Of Tanzania’s cybercrimes law and the threat to freedom of expression and information

Author: Daniel Marari
LLM, International Human Rights Law, Lund University, Sweden

On May 8th, 2015 a press release revealed that the Tanzanian President, Jakaya Kikwete, has signed the controversial Cybercrimes Bill which seeks to criminalize acts related to computer systems and information and communication technologies and to provide for a system of investigation, collection and use of electronic evidence. The said law has serious implications for constitutional and international human rights, particularly freedom of expression and information online and the right to privacy. The most controversial provisions relate to criminalization of sharing of information, extensive police powers of search and seizure, surveillance without judicial authorization as well numerous vaguely defined offences.

It is important to note that that freedom of expression is one of the fundamental aspects of human life. As human beings, we need freedom to develop and share thoughts or ideas about things that happen and influence the way we live. Freedom of opinion, expression and information encourages free debate and plurality of ideas which is important for development of any society. More importantly, these rights are internationally recognised human rights. They are engrained in the Universal Declaration of Human Rights 1948 (art.19), the International Covenant on Civil and Political Rights, 1966 (art.19) and the African Charter on Human and Peoples Rights 1981 (art.9), all of which have been ratified by Tanzania.

According to the new cybercrimes law, “any person who publishes information, data or facts presented in a picture, text, symbol or any other form in a computer system where such information, data or fact is false, desceptive [sic], misleading or inaccurate commits an offence, and shall on conviction be liable to a fine not less than three million shillings or to imprisonment for a term not less than six months or both” (s.16 (1). To “publish” information is defined to include “distributing, transmitting, disseminating, exhibit, exchanging, delivering, printing, copying …offering in any other way, or making available in any way”. With such overbroad definitions, literally, things like Twitter retweets, forwarded emails, Facebook statuses, “likes” and thumbs-up, emoticons, leaks, blog posts and online activist petitions, if distasteful to authorities, could unpredictably land one in prison. Other seemingly arbitrary provisions include making it an offence to receive unsolicited communications (s.7 (2)).

Another controversial aspect of the new cybercrimes law relates to extensive powers of law enforcement officers to search and seize electronic devices and computer systems and to order for wiretapping of persons’ electronic communications where it could reasonably form part of evidence (section 31). Therefore, if one is somehow connected to the investigation, without proof of direct involvement in a crime, she/he can be subject to orders of search and seizure and targeted surveillance. This also includes use of intrusive surveillance methods such as keylogging devices or software that records every keyboard stroke of personal computers in real time (s.37). These powers can be exercised without a court order (s.36) but where the recording, preservation and disclosure of such data cannot be done without the use of force or resistance from the holder of the data (s.37), a court order may be (at discretion) applied for.

The cybercrimes law will contravene constitutional guarantees of the right to freedom of expression, information and privacy under the Tanzanian Constitution of 1977 and is also hugely incompatible with Tanzania’s international obligations and commitments to guarantee such rights under relevant international treaties. Indeed, it is generally accepted that though freedom of information and expression is fundamental, it may also be restricted for legitimate concerns of public safety, individual privacy, interests of justice, or national security. However, any such restrictions should be exceptional and proportionate measures to be justified by absolute necessity and complemented by legal and judicial oversight. Clearly, the law that censors stumbling upon, printing, sharing, or mere appreciation of publicly available information, authorises arbitrary searches, seizures and intrusion to privacy, criminalises receiving unsolicited communications and allow for secret surveillance even in the absence of particularised suspicion does not satisfy the proportionality requirement. And what really constitutes truthful or accurate information in a democratic society supposedly built on diversity and plurality of views? African leaders and governments should understand that the fundamental right of freedom of expression and information is not limited only to information and expression that idolizes, flatters or soothes them, but also, in the words of the European Court of Human Rights, information and ideas “that offend, shock or disturb the State or any sector of the population”.

Respectably, the new law criminalizes cyber bulling, child pornography, identity theft, racist and xenophobic content and piracy. These are principled aims especially considering that over recent years there have reported increasing cases of electronic fraud, identity theft, defamation and online abuse most of which have been difficult to investigate. But the good aims of the cybercrime law do not explain why the restrictions are primarily directed at sharing and publication of information. Opposition legislators and other stakeholders, including the European Union, have already warned of the dangerous impact the cybercries law could have on democracy and enjoyment of human rights.

Overall, the cybercrimes law, as it stands, is so overbroad and will greatly violate civil liberties and undermine democracy and efforts to secure government accountability. The implications are that human rights defenders, whistle blowers, journalists, bloggers and ordinary citizens will flock behind bars for sharing or possessing simple information that the government determines in its own terms as uncomplimentary while corruption, human rights abuses and abuse of power will go largely unchecked. While there is truly a pressing need to curb cyber criminality, there is also a big concern to ensure that the new cybercrime law does not arbitrarily trump on civil liberties. Some amendments could be instituted to carefully define which conduct should really qualify as criminal and to ensure procedural guarantees in investigations and prosecutions. The constitutionality of the offending provisions could also be challenged by instituting judicial review proceedings.

About the Author:
Daniel Marari is a human rights lawyer and researcher, and a 2014 graduate of international human rights law from Lund University.