Sharon Hofisi Legal Letters
A crime is defined as an act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding (Garner 2006: 187).
There are several types of crimes that depend on juridical preferences: administrative, commercial, common-law, computer, continuous, corporate, omission, passion, economic, hate, high, infamous, instantaneous, predatory, quasi, signature, spontaneous, status, statutory, street, victimless, and violent crimes.
In some jurisdiction, there is a crime-fraud exception where even lawyer-client privilege may not be invoked when the communication relates to the furtherance of a current or planned crime. Common law and civil law jurisdictions may decide to make crime legislation known, accessible and renewable in special ways such as codified or non-codified statutes.
While I may not deal with all the types of crimes listed above, cybercrimes are a relatively new species of computer (to the extent most people can connect to the internet on a desktop or some type of a computer) or electronic device crimes. We must categorise the crimes broadly into those against the State, humanity, persons or property.
In all this, we must be alive to the fact that the battle to control internet crimes is raging in globalutionised and globalised terms. Law and Martin (2009: 150) define cybercrime as a crime committed over the internet. Before there are specific laws on cybercrime in a polity, widespread consultation is needed at multilevel sectors so that a society doesn’t create far too many cybercrimes superfluously.
Admittedly, the cybercrime perpetrators the world over frenziedly expand their variant offences in the most efficient ways.
Polities must contextualise the crimes into those aimed at hacking personal or institutional data, distributing or possessing malware, circulating obscene images of children or vulnerable groups, or simply defaming private or public officials on the internet.
Because the impact of any cybercrime is destructive, a society shouldn’t impulsively create such crimes without first unpacking the underlying causes of the conduct in question. This enables the society to devise effective ways of dealing with such crimes other than through criminal law.
At State level, regulatory frameworks may be used before resorting to criminalisation of specific cyber laws. Laws must be practically enforceable and mustn’t be vindictively created. At personal levels, personal risk formula must always be emphasised.
I showed above that broadly speaking, crimes can be committed against the State, humanity, persons or property. In this milieu, States such as Zimbabwe which is working on cyber laws must ensure that specific focus on key issues such as State security, personal security, security of property are properly nuanced.
The essential elements of cybercrimes against the State, property, persons or humanity must be properly canvassed.
The criminal, both as one who has committed a cybercrime or has been convicted must be properly categorised say as: episodic, dangerous, and State. The criminal instruments associated with a particular crime must be properly categorised.
Special principles such as the criminal-instrumentality rule or proximate causal link which focuses on the criminal act itself than, say, the victim’s negligence, must be clearly designed in line with the constitution and other national laws.
State security or law enforcement agents and other actors in the justice sector must be specially trained on criminalistics or the science of crime detection, especially training to digitalised criminality. In this age where cellphones provide location, personal sim or bank cards can be cloned and social media apps can be used by multiple users, the state of being criminal has now been modified. What of Bluetooth devices, anti-revoke and editable app soft wares?
We may need to criminalise previously lawful acts or modify processes that enable citizens, regulatory authorities, service providers or State functionaries to develop into criminals. Ultimately, the criminal justice system must be one that is built on sanity and constitutionalisation of crime control from those who make (parliamentarians), execute (state agents and the executive) or interpret the law (courts).
Academically, the fields of criminal justice, criminology, criminal law, criminal law, international criminal law, human rights law, humanitarian law or constitutional law must ensure that the criminal justice system is one that is not built on vindictive justice.
The criminal justice systems, that is, all the collectivised institutions such as the police, intelligence, defence, prison and correctional services, ministries such as Ministry of Justice, the national prosecuting authority, law-related schools, law-based organisations and civic groups must be clear on how an accused offender must be treated from the time of arrest until the accusations have been disproved or proved in terms of say, proof beyond reasonable doubt as required in Zimbabwe.
At a policy level, Zimbabwe urgently needs a specific criminal policy that effectively deals with protection of the public against cybercrime. Remember a crime may simply be defined as a public wrong (Madhuku 2010).
A good criminal policy must draw from information provided by academics, criminologists, victims, recidivists, episodic offenders, reformed offenders and so on.
Software developers and engineers must also be roped in.
The ravages of distorted, maliciously couched and outright fake news are there for us all to see. Those who design softwares that steal personal or institutional information must also be dealt with accordingly. But to effectively avoid false starts, we urgently need to deal with those victims who become victimisers as well as those perpetrators who hide behind biased remorse or institutional membranes.