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Legal analysis of the prosecution of social media crimes in Zimbabwe: A closer look at Baba Jukwa case

INTRODUCTION
ON the 26th of June 2014, Zimbabwean police arrested the Sunday Mail  newspaper editor, Edmund Kudzayi, on charges of “attempting to subvert a constitutionally elected government or alternatively attempting to commit an act of insurgency, banditry, sabotage or terrorism.” Kudzayi was also charged with undermining the authority of the President. As reported, the charges are rooted in a Facebook character Baba Jukwa, allegedly created by Kudzayi. Kudzayi made his application for bail before a Zimbabwean magistrate’s court which referred him to the High Court, the court with jurisdiction to hear the charges levelled against him. In total, the police said they are on the hunt for a ten individuals they believe to be administrators of the Baba Jukwa Facebook page, with some of the accused said to be based in South Africa and the United Kingdom.
On 3 July the High Court granted Kudzayi bail under strict conditions which included reporting twice daily at a police station in Harare and surrendering the password for his Gmail email account. Linked to the same case, the police also arrested Kudzayi’s brother Phillip and a university student, Romeo Musemburi, who allegedly emailed Baba Jukwa last year urging an uprising. This paper analyses the arrest of Kudzayi for a crime allegedly committed via Facebook with the view to assess the jurisdiction of the High Court to prosecute such crimes, Zimbabwe’s eligibility and capacity to prosecute social media crimes and the recommendations for Zimbabwe in light of the fact that social media crimes are now a reality globally.
Jurisdiction of the High Court
Section 171 (1) (a) of the Constitution of Zimbabwe grants the High Court jurisdiction over all civil and criminal matters throughout Zimbabwe. Section 23 of the High Court Act further provides that “subject to this Act and any other law, the High Court shall have full original criminal jurisdiction over all persons and over all matters in Zimbabwe.” Therefore the High Court has jurisdiction in matters throughout Zimbabwe and over persons and all matters in Zimbabwe. For the High Court to have jurisdiction over Kudzayi who is accused of committing cybercrimes via posts on Facebook, his alleged crimes should be matters in relation to the prosecution of a person in Zimbabwe and a matter that is in Zimbabwe.  Can cybercrimes be ascribed to a particular or specific geographical location for the purposes of jurisdiction? Do Zimbabwean courts have jurisdiction over social media crimes similar to those alleged in the Baba Jukwa case?Advertisement

Territoriality of Crimes
The Constitution read together with the Criminal Procedure and Evidence Act, the Criminal Codification Act of Zimbabwe provides for the criminal laws of Zimbabwe. Whilst the Constitution provides for the prosecution of crimes “throughout Zimbabwe” and the High Court provides for the prosecution of crimes “in Zimbabwe”, the Criminal Law and Codification and Reform Act regulates the territoriality of crimes. Section 5 of the Code states that Zimbabwe can try, convict and punish any person who commits a crime, “partly outside Zimbabwe if the conduct that completed the crime happened in Zimbabwe.
Zimbabwe can prosecute a crime which is wholly or partly committed outside Zimbabwe if the crime is a crime against public security in Zimbabwe or against the safety of the state of Zimbabwe, is a crime which has produced a harmful effect in Zimbabwe, was intended to produce a harmful effect in Zimbabwe, or was committed with the realisation that there was a real risk or possibility that it might produce a harmful effect on Zimbabwe”.
On the basis of the above principle of territoriality of crimes, the High Court can prosecute a matter committed outside Zimbabwe, if the matter has a direct impact on Zimbabwe and its effects are felt in Zimbabwe regardless of the physical location of the alleged offender. This means that regardless of whether or not “Baba Jukwa” performed the alleged offences whilst outside Zimbabwe, his alleged offenses can be prosecuted as long as there are matters whose adverse effects are felt in Zimbabwe.
However to decide to continue the prosecution of the matter, the Court must still assess the basis of the arrests; that is was any crime committed in or outside Zimbabwe and, if it was out of Zimbabwe, do the effects of the alleged crimes warrant prosecution. It then becomes an immaterial enquiry where those accused of being Baba Jukwa Facebook page administrators are physically located. But an essential enquiry is whether Zimbabwe has a clear framework to regulate lawful use of the internet and whether or not the country has standing extradition arrangements with the countries where accused persons may be located.
Prosecution of cyber-crimes committed on Facebook or other social media
Whilst Zimbabwe has Criminal and Telecommunications Laws inclusive of the Postal and Telecommunications Act, the Interception of Communications Act, The Code and The Criminal Procedure and Evidence Act, social media is a relatively new phenomenon in Zimbabwe and criminal and telecommunications laws have not yet comprehensively provided for the jurisdictional concerns arising from cyber or social media crimes, neither have they created social media laws or rules to regulate their prosecution. Whilst Zimbabwe can still argue that it has jurisdiction to prosecute crimes which have an impact in Zimbabwe, no matter where the offence is committed, the lack of regulation of the investigation, prosecution and conviction of alleged offenders of social media crimes is an issue calling for immediate attention at national, regional and international level.
It is of no doubt that social media provides a platform for national and global communities to rally and advance common goals. It is also not in question that crimes can be committed on social media, yet the arrest of Kudzayi using laws that were designed to prosecute crimes committed by physical persons and not social media characters raises evidentiary problems which include the fact that the technological space is a space where people can manipulate technology to the prejudice of other individuals making it critical for the police or prosecutors to have absolute verifiable evidence before deciding to pursue a matter.
Is Zimbabwe ready and technologically capable of prosecuting social media crimes? The answer to this question may lie in the peculiar difficulties associated with obtaining evidence of cybercrimes and with maintaining a delicate balance between safeguarding state security, on one hand, and protecting constitutionally enshrined rights to privacy and to freedom of expression.  
How is evidence of cybercrime obtained?
How evidence of an alleged cybercrime is obtained is relevant to whether or not such evidence can be adduced and used in Zimbabwean courts. The general legal rule, enshrined in section 8 of the Interception of Communications Act, is that evidence unlawfully obtained cannot be used in a court of law. The Act provides that evidence which has been obtained by means of any interception effected in contravention of the law shall not be admissible in any criminal proceedings except with the leave of the court, and in granting or refusing such leave the court shall have regard, among other things, to the circumstances in which it was obtained, the potential effect of its admission or exclusion on issues of national security and the unfairness to the accused that may be occasioned by its admission or exclusion.
For those crimes allegedly committed on Facebook or via email, it will be a key enquiry to establish how the state, through investigating officers, acquired evidence or access to privately held emails or Facebook accounts. In the Baba Jukwa case under consideration, serious legal questions will arise if it is established that the State seeks to use evidence obtained through unlawful hacking into a private email account to obtain evidence of wrong doing. Hacking to obtain evidence of criminal conduct has far reaching implications on constitutionally guaranteed rights to privacy and freedom of expression.
The challenge of adducing evidence unlawfully obtained arose in the 2011 trial of Vikas Mavhudzi before a Bulawayo magistrate court on charges of subversion after allegedly making a Facebook post on the then Prime Minister Morgan Tsvangirai’s Facebook wall urging an Egypt-style revolution. This case was Zimbabwe’s first ever Facebook-linked trial.
Mavhudzi’s lawyers demanded to be shown how the State retrieved and stored the so-called message allegedly sent to Tsvangirai following indications that the State had seized Mavhudzi’s mobile phone and intended to use it as an exhibit together with the alleged statements. The magistrate then dropped the case after the state failure to present any evidence of alleged crime.  The collapse of the Mavhudzi case points to a capacity gape within the government of Zimbabwe as well as lacuna in the laws regulating social media interactions.
The Interception of Communications Act, however, requires that all telecommunication service providers should have mechanisms to store all data that passes through their service and should be able to submit the data upon lawful demand by state representatives.
Recommendations for prosecuting social media crimes
Overally, the government of Zimbabwe should establish clear laws, rules and regulations on the use of social media which are in line with the constitution and do not unduly infringe on fundamental rights to privacy and freedom of expression. Generally, all arrests in Zimbabwe must be made if there is a reasonable suspicion that a crime is being, or has been, committed. Second, the Criminal Law Code specifies the law to be used in Zimbabwe criminal law prosecutions, actions or inactions which constitute crimes, criminal capacity, liability and the state of mind of the alleged offender among other provisions. It is of no doubt that all the above provisions of the Code will be important if one is to prosecute a crime committed on social media. All the arrests made based on crimes allegedly committed on Facebook or social media must still meet the above criteria.
However, social media crimes present challenges regarding the context in which they are committed. The challenges posed by social media crimes is often difficult for one to quickly decide that a crime is being committed, “jokes and offensive comments are commonplace and often spontaneous” on social media. Also, the fact that what is communicated on the internet “is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community” might not be, in itself, a reason to invoke criminal laws.
The British case of DPP v Collins [2006] UKHL 40 made it clear that the context of social media provides a free platform to converse and air controversial opinions which might not necessarily warrant investigation or prosecution by stating that “the test [to enable investigation and prosecution] is whether a message is couched in terms liable to cause gross offence to those to whom it relates”. Everyday millions of people send and repost communications which are offensive or in bad taste and to proceed and prosecute poses a potential threat of the arrests of millions of people if arrests are to be made without a very high threshold of evidence.
Arrests for crimes committed via social media should be carefully made as they could potentially undermine the right to free speech making it important for extreme caution to be exercised before a decision to prosecute is taken. Most communication which is sent via social media is not thought through and is send or shared spontaneously without most appreciation of its effect. The case of Smith v ADVFN [2008] 1797 (QB) put it clear that contributions on the internet “… [are] like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or ‘give and take’.”
Zimbabwe should not continue to prosecute persons based on social media posts without providing regulations which will govern arrests and prosecutions for crimes allegedly committed on social media. The regulations might specify that indeed reasonable suspicion is still needed before an arrest is made in compliance with the law, however, arrests can be made only if a high threshold of evidence is met as will be stated by the regulations.
Also, the evidence must constitute communication that is more than just rude, distasteful, shocking, satirical or unpopular communication even on serious issues. With the need for the law to ensure that prosecutors are guided before proceeding to prosecute crimes and with the reality that it takes time to enact law, it is crucial for Zimbabwe to urgently design regulations to guide prosecutors or to advise the police on how to handle social media crimes.
Following the development of fair social media regulations that are in line with global practice and standards, the government should embark on general and countrywide civic-education to raise awareness around the laws regulating social media so that citizens can avoid pitfalls. Avoidable situations include that of a Mutare teenager who was arrested in January 2014 for a Facebook post claiming that president Mugabe had died and was being kept in a freezer. The teenager was said to have violated the Criminal Law Code that criminalises “undermining authority of or insulting President.”