INFORMATION AND COMMUNICATIONS UNIVERSITY

SCHOOL OF ENGINEERING

NAME: AGNES SIMWANZA

STUDENT IDENTIFICATION NUMBER (SIN): 1407997818

PROGRAMME: B.Ed. I.C.T

COURSE NAME: CYBER LAW

ASSIGNMENT NUMBER: TWO

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 Table of content Page

1. Introduction……………………………………………………………………………………....3

2. Cyber contravention and cyber offence……………………………………………………...3

3. Technology Specific and Technology Neutral……………………………………………….5

4. Ratio decidenti and Obita-dicta……………………………………………………….……...7

5. Bail and/or police bond which is cyber in nature?…………………………………………8

6. Constitution and a charter…………………………………………………………………..…9

7. Substantive and procedural law in Zambian context in relation to

Cybercrime…………………………………………………………………………………..….10

8. Conclusion …………………………………………………………………………………...…11

9. Bibliography ……………………………………………………………………………………11

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INTRODUCTION

Cybercrimes are basically crimes committed with a computer and network and include criminal
activities, such as theft, fraud, defamation, forgery or mischief.

A modern criminal can steal more with a computer than with a firearm. Such is the power of
cyberspace; it has total potent good and dark sides. The newspapers regularly carry stories of
Cyber-crimes, which include credit card frauds, spams and software piracy, done with shocking
swiftness.

The first cyber-crime was reported in 1820 in France using a primitive form of computer.

1. CYBER CONTRAVENTION AND CYBER OFFENCE

Cyber contravention is a violation of cyber laws in Zambia that does not result in criminal
proceedings but may result in civil proceedings. The punishment may range from payment
compensation or penalty while cyber offense can be defined as the executions of an act that is
prohibited by cyber laws. This type of crime may result in criminal prosecution and offender
may be punished with imprisonment or heavy fine.

Cyber Contraventions are ‘civil wrongs’ for which compensation is payable by the defaulting
party. Cyber offences on the other hand constitute cyber frauds and crimes which are criminal
wrongs for which punishment of imprisonment and/or fine is prescribed by the Information
Technology Act 2000.

Proceedings
Cyber contravention may lead to civil prosecution while Cyber offences may result in criminal
prosecution

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Investigation
Cyber contravention the controller appointed by the central government. Under the provisions
of the Act, or an official authorized by him/her can carry out investigation regarding the matter.
Cyber offence is investigated by a police official not below the rank of a Deputy Superintendent
of Police.

Nature
Both Cyber contravention and Cyber offences are covered under different sections of the Acts,
these deals with illegal access to computer systems or networks.

Penalty
For Cyber contravention, the offender may be charged with a fine; while in Cyber offences, the
criminal can be punished with confinement, fine or both.

Below are some of the stories or cases reported from different parts of the world.

I. Cyber criminals targeted users of Skype, Facebook and Windows using multiple Black
hole exploits  in October, according to the latest threat report from security firm GFI
Software.

Researchers uncovered a large number of Black hole exploits disguised as Windows, Facebook

account verification emails, Skype voicemail notifications and messages. Christopher Boyd,
senior threat researcher at GFI Software, said the Black hole exploit kit is one of the biggest
dangers that internet users face. “It is the chameleon of internet threats. It simplifies the process
of creating cybercrime campaigns and is easily adapted to take advantage of the buzz
surrounding major news events and popular brands,” he said. However, Boyd said these attacks
are relatively easy to avoid by incorporating basic internet safety practices into daily browsing.

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“Users should verify the source and destination of any link before clicking and they should never
run executable files unless they are positive that the source is legitimate,” he said

II. Six arrested in the UK in worldwide FBI-led credit card data sting

Conferring to the report given by BBC on 27th June, 2012 Law enforcement officers have
arrested six people in the UK and 12 in the US in an FBI-led sting operation that netted a total of
24 credit card cyber fraudsters in 13 countries. The arrests follow a two-year undercover FBI
investigation that tracked those buying and selling credit card information through a fake online
forum, according to the BBC.As a result of Operation Card Shop, investigators have notified
credit card providers of more than 400,000 compromised accounts, preventing an estimated
£131m in losses. All of those arrested are men aged between 18 and 25 from the US, Europe,
Asia and Australia. Some face 40 years in prison if convicted on fraud-related charges.

2. TECHOLOGY SPECIFIC AND TECHNOLOGYT NEUTRAL

Technology specific

Regulation tied to a particular technology may quickly become obsolete and require

further amendment to the extent specific regulation of online activity may be necessary any
such regulation should be drafted in a technology-neutral way. Laws written before the
widespread use of the Internet may be based on assumptions regarding then-current technologies
and thus may need to be clarified or updated to reflect new technological capabilities or realities.
For example, regulation of communications may not account for the fact
that communications may now occur through wireless or by satellite.

Technology specific laws and regulations may also be lacking a particular technology hindering
the development of superior technology.

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Technology Neutral
The regulatory concept of ‘technology neutrality’ has gained significance in an African context
in the last decade. It exists, ironically, in a field that is driven by technology and technological
innovation and characterized by buzzwords such as WiMAX, LTE and UMTS. Regulators have
been adopting a technology neutral approach to their activities in the main through the adoption
of new ICT legislation which recognizes convergence – at a network, services and application
level. Similar services can now be supplied on different technology platforms, and in response to
this phenomenon ‘best practice’ dictates that regulators should not back any particular
Technology, but should seek to promote competition between different technology solutions.

The concept urges regulators and a policy maker to approach the regulation of the information
and communications technologies (ICT) sector in a manner that does not recognize or advantage
any particular technology. Regulators are encouraged to make decisions that are driven by
socioeconomic impact and public interest imperatives, as opposed to technological preferences.
However, in many ways, technology creates the very opportunities that facilitate the bridging of
the digital divide and the attainment of broader socio‐economic objectives. On one hand, the
Competition that emerges between technologies as a result of a technology neutral approach can
Lead to innovative approaches to solving broader socio‐economic objectives; on the other the
Temptation exists from a regulatory and industry perspective to “back” a particular technology in
the interest of economies of scale and scope, and lowering costs to achieve universal service and
access.
This paper will explore the way in which regulators, policy makers and industry stakeholders
Interpret the requirement to approach regulation in a ‘technology neutral’ manner. It will take a
Practical approach to the exploration of technology neutrality in light of ‘convergence’ and the
regional response to this phenomenon in terms of spectrum and service licensing, universal
service and access and standardization.

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3. RATIO DECIDENDI AND OBITA DICTUM

Ratio decidendi is a word of Latin etymology loosely translated to English as the reason behind
the decision of a person in authority. While obita dictum, despite having Latin etymology is
translated to be a by the way statement which has no bearing on the final finding of the court.
The distinction between the two was illustrated in the landmark case of Woolmington V Director
of Public Prosecution1, in which a man had a dispute with his wife. The wife left him. He took
his gun to go and try to persuade her to get back or he would kill himself. In the process the gun
went off and killed his wife. At trail his defense was accident. The issues brought to the House of
Lords was whether the statement of law in foster’s crown law was correct when he said that, “if
death occurred, it is presumed to be murder unless proved otherwise.” In articulating his
judgment, Lord Sankey made his famous “golden thread” speech: “throughout the web of
English criminal law one golden thread is always to be seen that it is the duty of the prosecution
to prove the prisoners guilt subject to the defense of his insanity and subject to any other
statutory exception. If, at the end of the whole of the case, there is reasonable doubt, created by
the evidence given by either the prosecution or the prisoner, the prosecution has not made out a
case and the prisoner is entitled to an acquittal. No matter what charge or where the trail, the
principal that the prosecution must prove the guilt of the prisoner is part of common law of
England and no attempt to whittle it down can be entertained”. The conviction was overturned
and Woolington was consequently acquitted, three days before his execution.

The acquittal in the fore stated case was based on the fact that woolmington had elected a
defence which placed the burden of proof on the prosecution to prove the contrary .Suffice it to
state that in the given state of affairs, the judge acquitted the accused on the fact that his defiance
of accident had created reasonable doubt that he did intend to kill his wife as he went there to try
and persuade her to come back at the cost of his own life. Thus the Ratio decidendi is the legal
reason behind the decision of the judge.

However, from the above case, the phrase “golden thread” had no bearing on the final verdict of
the court, thus the author has identified it as an obita dictum.

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4. BAIL OR POLICE BOND, WHICH ONE MAYBE GRANTED TO A PERSON WHO
COMMITS A CRIME WHICH IS CYBER IN NATURE?

According to Steven, H. G. (1998, Pp. 37) a bail bond is monetary or other security given to
secure the release of a defendant until time of trial and to assure his or her appearance at every
stage of the proceedings. Very often today an accused will be released "R.O.R." (Release on
recognizance) without bail so long as he promises to appear as required. With relation to Zambia,
the law regulating the release of individual awaiting trail is contained in numerous statutes.
However, this doesn’t entail that any such law has a lacuna. The following are the Instances
when Bail shouldn’t or won’t be granted;

1) Where the accused isn’t likely to turn up and stand his trial
2) That if released on bail the accused is likely to commit other offences.
3) Where if released on bail, the accused is likely to interfere with witnesses thereby
defeating the course of justice.

The state security act, chapter 111 of the laws of Zambia as stated in the case Clarke V The
People2 any person charged with espionage as provided for under section 3. Any person who, for
any purpose prejudicial to the safety or interests of the Republic-

(a) Approaches, inspects, passes over, is in the vicinity of or enters any protected place;

(b) makes any sketch, plan, model or note or in any manner whatsoever makes a record of
or relating to anything which might be or is intended to be directly or indirectly useful to
a foreign power or disaffected person;

(c) obtains, collects, records, publishes or communicates to any person any code,
password, sketch, plan, model, note or other document, article or information which
might be or is intended to be directly or indirectly useful to a foreign power or disaffected
person; or

(d) Without lawful excuse damages, hinders or interferes with, or does any act which is
likely to damage, hinder or interfere with, any necessary service or the carrying on

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 thereof; shall be guilty of an offence and liable on conviction to imprisonment for a
period of not less than twenty years but not exceeding thirty years.3

Espionage is an offence bordering on matters of national security so if the perpetrator commits

espionage via cyber fraud, he will not make bail.

The Penal Code Act, chapter 87 of the laws of Zambia. This is a document in which all major
offences in Zambia are ordained and their punishments laid down. The following are some of the
offences which are non-bail able;

 Murder contrary to section 200 of the penal code

 Aggravated robbery contrary to section 294
 Theft of motor vehicle contrary to section 281 (a)

However, the significant distinction between police bond and a bail bond is that the latter is
granted when an individual has been charged, and his/her case has been brought for mention
before the court and can only be granted by the court, while the former is granted when a person
has been charged but has not been brought to court for mentioning.

5. CONSTITUTION AND CHARTER

Nwabueze, B.O. (1973, Pp.40) defines a constitution as a body of laws and principals according
to which a country is governed. A constitution merely establishes the organs of the state the
divisions of power within the federal government and among the provinces. In other words, it
sets up a government frame work. In general legal study, the term caries two meanings namely;
the abstract meaning and the concrete meaning.

In the abstract sense, it is a system of laws customs and conventions, prescribing the powers
composition of the state and the relationship to each other as well as the relation to the
individuals in the state. In the concrete sense, it refers to a formal document in which the most
important laws of the country are ordained or laid down and having a special legal sanctity.

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A charter on the other hand is a written grant by a country’s legislative or sovereign power by
which an institution such as a company, college, or city is created and its rights and privileges
defined. However, the major distinction between the two is that a constitution is a direct creation
of the people as their elected members promulgate what will regulate the affairs of the state
while the latter is promulgated by the sovereign without consulting the public as a whole and
only regulates certain sectors of society. E.g. create a company by royal charter. Although, royal
charters no longer exist in Zambia because we have a presidential system.

The Zambian constitution is one such document that is promulgated by parliament, in

consultation with the people as they are also allowed to make submissions of what they wish to
be included in the document. (Professor Alfred, Chanda, 2000. Pp. 15) however, with relation to
the United Nations charters, the United Nations charter was promulgated by the general
assembly comprising of a few member state for the sole purpose of regulating the affairs of the
United Nations.

6. SUBSTANTIVE AND PROCEDURAL LAW AND HOW DO THEY APPLY TO

CYBER LAW IN THE ZAMBIAN CONTEXT

Nwabueze, B.O. (1973, Pp.101) Procedural laws are the laws that govern the procedure by which
legal process operates. For instance, a procedural law might be a law that says that within 48
hours of detention, a person must be apprised of his or her rights. Substantive laws are laws that
actually contain the criminal violations for which some might be charged. For instance, a
substantive law might be a law that says it’s illegal to possess marijuana.

The distinction between the procedural law and substantive law is therefore the former governs
the way someone might be prosecuted for an alleged violation of any written laws while the
latter comprises of the actual laws, responsible for regulating all conduct.

This will be applicable in the Zambian context in sense that once one violates any cyber laws, the
proscribed procedure, known as the procedural law, will determine which court will exercise
jurisdiction over the matter, how to commence any such action and all matters incidental thereto.

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However, substantive law will only condemn cyber fraud and stipulate all the necessary
sanctions

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CONCLUSION

In conclusion one can state that of late computers and the Internet are fast becoming inevitable
parts of our lives, so are stories of their misuse, amounting to cybercrimes. Cyber terrorism is
one of the latest problems faced by the Internet users worldwide and which amount of violation
of the laws of the land. Cybercrime cut across territorial borders, creating a new realm of illegal
human activity and undermining the feasibility and legitimacy of applying laws based on
geographic boundaries. Nations are finding cybercrime deeply threatening. It is subjecting States
to unprecedented challenges with regard to their efficacy, sovereignty and functions. Thirdly the
essay looks at the prevalence or the status of cybercrimes in Zambia and the response on
measures being taken by the relevant stakeholders is highly appreciated.

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7. BIBLIOGRAPHY

Oliver Nwabueze Constitutionalism in the Emergent States, (1973) London: Hurst & Co.

Professor Alfred Chanda. Zambian Constitutional Law Cases And Materials (2000) Unza press.
Lusaka

Steven Gifis Dictionary of Legal Terms A Simplified Guide to the Language of Law (3rd Ed,
1998) New York.

Warren G. Kruse, Jay G. Heiser (2002).  Computer forensics: incident response essentials.

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