We made the point that this is not yet law but a proposed legislation which is currently at the stage of gathering public views and input before it is presented to Parliament.
It is at this stage that Parliament encourages members of the public to come forward and make their views known and voices heard concerning any bill that may later become a part of the binding law of the land.
In our article yesterday we said,
The bill also extends to Zimbabweans outside the country and enacts the Extradition Act to ensure that offenders are brought to justice back home and also empowers the authorities to extend penalties that include up to 5 years in prison for cybercrime.
Bearing in mind that there is the generally agreed estimate of millions of Zimbabweans living abroad and who happen to rely on cyber services for communication with family and friends back home, we assume there is direct interest among those living abroad on the application of the extradition provision in the bill.
This article is intended to be a simplified 101 on the concept of extradition itself.
This makes this article no legal advice but simply an explainer piece. Should you be caught on the wrong side of the law, which you must not, you will need proper legal advice.
What is extradition?
The actual extradition provision in the current draft at section 27, Part III, reads,
Any offence under the provisions of this Act shall be considered to be an extraditable crime for which extradition may be granted or obtained under the Extradition Act Chapter 9:08
Extradition means the handover of a person accused or convicted of a crime in a particular geographic area or jurisdiction. It is a legal exercise in the realm of international law and international relations.
It involves two or more countries talking to each other, usually at the Ministry of Justice or equivalent level, in pursuit of an investigation, prosecution, or punishing of a crime.
Zimbabwe’s Extradition Act is mentioned and referred to in the draft Cybercrime bill because it gives a legal basis for Zimbabwe to enter into extradition agreements with other countries, request extradition to Zimbabwe and process requests for extradition that may come from other countries.
This is what also makes it both an international law and international relations issue.
The Extradition Act Chapter 9:08 which you can read in full here legally informs the whole process of extradition in our domestic setting.
The principle of dual or double criminality
One of the fundamental principles of the law of extradition is the concept of dual criminality or double criminality.
This simply means that an individual can be extradited to another country only if the country or its jurisdiction in which that individual is physically present also deems the alleged crime an offense.
For example, country A can not request extradition from country B over an alleged crime of insulting the President of country A when that is not considered an offense in country B.
Many countries around the world, including Zimbabwe, have this requirement expressly stated in their domestic extradition laws. Australia, the United Kingdom, South Africa and the United States also have this same requirement.
Governments usually enter bilateral or multilateral extradition treaties which include dual criminality requirements as a binding provision in the agreement.
Unless this requirement is met, among other things, extradition requests will invariably be turned down.
This mechanism in international law makes it difficult for governments to manufacture offenses that other countries deem non-offenses.
It also enables governments to protect their values and further their interests when interacting with other members of the international community.
It is, therefore, the case that only the most serious crimes such as terrorism, money laundering, human trafficking, drug trafficking, war crimes, genocide and so on really a stand chance when countries seek extradition.
Moreover, countries receiving the request may also make certain demands concerning the treatment of the suspect to be extradited once in their home country. If these cannot be guaranteed, it becomes a sound basis for the request to be rejected.
So in reality due to the complexities and alignments that occur in international affairs, extradition outside the type of offenses mentioned earlier above is easier said than done.
Whether countries one is requesting an extradition from like you and believe in your system will also come into play.
As debate and feedback on the draft Computer Crime and Cyber Crime continue, Parliament will have to ensure that the bill has a water-tight case for what it classifies as cybercrimes.
Whatever the bill will finally call cybercrime will have to be consistent with the supreme law of the land, the national Constitution and international practice to avoid the embarrassment of repeatedly rejected extradition requests.