By Jacob Mutisi
As more and more Zimbabwean businesses increasingly recognise the Internet as a place where commercial dealings can take place, the legal system will need to be equipped to not only understand the Internet, but use it as a tool to successfully exchange and use the information.
For many years, Zimbabwe has faced cash shortages. This has forced the nation to switch to the use of a more convenient mode of transacting which is the mobile money. With no end in sight in Zimbabwe money supply, the use of mobile money and electronic transacting is now become the order of the day in our progressive nation. The central bank and the Minister of Finance Mthuli Ncube says they are happy with the situation and want over 95% of all transactions to be through electronic commerce systems.
With this development, the Internet, banking mobile applications, and information technology are now embedded in societal structures of finance, health, education, and business in Zimbabwe making cyberspace now the playground of cyber-criminals. Without cyber law in Zimbabwe, it is extremely difficult to prosecute a cyber-crime and there is now a need to have a specialised court to handle these difficult cases. The cyberspace has helped a lot of Zimbabwean people, but it has arguably also helped most of our local criminals. Zimbabwe has seen an increase in cyber-crime litigation cases, particularly over the last two years.
This should not come as a surprise. It is a natural consequence of the continual digital transformation of our economic and social lives. The more things we do on our smartphone and the cyber space, the more we become prone to various cyberspace threats. The problem is, though, that even if we make efficient use of available technologies, we barely notice the technical aspects of how they operate.
Meanwhile, an understanding of the technical issues is essential for succeeding with cases that involve new technology. Over the last few years, Zimbabwe’s law firms have set up special interdisciplinary task forces focusing on cyber-crime and cyber litigation with Dube Manikai and Hwacha Legal Practitioners leading the pack. The Zimbabwe Republic Police (ZRP) and the National Prosecution Authority (NPA) have also established departments and units that focus on such specialised cyber-crimes.
Regrettably, the judiciary has not done the same. The most complicated cases involving the newest technologies are still given to regular judges in civil divisions and handled as family matters. The need to explain all of the intricacies of a new technology to a judge is challenging in the limited time that is usually available. Therefore, there is now a need to set up a special court for new technology cases.
An incentive should be the growing popularity of cyber-crime courts around the world and the discourse on using artificial intelligence to solve disputes. Moreover, the establishment of a court that specialises in a specific area would not be a new development in Zimbabwe’s jurisdiction. In other countries there are now dedicated courts that are successfully functioning in China and Poland for a number of years, such as antitrust courts (the Court of Consumer and Competition Protection) and the EU trademarks court.
The establishment of a cyber court would benefit the national judiciary for several reasons. Primarily, because such a court could bring together judges possessing the broadest knowledge of new technologies, supported by leading Information and Communication Technology (ICT) Engineers registered with the Zimbabwe Institution for Engineers (ZIE) and practising engineers certified by the Engineering Council of Zimbabwe (ECZ). This can be constantly improved by their constant participation in specialised ICT training courses, but also by having to review new precedent-setting cases on a daily basis. There is also a need to ensure that new technology cases would be resolved by persons with an in-depth understanding of new information and communication technologies.
The number one advantage of such a specialised Cyber Court would be the increase of the judicature’s role in regulating new technologies. The fact that new technologies are developing extremely rapidly means that lawmakers cannot keep pace with them or draw up laws. Ultimately, it is judges and advocates who have to solve cases which lie outside the normal sphere of regulation. Traditional solutions then become essential, which well suits new-tech cases.
A specialised cyber court would naturally attract specialised lawyers and would become a forum for exchanging views and for various interests. Judges could rely on all of that to arrive at their decisions, taking into account various interests. The law would not require frequent amendment and case-law would become firmer and more stable.
Partnering with the ZIE and the ECZ, a new specialised court would be furnished with appropriate technologies that would enable better management of cases and a more efficient presentation. Zimbabwe’s courts are in the process of implementing various IT solutions due to Covid-19 outbreak, but these new changes are not happening fast enough. Documents are still being sent through traditional post, case files are placed on display and cases are described verbally, with no possibility of giving computer presentations. A cyber court could provide secure conditions for the efficient communication and presentation of electronic evidence.
It is now paramount to have a cyber court with the advantages out weighing the disadvantages. A cyber court would strengthen Zimbabwe’s jurisdiction and make it approachable and predictable for the new technology sector. Zimbabwe’s justice system would lead the technology revolution and would set the legal rules. Legal stability would encourage foreign direct investments in new technologies. A specialised and modern court, with qualified lawyers at its disposal and furnished with appropriate technologies, would become an attractive venue for court disputes, not just concerning Zimbabwe’s jurisdiction.
With the growth of the use of smartphones, mobile apps and electronics transacting the cyber-security threats are a reality for every citizen in Zimbabwe both public and private. In spite of good prevention efforts, every court will soon certainly face a cyber-security incident including electronic fraud, data breach or cyber-attack and the Zimbabwean government should seriously consider having a Cyber Court, not tomorrow but today without fail.
- Mutisi is the CEO of Hansole Investments (Pvt) Ltd and the current chairperson of Zimbabwe Information & Communication Technology, a division of Zimbabwe Institution of Engineers.