any
pornography in computer systems, identity related crimes, publication of false information, racist
and xenophobic material, racist and xenophobic motivated insult, unsolicited messages,
disclosure of details of an investigation, obstruction of investigation, cyber bulling, Aiding and
abetting, attempts, conspiracy to commit offence and offenses relating to critical infrastructure
and violation on the Intellectual property. Upon the conviction the offender shall be imprisoned
or fined or both.

The heaviest punishment provided by the Act is imprisonment for not less than seven years and a
fine of not less than one hundred million Tanzanian shillings and the lightest sentence is one year
imprisonment and to the fine not less than one million Tanzanian shillings

INTERNET ACCESS

Lack of computers and net work connectivity led the great challenge on availability of internet
especially in the rural areas, this caused many people living at villages to miss the services. So
only people located in urban areas became the beneficiaries of the services but the situation now
is different due to the existence of the mobile telephone companies such as TTCL, Tigo, Halotel,
Vodacom and Zantel providing both voice and data services which make internet access possible
in both rural and urban areas. With the increase of the use of the mobile transaction, there is a
great possibility of cyber crime be committed in every corner.

The Electronic and Postal Communications Act No. 3 of 2010 and its Regulations and The Cyber
Crime Act, 2015 are the laws regulate and supervise the Internet providers in Tanzania. The
applicability of the defence such as mere conduit or common carrier which is basically essential
for protection of cyber operator or service provider is the significant role which the Tanzanian
Courts have already tested. Due to the increasement of various online transactions through
mobile devices, the role of the court will much more evident on applicability of the laws.

According to the Tanzania Communication Regulatory Authority (TCRA) the only public
institution responsible for communication including radio, TV, News papers, Internet and mobile
net work reports that Internet services in Tanzania commenced from the year 1995 and it has

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been exponentially growing (from 3.5million people in 2008 to over about 11 million 2015). The
report depicts that many Tanzanians lives depending on current technology in different aspects
such as health care and services, transport and most especially for communication.

E- COMMENCE

Since there is increasing of the internet users and also the service providers in the country, the E-
commerce growth becomes attained in Tanzania. To the country itself feels that it is so proper
and vital that E-commerce to be used in different ways such as buying goods and even
sometimes the system of making booking tickets through internet. The enactment of the law is as
a symbol denoting that Tanzania like other countries in the world is at the level of accepting the
current technological changes of the world. Due to that the use of internet is more comfortable
and it also becomes so enjoyable to the people. Since there are laws supervising and regulating
the use of internet, it is believed that all problems associating with internet will be dealt and even
eliminated accordingly.

CYBER FREEDOM AND THE WRATH OF THE LAWS

No one denies that one among the threat faces the national security are cyber crimes. The
criminals using a computer to real world crime example, in 2008 the US embassy in Tanzania
and Kenya were attacked by terrorists at the same time whereby it is believable that they used
internet for planning their sinful plots, credit card fraud and pornography. Apart from national
security, this kind of crime disturbs enjoyment of other individuals’ rights example, the using of
computer in hacking.

But there are other arguments given by the other side vigorously criticizing the laws that the law
has been enacted without serving legitimate purposes that the Act No. 14/2015, the cyber crime
Act, was enacted and assented by the President although social media practitioners and Human
rights activists criticized One of the critiques was the then Deputy Minister of Science and
Technology, Honourable January Makamba, MP, who tweeted: “I am worried about the power
given to our police. Ignorant and low income earners might suffer” the deputy minister meant
that the power given by the police to search the houses owned by the suspected violators of the
laws, seize the properties such as electronic hardware and even to demand the data from online
providers as it is stipulated by Part IV which comprises sections 31,32,33,34,and 35 of the

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Cybercrime Act. Of course this was seen clearly when the search and seizure of computer, cell
phones and other electronic gadgets made by the police in the office of Legal Human Rights
Center (LHRC) that was monitoring the election during the 2015 General Election.

During the enactment of the Electronic and Postal Communication Act there was no any
criticism even though the Act included deals with cyber security, interception, encryption and
data retention which are the most important tools in cyber. Also the Act necessitates that it is
mandatory to any law enforcement agent that requires the information to ask permission from the
relevant authority, this is for the purpose of protecting the freedom of privacy as it has been
provided by article 16 of the Constitution.

The Act provides the power to the State to intercept an individual’s communication through the
application to the public prosecutor for authorization or even to listen to any communication
transmitted through any communications. In providing the consent, the public prosecutor shall
take into consideration that whether the communications asked for the permission contains any
information is necessary in making the criminal investigation to the particular alleged offence.

In protection for data, the Regulations of Electronic and Postal Communication Act state that
that a licensee may collect and maintain information on individual consumers where it is
reasonably required for its and lawfully collected and processed. Processed for identified
purposes accurate. Processed in accordance with the consumer’s other rights. Protected against
improper or accidental disclosure. Not transferred to any party except as permitted by any terms
and conditions agreed with the consumer as permitted by any approval of the Tanzania
Communications Regulatory Authority or as otherwise permitted or required by applicable laws
and regulate.

On the other hand the Act states clearly that using of cyber network without authorization is an
offence and punishment is stipulated as it has been provided under section 124(3) of the Act.

“124.- (3) Any person who secures unauthorized access to a computer or intentionally causes or
knowingly causes loss or damage to the public or any person, destroy or delete or alter any
information in the computer resources or diminish its value or utility or affect it injuriously by
any means, commits an offence and on conviction shall be liable to a fine not less than five

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hundred thousand Tanzanian shillings or to imprisonment for a term of not exceeding three
months or to both”.

Furthermore the Act illegalizes and criminalizes the false information and provides punishment
that it is criticized concerning its given punishment that it is not light to compare the offence
committed. The section states under section 132;

S. 132. “Any person who furnishes information or makes a statement knowing that such
information or statement is false, incorrect or misleading or not believing it to be true, commits
an offence and shall be liable on conviction to a fine of three million Tanzanian shillings or to
imprisonment for a term of twelve months or to both”.

On this provision people viewed that not only does the punishment upon the conviction
stipulated by the provision due to have published false information is harsh but also it denotes as
an impediment to the freedom of expression as it is provided under article 18 of the Constitution.

CYBER SECURITY IN TANZANIA

Law Reform Commission is the governmental institution in Tanzania. the discussion paper on
the introduction of legal frame work for electronic commerce was established and it was
supervised by the Commission. Also lack of relevant legislation s for electronic transactions was
discussed. Basically contracts and consumer protection were the main agenda covered by the
paper. The common law is the system followed by Tanzania, there was no promulgation as
regulatory steps purposely for securing electronic transactions for example, electric evidence,
digital signatures, reforms to contract law, dispute resolution. But following the enactment of Act
No.9 / 2016, The Evidence Act, the electronic evidence is acceptable before the courts in
Zanzibar.

Electronic contracts are not recognized by the law in Tanzania, sale and supply for goods and
also consumer protection are made through offline, what is insisted in Tanzania on the
conclusion of contact is that it must be in writing form, dully signed and it must also be
authenticated before witnesses which it is hardly applied in cyberspace. There fore in Tanzania
both on-line contracts and cyberspace are not recognized by the law. But in Zanzibar the

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electronic agreement is well recognized due to the enactment of the New Evidence Act, Act
No.9/2016 under section 97 which reads;

S.97 “The Court shall presume that every electronic record purporting to be an agreement
containing the digital signatures of the parties was so concluded by affixing the
digital signatures of the parties.”

PROTECTION 0F INTELLECTUAL PROPERTY

Intellectual property protection is also comprised by the Act and it illegalizes and criminalizes
therefore according to the Act under section 24 provides that a person shall not use computer
system with intend to violate intellectual property rights protected under any written law. The
section provides the punishment basing on two categories firstly, if the offender violates the
right through non commercial uses, upon the conviction he can be sentenced to pay a fine of not
less than five million shillings or to be imprisoned for a term of not less than three years or both.
Secondly, it is stipulated by the provision that when the offender violates the mentioned section
for the commercial purposes, to gain through some body ’imagination, he is liable upon the
conviction to a fine of not less than twenty million shillings or to imprisonment of not less than
five years or to both. Additionally the section provides that the offender is entitled to pay
compensation to the victim of the crime as to the court may deem just.

ADMISSIBILITY OF ELECTRONIC EVIDENCE

Although the Cybercrime Act has been enacted, Tanzania still has no any piece of legislation
recognizes the Electronic Evidence. On 28th April, 2 016,the Kisutu Resident Magistrate‘s Court
in Dar-es-Salam recently refused to accept as exhibit a CD Video tape allegedly showing how
the leader of Glory Christ of Tanzania Church, Bishop Josephat Gwajima ,insulted Poly-carp
Cardinal Pengo.

In TRUST BANK TANZANIA LTD V. LE MARSH ENTERPRISES LTD ANDOTHERS,

case of theTanzanian High Court, Commercial Division at Dar-es-Salam .Civil case No.4/2000
(Unreported). In this case the Banker’s Book was extended to exclude evidence enacting from
computer subject to the same safeguard applicable to other banks under section 78 and 79 of The
Evidence Act. However the position of admissibility of e-evidence in criminal cases and case

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involves banking business is different. This is due to the Miscellaneous Amendment Act No.2 of
2006. in the case of LAZARUS MIRISHOM MAFIE & ANOTHER V. MOISO ASPER
COMM. Case No.10 of 2008 of the High Court, (Unreported). Judge Makaramba , The
Tanzanian High Court Judge held that for the standards to be set by ruling for guiding the Court
in determining the admissibility of electronically stored information, that the evidence must be
supported by a statement of declarant offered to prove the truth of its content which exclude
hearsay. That the party relying on e-evidence, must introduce original of such evidence and there
must the need to balance its probative values against the potential for unfair prejudice.

In the case of SHIRIN JESSA V. ALIPIO ZORILLA ,(1973) LRT No.84, the Court held that
a document must be proved by primary evidence ,by production of document itself for the
inspection of the court and by secondary evidence when it falls under the categories of section 67
of Tanzanian Evidence Act ,CAP 6,RE 2006. However the situation is different in Zanzibar and
therefore the electronic evidence is applied before the law and it is legally recognized since the
Evidence Act No. 9 of 2016 which operates in Zanzibar for example under sections 96 to 106
depicts that how the electronic evidence is operated.

THE DUTY OF CONFIDENTIALITY

The Act No.3/2010 under section 98(1) stipulates the duty of confidentiality in relation of
Telecommunication, the process for disclosing the information by an authorized person for
official duties has been included.the provision states;

S 98(1) “A person who is the member employee of application service, licensee or an agent, shall
have the duty of confidentiality of any information received in accordance with the
provisions of this Act, except where such person is authorized by any other written
law.”

Also the section concerning to the same matter of disclosure it further explains that no person
shal disclose the content of information of any customer received in accordance with the
provision of the Act xcept where such person is authorized by any other written law. However
under section 99 provides that the exception to this rule by saying that a person shall not disclose
information received in Exercising his power or performing his power or performing his duties

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in terms except that where the information is required by any other law enforcement agent.
Covers preservation, identification extraction and documentation of computer evidence.

LACK OF CYBER FORENSIC EXPERTS AND EQUIPMENT

The term Cyber forensic refers to the process used for recovering evidence from digital Medias.
It also reserved in magnetically encoded. Tanzania through the concerned authority has no
enough equipment for cyber forensic for instance, red hawk used for analyzing the suspect’
computer’s data as a result, it leads the investigation to take too long to complete where by for
example according to both Criminal Procedure Acts of Tanzania Mainland and that of Zanzibar,
Act No.7/2004 the duration of investigation for bailable criminal offence s charged before the
Courts is four months. The Acts mean that within four months the criminal bailable prosecution
is required to be heard within four months from the date of its being filed as it is stipulated under
section 210 of the Criminal Procedure Act of Zanzibar S.210 “Hearing of a case in bailable
offence shall commence within four months,if hearing does not commence within four months,
the court may discharge the accused person but the discharge shall not be a bar to future trial on
the same facts”.

According to section 151 of Zanzibar Criminal Procedure Act the offence relating to cybercrime
is bailable offence since the provision excludes from unbailable offense as the section provides
here under;

S.151 (1) When any person other than a person accused of murder or treason or armed robbery or
possession of fire arms or drug trafficking, is arrested or detained without warrant by an officer
in charge of a police station, or appears or is brought before a court ,and is prepared at any time
while in the custody of such officer or at any stage of the proceedings before such court to give
bail, such person may be admitted to bail.

CYBERCRIME ATTACKS IN TANZANIA

According to 2016 Report on cybercrime, Tanzania across the board lost US$85 million from the
attacks by digital criminals in 2016. About 187 billion loss at the current market exchange rate
was mostly incurred through mobile money transfers. More Tanzanians are nowadays using

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digital money platforms than ever before the value of electronic payment services soaring by
over 220 percent in four years to reach nearly 90 trillion in 2015.

According to the Bank of Tanzania (BoT) figures, mobile financial services amounted to almost
43 trillion and SMs close to 2 trillion during the period.

“In places like Tanzania, deep in rural areas, we are seeing a lot of SMs attacks, people receiving
threatening messages, people loosing money on their mobile phones” said William Makatiani,
the Managing Director of Senianu. In addition the report stated that in Tanzania the use of
mobile money experienced numerous attacks through social engineering, use of malware and
account personification . As one of the alternative channels for most banks, it explains, hackers
are now exploiting the the weak security controls around the mobile money platform to steal
millions of dollars. Further the report explains that in 2016 we witnessed more advanced attacks
in banks mostly perpetrated by insiders, raising the concern that the banking sector is unprepared
to deal with insider threats.

GUARD AGAINST CYBER CRIME

Tanzania intends to combat against the cybercrime and in so doing she planned to formulate the
National cyber Security Strategy so as to keep the country safe from cyber crime. On 3rd June,
2016 acting Permanent Secretary in the Ministry of Works, Transport and Communication, Ms.
Katolina KIippa in Dar-es-Salam said that the National Cyber Security Strategy formulated by
the Government and supported from the Common Wealth Telecommunication Organization
(CTO) she added,” Our government has done quite a lot in making sure that our country and its
people are safe from cyber crime and is willing to do whatever it takes to make the cyber
environment crime free.”

Also the Director responsible for Information and Communication Technology from the same
ministry Mr. Peter Philip said that the formulation of the National Cyber Security would help
the the country to take the control measures on local communications.

Obviously the strategy would make Tanzania Government and other authorities to take measures
against the duplication of activities and effectiveness is surely intended to be reached. One of
the strategies for instance formulated by the Government according to Professor Faustin

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Kamuzora, the Permanent Secretary in the Ministry of Works Transport and Communication is
to ensure equip advanced experts to oversee and manage cyber security.

JURISDICTION

According to section 30(1) of the Act the court having competent jurisdiction shall have
jurisdiction to try any offence where an act or omission constituting an offence is committed
wholly or in part within the United Republic of Tanzania, on a ship or air craft registered in
Tanzania by a national of Tanzania residing out side of Tanzania or by any person irrespective of
his nationality ,or location when the offence is committed using computer system , device or data
located within Tanzania.

CONCLUSION

As to concluded, Cyber crime and cyber security are new terms in Tanzania .Many Tanzanians
are not aware of these issues. Therefore, efforts must be made in order to keep them
knowledgeable but it must be taken into consideration that ignorance of the Law is not
acceptable. Therefore it is upon the man himself to understand in detail concerning what has
been stipulated in the Cyber Crimes Act.

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REFFERENCES

Shoo, G.(2002) The new Press Bills in Tanzania . implication for National communication
Policy and Press Freedom, Africa Media Review Vol. 11 No.2,2002.

LHRC and ZLSC (2013) Tanzania Human Rights Report 2012. Dar-es-salam.

Ndumbaro, D. D. the Cyber Law and Freedom of Expression the Tanzania perspective

LEGISLATIONS

The Constitution of United Republic of Tanzania,1997

The Cyber crime Law, the Act No. 14/2015

The electronic and Postal Communication Act, No. 2/2010

Zanzibar Evidence Act, No. 9/2016

Tanzania Evidence Act Cap 6 RE. 2006

Zanzibar Criminal Procedure Act. No. 7/2004

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