THE petition seeking to declare unconstitutional the Cyber Crime Act enacted by Parliament in 2015 to provide protection of the national economy, financial services against cybercrimes and provide mechanism and framework of combating such crimes in Tanzania, has crumbled.
This follows the decision of the High Court to reject the petition lodged by Mr Jebra Kambole to challenge several provisions of the Act, alleging that they violated his rights to seek, receive and disseminate information guaranteed under the Constitution of United Republic of Tanzania.
In their judgment delivered recently, a panel comprising Judges John Ruhangisa, Winfrida Korosso and Lugano Mwandambo ruled that the grounds advanced by Mr Kambole, who also serves as an advocate of the High Court, attacking 18 provisions under the Cybercrimes Act, lacked merits.
The grounds upon which the petitioner had relied ranged from subjective and arbitrary interpretation and application of the Cybercrimes Act by law enforcement organs, infringements of rights to privacy, restriction of the freedom of communication and the right to be heard.
He had complained that lack of interpretation of words used in some of provisions under the Act, notably unlawfully, intentional, unauthorised person, or data, information, or access could lead to arbitrary arrest and unjustified actions by the law enforcement organs on various offences.
The judges, however, stated: “We are of the view that looking at the said Act objectively one will not fail to find sections which define and describe offences. The sections provide for ingredients of offence and the sentence for each of offences.
The provisions cannot be widely drafted to net everyone.” They ruled that sections 4, 5,6,7,8,9,14,19, 21 and 22 of the Act complained of by the petitioner fall within the parameters of Article 17 (2) of the Constitution of United Republic of Tanzania and therefore they could not be construed to be repugnant to or inconsistent with such Article of the parent law.
The judges pointed out that an individual who is aggrieved by any decision by a public officer related to the implementation of the said provisions in the Act has recourse through judicial review where a public officer has acted unlawfully or beyond his powers in exercising his duties.
“Having so found we see no merits in the petitioner’s contention that the (said) provisions of the Act are inconsistent with spirit of Articles 17 (2), 29 (5) and 30 (2) of the Constitution.
We thus decline the invitation to hold as we hereby do that the provisions are unconstitutional as prayed,” they declared.
The petitioner had also challenged the provisions of sections 38 and 50 of the Act that they violated Articles 13 of the Constitution over the right to be heard. He had contended that section 38 allows any application by an authority for a hearing in court to be made exparte (in absence of the adverse party).
In the judgment, however, the judges noted that matters envisaged under section 38 of the Act relate to search and seizure, disclosure of data, expedited preservation, disclosure and collection of traffic data and content data. According to them, such matters cover at investigation stage.
“Under such circumstances, we are, with due respect, unable to see any merit in the petitioners’ argument because we do not think that investigation is the final stage in determining the rights of the said individual or service provider where the said data is retrieved from,” they said.
On the contrary, the judges said, it appears to accord with reality that the said person or service provider would have time to explain and defend on the content of the said data during a trial hearing if the case is brought for trial.
“In consequence, we hold that the provision of section 38 of the Cybercrimes Act Fall within the ambit of Article 30 (2)(b) of the Constitution since it is squarely for the purpose of protecting interests of public safety and public order by reason and therefore not violate of the Constitution,” they held.
Regarding section 50 of the Act, which empowers the Director of Public Prosecutions (DPP) to compound some offences committed without due considering to the need of the suspect, the judges agreed with the petitioner that it curtails the right to be heard under Article 13 (6) (a) of the Constitution.
They noted that the actions by the DPP are given finality and not amenable to appeal if a suspect voluntarily confessed commission of the offence and such actions are given the status of the High Court order on one part, but on the other part are unique in sense that the aggrieved person could not appeal. “We find this to be an anomaly.
Exercising powers vested in this court by Article 30 (5) of the Constitution and section 13 (2) of the Basic Rights Duties and Enforcement Act, we direct the government through the Attorney General within the period of 12 months to correct the anomaly.