My Turn

Cashgate: Is it a cybercrime?

One of the major legal issues that the cashgate has brought to the fore is the use of computer and computer systems and data to commit crime (in this case theft.) In my article that appeared in this paper a few months ago, I had ominously raised the issue of cybercrime in Malawi, highlighting the lack of relevant laws on cybercrime and the general preparedness of our law enforcement agencies and criminal justice institutions for cybercrime. A few months down the line, the country has been gripped by probably its major cybercrime event.

As noted in the mentioned article, cybercrime represents a convergence between crime and modern information and communication technologies (ICTs.) The term cybercrime is used as a generic term to refer to three types of crimes: emerging crimes against computers, computer systems, networks and data (i.e., hacking and malware); traditional crimes committed through the instrumentality of ICTs (i.e. online fraud and online child pornography); and traditional crimes evidenced by ICTs (i.e. where a murderer uploads a video of his crime on the Internet.)

The cashgate falls into the second typology: a traditional crime (theft) committed using the instrumentality of ICTs. The Integrated Financial Management System (Ifmis), which is basically a computer technology, was allegedly used to commit the offence of theft in the cashgate.

Such use of modern ICTs to commit crime is a worldwide phenomenon, as criminals have realised that it is relatively safer to commit a crime in the cyberspace than in the real-world. That is why cybercrime is one of the world’s fastest criminal activities.

That said, there are a number of questions that the country’s criminal justice system needs to seriously consider. Firstly, do our country’s criminal laws cover online activities? For instance, forgery is currently defined in our laws as making a false document. Does this include inputting false information into a computer system? What about the law on criminal evidence, does it allow electronic data as a form of evidence in our courts?

Secondly, what about the law enforcement agencies themselves, such as the police, Anti-Corruption Bureau (ACB) and Financial Intelligence Unit (FIU)? Do they have the capabilities to conduct computer forensics and properly handle electronic evidence? Thirdly, what about the judges/magistrates, prosecutors and defence lawyers: are they adequately prepared for the complex issues that electronic evidence raises? For instance, electronic evidence is said to be malleable and volatile and can easily be contaminated, inadvertently or otherwise.

These are serious questions that must be carefully considered and resolved not only for the purpose of cashgate, but also for future cases. It will undoubtedly be a double tragedy for the country if the guilty get acquitted (or the innocent get convicted) for the mere reason that the country’s criminal justice system was not prepared to handle complex issues of cybercrime and the attendant electronic evidence.

This should also be a wake-up call to the country to speed up the process of enacting the E-Bill, which addresses in part some of the issues raised above. As we have noted elsewhere, the parts of the bill dealing with cybercrime require serious revision and more so in light of Sadc’s recent Model Law on Cybercrime.

Malawi is one of the few countries in the Sadc region that has not enacted any legislation on cybercrime. There is also a dire need to upgrade the country’s laws so that they address the salient features of cybercrime. This includes substantive criminal laws, procedural laws and the laws governing international cooperation in criminal matters.

At the same time, all stakeholders in the criminal justice system require training on issues of cybercrime and related issues. We can also not ignore the need for capacity building in all law enforcement institutions. By the way, how can a police officer who has never touched a computer in his life time handle matters of cybercrime?

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One Comment

  1. Laws on cybercrime are indeed needed as a matter of urgency. However, the money that was swindled was not digital. It was physical. Physical evidence will suffice in this case.

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