Presentation by Egya Kwamena Jallow to African Security Dialogue and Research
Proposed Legislation on Computer Related CrimeBefore dealing with the raft of legislation that has been introduced by the Governmentwith regard to computer related crimes, I intend to briefly outline the challenges whichthis type of crime presents to the criminal justice system and the inadequacy of existinglaws to facilitate prosecution. I will then make some additional comments and thenconclude.A fundamental problem is the lack of a provision for computer related crime. This couldchange soon with the passage of some Bills that have been placed before Parliament.Ghanaian law makes provision for crimes perpetuated by physically taking money orproperty, or where a document is forged or falsified by a person’s signature. In the worldof financial crime, the criminal rarely ever ‘sees’ the physical money. Money istransferred via the click of a mouse and the input of keys on a computer terminal. Themain problem that technological advancements have created for the Ghanaian criminallaw is the undermining of fundamental concepts such as physical interference andappropriation, on which the law is based.Under the law, in order for a person to interfere or cause damage or receive property, thatperson had to be in physical control of, or in physical proximity to that property. Thanksto advancements in technology, a person can tamper with a document, (that is if adocument can include a ‘document’ on a computer screen) that he or she has not evenseen thereby removing the necessity of physical proximity to that ‘document’.
Another example is the crime of stealing. For a person to be guilty of stealing, there mustbe the physical taking and carrying away of something that does not belong to him. Howwill there be a successful prosecution of a person who by sitting behind a computerterminal misappropriates money that does not belong to him. At the time the Code wasenacted, the drafters had in mind chattel that could be physically handled and not itemswhich on many occasions, the ‘criminal’ has not set his eyes on.Another problem is the issue of punishment. Peter Grabosky1 notes that apart from beingdriven by “time-honoured motivations, the most obvious of which are greed, lust, power,revenge, adventure, and the desire to taste forbidden fruit…” there is the added incentiveof a sense of adventure and the desire to explore the unknown. In Africa, the motivationis simple: to make money and tons of it especially at a time when the security agenciesare less capable of dealing with such forms of criminal activity than they are at moreconventional crimes. This suggests that the normal utilitarian and retributive forms ofpunishment are insufficient. The thought of spending a period in prison but yet still beingable to get out and enjoy the spoils will not be sufficient to deter potential fraudsters.What are the chances of reforming a convicted criminal when all he seeks to do oncereleased is to live off the spoils of his crimes?The Government has introduced a number of bills which I will now discuss. The bills Iwill deal with are the Electronic Transactions Bill, Electronic Transfer of Funds Act Bill,the Computer Misuse Act Bill and the Computer and Computer-related Crimes Act Bill.1 Peter Grabosky The Mushrooming of Cyber Crime
In my view, the most significant provision is clause 3 of the Electronic Transactions Billwhich provides that the use of electronic communication shall not, by itself, invalidate acommunication or its contents. This is important because for the first time, the use ofelectronic means to engage in transactions, particularly financial transactions will be(once the law is passed) given legal recognition.The same bill also recognises the use electronic means of adducing evidence in court.Clause 9 provides that a requirement to make documents available for inspection shall besatisfied if a perceivable electronic version is produced. Clause 9 goes further to ensurethat courts and tribunals cannot deny admissibility of documents solely on the groundsthat they have been presented in electronic form.This will aid the administration of justice in the sense that during a trial, evidence on anelectronic device such as a laptop could be shown to a jury in support of a fact. Clause 9strengthens the use of such devices because it means that evidence cannot be excluded onthe basis that it was produced in electronic form.The next bill I want to deal with is the Electronic Transfer of Funds Crimes Act Bill. Thepurpose of the bill according to its memorandum is to “ regulate the transfer of moneythrough electronic means, including via computers, online or an electronic terminal, by means ofa card or number or data associated with a card for the purpose of instructing or authorising afinancial institution to debit or credit a cardholder’s account when anything of value ispurchased.” So not only are electronic transactions legally recognised but hopefully, their use willbe regulated by creating offences, as this bill does, for the unlawful use of a bank card or the
unlawful transfer of money. We should remember that in this form of ‘theft’, the criminal doesnot physically handle the money but transfers it by imputing commands on a computer terminal.Clause 11 makes it an offence for a person to obtain anything of value by use of a forged card ora card or the number and data of such card obtained or retained fraudulently. So if someoneforges my credit cards and uses it to withdraw money from the cash point at Osu, that person canbe prosecuted. The person also commits an offence if he, without my consent gets hold of mycard details and uses it to buy goods.Clause 12 would make it an offence for a creditor to furnish goods and services on a card or thenumber and data of such card he knew was obtained or retained fraudulently or illegally or wasforged, expired or revoked, or represented to the issuer that he has furnished goods and serviceswhen in fact he has not done so. I have been made aware of the fact that Ghanaian commerce hasnot reached the stage where I can sit behind a computer and use a card to order goods fromMelcom but if I did and the store knew I’d dishonestly obtained my cards, it would be subject toprosecution because it knew that I was obtaining good by dishonest means. This should be awarning to companies and individuals who want to make money through any means.Clause 19 would make it an offence to use the personal or financial data or credit accountnumbers of another to effect an electronic fund transfer. This is the closest that Ghana has cometo an ‘anti-419’ provision because with 419s we are talking about a situation where someoneclaiming to have access to money needs my account details to transfer money.Now the Computer and Computer Related Crimes Act Bill. To put it very simply, this billprovides punishment for anyone who uses a computer for unlawful means. For example, clause 2would make it a summary offence for a person knowingly to have unauthorised access to any
programme held in a computer and provides additional penalties for damage resulting fromunauthorised access.The bill makes it an offence for person who uses access to a computer whether authorised orunauthorised to facilitate the commission of a crime. The most serious offence I have seen so faris in clause 8 which makes it an indictable offence (an offence carrying the life or death sentence)if unauthorised access is to a protected computer which was used for national security, lawenforcement and the provision of public services.Computer Misuse Act Bill is similar to the Computer Related Crimes Bill in that they bothprovide for situations in which a computer has been tampered with.Before concluding, I wish to make some comments on the bills I’ve just talked about. The bills donot contain specific punishments or penalties. I presume that this is because the Penalty PointsBill which will redefine the calculation of penalty points, is before Parliament.The legislation is a step forward because now companies engage in transactions amongthemselves and with the Government via electronic means such as faxes and emails. It is alsopositive because someone who steals my bankcards and uses it to withdraw money can beprosecuted not just for stealing my money but for misusing my card as well. Ghana has notreached a stage where monetary transfers between its banks are done electronically but the billsmean that the Government is preparing the country for such a development. I think that is crucialfor investor confidence.One fault with the bills is that most of the offences are summary offences. It means that offendersare likely to be granted bail, and punishment might not be so severe. I’d prefer not to comment
further and wait to see the result of the penalty points bill. Terms of imprisonment have been leftblank and so we wait and see how they will be filled in. I keep on harping on about punishmentbecause if the penalties are minimal, the law will not serve as a deterrent to potential offenders.We must remember that the bills have not been passed and so they are not law. I stress that it is astep forward but a lot more needs to be done. The tools for detection of the police must alsobe upgraded. The current Government has engaged in a policy of procuring modernequipment for the police to tackle crime. Unfortunately, this seems to be restricted ormainly directed towards violent crime. It is important the policemen and women areeducated on financial crime of a computer nature. This will enhance co-operation withthe anti-crime agencies of other countries since cyber crime has no national borders.Education should extend to institutions of higher learning to ensure that future lawyersare well versed in this emerging area and so be capable of dealing.