UNIVERSITY OF DAR ES SALAAM

SCHOOL OF LAW

PROTECTION OF E-COMSUMERS AGAINST CYBER-FRAUD IN TANZANIA: A

STUDY OF LAW AND PRACTICE.

BY

NTAMBI GRACE E.

REG# 2014-04-04659

PREPARED UNDER SUPERVISION OF

DR. T. MWENEGOHA

A Dissertation Submitted in Partial Fulfillment of the Requirements for the Award of

Bachelor of Laws (LL. B) of the University of Dar es Salaam.

 CERTIFICATION

The undersigned certifies that she has read and hereby recommends for acceptance by the

University of Dar es salaam this research paper entitled “Protection of E-consumers Against

Cyber-Fraud in Tanzania: A Study of Law and Practice.” in fulfillment of the requirements for

the degree of Bachelor of Laws (LL.B.) of the University of Dar es salaam.

……….......................................

DR. T. MWENEGOHA

(Supervisor)

ii
 DECLARATION

I, NTAMBI GRACE E declare that the work presented in this dissertation is based on my own

research and has not been submitted anywhere else for a similar or any other degree award.

Signature.................................

Date........................................

iii
 DEDICATION

This work is dedicated to my beloved family.

iv
 ACKNOWLEDGMENT

I wish to convey my sincere gratitude to all who provided assistance in various ways of

researching and writing of this work. It is impossible to mention all of them but all in all I am

grateful for their input and assistance.

I am also indebted for my family for granting me the necessary financial and moral support

throughout the course.

I am profoundly gratefully to my supervisor DR. T. MWENEGOHA for her best and strict

supervision filled with constructive criticism, scholarly advice and comments throughout my

research. May I admit that without her supervisory role this work would not have attained this

form.

Finally, I would like to acknowledge with special thanks to my colleagues and friends who

offered me assistance and support in one way or another at various stages of my academic work.

To them I have nothing to offer but to thank them very much and pray the Almighty God to bless

them.

v
 ABSTRACT

This study examines the adequacy of the law in protecting e-consumers against cyber fraud. It

involves an appraisal of the law and evaluation of the practice to determine the extent which the

e-consumers are protected against cyber fraud in Tanzania. To achieve this objective, the study is

presented in four chapters.

Chapter one gives the background of the study by addressing how the e-consumers are facing

cyber fraud and pointing out the extent which cyber fraud is tremendous in Tanzania. It gives the

foundations upon which this research is based. This chapter composes of the statement of

problem, background of the problem, research methodology, hypothesis, objectives, significance

of the study and literature review.

Chapter two of this research consists of the legal framework on the protection of e-consumers

against cyber fraud. Under this chapter the researcher appraises the domestic, regional and

international instruments to determine the extent to which they protect e-consumers against cyber

fraud.

Chapter three deals with presentation of findings and analysis. This chapter provides for the

analysis of laws, literatures and data collected from the field in examining the strengths of laws

in the protection of e-consumers against cyber fraud in Tanzania. The researcher presents the

results of the field research and makes analysis on the basis of the hypothesis made.

vi
Chapter four gives the conclusion and researcher’s recommendations. The researcher provides to

which extends the passenger’s rights are protected and recommends on what should be done to

protect the e-consumers against cyber fraud.

LIST OF STATUTES

Domestic Legislation

The Bill of Exchange Act, [Cap 214 R.E 2002]

The Cybercrimes Act, 2015

The Electronic Transactions Act, No. 13 of 2015

The Evidence Act, [Cap 6 R.E 2002]

The Law of Interpretation Act, [Cap 1 R.E.2002]

The Law of Contract Act, [Cap 345 R.E. 2002]

The Penal Code, [Cap 16 R.E 2002]

The Sales of Goods Act, [Cap 215 R.E 2002]

Tanzania Revenue Authority Act; Act No. 11 of 1995

The Electronic and Postal Communications Act, Act No. 3 of 2010

Tanzania Communications Regulatory Authority Act No. 12 of 2003

Tanzania Revenue Authority Act; Act No. 11 of 1995

National Information and Communications Technology Policy, 2003

National Telecommunications Policy, 199

International Instruments

UNCITRAL Model Law on Electronic Transactions, 19961

1
GA Res 51/162, 51 sess, Agenda Item 148, UN Doc A/RES/51/162 (30 January 1997, adopted 12 June 1996).
st

vii
UNCITRAL Model Law on Electronic Signatures, 20012

LIST OF ABBREVIATIONS

AG Attorney General

ATM Automated Teller Machine.

BACS Bankers Automated Clearing Services.

GATS General Agreement on Trade and Services.

GATT General Agreement on Tariffs and Trade

GBDE Global Business Dialogue on E-commerce

ICANN The Internet Corporation for Assigned Names and Numbers

ICT Information and Communication Technology.

ISP Internet Service Provider.

CERT National Computer Emergency Response Team

PIN Personal Identification Number.

OSP Online Service Provider.

SET Secured Electronic Transfer.

TCC Tanzania Communication Commission.

TCRA Tanzanian Communications Regulatory Authority.

UNCITRAL United Nations Commission of International Trade Law.

WTO World Trade Organization.

2
GA Res 56/80, 56th sess, Agenda Item 161, UN Doc A/RES/56/80 (24 January 2002, adopted 5 July 2001).

viii
 TABLE OF CASES

Cooper Motors Corp. Ltd v. Arusha International Conference Center [1991] TLR 165 (CA)

Francis Ngaire v. National Insurance Corp. [1963] EA 56.

Harvela Investment Ltd v. Royal Trust of Canada (CI) Ltd [1986] AC 207.

Hotel Travertine limited & two Others v. National Bank of commerce Ltd. (2006) TLR at pp 133

Lewis v. Averay [1972] 1 QB 198

National Bank of Commerce v. Milo Construction Co. Ltd and two others Commercial Case No.

293 of 2002 (Unreported)

National Union Electric Corp. v. Matsushita Electric Industrial Co., 494 F. Supp. 1257

(E. D. 1980).

National Oil Tanzania Ltd v. The National Bank of Commerce Ltd and Another Commercial

Case No. 120 of 2005 (Unreported).

Slus Brothers (E.A) v. Mathias & Towari Kitomari [1980] TLR 294

Specht v. Netscape Communications Corp. (S.N.D.Y.2001)

Tanzania Cotton Marketing Board v. Corgecot Cotton Company SA [1991] TLR 165 CA.

Trust Bank Tanzania v. Le Marsh Enterprises Ltd and Others. The case of 2000 (unreported)

ix
 TABLE OF CONTENTS

CERTIFICATION...........................................................................................................................ii

DECLARATION............................................................................................................................iii

DEDICATION................................................................................................................................iv

ACKNOWLEDGMENT.................................................................................................................v

ABSTRACT...................................................................................................................................vi

LIST OF STATUTES....................................................................................................................vii

LIST OF ABBREVIATIONS......................................................................................................viii

TABLE OF CASES........................................................................................................................ix

CHAPTER ONE..............................................................................................................................1

1.1 INTRODUCTION.....................................................................................................................1

1.2 BACKGROUND TO THE RESEARCH..................................................................................1

1.3 STATEMENT OF PROBLEM..................................................................................................4

1.4 OBJECTIVES OF THE RESEARCH.......................................................................................4

1.4.1 GENERAL OBJECTIVES.................................................................................................4

1.4.2 SPECIFIC OBJECTIVES...................................................................................................4

1.5 SIGNIFICANCY OF THE STUDY..........................................................................................5

x
1.6 HYPOTHESIS...........................................................................................................................5

1.7 RESEARCH METHODOLOGY..............................................................................................6

1.7.1 Research Design..................................................................................................................6

1.7.2 Data Collection...................................................................................................................6

1.7.2.1 Primary tools............................................................................................................................6

1.7.2.2 Secondary tools.......................................................................................................................7

1.7.3 Sampling Technique...........................................................................................................7

1.7.4 Analysis...............................................................................................................................7

1.7.5 Ethical consideration...........................................................................................................8

1.8 LITERATURE REVIEW..........................................................................................................8

1.8.1 Summary of the Reviewed Literatures..............................................................................10

1.9 CONCLUSION REMARKS...................................................................................................10

CHAPTER TWO...........................................................................................................................12

THE LEGAL FRAME WORK OF E-CONSUMERS PROTECTION AGAINST CYBER

FRAUD..........................................................................................................................................12

1.1 INTRODUCTION...................................................................................................................12

2.2 DOMESTIC LEGISLATION..................................................................................................12

2.2.1 Tanzania Communications Regulatory Authority Act, No. 12 of 2003]..........................12

2.2.2 The Tanzania Communications (Consumer Protection) Regulations, 2005.....................13

xi
 2.2.3 Electronic and Postal Communications Act, 2010 [3 of 2010].........................................13

2.2.4 Fair Competition Act, [Cap 285 R.E. 2002].....................................................................14

2.2.5 The Sales of Goods Act, [Cap 214 R.E. 2000].................................................................15

2.2.6 The Bank of Tanzania Act, [CAP 197 R.E. 2002]............................................................16

2.2.7 Guidelines on Agent Banking for Banking Institutions, 2013..........................................16

2.2.8 Electronic Payment Scheme Guidelines of 2007..............................................................17

2.2.9 The Banking and Financial Institutions Act, [CAP 342 R.E. 2002].................................17

2.2.10 The Cybercrimes Act, 2015............................................................................................17

2.2.11 Law of Contract Act, [Cap345 RE 2002].......................................................................18

2.2.12 Electronic Transactions Act 2015...................................................................................19

2.3 INTERNATIONAL INSTRUMENTS....................................................................................20

2.3.1 United Nations Commission on International Trade Law (UNCITRAL)........................20

2.3.2 The World Intellectual Property Organization (WIPO)....................................................20

2.3.3 Hague Conference on Private International Law..............................................................21

2.3.4 The World Trade Organization (WTO)............................................................................21

2.3.5 The Organisation for Economic Co-operation and Development (OECD)......................22

2.4 CONCLUSION........................................................................................................................23

CHAPTER THREE.......................................................................................................................24

xii
PRESENTATION OF FINDINGS AND ANALYSIS ON THE PROTECTION OF E-

CONSUMERS AGAINST CYBER FRAUD...............................................................................24

3.1 INTRODUCTION...................................................................................................................24

3.2 THE TANZANIA COMMUNICATION REGULATORY AUTHORITY AND

PROTECTION OF E-CONSUMERS AGAINST CYBER FRAUD............................................24

3.3 PROTECTION OF E-CONSUMERS AGAINST CYBER FRAUD IN MOBILE MONEY

TRANSANCTIONS......................................................................................................................26

3.4 PROTECTION OF E-CONSUMERS UNDER THE FAIR COMPETITION COMMISSION

(FCC) AND NATIONAL CONSUMER ADVOCACY COUNCIL (NCAC).............................27

3.4.1 Fair Competition Commission (FCC)...............................................................................27

3.4.2 National Consumer Advocacy Council (NCAC)..............................................................28

3.5 RESPONSE FROM THE GENERAL PUBLIC.....................................................................29

3.5.1 Response from e-consumers.............................................................................................29

3.5.2 Response from the NGO’s and Private legal practitioners...............................................29

3.5.3 Response from service providers................................................................................30

3.5 CONCLUSION........................................................................................................................30

CHAPTER FOUR.........................................................................................................................31

CONCLUSION AND RECOMMENDATIONS..........................................................................31

4.1 INTRODUCTION...................................................................................................................31

xiii
4.2 GENERAL CONCLUSION....................................................................................................31

4.3 RECOMMENDATIONS.........................................................................................................32

BIBLIOGRAPHY..........................................................................................................................35

xiv
 CHAPTER ONE

1.1 INTRODUCTION

This study involves an appraisal of the laws protecting e-consumers against cyber fraud in

Tanzania. It also evaluates the practice of online services and goods with the aims of identifying

the possible challenges which e-consumers face when they engage in online services and goods

in Tanzania. Advancement of science and technology in Tanzania has opened up the wide range

in regard to provision of online services, where the sellers and consumers can immediately

exchange goods and services and also e-consumers can make electronic transactions through the

electronic communication.3 Consumers through online can be a able to obtain online goods and

services which offers convenience shopping, reduce costs, facilitation of price comparison and a

wider selection of goods to consumers.4

The term e-consumer is defined to mean any person who enters or intends to enter into an

electronic transaction with a supplier as the end user of goods or services offered by the

supplier.5 The term may also be defined to mean a person who buys or offers to buy goods or

services other than for purposes of re-selling or using them for manufacturing products for sale. 6

According to Back Law Dictionary (9th Edition) the term electronic commerce is defined to mean

the practice of buying and selling goods and services through online consumer services on the

Internet. Therefore, e-consumer is a person who buys goods or services through electronic
3
Section 3 of the Cyber Crime Act, No. 14 of 2015, defines electronic commerce communication to involve transfer
of sign, signal or computer data of any nature transmitted in whole or in part by a wire, radio, electromagnetic,
photo electronic photo optical system or in any other similar form
4
OECD, ‘Electronic and Mobile Commerce’ (2013) 228 OECD Digital Economy Papers
http://dx.doi.org/10.1787/5k437p2gxw6g-en
5
Section 3 of the Electronic Transactions Act, No. 13 of 2015
6
Section 2 of The Fair Competition Act [Cap 285 R.E. 2002]

1
transaction as the end user. Electronic transaction means a transaction, action or set of

transactions of a commercial or non-commercial nature, that takes place electronically. 7

E-consumers who benefits from online services undergoes several stages in the online processes

when obtaining their services. E-consumers sometimes involve intermediaries where they are

required to obtain goods or services through middlemen, unlike offline consumers who obtains

services directly from the suppliers. That being the case there is a need of having adequate and

satisfactory laws and regulatory bodies to govern and protect e-consumers against cyber fraud,

the situation which is still a challenge in Tanzania.

Tanzania has taken some reforms in legal and regulatory framework in respect to electronic

transactions. This involves also incorporation of international principles and rules provided by

the international instruments. These instruments includes principles and guidelines provided

under the UNCITRAL Model Law on Electronic Commerce, UNCITRAL Model Law on

Electronic Signatures,8 the United Nations Guidelines for Consumer Protection 9 and OECD

Guidelines for Consumer Protection in the Context of Electronic Commerce 1999 just to mention

a few.10

Although Tanzania has taken initiatives in regulating electronic transactions, but the efforts in

protecting e-consumers still face failure. The matter which will be addressed under this study.

Under chapter one the researcher will state the problem of this study, the objectives,

significances, hypothesis, and methodology and will also review the literatures in addressing the

protection of e-consumers against cyber fraud.

7
Section 3 of the Electronic Transactions Act, No. 13 of 2015
8
GA Res 51/162, 51st sess, Agenda Item 148, UN Doc A/RES/51/162 (30 January 1997, adopted 12 June 1996); GA
Res 56/80, 56th sess, Agenda Item 161, UN Doc A/RES/56/80 (24 January 2002, adopted 5 July 2001).
9
GA Res 1984/63 of 26 July 1984, UN Doc A/RES/39/248 (adopted 16 April 1985).
10
UNCITRAL and OECD model laws and guidelines are the principal e-commerce guidelines encouraging and
guiding e-commerce law reforms and enhancing consumer protection. See Hayat, above n 4.

2
1.2 BACKGROUND TO THE RESEARCH

Historically, the protection of consumers can be traced back in the classical and medieval eras

when trade was regulated through regional and social rules. The consumer affairs were much

influenced by the work of scholars, philosophers and religious leaders. During this era

technology was primitive and that being the case neither e-commerce nor cyber fraud was

experienced. For example, the writing of Marcus Tullius Cicero in his work titled De Oficiis

provided an example of merchant who travels from Alexandria to Rhodes to find a market for his

corn in a tie of famine. He was addressing the concept of moral right and expediency. 11 There

was no any other means of communicating among them apart from physical contact. Also

Thomas Acquinas, a theologian came out in elaborating the commerce before the introduction of

science and technology. He believed to have transformed the doctrine of good faith and fair

dealing into a theological tenet.12 He purported that a seller is bound to reveal secret flaws that

may occasion loss through a decrease of the value of the article, however, he has no duty to

reveal the flaw if it manifests itself. 13 Under this period the basic principles of good faith

dominated the transactions and at this time consumers were not much statutory regulated.

The development of the society affected also the nature of commerce in the society. The

common law principle of caveat emptor was introduced which requires the buyers to be aware

and make the purchasing decisions at their own risks.14 This principle placed the consumers at a

disadvantage with little protection in case of a grievance. Later the principle of warranty was

11
Anthony Duggan, Michael Bryan and Frances Hanks, Contractual Non-Disclosure (Longman, 1994) 1.
12
Walton H Hamilton, ‘The Ancient Maxim Caveat Emptor’ (1931) 40 Yale Law Journal 1133, 1138.
13
I bid
14
Reitz, John C, ‘A History of Cutoff Rules as a Form of Caveat Emptor: Part I-The 1980 U. N. Convention on the
International Sale of Goods’ (1988) 36 American Journal of Comparative Law 437

3
especially the implied warranty for quality, are one of the erasure addressing the insufficient

protection through the principle of caveat emptor.15

The concept of fraud in the legal was also introduced in the case of Langridge v Levy, 16 where a

gun bought by a father exploded in the son’s hands. The court was of the view that the son could

not seek remedy as it was the father who bought the gun. However, he could seek remedy for

fraud as the manufacturer had given a written warranty on the safety of the gun, but this was not

the case. The seller misrepresented the facts. And later the case laws propounded for the

principles which protects the customers which set a foundation for liabilities and responsibilities

for sellers.

A new wave of consumer protection concerns that emerged as a result of e-commerce. The

development of e-commerce has made it necessary to readdress consumer protection initiatives.

This is because the existing initiatives do not sufficiently answer all concerns raised in e-

commerce.17 The consumer started to engage in online commerce as the result of the expansion

of internet in 1990’s.18 But e-commerce is traced since the early 1970s when television

advertisements began to include 800 numbers to order merchandise over the phone. 19 In 1979

Michael Aldrich invented online shopping. 20 And later on in 1982 Minitel was introduced

national wide in France by the French telecom used for online ordering. This advance in

technology and e-commerce has an impact on business and consumers. New trends and features
15
Sheldon Gardner and Robert Kuehl, ‘Acquiring an Historical Understanding Of Duties To Disclose, Fraud, And
Warranties’ (1999) 104 Commercial Law Journal 168, 171
16
(1837) 2 M & W 519.
17
David Harland, ‘The Consumer in the Globalized Information Society - The Impact of the International
Organizations’ in Thomas Wilhelmsson et al (eds), Consumer Law in the Information Society (Kluwer Law
International, 2001) 6, 7.
18
Murat Ilkin, ‘Impact of E-Commerce and Use of Information and Communications Technology On Promotion and
Development of INTRA-OIC Trade’ (2003) 24 (4) Journal of Economic Cooperation 81, 81-83
19
Rolf T Wigand, ‘Electronic Commerce: Definition, Theory, and Context’ (1997) 13 The Information Society: An
International Journal, 1 < http://www.tandfonline.com/doi/abs/10.1080/019722497129241#preview >.
20
Tacz, et al., Internet-Technical Development Applications, Springer, 2009, Pg. 255

4
that did not exist before began to emerge including electronic/online sellers (e-sellers) businesses

who did not have to establish themselves in physical locations. The coming of e-commerce came

out with several risks to consumers.21

At the national level, the protection of consumers can be traced from the liberation of the

economy in 1980’s. But before, Tanzania was under socialism, and under this stage the

consumer policy and consumer law did not exist in socialist economic systems. After almost

eight years of the liberalized economy the Fair Trade Practice Act of 1994 was enacted. Later on,

the introduction of the first fiber-optic international submarine cables in 2009 brought

fundamental change to the internet market which had previously depended on costly satellite

connections.22 But generally the protection of the consumers in Tanzania is relatively new, more

specifically the e-consumers are not adequately protected thus there is a need to get appropriate

measures to address the same.23

1.3 STATEMENT OF PROBLEM

The development of science and technology has influenced also the electronic transactions. This

provides the consumer with easy and wider choice of market for the goods and services. It has

also blurred the line between the consumers and sellers where they can make transactions

without direct physical interaction. This also has raised a challenge in the protection of e-

consumers against cyber fraud.

21
I bid
22
Mark Graham, Development and Broadband Internet Access in East Africa (March 2010) Oxford Internet Institute
University of Oxford < http://www.oii.ox.ac.uk/research/projects/?id=59 >
23
Ringo Tenga, Consumer Protection in Tanzania: Challenges and Prospects for the National Consumers Avocacy
Council (NCAC), Paper Presented at the Fair Competition Commission’s Consumer Council Induction Workshop,
Morogoro, 25 April 2008.

5
Although several measures have been taken in the protection of e-consumers against cyber fraud,

in Tanzania e-consumers are still facing challenges of cyber fraud. The legal framework is

inadequate in protecting e- consumers where most of the legislation regulating commerce are

offline oriented lather than online transactions. This being the case e-consumers are facing unfair

terms and conditions, breach of privacy, misleading and misrepresentation conduct, fraud and

deception, financial loss, and the lack of opportunity to seek justice and enforce their rights due

to the absence of suitable channels or the high costs involved. But also the system has failed to

create a good condition for transparency and legal uncertainty for the e-consumers.

1.4 OBJECTIVES OF THE RESEARCH

1.4.1 GENERAL OBJECTIVES

To make an analysis of the laws and examine the practice in protection of e-consumers against

cyber-fraud in Tanzania.

1.4.2 SPECIFIC OBJECTIVES

1. To identify the legal framework for the protection of e-consumers against cyber fraud.

This will involve an appraisal of the laws in determining to which extent the laws have

addressed the concept of e-consumers against cyber fraud in Tanzania.

2. To determine the adequacy of the laws in protecting e-consumers against fraud. The

researcher will point out the possible gaps in regulations and laws available in Tanzania.

The national and international laws will be assessed to that effect.

3. To examine the effectiveness of the regulatory bodies in protecting e-consumers against

fraud. This will involve determining bodies vested with powers to regulate the e-

6
 consumers’ transactions and also the assessment on their achievement in the protection

against cyber fraud.

1.5 SIGNIFICANCY OF THE STUDY

 This study will promote the protection e-consumers against cyber fraud and hence

encourage the growth of the electronic commerce. The secured business will create

confidence to the consumers and guarantee their protection against cyber fraud.

 This research will raise awareness to the legislators on the shortcomings of law as regards

to e-consumers’ protection against cyber fraud. It will point out the gaps which are not

covered under the law so as to ensure adequacy protection of the e-consumers.

 To researchers, the study would act as a source of data for other researchers interested in

this area of laws. But also the study will be useful to students of electronic commercial

law in expanding their knowledge on the protection of e-consumers against cyber fraud.

 To the businessmen and investors who used the rigid stereotype of embracing old system

of business will be able to adopt e-commerce in their transactions. Since this research is

pointing out to guarantee protection and do away with cyber fraud, this will also

encourage local and foreign investors to invest in e-commerce which is more current and

efficient way of conducting business without having a need of physical contact between

seller and the consumers.

7
1.6 HYPOTHESIS

The researcher intends to prove that the current legal framework does not afford legal protection

of e-customers against cyber fraud.

1.7 RESEARCH METHODOLOGY

In conducting this research different methods will be employed including primary methods and

secondary methods. These are as follows.

1.7.1 Research Design

Research design is the conceptual structure within which research is conducted. It constitutes the

blue print for the collection, measurement and analysis of data. It is a logical and systematic plan

prepared for directing a research study. The study was explorative in nature, based on various

literatures including text books, legislation, articles, journey, case laws and website on the issue

of protecting e-consumers against cyber fraud. The researcher employed case study design as it

is time honoured approach and flexible for data collection. Moreover, a survey design was also

used to explore the expected results of the study within the field area of the study. Survey is a

fact-finding study involving collection of data directly from a population or sample thereof. In

additionally, comparative approach used by a researcher especially during borrowing the

experience from other countries in relation to the mechanisms used in determining protection of

e-consumers against cyber fraud.

8
1.7.2 Data Collection

1.7.2.1 Primary tools

Conducting of interview, the researcher interacted with different e-consumers, proprietors who

are sellers through e-commerce, and the bodies vested with power to register, supervise and

regulate e-commerce in Tanzania. And interview them on their understanding in respect to the

regulations and laws governing protection of –consumers against fraud in Tanzania. This tool

was used to gather information which became helpful in testing the hypotheses formulated and

come out with helpful information. Questionnaire method was also employed by researcher to

the officers at the regulatory organs, NGO’s and other officials including judicial officers who

determine the protection of e-consumers against fraud. This method became important because

most of the respondents were not accessible for an interview. Observation, this method was

applied by researcher and she successfully observe a lot in respect to the conduct of electronic

business and the challenges faced by e-consumers.

1.7.2.2 Secondary tools

Literature search, the researcher conduct research in the University of Dar es salaam law

collection library. And analyzed the texts in the books, dissertations, journals and article related

to the electronic transactions and the e-consumers and determined how those literatures are

addressing the right of e-consumers and protection against cyber fraud. Also reviews on the local

laws and international conventions/treaties so as to get overview on the legal structure in

Tanzania on the protection of e-consumers.

9
Media, also researcher conducted research on the media which includes film, radio, television

and newspaper (print). Reviewing different news reported in relation to the protection of e-

consumers against cyber fraud. This helped much in getting updates under which the citizens

especially the e-consumers’ complains. But even the mass media’s presenters, reporter and

editor’s views on the need to protect e-consumers against cyber fraud with much regard to the

intellectual’s opinions and the government official’s responses reported through Medias in

respect this matter. Websites and Computer Assisted Searches, where a researcher also

conducted research through the internet. And visited websites which were very helpful in

acquiring information.

1.7.3 Sampling Technique

The sampling technique was non-probability sampling since the researcher selected the sample

according to the needs of the research questions to be answered. Here the researcher deliberately

picked the relevant sample from a population.

1.7.4 Analysis

The research work used qualitative method of data analysis in order to determine the legal

position, practical and protection of e-consumers against cyber fraud. Qualitative analysis of data

was most appropriate since the research’s focus is centered on the effectiveness of the law in

protecting the e-consumers against fraud. The researcher based on quantitative on evaluating the

questionnaires handed out to the individual complainants, their analysis was graded in

percentage and displayed the same by use of pie charts.

10
1.7.5 Ethical consideration

The study took into consideration rights and reputations of the respondents, institutions and

individuals who are affected by the research. Various ethical considerations comprising of

confidentiality of data, behavior, and objectivity of the researcher, the use of simple language,

effect of data use, analysis and report, informed consent and reaction of participants was

observed. Regarding the informed consent, the subjects or respondents were informed on their

rights, the purpose of the study, the procedure to be undergone and the potential risks and

benefits of their participation. On the other hand, the use of simple language aimed at easy

understanding to the participants so as to minimize the possibility of coercion or undue

influence. Also the subjects’ physical, emotional and psychological capability was taken into

consideration together with the right to withdraw at any time. The respondents were further

informed that their participation was voluntary and that refusal to participate would not result in

any loss of benefits that the subject is otherwise entitled.

1.8 LITERATURE REVIEW

This part is composed of literatures which generally and specifically have addressed the

protection of –consumers against cyber fraud. Whereby they point out the legal and practical

challenges on the enforcement of the same. Authors’ perspectives have become very helpful in

conducting this research as they are cited herein below as follows.

Tenga24 when addressing the consumers’ protection framework for SUMATRA 25 in Tanzania,

contended that the advancement of technology leaves e-consumers in Tanzania in a more

24
Ringo Tenga, Consumer Protection in Tanzania: Challenges and Prospects for the National Consumers Avocacy
Council (NCAC), Paper Presented at the Fair Competition Commission’s Consumer Council Induction Workshop,
Morogoro, 25 April 2008.
25
SUMATRA means Surface and Marine Transport Services in Tanzania

11
exposed situation with a little protection.26 The situation is further exacerbated by the fact that

traditional principles of contract law are ineffective in protecting e-consumers. 27This may be due

to various factors such as access and affordability of pursuing available measures. In addressing

his writing, he failed to address the scope of cyber fraud into detail. And his reasoning was much

based on the functions of the National Consumers Advocacy Council, but the matter of cyber

fraud will be addressed under this study.

Zakayo Lukumay28 In addressing the legal challenges which faces electronic baking he pointed

out that the consumers who are engaging in electronic banking are much facing cyber fraud

which also involves among other things unauthorized e-transaction. 29 Lukumay was also of the

opinion that the laws should be amended to curter the demand of consumers protection. But also

the court system in Tanzania should be technologically advanced to ensure that they adjudicate

matters pertaining the electronic transaction. Although the legal system has undergone some

reforms but his reasoned opinion has become very useful for the purpose of this study. This is

due to the reasons that the existing laws does not adequately address the protection of e-

consumers against cyber fraud.

Zahra Mahara30 pointed out the laws which governs electronic consumers and the extent which

they are covered. In appraising the Law of Contract Act 31 and the Sales of Goods Act 32 which

was the center of her discussion she found out that the e-consumers are not adequately protected

26
Ringo Tenga, Consumer Protection in Tanzania: Challenges and Prospects for the National Consumers Avocacy
Council (NCAC), Paper Presented at the Fair Competition Commission’s Consumer Council Induction Workshop,
Morogoro, 25 April 2008. P. 14
27
I bid, P. 16
28
Zakayo Lukumay, Electronic Banking and Its legal basis in Tanzania (Lambert Academic Publishing, 2012).
29
I bid Page 80.
30
Zahra Mahara, A., Legal and Institutional Challenges facing E-commerce in Tanzania: Case study of the Law of
Contract and Sale of Goods Act (LLM Dissertation of the Open University of Tanzania, 2013)
31
[Cap 345 RE 2002]
32
[Cap 214 RE 2002]

12
against cyber fraud neither recognized under those two laws. That the definition of the term fraud

under section 17 of the Law of Contract Act does not cover cyber fraud. But also she addressed

that the Sales of Goods Act which govern the general transactions in Tanzania do only

accommodate offline transactions and it left e-consumers unattended. Generally, he was of the

view that the legal framework in Tanzania has failed to catch up with the technological

advancements. where the sphere of electronic regulation is not covered adequately. Hence it

gives room for fraud. Her reasoned opinions are very useful for this study, although she did not

focus on the cyber fraud the matter which will be addressed in this study.

Adam Mambi33 was addressing the need of having laws which reflects the advancement in

science and technology in Tanzania in his writing he discussed consumers protection where he

contended that information communication technology (ICT) in Tanzania brings challenges to

several areas of contract law and baking laws among others. That being the case even the

existing laws does not curter the current changes in the spheres of electronic commerce and

protection of e-consumers. His writing is very useful for the purpose of this study although he

did not address the concept of cyber fraud into details. This concept of cyber fraud will be

discussed under this research.

Aida O. M.34 was of the observation that Africa is in danger of being left behind on a new and

growing worldwide e-commerce. He contended that companies and the private sectors in Africa

have not been active initiators of e-commerce. That the economic situation in Africa needs to

review their laws to ensure that the existing framework reflects the current technological

advancement. His approach is very important for this study since he addressed the concept of e-

33
Adam J Mambi, ICT Law Book: A Source Book for Information & Communication Technologies and Cyber Law
(Mkuki na Nyota, 2010)
34
Aida O.M., et al, E-Commerce Challenges in Africa: Issues, constraints and Opportunities, Tunis

13
commerce, but he has failed to point out how the e-consumers are protected and also his

approach was much too general reflecting the situation in Africa not specific for Tanzania as this

study will discuss.

1.8.1 Summary of the Reviewed Literatures

Massive literatures have become useful in addressing the protection of e-consumers against

cyber fraud in Tanzania and worldwide in general. Where they mainly recommend on the need

of undergoing some amendments and enactment of new laws which will reflect the current

science and technological advances. These literatures have also been useful under this study

However, these works do not address local concerns facing Tanzanian e-consumers and do not

reflect cultural, economic and social conditions of the country. But they provide guide line but

also the researcher will mainly go into details to assess the law and practice in protecting e-

consumers against cyber fraud.

1.9 CONCLUSION REMARKS

This Chapter was an introduction and background to the study and revealed that the legal system

in Tanzania does not adequately uphold the rights of e-consumers and protection of e-consumers

against cyber fraud. Where many e-consumers are experiencing unfair transactions hence lose

confidence in engaging on online business. The researcher has pointed out the objectives of this

study, hypothesis, significances, literature review and the methodologies employed for the

fulfillment of this research. This introductory part will be a guideline in making a review of legal

framework, analyzing findings and recommendation which will be addressed in the next

chapters.

14
 CHAPTER TWO

THE LEGAL FRAME WORK OF E-CONSUMERS PROTECTION AGAINST CYBER

FRAUD

1.1 INTRODUCTION

This chapter analyses the law governing the protection of e-consumers against cyber fraud in

Tanzania. Where researcher makes an appraisal of the laws which includes domestic legislations,

15
regional and international instruments which protects e-consumers in addressing its adequate in

protecting them against cyber fraud in Tanzania.

2.2 DOMESTIC LEGISLATION

2.2.1 Tanzania Communications Regulatory Authority Act, No. 12 of 2003]

The Act was enacted purposely with the intent of regulating telecommunications, broadcasting

and postal services. Under section 4 of this Act, the Tanzania Communication Regulatory

Authority (TCRA) is established. This authority is vested with the power to regulate the

telecommunications which also involves the e-consumers and their service providers. Under

section 6(1)(b)(i)(ii)(iii) and (iv) TCRA is vested with a duty to issue license to service provider,

to establish standards for regulated goods and regulated services; to establish standards for the

terms and conditions of supply of the regulated goods and services; to regulate charges and rates

and making of rules and sectorial legislations.

Under section 16 (1)(e) it required that in making any determination with regards to regulating

rates and charges the Authority shall take into consideration the interests of the consumers.

Under these functions the Authority has much power as far as protecting e-consumers against

cyber fraud.

Section 37 establishes the TCRA Consumer Consultative Council the council which has powers

of to represent the interest of consumers by making submissions to providing views and

information to and consulting with the Council Authority, Minister and sector Ministers; to

receive and disseminate information and views on matters of interest to consumers of regulated

goods and services; to establish local, regional and sector consumer committees and consult with

16
them; to consult with industry, government and other consumer groups on matters of interest to

consumers of regulated goods and services.35 Section 40 (7) of this Act also gives room for

consumers to raise their complaints.36

Though the Act set out the regulation of telecommunications but it has failed to adequately cover

the issues arising in online actions. But also it does not clearly impose mode and the enough

mechanisms over the conduct and protection of e-consumers against fraud. But also the Act does

not impose reliefs which e-consumers may acquire upon facing cyber fraud.

2.2.2 The Tanzania Communications (Consumer Protection) Regulations, 2005

These regulations are made under Tanzania Communications Regulatory Authority Act. They

address the protection of e-consumers in a very limited scope. It only protects the consumers

who are having problems with licensed service providers described in the Act as licensees or

operators. Under Rule 3 of the Regulation a ‘licensee’ is defined to mean an entity licensed by

the Authority to provide and /or facilitate provision of postal or electronic communication

services. Also referred to as the ‘Operator’. But also the regulation has defined the consumer in a

very narrow way it has failed to protect the consumers against cyber fraud.

Rule 9 of this regulation has defined the relationship between business and consumer by being

limited to a contract for service; that the licensee shall enter into a contract for service with the

consumer. The regulation requires all postal and electronic communication operators to notify

customers about the availability of consumer complaint procedures and have in place forms to be

used for registering complaints. This is a mechanism of ensuring that the e-consumers are

protected. The provisions also require each licensee to provide a response to the customer’s
35
Section 38 (1) (a)-(d) of the Tanzania Communications Regulatory Authority Act, No. 12 of 2003]
36
For the purposes of dealing with consumer complaints, the Authority shall establish a dedicated unit which shall
receive and follow up on complaints from consumers.

17
complaint within 21 business days of receipt of the inquiry or complaint from the customer. The

provision allows for a six month period for resolving issues for electronic communication

operators; this is a long period, especially where a matter is trivial. Similarly there is a three

month requirement for postal operators.

The regulations also provide that where a person is aggrieved by the decision of the Authority,

they may appeal to the Fair Competition Tribunal established by the Fair Competition Act, 2003

(Cap 285 R.E. 2002).

These regulations has much covered in respect to the adjudication of consumers disputes. There

are also some failures in respect to e-consumers, where the regulations does not specifically

stipulates on protection of e-consumers against cyber fraud.

2.2.3 Electronic and Postal Communications Act, 2010 [3 of 2010]

Under section 124(1) of this Act the National Computer Emergency Response Team (CERT) is

established with a role of coordinating the response to cyber security incidents at the national

level and cooperating with regional and international entities involved with the management of

cyber security incidents. Establishing the CERT is a commendable effort in responding to cyber

security issues.

The Act also imposes offence in respect to the user of computer with an intention of committing

fraud by misleading e-consumers. Where it provides under section 124(3) that any person who

secures unauthorized access to a computer or intentionally causes loss or damage to the public or

any person, destroys, deletes or alters any information in the computer resources or diminish its

value or utility or affects it injuriously by any means, commits an offence.

18
This Act is very useful for the purpose of this study because it addresses on electronic

communication which is also a means of transactions and obtaining services or goods by e-

consumers. But the Act is so general and it does not cover cyber fraud into detail. The Act does

not impose obligation to the service provider to respect the interest of the e-consumers and

impose sanctions toward the service providers who commits cyber fraud.

This Act came out with the recurrent issues in respect to electronic communication. Under

section 17 of this Act, requires service providers who are also referred as licensee to provide

their services according to the conditions stipulated under the Act, which among others they

include providing quality service, consumer protection, emergence services, directory assistance

and interconnection. But also from section 103 to section 108 of this Act it provides for the

general guides which becomes fruitful to the e-consumers, For example, the regulation of online

contents which prohibit indecent, obscene, false, menacing or otherwise offensive contents from

the licensees so as to protect children, discourage the commission of crime from content

provided by content service licensees, present comprehensive, accurate and impartial news,

present religious material in a balanced and responsible manner, protect the public against

offensive and harmful content, prevent communication methods or techniques that communicate

a message to viewers or listeners, or otherwise influence their minds, without their being aware,

or fully aware, of what has occurred, or that has the potential for doing so.

They are limited in application as they only apply to licensees of content providers in the country

which includes internet service providers, television and radio broadcasters. But also the Act

does not impose obligations to them in the protection of e-consumers against fraud and also it

only covers licensed service provide not any other.

19
2.2.4 Fair Competition Act, [Cap 285 R.E. 2002]

This Act was enacted to promote and protect effective competition in trade and commerce, to

protect consumers from unfair and misleading market conduct and to provide for other related

matters.

Under section 25(1) it is provided that no person shall, in connection with the supply or possible

supply of goods or services to a person, engage in conduct that is, in all the circumstances,

unconscionable. Also Part VII of the Act entitled ‘Manufacture’s Obligations’ such as unsuitable

goods, false descriptions, non-correspondence with the sample and after sale support. These

provisions intend to protect the interest of the consumers in general against any unfair conducts

which involves cyber fraud.

Under Section 92 of this Act the National Consumer Advocacy Council is established which

mainly deals with to represent the interests of consumers by making submissions to, providing

views and information to and consulting with the Commission, regulatory authorities and

government ministries; Receive and disseminate information and views on matters of interest to

consumers; Establish regional and sector consumer committees and consult with them; Consult

with industry, government and other consumer groups on matters of interest to consumers.37

This Act do provide protection to consumers against unfair practice in Tanzania. But this Act do

mainly cover the offline consumers because it does not adequately address the e-consumers. The

issue of protection of e-consumers against cyber fraud is not specifically addressed under this

Act.

37
Section 93 of the Fair Competition Act [Cap 285 R.E. 2002]

20
2.2.5 The Sales of Goods Act, [Cap 214 R.E. 2000]

This Act regulates the sales of goods where it regulates the relationships between the seller and

the consumers and set out the laws which regulates the relations and set out the principles among

parties to that transactions who involves in that sales.

Section 2 the Act defines goods to include all chattels personal other than things in action and

money, emblements, industrial growing crops, and things attached to or forming part of the land,

which are agreed to be severed before sale or under the contract of sale. This definition limits

what should be considered goods and excludes some of the goods sold online such as software,

electronic books, audio materials and so forth. Hence the e-consumers cannot seek protection

against cyber fraud on the online matters which are not covered under the Act. But also Under

section 6 of this Act it is provided that all contracts should be in writing and signed. This means

the Act is much intending to protect the offline consumers because it is not framed to reflect

online transactions which may not require to have written and signed contracts.

But also the Act regulates the sale through Auctions which in its nature requires the parties to

meet face to face and exchange goods physically. 38 Under section 59 (d) it is a requirement that

may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved

expressly by, or on behalf of, the seller. And that where a right to bid is expressly reserved, the

seller or any one person on their behalf may bid at the auction. Under the same section it is also

stated that bids can only be retracted before the auction is completed. This provision limits the

applicability of this Act on line as far as protection of e-consumers is concerned because under

online transaction a seller may change descriptions or conditions at any time without the

knowledge of the buyer, and the buyer may only find out after the conclusion of the auction. As

38
Section 59 of the Sales of Goods Act, 1931 [18 of 1931, Cap 214 R.E. 2000]

21
there is no physical examination prior to the bidding, the buyer depends on the information that

the seller gives, including descriptions and photos, and hence changes to any such information is

likely to affect the buyer’s decision in bidding on the goods.

2.2.6 The Bank of Tanzania Act, [CAP 197 R.E. 2002]

Under section 5 of this Act the Central Bank of Tanzania is established which is vested with

powers to regulate all other banks, financial institutions and payments systems amongst others.

And under section 6(1), the Act imposes function of the Central Bank of Tanzania to include

regulating, monitoring and supervising the payment, clearing and settlement systems including

all products and services, conducting oversight functions on the payment, clearing and settlement

systems in any bank, financial institution or infrastructure service provider or company. Also

Under section 6(1) the Act gives powers to the Bank to: participate in any such payment,

clearing and settlement systems; establish and operate any system for payment, clearing or

settlement purposes; and perform the functions assigned by or under any other written law for

the regulation of payment, clearing and settlement systems. This Act is relevant since it gives the

Central Bank of Tanzania to regulate transactions which involves even e-consumers who trades

with the financial institutions. But this Act has not specifically pointed out in regard to the

protection of e-consumers against cyber fraud since its coverage is only general regulation of the

financial institutions thus service providers who are not registered under this Act remains

uncovered hence it becomes risks to the e-consumers in facing cyber fraud. The Act had no

provision for regulating online or mobile payment services until 2013 when it enacted the

Guidelines on Agent Banking for Banking Institutions, 2013.

22
2.2.7 Guidelines on Agent Banking for Banking Institutions, 2013.

Under this regulation in is when the online or mobile payments was service was recognized by

the Central Bank of Tanzania. The regulation was mainly for regulation the banking institutions

and their agents and to provide framework for conducting agent banking business in Tanzania. 39

But also under Part V, VI. it governs the operational requirements of service providers and their

agents. This guideline initially imposed the provisions regulating online or mobile payment

services, something which was initially not recognized in the Bank of Tanzania Act.

2.2.8 Electronic Payment Scheme Guidelines of 2007

These only addressed and covered risk management for banks and other financial institutions.

This guideline has failed to adequately cover the scope of electronic payments, where it is much

focusing on the registered financial institutions left a lot of the service providers uncovered

hence puts the consumers in danger of fronting cyber fraud.

2.2.9 The Banking and Financial Institutions Act, [CAP 342 R.E. 2002]

This Act provides for regulation and supervision of the activities of banks and other financial

institutions. Under section 4 of this Act the Central Bank of Tanzania is given power to grant

licenses, carry out inspections over the operations of all banks or financial institutions, and

requires any bank or financial institution to furnish any information or to comply with any order,

directive or determination issued or made by the Bank pursuant to all the powers of the Bank

conferred under the Act. Also under section 5 the objective is to maintain the stability, safety and

soundness of the financial system and to reduce the risk of loss to depositors.

39
Simone di Castri and Lara Gidvani, Enabling Mobile Money Policies in Tanzania: A “Test and Learn” Approach to
Enabling Market-Led Digital Financial Services (February 2014) 6
<http://www.gsma.com/mobilefordevelopment/wp-content/uploads/2014/03/Tanzania-Enabling-Mobile-Money-
Policies.pdf >.

23
This Act has provided general protection of the consumers in Tanzania in regard to financial

transactions but it has failed to encompass the provision which specifically regulate electronic

transaction/payments for the protection of e-consumers against cyber fraud.

2.2.10 The Cybercrimes Act, 2015

This Act impacts in respect to the protection of e-consumers in electronic transactions where it

imposes penalties to cybercrime offenders. This Act defines "property" to mean property of any

kind, whether movable or immovable, tangible or intangible, and includes; any currency either as

a legal tender in the United Republic of Tanzania or not; information, including an electronically

produced program or data or copy thereof, human or computer-readable data; or any right or

interest in property.40

Under section 12 (1), the Act elaborates in relation to computer related fraud, stating that a

person shall not cause a loss of property to another person by; any input, alteration, deletion,

delaying transmission or suppression of computer data; or any interference with the functioning

of a computer system, with fraudulent or dishonest intent. But also under section 39 of the Act it

is provided that When providing services in accordance with the provisions of this Part, a service

provider shall not monitor the data which the service provider transmits or store; or actively seek

facts or circumstances indicating an unlawful activity.

This Act has in great extent regulated the use of internet and other electronic means. But the Act

does not specifically regulate the conducts of the e-consumers against cyber fraud.

40
Section 3 of the Cybercrime Act, No. 14 of 2015.

24
2.2.11 Law of Contract Act, [Cap345 RE 2002]

This is a principal law for contracts in Tanzania. Section 4 of the Act provides for the time when

acceptance becomes effective that is when contract is said to be concluded. Under the wording of

section 4 it becomes difficult to determine when the contract between e-consumers and the

service provider in online transactions become complete. This being the case the protection of

the e-consumers under the online contract becomes very difficult since it is difficult to prove as

the law is silent to that effect. Also under section 13 and 14 of this Act requires the contract to

have free consent between contracting parties. This becomes a challenge to electronic contracts

since parties are not together physically. And it becomes difficult to realize if the parties meet

their mind.

Under section 10 which prescribes the requirement for the contract to valid contract where it

states that All agreements are contracts if they are made by the free consent of parties competent

to contract, for a lawful consideration and with a lawful object, and are not hereby expressly

declared to be void. But also on the same provision it express that by which any contract is

required to be made in writing or in electronic form or in the presence of witnesses, or any law

relating to the registration of documents.41

2.2.12 Electronic Transactions Act 2015

This Act provides for the legal recognition of electronic transactions, e-Government services, the

use of Information and Communication Technologies in collection of evidence, admissibility of

electronic evidence, to provide for the facilitation of use of secure electronic signatures; and to

provide for other related matters. Under this Act the e-consumer is considered where the Act

defines “consumer” to mean any person who enters or intends to enter into an electronic
41
Section 10 of the Law of Contract Act, as amended by section 39 of the Electronic Transactions Act 2015.

25
transaction with a supplier as the end user of goods or services offered by the supplier. 42 But also

“electronic transaction” has also been defined to mean a transaction, action or set of transactions

of a commercial or non-commercial nature, that takes place electronically. 43

Part II of the Act, has elaborated clearly on the recognition and effect of electronic transaction.

Where section 4 of the Act elaborates that a data message shall not be denied legal effect,

validity or enforceability on the ground that it is in electronic format. Under Part IV of the Act

provides for the admissibility of evidential weight of data messages. This gives room for the e-

consumer to access justice by allowing the admissibility of electronic evidences in the court of

law. Also section 21(1) (2) of the Act it is provided that for avoidance of doubt, a contract may

be formed electronically unless otherwise agreed by the parties. And that where an electronic

record is used in the formation of a contract, that contract shall not be denied validity or

enforceability on the ground that an electronic record was used for that purpose.

The Act has also specifically stipulated for the protection of e-consumers under Part VI. Where

under section 28(1) of the Act provides that a supplier offering goods or services for sale, hire or

for exchange electronically, shall provide the following information to consumers; full name,

legal status and place of business; contact details including physical address, telephone and e-

mail addresses; a full description of the goods or services offered; the price of the goods or

services; information on the payment mechanism that complies with other written laws; and any

other relevant information. But also it is provided that before a consumer places an order, the

supplier shall provide the consumer with an opportunity to- review the entire electronic

transaction; correct any mistake; and withdraw from the transaction.44

42
Section 3 of the Electronic Transactions Act 2015
43
I bid
44
Section 28 (1) of the Electronic Transactions Act, 2015.

26
Although this Act has addressed different matter on the protection of e-consumers like suppliers

disclosure of his personal information before entering into transactions with the e-consumer, but

it has failed to point out what amounts to cyber fraud and the proper mechanisms of protecting e-

consumers against cyber fraud.

2.3 INTERNATIONAL INSTRUMENTS

2.3.1 United Nations Commission on International Trade Law (UNCITRAL)

UNCITRAL is the United Nations Commission on International Trade Law. Established by the

United Nations in 1966 to harmonize the law of international trade, it is a core legal body of the

United Nations system that works to create accessible, predictable and unified commercial laws.

UNCITRAL created a Model Law on Electronic Commerce in 1996 to enhance the use of

paperless communication.45 In 2001, it created a Model Law on Electronic Signatures. Future

electronic commerce work will focus on: electronic contracting, with a view to creating a draft

convention; online dispute settlement; dematerialization of documents of title; and a convention

to remove legal barriers to the development of electronic commerce in international trade

instruments. This facilitates the protection of e-consumers against cyber fraud.

2.3.2 The World Intellectual Property Organization (WIPO)

WIPO is an international organization that promotes and protects original works in the realms of

art, science and technology. Although WIPO was formed in 1970, its roots go back as far as the

1883 Paris Convention for the Protection of Industrial Property. In 1974, WIPO became a

45
Adam J Mambi, ICT Law Book: A Source Book for Information & Communication Technologies and Cyber Law
(Mkuki na Nyota, 2010). Pg. 180

27
specialized agency of the United Nations with the mandate to administer intellectual property

matters recognized by the Member States of the United Nations. 46

WIPO has created a Digital Agenda to respond to the confluence of the Internet, digital

technologies and the intellectual property system. Through international discussions and

negotiations, WIPO is formulating new ways in which intellectual works can be disseminated,

while at the same time ensuring the rights of their creators remain protected. 47 The Digital

Agenda also aims to: integrate developing countries into the Internet environment through such

tools as the use of WIPO net and the electronic delivery of information and services; rethink how

intellectual property law works in Internet transactions and examine emerging new norms in this

respect; facilitate the creation of effective online systems to resolve disputes; and coordinate and

ensure the development of efficient and consistent responses to common concerns across

national and multi-sectoral boundaries.

2.3.3 Hague Conference on Private International Law

The Hague Conference is an intergovernmental organization that works to unify private

international law rules. The first session of The Hague Conference was held in 1893; after seven

more sessions, a statute came into force in 1955 making the Conference a permanent

organization. The Conference, which has 59 Member States, holds plenary sessions every four

years to discuss and adopt draft conventions and recommendations and make decisions on the

working agenda of the Conference. Non-Member States invited to participate on an equal footing

with Member States can vote at plenary sessions. The Conference is organized by a secretariat

(the Permanent Bureau) which has its seat at The Hague and whose officials must be of different

46
http://www.wipo.org. (Accessed on 20th April 2018)
47
I bid

28
nationalities. The Bureau organizes the plenary sessions and maintains contacts with Member

States, international organizations and users of the conventions.48

In relation to e-commerce, in 1999, the Conference held a round-table discussion (in conjunction

with the University of Geneva) with experts in various fields on issues arising from e-commerce

and Internet transactions.49 A series of recommendations were adopted in such areas as online

contracts, business-to-business and business-to-consumer transactions and online dispute

resolution. In June 2001 the Conference held its Nineteenth Session to work towards a new

Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters and to

decide on its future work programmer. Delegates based their discussions on both a Preliminary

Draft Convention drawn up in October 1999 and on the results of formal and informal meetings

of experts on e-commerce and intellectual property.

2.3.4 The World Trade Organization (WTO)

The World Trade Organization (WTO) is the international organization that deals with the rules

of trade between nations. Based in Switzerland, WTO was formed in 1995 as the successor of

the General Agreement on Tariffs and Trade (GATT), which set up a multilateral trading system

shortly after World War II.

At the 1998 ministerial meeting, WTO members agreed to study trade issues arising from global

electronic commerce, focusing on how do existing WTO agreements impact e-commerce? any

weaknesses or omissions in the law which need to be remedied? are there any new issues not

now covered by WTO system on which members want to negotiate new disciplines? Since then,

issues related to e-commerce have been examined by WTO councils in the areas of services,

48
http://www.hcch.net/ (Accessed on 20th April 2018)
49
I bid

29
goods, intellectual property and trade and development. A seminar on "Government Facilitation

of E-commerce for Development" was held in June 2000, at which speakers from developing and

developed countries, international organizations and the private sector addressed issues related to

e-commerce and development. Each of WTO bodies working on e-commerce issues has

produced progress reports for the General Council.50

2.3.5 The Organisation for Economic Co-operation and Development (OECD)

OECD grew out of the Organization for European Economic Cooperation established in 1961. E-

commerce has become an area of focus for OECD because of its trans-border nature and its

potential for all countries in the areas of economic growth, trade and improved social conditions.

It has developed policy in areas ranging from telecommunication infrastructure and services to

taxation, consumer protection, network security, privacy and data protection, as well as emerging

markets and developing economies. It has also tasked to ensure the implementing aspects of the

OECD Guidelines for Consumer Protection in the Context of Electronic Commerce; promoting

the use of privacy-enhancing technologies and user education and awareness about online

privacy issues; studying the effects of e-commerce on cross-border trade in financial services, on

contract law and on electronic delivery of insurance products; studying access to high-bandwidth

information and communication technologies at affordable costs in rural as well as in urban

areas; researching the needs for and constraints to, capacity development for trade faced by

developing countries; and disseminating its work on e-commerce to member and non-member

countries through other international organizations.51

50
http://www.wto.org. (Accessed on 20th April 2018)
51
http://www.oecd.org. (Assessed on 20th April 2018)

30
2.4 CONCLUSION.

Basing on this Chapter the concept of protection of e-consumers against cyber fraud is elaborated

into detail. The legal framework in Tanzania and at international level governing protection of

consumers against cyber fraud has been appraised to determine the extent to which they are

satisfactory for the consumer’s interests. And it has been observed under this chapter that the

legal system in Tanzania requires to undergo some changes to ensure that the laws are

adequately protecting e-consumers against cyber fraud in reflection to the current science and

technological changes.

CHAPTER THREE

PRESENTATION OF FINDINGS AND ANALYSIS ON THE PROTECTION OF E-

CONSUMERS AGAINST CYBER FRAUD

3.1 INTRODUCTION

This chapter provides for the analysis of laws, literatures and data collected from the field in

examining the strengths of laws in the protection of e-consumers against cyber fraud in

Tanzania. This chapter also provides the study findings from respondents who interviewed and

who supplied questionnaires to make research study complete. In this study, people were

interviewed and questionnaire were distributed and all were filled and brought back after filled

31
hence constituted 100% of the targeted audience. This means to a large extent, the study was

successful in collecting and getting information as it was intended.

For the success of this study different respondents provided their views in respect to their roles

and perceptions in the protection of e-consumers against cyber fraud. The researcher managed to

collect data from TCRA (Tanzania Communications and Regulatory Authority), The Fair

Competition Commission, the National Consumer Advocacy Council, the financial institutions,

private practitioners, NGO’s and the e-consumers as it will have discussed herein below.

3.2 THE TANZANIA COMMUNICATION REGULATORY AUTHORITY AND

PROTECTION OF E-CONSUMERS AGAINST CYBER FRAUD.

TCRA is the authority which is established under section 4 of Tanzania Communications

Regulatory Authority Act,52 with the main purpose of regulating the telecommunications,

broadcasting and postal services.53 In regulating telecommunication, they basically involve

protection of e-consumers in their electronic transactions. It was observed that TCRA do provide

license to the service providers of the online services but also they regulate the provisions of that

services.54

TCRA Consumer Consultative Council55 the council which has powers to represent the interest

of consumers. The Council consist of not less than seven members and not more than ten

members appointed by the Minister from amongst a list of names provided by members of the

52
No. 12 of 2003
53
Section 4 of the Tanzania Communications Regulatory Authority Act No 12 of 2003
54
I bid Section 6 & 16
55
I bid Section 37

32
business community or by an organization or organizations legally recognized as being

representative of private sector interest.56

It has been observed by researcher that the council plays a vital role in the protection of

consumers who also includes e-consumers who are the target in this study. Where among other

things there are tasked to making submissions to providing views and information to and

consulting with the Council Authority, Minister and sector Ministers; to receive and disseminate

information and views on matters of interest to consumers of regulated goods and services; to

establish local, regional and sector consumer committees and consult with them; to consult with

industry, government and other consumer groups on matters of interest to consumers of regulated

goods and services.57

This being the case the council is in great position of providing and ensuring the security of the

e-consumers in regard to the cyber fraud which is transcending in the country due to the science

and technological advancements.

The researcher has observed that the council is uncounted by some challenges which makes the

council ineffective, these includes limited powers on imposing sanctions to the service providers.

But also inadequacy of the law makes the TCRA not able to adequately protect e-consumers

against cyber fraud. Thus the realization of security to the e-consumers against cyber fraud in

Tanzania becomes a challenge.

56
I bid section 37 (2)
57
Section 38 (1) (a)-(d) of the Tanzania Communications Regulatory Authority Act, No. 12 of 2003]

33
3.3 PROTECTION OF E-CONSUMERS AGAINST CYBER FRAUD IN MOBILE

MONEY TRANSANCTIONS.

It has been observed that many e-consumers do make their payments through Mobile money

transfer in Tanzania. Mobile Money Transfer means the transfer of money or a financial

transaction under taken using a mobile phone. In Tanzania mobile money transfer was

introduced in 2007 by Vodacom Tanzania known as M-Pesa. Other mobile money service

providers include Artel (Artel-Money), Tigo (Tigo-Pesa), Zantel (Ezy-Pesa), Halo-Pesa. All

these mobile money service providers facilitate to a great extent the transactions which are

conducted through the internet and due to the nature of the business the e-consumers do use

mobile money to make payments for online services. That being the case its protection becomes

of paramount advantages.

Mobile money has become useful in the payments of bills and utilities which involves decoder

bills, school fees, water bills, withdrawing money from the bank though the mobile (mobile

banking), buying airtime and electricity bills. But also many consumers do transfer their money

during the purchasing of goods through online and others do preserve their money for future use.

The researcher has observed that the great security challenges which e-consumers faces when

using mobile money is cyber fraud where service provider or people who claims to be service

provider while they are not, with fraud intent do use the system to mislead the consumers so that

they can maliciously accumulate money. Then the consumer’s transfers money to the wrong

person and customers’ PIN numerical being diverted to third person without the customer’s prior

knowledge.

34
In Tanzania the mobile money is regulated under the law. And the Financial Intelligence Unit

(FIU) is vested with the power to regulate the mobile money, where in 2013 under the Bank of

Tanzania Act,58 the Central Bank of Tanzania passed the Guidelines on Agent Banking for

Banking Institutions of 2013 under this regulation in is when the online or mobile payments

service was recognized by BOT. The regulation was mainly for regulating the banking

institutions and their agents and to provide framework for conducting agent banking business in

Tanzania.59 But also under Part V, VI. it governs the operational requirements of service

providers and their agents. The Electronic Transactions Act, of 2015 also came out to recognize

the electronic transactions and it also imposes duties of suppliers to online consumers.60

It was observed that apart from having the laws which regulates the mobile payment, still the law

is inadequate in the protection of e-consumers against cyber fraud. That there is no specific law

governing these mobile phone companies supported financial service and also the requirements

for capital reserves and accounts as applicable to licensed banks for security purposes do not

apply to the mobile phone companies. Meaning that in case the mobile phone companies are

declared bankrupt or for any other reason or cause collapse, then the customers who have

deposited their cash with the mobile phone companies would have no security to rely upon.61

58
[CAP 197 R.E. 2002]
59
Simone di Castri and Lara Gidvani, Enabling Mobile Money Policies in Tanzania: A “Test and Learn” Approach to
Enabling Market-Led Digital Financial Services (February 2014) 6
<http://www.gsma.com/mobilefordevelopment/wp-content/uploads/2014/03/Tanzania-Enabling-Mobile-Money-
Policies.pdf >.
60
Section 28 of the Electronic Consumers Act of 2015.
61
Mwiburi, A. J., (2011) “Legal Implications of the Developments in ICT: An Appraisal of the EPOCA, 2010 in
Relation to Cybercrime in E-Commerce in Tanzania”, UDSM, LL.M. Dissertation at pp. 53 and 54

35
3.4 PROTECTION OF E-CONSUMERS UNDER THE FAIR COMPETITION

COMMISSION (FCC) AND NATIONAL CONSUMER ADVOCACY COUNCIL (NCAC).

3.4.1 Fair Competition Commission (FCC)

FCC is established under the Fair Competition Act 62 and it constitutes five members who are; a

Chairman, who is a non-executive appointed by the President; three non-executive members

appointed by the Minister; and the Director-General of the commission who is appointed by the

minister from amongst a list of names submitted by the Nomination Committee. 63 The committee

among other thing is vested with the duty to promote and protect effective competition in trade

and commerce, and also to protect consumers from unfair and misleading market conduct and to

provide other related matters.64

It has been observed by researcher that FCC is still faced with many challenges in the protection

of e-consumers against cyber fraud. Where the respondents from FCC witnessed that many

cases/complaints at the commission involves the offline transactions. Where claims in relation to

online are not much dealt with because it is not adequately protected and many e-consumers fails

to testify on their alleged cyber fraud. That this issue is much facilitated by technological

barriers, as they fail to obtain electronic evidences. But also they testified that another challenge

which they encounter is lack of awareness to the public. That many members of the public do fail

to come across the fair competition commission because they are not aware of FCC and its

functions. Thus the FCC fails to protect the e-consumers against cyber fraud to that effect.

62
Section 62 of the Fair Competition Act [Cap 285 R.E. 2002]
63
I bid section 26 (6) & (7)
64
I bid section 65 (!) & (2).

36
3.4.2 National Consumer Advocacy Council (NCAC)

National Consumer Advocacy Council is established under Section 92 of the Fair Competition

Act65 and The Council consist of not less than five members and not more than ten members

appointed by the Minister66 to represent the interests of consumers by making submissions to,

providing views and information to and consulting with the Commission, regulatory authorities

and government ministries; Receive and disseminate information and views on matters of

interest to consumers; Establish regional and sector consumer committees and consult with them;

Consult with industry, government and other consumer groups on matters of interest to

consumers.67

It was observed by the researcher that the National Consumer Advocacy Council has very

limited powers in assuring the protection of e-consumers against cyber fraud. Where according

to Dr. R.W. Tenga who was once a appointed member of the council stated that NCAC It is

styled as an Advocacy Council, but an analysis of the functions of the Council tends to be highly

advisory rather than those of Advocacy.68 But also it was observed that the member of public are

unaware of the protection of consumers against cyber fraud. That the NCAC has conducted

Zonal Consumer Committees initiatives through the Consumer Awareness Seminars hosted by

the FCC with the objective of inviting the Civil Society in the Zonal Center and relate them to

Consumer Advocacy.69 But also the Council is much concerned with the offline practice and very

little efforts was put in respect to the e-consumers against cyber fraud, it has no adequate and

65
[CAP 197 R.E. 2002]
66
I bid Section 92 (2)
67
I bid Section 93
68
Dr. R.W. Tenga Consumer Protection Framework for Surface Transport Services in Tanzania [SUMATRA CCC
Workshop, Morogoro, June 6, 2008]
69
I bid

37
effective plans of dealing with the electronic services to ensure that e-consumers are free from

cyber fraud.

3.5 RESPONSE FROM THE GENERAL PUBLIC

3.5.1 Response from e-consumers

The respondent managed to collect information from e-consumers and other offline consumers

which become very useful for the success of this study. She interviewed 30 peoples and 60%

claimed to have engaged in electronic transactions. It was observed from them that all of the

interviewed consumers was not expert in computer knowledge (ICT) and it was only 20% who

was having background knowledge on the use of computers. It was in the e-consumers’ opinions

that they do not have their special e-consumers’ union which will look upon their affairs and

promote their security against cyber fraud. That they also lack enough skills in electronic

transactions and information communication technology thus it becomes difficult to get rid of

cyber fraud. They also claim to lack knowledge on the ways to institute claims or complains on

cyber fraud. It was observed by the researcher that it was only 40% of the interviewed

respondents who were aware of the existing legal framework or institutions dealing with the

affairs of the e-consumers apart from the court system. Thus they claimed that the legal

framework is inadequate in protecting e-consumers against cyber fraud and also the government

has failed to impose effective mechanisms which protects the e-consumers against cyber fraud.

3.5.2 Response from the NGO’s and Private legal practitioners.

The respondent conducted interview to the NGO’s which involves visiting Legal and Human

Rights Center (LHRC) where he obtained enough information in respect to the protection of e-

38
consumers against cyber fraud. To them they claimed that e-consumers’ needs to have enough

protection because failing to do so will infringe their rights to freedom of conducting business.

But also they raised a concern that the government have invested a little financially to the bodies

which protected e-consumers against cyber fraud to be able to accommodate the changes which

are influenced by the science and technological advancements. And the laws are inadequate to

reflect the current situation of conducting electronic transactions.

3.5.3 Response from service providers

The researcher managed to interview three service providers who uses online services. Both of

them claimed that they are engaging on online provision of services and they make their

advertisements through social networks which includes Facebook, Instagram, WhatsApp and

Twitter. They claimed that due to the advancement of science and technology this online system

has become more beneficial because they can easily access many e-consumers at once and

provide their services. But also they were of the view that the regulation of their business is not

adequate thus many service providers who are not registered can engage in cyber fraud without

being caught. Thus the legal framework and bodies with powers to protect e-consumers should

be empowered enough for it to realize adequate provision of protection of e-consumers against

cyber fraud.

3.6 THE COURT OF LAW AND PROTECTION OF E-CONSUMERS ON CYBER

FRAUD.

The respondent managed to visit the court’s premises where she managed to go to the Resident

Magistrate Court of Kinondoni at Kinondoni and managed to observe the conduct in handling the

cases and general practice of the court. At that court the researcher observed that the court lacks

39
computers although some of the magistrates have their personal computers (Laptops) but also

they are not well trained on how to use them. This has become a challenge since handling the

claims in relation to cyber fraud requires trained personnel who have enough understanding in

the computer and information communication technology. But also there are no enough

resources which includes access of internets at the court premises and there is no reliable and

sufficient supply of electricity. This being the case handling of cases which is in regard to

electronic transactions on the protection of e-consumers against cyber fraud becomes very

difficult.

3.5 CONCLUSION

The advancement of science and technology is transcending very fast and many sectors in

Tanzania has improved to catch-up with such developments. But in legal sector the laws are

advancing very slowly. That being the case e-consumers becomes unsecured against cyber fraud

when dealing with the online services because the laws are inadequate. But also the inadequacy

of laws limits the powers of the organs which are dealing with the protection of e-consumers like

NCAC, TCRA and FCC.

40
 CHAPTER FOUR

CONCLUSION AND RECOMMENDATIONS

4.1 INTRODUCTION

This chapter includes conclusion of the research having analyzed facts, concept, practice and

laws from the research findings. It is on that premises a researcher may draw a conclusion and

make some recommendations on what should be done by the authorities charged with the

responsibility of making legislations and the overseeing the protection of e-consumers against

cyber fraud.

4.2 GENERAL CONCLUSION

The advancement of science and Technology in Tanzania and the whole world at large has

influenced the changes especially in respect to the financial sector and delivery of online

services. This also facilitate the increase of e-consumers and hence the practice of cyber fraud

increases tremendously. The increase of the online services is due to the reason that the online

service is efficient, faster, cheaper, user-friendly and ubiquitous. But it has also revealed that the

legal framework has some loopholes in the protection of e-consumers against cyber fraud and

also the authorities vested with the power are inefficient in the realization of the security of e-

consumers against cyber fraud.

It was also observed by the researcher that the general public who are e-consumers in the online

services and who encounter cyber fraud are not aware of the existing legal frame work hence

when they face online challenges they fail to claim for their rights. This is also facilitated by their

41
illiteracy especially in relation to an understanding on Information Communication Technology

where they unknowingly become influenced and encounter cyber fraud.

It has been observed by researcher that Tanzania is still lacking enough personnel who are

trained in electronics; Who includes the engineers, programmers, software developers and

computer system administrators. This being the case many bodies vested with the powers to

protect e-consumers fails to meet the demanding environment which has advanced technology

hence the cyber fraud becomes transcending.

The bodies which regulation of the conducts of online services have very limited powers under

the law hence it becomes difficult for them to adequately protect e-consumers against cyber

fraud. For example, the National Consumer Advocacy Council has very limited powers of

providing advice and recommendations to FCC lather that having power to impose serious

punishments to the foul actors or compensating the e-consumers who faces cyber fraud.

The researcher observed also that the judicially which handles cases concerning cyber fraud

lacks trained personnel who are expert in information communication technology, but also there

are no adequate infrastructure of handling the cases which involves online transactions. Many

courts have neither computers nor internet access. This being the case it becomes difficult in

admitting electronic evidences in the court thus many e-consumers fails to get their rights.

4.3 RECOMMENDATIONS

Having observed and examined different concepts, laws, practice and facts in relation to the

protection of e-consumers against cyber fraud the researcher do herby recommends as follows:

42
It is recommended that the legislature should enact laws which will specifically address the

matter of protecting e-consumers against cyber fraud. This will also involve harmonization of the

existing law so that to have a single law with clear regulation of the protection of e-consumers.

This will also consider the advancement in science and technology in Tanzania and the whole

world at large. But also the existing laws which is dealing with electronic transactions, sales of

goods, law of contract, company, business registrations, capital market and securities, banking

and financial institutions should be amended to reflect the current technological changes. And

also should insert in the provisions which will have an impact of protecting the e-consumers

against cyber fraud. But also the country should take necessary measures to adopt and ratify the

international instruments which provides for and protects the rights of e-consumers against cyber

fraud.

It is also recommended that there should be public awareness on the use of electronics and all e-

consumers should be aware in regard to the possible ways to overcome cyber fraud. This should

involve avoiding making money transactions and demanding service from unregistered service

provider. But also special training should be provided to the service provider and to the

authorities vested with power of protecting e-consumers against cyber fraud. The engineers,

programmers, software developers and computer system administrators should figure out the

way to create the good environments of combating cyber fraud against e-consumers and also

their skills should be applied in enacting laws to that effect.

The mobile network companies in Tanzania which includes Vodacom Tanzania, Tigo, Airtel,

TTCL and Halotel should be regulated in the provision of their services to ensure that the e-

consumers are protected against cyber fraud. As it has been found by researcher that mobile

money is the most way of payments which e-consumers use to complete their online transactions

43
upon making their orders. That being the case, there should be specific laws protecting e-

consumers when making such electronic transactions. But also the mobile network companies

should advance their services in respect to the registration of users, e-consumers and service

provider so that they can be able to avoid and get back money which is illegally transferred from

e-consumers.

Tanzania Communication Regulatory Authority (TCRA) should improve their legal framework

and the regulation authorities which involves increasing personnel who are skilled in electronic

transactions to ensure that there are conducive environments for e-consumers’ security against

cyber fraud. But also TCRA should work hand in hand with Fair Competition Commission

(FCC) to ensure sufficient protection of e-consumers against cyber fraud.

But also the Fair Completion Commission should prosecute the foul actors in electronic

commerce and electronic services and give harsh punishments to secure deterrence. 70 The laws

also should be amended to that effect, to give the FCC powers to impose harsh punishment to

people who commits cyber fraud and adequate compensation to be granted to e-consumers so

that other foul actors will learn a lesson. But also the National Consumer Advocacy Council

(NCAC) should be given powers under the law to ensure efficient advocating on the protection

of e-consumers against cyber fraud. But also the council should be adequately funded to ensure

that there are enough resources to facilitate advocating for the protection of e-consumers against

cyber fraud.

The Governments through the ministry responsible should extend it budgets to finance the sphere

of technological control so that they can come out with the solution of cyber fraud to e-

consumers. This will should include the governments funding the bodies responsible in
70
The-Guardian, (2013, April, 25th) “Government to Set up a Board to Supervise Cyber Activity”. At pp. 1, 2.

44
conducting seminars in providing public knowledge to e-consumers. Funding should ensure

increase of man power in the regulation of online services.

The judicially which handle cases should ensure that they have good mechanisms which will

facilitate the process of admitting and tendering electronic evidences and also handling the cases

of cyber fraud which are instituted by e-consumers for realization of the e-consumers’ rights.

The laws which regulate the proceedings of the suits in the court should be amended to

accommodate e-consumers against cyber fraud in Tanzania. But also the Judges, Magistrates and

other judicial personnel should be given special trainings in respect to dealing with the protection

of e-consumers against cyber fraud. This will involve an understanding on information

communication technology (ICT). But also the court system should be given enough computers

with internet access which will facilitate the adjudication of the cyber fraud cases.

45
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