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The growing concerns over computer crimes globally and the need to take stiff measures

Edwin A Mugambila Edwin Mugambila: Abstract This paper seeks to address jurisdictional challenges in prosecuting cyber crimes in Tanzania.

It looks at legal and institutional framework that seeks to counteract cyber crimes, their jurisdictional challenges and the way forward.

The paper starts by discussing the general overview of what cyber crimes are and how they are committed.

Among the objectives of study were to evaluate the pre-emptive laws. After identifying the problem of jurisdictional challenge, the researcher hypothesized that there were jurisdictional challenges which act as stumbling blocks in getting rid of cyber criminals.

The research findings sought to find out whether there are measures that have been taken by the government to counter cyber criminals. Though there have been enactment of the Cyber Crimes Act,enactment of electronic transactions Act which provide principles for admissibility of electronic evidence, domesticating ITU model laws and imposing penalties to the perpetrators, enforcement and prosecution organs face numerous challenges, including Jurisdiction of courts to prosecute crimes committed beyond the boarders of Tanzania.

This study gives some legal and practical solutions, which if adopted, might be able to enhance an easy prosecution of cyber crimes committed against Tanzania regardless of the geographical limitations. The paper is divided into four chapters. Chapter one contains the theoretical framework of the study which is essentially a modified proposal. Chapter two covers laws and institutions for fighting Cyber crimes. Chapter three contains research findings and data analysis. The last chapter provides for conclusion and recommendations i Edwin Mugambila: Its impacts are conspicuous throughout the globe.

Essentially, cyberspace has been described as a composite phenomena comprised of interactions between people, and services characterized by world wide sharing of information through Information, Communication Technology ICT devices and networks.

Just simple as it may sound, a person in U. K is capable of commanding a computer network located in Tanzania to transfer money from an account to the different account number in U. K is capable of sending paperless money to a person in another jurisdiction by commanding a simple formula in a phone or any other electronic gadget.

K is capable of disseminating any information such as nude pictures, and the same is made available to any person connected to a computer network around the globe, and this is concluded in a blink of an eye just with the aid of ICT network. Forensic dependencies and Barriers to justice, Inteernational Journanal on Cyber Criminology vol 9 1. Morality and Law in cyber space fourth edition Chestnut hill, Massachusetts. Frauds, or fraudulent schemes can now be carried out remotely or even across the globe.

Despite criminals exploiting virtual space, the criminal actors the growing concerns over computer crimes globally and the need to take stiff measures the victims are located in the real world though often in different cities, states or even countries. Similarly, the digital technologies used to facilitate these crimes such as internet servers and digital communication devices are located in physical locations that may not coincide with the locations of the criminal actors or victims. As such, law enforcement faces not only technological b ut jurisdictional 7 challenges in investigating and prosecuting cyber criminals.

This paper attempts to venture into jurisdictional challenges of prosecuting cyber crimes in Tanzania. The paper shall discuss the concept of jurisdiction in the purview of the Cyber Crimes Act This entails that, cyber criminals have no boundary. Further, what complicates the prosecution of cyber crimes is the fact that there is presence of multiple parties in different parts of the world who have only a virtual nexus with each other.

In traditional legal regime, the transactions between two parties when both are based in different territories, are governed either by the laws of the country in which the transaction is concluded or laws of the country where effects occur. These traditional principles of jurisdiction have no 5 Fin klea K. The internet can enhance persons from various far away nations to transact among themselves 8 with little or no knowledge of the consequences of their deeds in the jurisdiction within which they are operating.

Indeed, the absence of geographical limitations can lead to incautious to accept that the laws of their home country apply in actions when actually the acts were committed against another state. Place of suing implies the specific courts with competent jurisdiction Jurisdiction is the creature of statute so too are the courts.

Hence the statute establishing an offence ought to establish jurisdiction of courts to try the culprits. These include Jurisdiction to prescribe, Jurisdiction to adjudicate and jurisdiction to enforce decisions. Essentially, all three aspects of jurisdiction have been based primarily upon the concept of territory. Act with rules regulations p. Cyber Crime-the shifting doctrine of jurisdiction, vol 10, at P.

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S Part three of the Cyber Crimes Act accommodates jurisdictional issues. It confers jurisdiction upon Tanzanian courts to try any person irrespective of his nationality or citizenship if he has committed an offence using a computer system located in the United Republic of Tanzania or the offence is directed against the device, data or person located in Tanzania.

The Act does not properly address the question of jurisdiction as it is too general to be understood. It does not state which crimes are tried by which court depending on the gravity o f an offence. As a result, any Court has been assuming jurisdiction over Cyber Crimes whenever the incident occurs.

This practice is unconstitutional. In Uganda, under the computer misuse Act, 20 the provisions regarding jurisdiction of the court to try Cyber Crimes are very clear. The provisions make it clear as to which court, and which magistrate is competent to try such cases. As a result it is possible for a culprit to commit a cyber crime in Tanzania and have a safe haven in another jurisdiction hence making it difficult to put to an end the commission of cyber crimes.

This paper therefore, is an attempt to address the prevalence of this challenge and how possible it may hinder putting cyber criminals to justice.

This is due to the fact that cyber crimes are new phenomena in Tanzania jurisdiction.

The importance of cyber crimes legislation has been underscored by various authors from various jurisdictions. Geist 22 asserts that, despite extra-territorial legal provisions for criminal acts perpetrated in foreign jurisdictions, the practical application of these laws is rather ineffective. Whilst an offender is apprehended in one jurisdiction, the digital evidence required to progress an investigation may reside in another country.

This being the case, a regulatory mechanism is of paramount importance so as to ensure fair play in this technological world.

  1. At the meeting, the CPC outlined the key objectives of the 12th five-year plan, which included driving economic growth higher via domestic demand and achieving a more equal income distribution.
  2. A survey of employees throughout the U. In 1998, the Philippine Supreme Court ruled that a national ID system violated the constitutional right to privacy.
  3. In another 1998 event, a communication satellite went into an uncontrollable rotation causing pager communication systems worldwide to be "useless," and those companies using this technology for E-account transaction and verification were unable to process credit card information for 24 hours, thus causing their customers to pay cash for their transactions. Certain periods when flexible working hours can be applied will be expanded from the current three months to a year, while a new system of paying back overtime work with day-offs will also be introduced.
  4. Workplace surveillance Employees in nearly every country are vulnerable to comprehensive surveillance by managers. Diagnostic research design concerns those studies that deal with association between variables.

On his part Kohl, 25 asserts that, a state may legislate on online crimes but asserting jurisdiction over the crimes committed beyond the boarders of territorial application of those laws is another thing. In a normal sense laws apply territorially in such a way that laws enacted by the legislative organ of one state are territorially limited in the country enacting the same unles s there are bilateral and or multilateral agreements for reciprocal extra-territorial application of the laws.

Kohil addressed this observation as a problem but did not explicitly provide for a way forward nor did he go into details as to how states may have a joint investigation and prosecution machinery of crimes committed in cyber space. Mambi, 28 is of the view that ICT sector has significantly reduced the costs of access to information. Mkuki na Nyota, Dar es salaam at p. He goes further by arguing that, the use of cyber space and technology has resulted in cyber transactions, cyber crimes and the law.

Mambi addresses the prevalence of jurisdictional challenge but he fails to shed light into the eyes of the readers as to how the same should be addressed. It is the goal of the researcher to seal such holes by coming up with a blueprint on circumventing jurisdictional challenges in prosecuting cyber crimes.

On the other side Lloyd 29 the growing concerns over computer crimes globally and the need to take stiff measures that an increased number of e-transactions at national and international arena require legal response. There also a great concern on the impact of digital technology over intellectual property rights as the transmission speed has been increasing.

This has also led to a more complex and substantial data being transmitted and downloaded online leading to infringement of copyrighted works in most cases. The existing complexities in cyber space are evidence that, jurisdictional challenge avails safe have ns for cyber culprits to evade legal consequences.

However, Llyod does not show the prevailing technicalities in prosecuting cyber criminals specifically jurisdictional challenge, a gap that is to be sealed in this study. I, Information Technology Law. Descriptive research design concerns those studies which are based on describing the characteristics of a particular individual or of a group. Diagnostic research design concerns those studies that deal with association between variables.

The items of the sample and the sample attributes are purposively selected by the researcher. This source shall be employed to obtain the primary data from the field. The study shall use interviews to obtain raw data. The researcher shall conduct face to face interview with the respondents at Cyber Crimes division of public prosecutions, Tanzania Police force Cyber Crimes Section, and the Financial Intelligence Unit.

Such materials shall include books, journal articles, internet surfing and other unpublished materials. The researcher also shall pass through various pieces of legislation on Cyber crimes, and Electronic transactions.

The researcher was able to get information from key informants in the relevant institutions. Further, the limit as to page numbers was a challenge to this paper based on the sensitivity of the topic under study. It finds that legislation is required in all areas, including criminalization, procedural powers, jurisdiction, and international cooperation.

The Chapter highlights a growing legal fragme ntation at international and national level. Cyber space is the space between two networks. Joseph Migga Kizza 31 defines Cyber Space as the concept of an environment made up of invisible information.

When computer users log onto the internet, they are able to perform various tasks and Services like browsing the World Wide Web, chatting with fellow cyber citizens, transferring files from one computer to another, remote logging to another computer, sending electronic mail, conducting electronic commerce, video conferencing and more.

The numerous functionalities and freedom of use while in the cyber space brings an equa l ease of committing both immoral and illegal acts. The legal framework creates a controlled environment against virtual crimes that threaten national security and stability. Also, it provides legal guidelines to bring, to identify and charge crimes committed through or in electronic transactions and e-commerce that threaten business growth between companies, organizations, consumers, suppliers and other service providers.

International Legal Instruments on Cyber Crimes. International Telecommunication Union The International Telecommunication Union ITUis a specialized agency within the United Nations, plays an imperative role in the standardization and development of telecommunications as well as cyber security issues.

Governments, policymakers and experts from around the world shared ideas and experiences about how best to address the emerging issues associated with of the development of a global information society, including the development compatible standards and laws34 Until now there is no any universal cyber crime convention. An attempt has been made by the ITU has facilitated the enactment various model laws which serve as guidelines for states to 33 David K.

Budapest Convention on Cyber Crimes, The Budapest convention with its respective protocols though in place is largely a product of regional collaboration, reflecting conditions and premises among Council of Europe member states. As of August only 47 member states had ratified the convention. Also, the convention aims at setting up a fast and effective regime of International Corporation.

Kizekova 37 asserts that, Russia has been against the convention stating that the convention violates the Russia constitution by permitting foreign Law enforcement agencies to conduct investigations within Russia boarders via the internet.

  • Automatic scanning of voice communications may not be far behind;
  • It is submitted that these steps are commendable and should be followed to combat identity theft and assist the victims.

InChina, Russia, Tajikastan and Uzbekistan tabled a draft of the international code of conduct for enforcement security before the UN General Assembly