This matter concerns the recommendations to dismiss a female police officer from employment in the Malawi Police Service on account that her video clip which suits the description of pornographic material is in circulation in the public domain.
Although this Kangaroo Court constructively denied itself the temptation to watch the said clip, claims which have not been disputed, but repeated widely, so far informs that the said clip shows the alleged senior female officer who operates from the police headquarter at Area 30 posing naked while, in a selfie mode, capturing herself using a phone. She, according to the information before me, was touching her private part and the said clip was recorded within the walls of a bathroom soon after taking a bath, but before being dressed up. In the existence of doubt that this could be at her work place, the deductive inference is that she was in the comfort of either her home or some lodging facility. The relevance of this deduction will come clear as we proceed.
Resultantly, the said officer is facing, from moral guardians, recommendations of dismissal from work on grounds of indiscipline. These moralists, in reaching to such a conclusion, has averred expressly that "her indecency conduct has injured a good reputation of the institution" - the said institution being the Malawi Police Service. Whether, indeed, the Malawi Police service has any such reputation so clean as to be contaminated substantially by the said indecency act of one of its recruits begs for a different debate altogether.
The main issue to be dealt with in this case is whether dismissing the said officer for her leaked adult clip is justifiable or not, the test for such justification being availability of peace between the dismissal and the law without necessarily inviting moral calibration. However, since I do not elect myself to impeach morality of our society, the moral test will also be, but separately, applied and its effect to be reflected in this ruling.
As pointed out above, her dismissal shall be deemed justifiable if it answers to any applicable law and that such applicable law has formed the foundation and pillar of this administrative action. On the other hand, if this dismissal is not grounded on any applicable law, but has merely emerged from fertility of emotions and moral profile, it shall be deemed illegal and actionable for remedy.
In our jurisdiction, this matter falls under the Constitution, the Penal Code and the newly enacted Electronic Transaction and Cyber Security Act (herein called Cybercrimes Act).
Indeed, in this era of cutting-edge technological advancement, cyber-related crimes have emerged. The Cybercrimes Act, thus, represents a monumental positive step in a promising direction because Malawi, just like any other country in the world, needs a responsive legal framework for the ever-growing and increasingly indispensable digital information sector. But how does the said pornographic video clip become related to cybernetics crimes?
One way to understanding cybercrime is by looking at it as a compound term constituted by the words "cyber" and "crime." The word "cyber" is generally understood to mean: "through the use of a networked computer-related technology. The term "crime," on the other hand, means an act, omission or state of affairs that is prohibited by law and which is punishable upon conviction. "Cybercrime," therefore, can be loosely defined as meaning crimes committed through the use of network-adapted gadgets such as computers, phones, etc. It is where a crime meets the network technology.
Now, when existing traditional offences, such as fraud and pornography, gets committed through the instrumentality of networked gadgets, it becomes a cybernetics crime and this is why this video clip becomes related to it and liable to prosecution under the said Electronic Act.
Having looked at that, we should now look at how far should the laws incorporated in the Cybercrimes Act go in the privacy hemisphere? Per our existing traditional offence related to distribution of pornographic material, the criminality is achieved when the adult content escapes the confines of privacy into public domain. This is to say, as a matter of practical example, that it is not an offence (in the face of the law) for a wife of a soldier to capture and send her nudity to her husband who is away. This forms part of their conjugal submissions. Of course this, looked from the moral perspective, is wicked. The same applies to all couples who are physically separated by distance, as far as it remains within their private confines. In so doing, the coming in of the Electronic Act is not expected to erode this Constitutional principle and fundamental liberty. Yes, privacy is a Constitutional principle!
Here is the challenge: as infiltrated, the use of this digital and internet technology, as it may be in our society, most end users lack the capacity to safeguard against accidental leaks of the contents of their communications. This scenario leaves many people being prone to devastating consequences of such leaks depending on what content has broken the privacy fence.
Punishing victims of such accidental leaks is akin to punishing someone who has not committed any crime - and that is a mark of injustice. At the heart of the criminal law lies the principle of mens rea which is essentially the "guilty mind" or "fault requirement". This principle guides that a person should only be held criminally liable for conduct done with the guilty mind. It is a general principle of Malawian criminal law that mens rea is presumed to be a definitional element of every statutory offence unless that presumption is excluded in particular cases of strict liability. But all key international standard-setting instruments on cybercrime define the substantive cybernetics offences as requiring proof of mens rea in the form of intention. Thus the message from these instruments is loud and clear: cybercrimes are not crimes of strict liability.
This principle is expressly acknowledged as one of the "general rules" of "criminal responsibility" under Malawian criminal law though section 9 (1) of the Penal Code, which reads as follows: "Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident." -- end of quote.
Thus the Cybercrimes Act must operate within the framework of justice as well the fundamental human rights and freedoms guaranteed by the Constitution. The necessity to build and maintain a secure and indecency free Internet space should not be used as a justification for careless punishments and unconstitutional violation of the rights and freedoms guaranteed by the Constitution.
Sometimes, the legitimate recipient of such private material (e.g the husband/boyfriend or the wife/girlfriend) may deliberately leak such material for some punishment or ill motives when their relationship goes amiss. In such a case, that partner (making such a leak) has clearly departed from the privacy arrangements and has offended the "Data Protection and Privacy." He/she must be deemed to have used the private data in a way so incompatible with the purpose and/or privacy for which they were intended.
Fairness and justice demands that such a partner must be held answerable and not the victim. This, therefore, brings us to the requirement of establishing real facts and circumstances surrounding any such leakage when they arise before rendering the subject to consequences which may be irreparable.
Having said that, whether distributed to the public on will or leaked unknowingly and/or accidentally, becomes a moral issue. Morality concerns human acts. An act, in moral theology, is a knowing choice; it is an exercise of free will and intellect (reason). Every knowing choice is an act. Every act is subject to conscience and to the unchanging truths of the eternal moral law of God. When he acts deliberately, man is, so to speak, the father of his acts. Human acts, that is, acts that are freely chosen in consequence of a judgment of conscience, can be morally evaluated. They are either good or evil."
Thus in a society like ours, where morality forms part, the person involved in such explicit material loses some amount of respect while earning some amount of ridicule and embarrassment. Unfortunately, there is nothing we can do about that. I cannot elect myself to dismiss such moral consequences. Such is the unavoidable price payable by the subject.