Cyber Crime

CYBER CRIME
INTRODUCTION
OBJECTIVE
• To equip student with brief knowledge relating to the concept

cyber crimes and crimes
• To equip students with knowledge regarding the sources of law
on cyber crimes, the nature of crimes and elements of crimes,
negligence and strict liability offences.
CRIMES AND CYBER CRIMES
• A crime is an offence against the state/the public, although the victim of a

crime may be an individual. It is an offence against the state because it
breaches public rights and duties. And crimes are prosecuted by the state
since they involve the violations of public rights.
• Cyber crime can be referred to as the use of any computer network or
related to committing a crime OR any criminal offence committed against
or with the help of a computer network or internet. For example, a
criminal may hack into one’s computer and then use the hacked device to
send a malicious code, or they may just steal confidential information or
cause data interference in financial transactions to steal finances/ money
directed to other people and make them theirs. Other cyber crimes which
are prevalent in today’s world include cyberbullying, cyber defamation, and
pornography, to mention a few.
SOURCES OF LAW
Crimes are governed by public law, and that is to say, the sources of law governing crimes
are under public law. For a person to be charged with a criminal offence, there has to be a
law providing for that, and in law, we call that nullum crimen sine lege or nulla poena sine
lege meaning no crime without law, no punishment without law. That is to say; a person
may not be punished unless her conduct was defined as criminal before she acted.
The following are the sources of law on crimes in Tanzania: -
The constitution of the united republic of Tanzania of 1977, as amended from time
to time.
• This is the grundnorm or the mother law, where all laws owe their origin, and all laws that
go against the constitution are null and void. Article 64(5) of CURT explicitly states that
any law that goes against the Constitution becomes null and void; this is to say that the
laws have to conform with the Constitution’s provisions. The same constitution in the Bill
of Rights provides for basic rights which if breached or contravened, become an
offence/crime example; the constitution provides for the right to personal security or
privacy; breach of these is an offence.
•
STATUTES
• There are several statutes governing the administration of criminal law, the law governing
crimes and criminal law. For example, in matters relating to cyber security, we have several
laws such as the cyber crimes act, the penal code, the criminal procedure act, sheria ya
ulinzi wa taarifa binafsi ya 2003, money laundering act, the Electronic and postal
communication Act with its regulations, the electronic transactions act, the evidence act,
the law of contract act.
The Cyber Crimes Act, 2015
• This legislation was enacted to hinder activities involving misuse or transfer of data illegally
from one computer to another with the aim of declaring some of those acts or omissions
illegal and imposing sanctions thereto. The act also helps to avoid activities relating to
illegal data interference in financial transactions, child pornography, internet bullying,
illegal access to computer systems, illegal remaining to the computer after the time of
staying expires, prohibition of illegal devices, identity-related crimes where a person
impersonate himself as another and cyber defamations. The cyber crimes act has
criminalized these activities, some of which were previously treated as civil wrongs, such as
defamation and internet bullying. The Act covers all parts of Tanzania’s mainland and
Zanzibar; and saves for the provision of S. 50 of the Act, which provides for compounding
offences.
The Electronic and Postal Communication Act.
The Act provides for different requirements to be adhered to by licensed institutions

regarding protecting the right to privacy. Specifically, S. 35(2) of the Act protects the right to
privacy. The institutions under the postal services must ensure that the right to privacy is of
the utmost importance and that the customers’ information is to be undertaken under a
fiduciary relationship.
Under this law, a person commits an offence if he unlawfully intercepts or procures another
person to intercept or attempts to intercept any communication. Or he discloses or attempts
to disclose, use, or use any information obtained by way of interception. (see the Provision
of S. 120)
The law also penalises fraudulent use of network facilities, network service applications, and
content services. (Section 121)
PRECEDENTS/CASE LAWS
These are cases decided by the superior court or courts of records, which are the sources of law, specifically cybercrime.
• PSSSF v. Siriel Mchembe (Civil Appeal No. 126 of 2018, CAT at DSM). In this case, Mchembe claimed compensation of
100 million to his previous employer being compensation for publishing defamatory statements in Jamii forum and
Wazalendo forum that she is possessed with the evil spirit of prostitution and adultery at the workplace.
• Jamii Media Company Ltd v. The AG & IGP, (Miscellaneous Civil Cause No. 9 of 2016, High Court of Tanzania at Dar es
Salaam). In this case the petitioner challenged the provision of Section 32 and Section 38 of Cyber Crimes Act to be
unconstitutional but failed to prove how the said sections are unconstitutional.
• Mathayo mziba & others v Gaming Africa (T) Ltd t/a Meridian bet (civil case no 34 of 2020, HC
• BONIFACE Maombe & others v. R (Misc. Criminal Application No. 161 of 2019
• Sharifu Mohamed @ Athumani & others v. R, Criminal appeal no 251 of 2018

PRECEDENTS/CASE LAWS
• Aman Yohana Mwandemile v. R, Criminal Appeal no 22 of 2021
• DPP V. Abdul Mohamed Omary Nondo ( RM Criminal Appeal No 10 of 2019)
• Emmanuel Masonga & 3 others V. IGP & Another, (MISC Civil cause no 7 of 2022)
• William Benjamin Kahale v. AG. (Misc. civil cause no 23 of 2019, HC at DSM), in this case, the petitioner was challenging
the provision of Section 6 of the Right to Access Information Act to be contradicting the provision of Article 18 of CURT
that provides for the right to have a free opinion, seek information and disseminate information. The court held that they
do not contravene the limitation clause.
• R v. Hussein Malulu & Elias Hussein & 3 others ( Criminal Session Case 48 of 2021), in this case, the culprit of murder
were arrested with the help of cyber forensic examination through a confession made through a mobile phone chat, a
phone that the accidentally left at the scene of a crime. And the court held that the best confession is the one made by
the accused themselves.
• Heidman Steel Products v. Computer Corp,(1999 U.S. Dist LEXIS 217000), In this case, the Ohio Federal court refused to
extend the concept of professional malpractice to a negligent computer consultant. The court held that, “ courts will not
apply the professional standards of care to software engineers and other professionals until they can reliably assess the
skills and expertise required of software engineers.
Common law
▪ This is a law developed from the English court legal systems that was adopted in our
jurisdiction during the reception clause in 1920 and later enclosed into the Judicature and
Application of Laws Act under the provision of S.9 of the Act. Common law is used when
there is a lacuna in our laws. However, some common law principles, as said earlier, have
been adopted in our jurisdiction, such as nullum crimen sine lege which means a person
can not be punished for an act not prescribed by law when the person committed the act.
So for a person to be punished for a cyber crime offence, the law should provide that is an
offence.
▪ Also, the doctrine of the duty of care in the tort of negligence vs cyber crimes, that
the owner of a computer has a duty of care towards his customer based on
injury/harm caused by a third party in relation to computer-related crimes for an
example a person could be held liable for negligently permitting a third party to
hack into a computer and steal data or information which is likely to injure
another person as a result of an inadequate security system.
INTERNATIONAL LAW AND INSTRUMENTS
• Various international instruments form the basis of cyber crimes and cyber security, such as the
United Nations Convention Against Transmission Organized Crime (2000), the Convention on
the Rights of the Child, 2001 together with Optional Protocol to the Convention, Convention
on Cybercrime, 2001 known as Budapest Convention (first convention aimed at reducing
computer-related crime by harmonizing national laws, improving legislative techniques and
increase national cooperation.
• The Budapest Convention, 2001 was enacted to deter/fight against computer networks, systems
and data offences. The convention, apart from criminalising actions against confidentiality,
integrity and misuse of computer systems it has considered other conventions such as the CRC,
Convention on Civil and Political Rights, Convention on Human Rights and Fundamental
Freedom and Worst Forms of Child Labour Convention. Tanzania is not yet a member of this
convention, although our cyber crimes Act has tried to align with what the convention has
stipulated.
• The Malabo Convention (The African Union Convention on Cyber Security and Personal Data
Protection). This was adopted in the year 2014 for the purpose of addressing cyber crimes and
security in Africa. The convention is centred on protecting against child pornography, personal
data protection, cybercrime, and electronic commerce. And the convention has urged member
states to establish authorities and legislations in their respective territories to protect them.
However, Tanzania is not a member state of this convention.
Literary works
The works of prominent authors can also form the basis or the source of cyber crime
and cyber security. Example Books, articles, researches etc
NATURE OF CRIMES
In ancient times any act by a person or even an animal which caused harm to
any other person was considered a punishable crime, and the wrongdoers
were beheaded or thrown out of the country as per their acts. Due to
changes that continue to occur in societies, governments created laws
outlining which acts are crimes and which are not. A crime is deemed
harmful to society, although its immediate victim is an individual.
ELEMENTS OF CRIMES
To convict a person of criminal offences, the two elements are very

important to prove; ACTUS REUS and MENS REA. Actus reus means the
physical act involved in committing the offences described by the criminal
law while Mens Rea means the intention to commit an offence or knowledge
that what she is doing is wrong and against the law. Both the Budapest
Convention and the Cyber Crimes Act have criminalised crimes and termed
them as offences by considering the Actus Reus and Mens rea, by having
provisions that show that the act first has to be committed but with ill
intention or motive to prove the commission of an offence.
READ: Article 2, 3,4,5,6 etc of the Budapest Convention,
See; S.7 ,9, 11, 20 etc of the Cyber Crimes Act
NEGLIGENCE AND STRICT LIABILITY OFFENCES
Strict liability offences; are those in which the prosecution is not

required to prove intention, knowledge, recklessness, negligence
or mistake concerning the defendant’s elements of a crime. This
exists where the defendant is liable for committing an action
regardless of his mental state. EXAMPLE The provision of Section
13-19 of the Cyber Crimes Act penalises some acts without
considering the intention/guilty mind of the maker/accused person
NEGLIGENCE AND STRICT LIABILITY OFFENCES
• Negligence in criminal law is a legal concept that refers to a failure to
exercise reasonable care that harms another person. To establish criminal
negligence, a person needs to have a duty of care, and he should fail to
exercise that duty of care by an act or omission in consequence of which
another person should suffer loss/ harm or damage. Criminal negligence
may be the basis of criminal liability. For example, if you let another person
uses your computer/ computer system, and that person commits
cybercrime, OR if you failed to have strong security in place for devices or
you have failed to safeguard your password, you have failed to encrypt
confidential customer data or to delete customers’ personal information etc.
• Then, if all these happen, you will be criminally held liable under
negligence. Read Sheria ya taarifa ya Ulinzi Binafsi, 2022, and its
regulations named Kanuni za Ukusanyaji na Uchakataji wa Taarifa Binafsi.

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CYBER CRIME

• To equip student with brief knowledge relating to the concept

• A crime is an offence against the state/the public, although the victim of a

The Act provides for different requirements to be adhered to by licensed institutions

• Sharifu Mohamed @ Athumani & others v. R, Criminal appeal no 251 of 2018

• DPP V. Abdul Mohamed Omary Nondo ( RM Criminal Appeal No 10 of 2019)

To convict a person of criminal offences, the two elements are very

Strict liability offences; are those in which the prosecution is not

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