By Innocent Ferris Rupapa
The Covid-19 pandemic has exposed our vulnerabilities even further and brought to light our broken relationship with nature. The same pandemic has pushed humans to forge new and better strategies for interaction and doing business. Travel restrictions and lockdown measures that have been imposed by nations across the world to contain the spread of Coronavirus curtailed movement but did not stop criminal enterprises from transacting and trading wildlife products illegally obtained.
During the Covid-19 induced travel restrictions, there has been an increase of Wildlife criminals using online platforms such as Whatsapp, Facebook, and Twitter to sell wildlife products. This is a clear indication that despite travel restrictions being in place, the demand for wildlife and wildlife products has not subsided.
The United Nations Office on Drugs and Crime in its 2020 World Wildlife crime report stated that organised criminal groups are increasingly using a range of online platforms and technologies to facilitate the transnational trafficking of wildlife products. The report went further to encourage member states to develop the capacity of law enforcement agencies to investigate online sales of illegal wildlife, infiltrate existing online markets, collect relevant evidence including using digital forensics and develop enforcement countermeasures.
Africa is home to the largest iconic species some of which are listed as Vulnerable (VU), Endangered (EN), or Critically Endangered (CR) under the IUCN Red List. Wildlife products such as Elephant Ivory, Rhino horns, pangolin scales, and lion teeth inter alia are illegally harvested from Africa and transported to markets in Asia and in the United States of America. The trade poses a huge threat to the continued survival of African wildlife and African countries have since enacted laws and regulations that address the illegal trade and protect wildlife species from extinction. Be that as it may, the crucial question this paper seeks to probe is Whether or not Zimbabwe is ready to tackle wildlife trade conducted on the internet (hereinafter referred to as Cyber Wildlife Crime) which is so fast on the rise especially during the Covid-19 pandemic.
At the 58th meeting of the CITES Conference of the parties in 2010, a resolution was adopted, among other things exhorting member states, “to establish at a national level, a unit dedicated to establishing/ investigating wildlife crime linked to the internet or incorporate wildlife trade issues into existing units that investigate or monitor computer cyber-crime”. From that time onwards there have been growing acknowledgment, literature, and concerns on Cyber Wildlife Crime. The sale of illegal wildlife products has historically occurred in traditional markets but since the growth of the internet more so now forced by the Covid-19 pandemic, there is compelling evidence that wildlife traffickers are growing online to reach a vast virtual marketplace, making wildlife crime a form of cyber-enabled crime.
The available evidence shows that the scale of wildlife cyber-crime is significant while the capacity to tackle the problem has been limited; meaning that online trade poses a serious threat to the survival of some of the world’s most iconic species.
The illegal wildlife trade represents a multifaceted threat to animal life, rule of law, and governance and must be met with comprehensive responses. That means curbing demand through lobbying and public awareness campaigns, stopping poaching on the ground, and disrupting the trafficking of threatened species. The internet provides traders with new ways to profit from the illegal wildlife trade, but it also provides us with powerful tools to stop them. Disrupting wildlife cybercrime is a critical component of ensuring the welfare, safety, and survival of endangered and threatened animals as was stated by Rikkert Reijuen, Programme Director, IFAW.
The Zimbabwean Cyber Crime Legal Framework
To effectively tackle wildlife cybercrime and any cyber-enabled crime it is imperative to have enforceable mechanisms that provide clarity on what constitutes cyber-crime, lawful investigations of online sales of illegal wildlife, infiltration of existing online markets, collection of relevant and admissible evidence including using digital forensics (investigatory and police powers). All these have to be entrenched in the law to ensure that enforcement is conducted in a manner that will see offenders brought to book and strike a balance with digital rights i.e. Right to privacy and Information.
In 2014, McAfee Intel Security estimated that the cost of cybercrime was at US$400 billion globally. This clearly indicates how much cybercrime can affect economies, security, and governance of countries hence the need for legal frameworks to tackle it cannot be again said, especially in light of wildlife species that are threatened with extinction at alarming rates.
Regionally, there is the African Union Convention on Cybersecurity and the Personal Data Protection 2014 that seeks to harmonize African cyber legislation on electronic commerce, organization and, personal data protection, cybersecurity promotion, and cybercrime control. At the SADC level we also have model laws on Data Protection, 2012; Cybercrime, 2012; and Electronic Transactions, 2012.
The problem Nationally is that there is a limited cyber security framework in place. Traditionally, Zimbabwe has relied on Chapter VII of the Criminal Law (Codification and Reform) Act to tackle Cyber-enabled Crime. This chapter has been criticized for being limited in scope considering the growing misuse of electronic networks for criminal purposes which is threatening not only individuals, corporates, governments, and children but also wildlife resources as this paper so emphasizes
To address the above casus omisus in our law the Zimbabwean legislature has for a period of about 5 years drafted a bill that caters to cybercrime. This bill has undergone several amendments from being the Computer Crime and Cybercrime bill of 2016 to the Cybersecurity and Cybercrime bill of 2017 and now the Cybersecurity and Data protection bill of 2019 (hereinafter referred to as the Bill). The bill inter alia amends the provisions of Section 163-166 of the Criminal code and expands the offences. Of the cybercrimes listed above, the key to this paper is Clause 163E which criminalizes acquisition, sale, advertisement, or possession of data for the purposes of committing an offence (wildlife crime included). The bill defines “data” succinctly to mean: “any representation of facts, concepts, information, whether in text, audio, video, images, machine-readable code or instructions, in a form suitable for communications, interpretation or processing in a computer device, computer system, database, electronic communications network or related devices and includes a computer programme and traffic data”.
This, therefore, means that any person who shares a text, audio, image, or video in illegal possession of wildlife or wildlife products advertising them for sale on social media will be charged for contravening clause 163E and liable to a penalty of a fine not exceeding level 12 or imprisonment for a period not exceeding ten years where there are aggravating circumstances. In light of the mounting wildlife cybercrime, the bill is long overdue to be enacted into an Act as it will ensure that wildlife cybercrime offenders are properly charged.
The collection and admissibility of electronic evidence also come into question. Admissibility of electronic evidence such as images and videos shared on social media has been treated with caution in our courts but there has also been growing acknowledgment that electronic evidence plays an important part in proving or disproving a point of fact. Electronic evidence is usually challenged because of its susceptibility to manipulation, i.e. an offender can use another person’s account to advertise illegal wildlife products or can use an image taken randomly from the internet which is not a true reflection of what they possess in person or constructively.
Admissibility of electronic evidence in Cybercrime
Digital records, just as paper records (documentary evidence), have steadily assumed a very important position in the adjudication of disputes or cases, as anything is done on the computer or internet usually leaves traces or digital footprints that can serve as evidence in legal proceedings.
In the case of Cherise Wheeler v Timothy Eggleston HH 99/16, Chitakunye J did not oppose an attachment of transcript of Whatsapp messages in an application but relied on it. This reflects on the progressive stance courts are taking in dealing with electronic evidence. The locus classicus on the admission of electronic evidence in the Zimbabwean jurisdiction is the case of Paradza v Chirwa and Others 2005 (2) ZLRS 94 (s) in which the applicant applied for a declaratory order that evidence of the telephone conversation the applicant had with justice Mafios Cheda which the latter tape-recorded, was obtained in breach of applicant’s right to privacy of communications as was guaranteed in s20 of the 1980 Constitution and that admission of such evidence in the proceedings before the Tribunal was likely to violate his right to fair hearing enshrined in s18(9) of the1980 Constitution. The court held that admissibility of illegally or improperly obtained evidence is a matter for determination by the court in the exercise of its discretion. The court relied on s48 of the Civil Evidence Act Chapter 8:01 which enacted the common law rule on the admissibility of illegally or improperly obtained evidence.
In the South African case of State v Jacob Sello Selebi case no: 25/09 South Gauteng High Court (Johannesburg) the court accepted an intercepted electronic-mail communication as evidence to prove some of the benefits which Aglioti received by reason of his corrupt relationship with the accused person.
The admissibility of electronic/ digital evidence is well encapsulated in the bill particularly in clause 166B. Neither the Criminal Procedure and Evidence Act nor any criminal law related Act provides for electronic/digital evidence hence the above provision on the admissibility of electronic evidence is commended as very progressive in light of the “internet age of things”.
The internet age defiles physical geographic boundaries hence the issue of jurisdiction comes into question. The illicit internet communications, void of territorial boundaries, present numerous challenges to traditional personal jurisdiction jurisprudence. Contacts initiated over the internet are not actually conducted in a particular location, but rather in the ephemeral world of “Cyberspace”. Courts have not only been faced with the challenge of deciding whether to apply new jurisdictional rules to internet-related disputes or crimes but also have encountered difficulties in properly analyzing these cases within traditional personal jurisdiction decisional models.
The article goes “From the Internet to the Court” points out that there must be a uniform jurisdictional test used by all courts to determine whether particular internet communications are sufficient to subject non-resident litigants to a forum’s jurisdiction. To clear out issues that may arise with regards to jurisdiction the Bill clearly provided for in clause 166A.
In the status quo, Zimbabwe does not have firm legal mechanisms to effectively tackle wildlife cybercrime mainly because the available law does not criminalise wildlife cybercrime and more so it is limited in terms of admissibility of digital evidence. The cases of S v Morgan Tsvangirai HH 168-2004 and that of S v Roy Leslie Bennet HH 79-2010 show the extent to which electronic evidence in our country can be challenged. Be that as it may, the provisions of the Cybersecurity and Data protection bill of 2019 are very progressive. It covers a wide scope of cyber-enabled crime including wildlife cybercrime and provides guidance for investigation of cybercrime, evidence gathering, jurisdiction, and admissibility of electronic/digital evidence. Its enactment is most awaited because the advent of the technological age has had a tremendous effect on how transactions and trade are conducted and equally it has affected the criminal justice process particularly with regards to evidence gathering and presentation.
*Mr Innocent Ferris Rupapa, Legal Practitioner specializing in Wildlife Law, Environmental Law, Human Rights and Natural Resource Governance, Legal Researcher and Blogger.
N.B The views expressed herein are those of the author in his capacity as a legal practitioner and do not in any manner or form represent the position of the organizations the author works for or is affiliated with.