Analysis of the CyberCrime Act.

  1. Introduction

Nigeria has had a fair share in the history of notorious criminal activities. If we are to take a short delightful walk down the memory lane, there was a time when the country was battling with cold-blooded criminals who seemed to have carved a niche for themselves in the area of armed robbery. Some of them like Lawrence Anini (the Law), Ishola Oyenusi, and Isiaka Busari (the Mighty Joe) sent many police officers and prosperous business men to their early graves.[1]

While we were celebrating the fall of these infamous armed robbers and recuperating from their blood-chilling narratives with an unblessed memory, little did we know that there was a bigger enemy at the gate. At the early days, criminals who engaged in the Advanced fee fraud, the internet fraud or what some people may choose to call “419” which is a type of Cybercrime operated in the Cyberspace untrammelled.

Initially, the then government of the day, evidently equipped with little knowledge of internet fraud and its consequences snort the threat with derision until 1998. This is when Emmanuel Nwude,  who was aided by Amaka Anajemba defrauded a Brazilian bank the whopping sum of $242 Million and sold a fake airport to the bank.[2]

This fraud which till today has remained the largest scam in Nigerian history cost Nigeria her reputation and money with other countries now trading with Nigerians with a suspicious eye.

It was after the trial of the Anajemba and her cohorts in 2005 coupled with the increasing cases of internet scams that provoked the former president of Nigeria, his excellency, Olusegun Obasanjo to make moves for the creation of the Economic Financial Crime Commission (EFCC) and the Advanced Fee Fraud Act which was enacted in 2006.

Today, the growing knowledge of the use of Computer and Information Technology has paved the way for the perpetuation of horrible crimes through the internet.

There was this disturbing case of Cynthia Udoka Osokogu (deceased) which sparked provoking reactions in July 2012.[3] Her case was that she was stalked on Facebook, lured from her residence in Abuja to a hotel in Lagos State under the pretext of doing business. The aftermath was that she was robbed, drugged, raped, assaulted, and strangled to death in that hotel.

With this ugly incident and many others emerging, suffice is to say that there was a pressing need for a comprehensive legal framework that should regulate the activities of people in the Cyberspace.

Given the foregoing, The Nigerian Cybercrimes (Prohibition, Prevention, Etc) Act 2013 which was repealed by the later 2015 Act (hereinafter referred to as “the Act 2015”) was a response to this disturbing demand.

In this perspective, even with the Act 2015, the stubborn question is: despite the laudable nature of the Act 2015 in the light of crime control and prevention in Nigeria, how far can it go to drive the socio-economic sphere of the country in the positive light? While adopting the doctrinal research methodology and to put this essay in the proper perspective, an analysis will be made on the provisions of the Act 2015 and in addition bring to the fore some grey areas that needed to be addressed. Of course, recommendations will be made to drive home our points.

2. The 1st Century Crime Control in Nigeria

Crime in the 21st century has taken a different proportion. Before, it was commonplace to find some particular number of offences like car theft, assault, armed robbery, road offences, house-breaking and burglary to mention but a few, occupying the stage in our criminal justice system.

The scarcity of some internet-related offences before the 21st century lends credence to the assertion that crime is a reflection of the prevailing social, economic and cultural characteristics of a particular era.

With the growing increase in crime, the law enforcement agencies that are meant to bring the crime rate to the barest minimum were overwhelmed even with the increasing population. The matter is now worst in the present dispensation. At the risk of repetition, it is interesting to note that the growth of the internet facilities together with the liberalisation of our cyberspace has added to the nightmares of law enforcement agencies in crime control.[4]

The saddest part of it is that, while a lot of dexterity, artistry, assiduity or craft has been on the increase all over the world in the fight against cybercrime and other complex offences, Nigeria seems to be lacking behind despite the influx of legislations to tackle these seemingly complex offences.[5]

The situation has brought to the fore a paradox that exists in the Nigerian administration of criminal justice system. Hence, while the concerned agencies like the EFCC seem to be tardy in nipping the menace to the bud, the cybercriminals have been improving in geometrical progression in a country where the preponderance of her citizens are evidently equipped with the little knowledge of the intricacies of the cyberspace.[6]

But then, the above discourse is just the tip of the iceberg when it is observed that the concept of “cybercrime” is even more confusing like a Gordian knot. At least, at the International level, there is no universally acceptable definition of what cybercrime is.[7]

Contributing to this opinion, his Lordship, Honourable Justice I.N Buba of the Federal High Court in Solomon Okedara v The Attorney General of the Federation, acknowledged that

“…the applicant has to come to terms with the realities of life in the 21st Century and the use of cyberspace to commit offences. Indeed, cybercrime itself has not or has never had a single acceptable definition”.[8]

With this in mind and so many other problems which have further complicated the work of the actors[9] in the 21st century administration of criminal justice, the irresistible question is: How far has the Cybercrime Act gone in bringing about improvements in our Socio-economic life? To answer this question which will form the fulcrum of the next part of this essay. There is a far and crying need to examine the provisions of this Act.

     3. The Cybercrime Act 2015: The Socio-Economic Relevance.

The wisdom behind the Cybercrime Act 2015 which can be seen in its explanatory memorandum is to provide “an effective, unified and comprehensive legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cyber crimes in Nigeria.”

In a similar vein, the scope of the Act 2015 was brought to the limelight when it further added that it seeks to protect “the critical national infrastructure,[10] promote cybersecurity,  protect  computer  systems  and networks, electronic communications,  data  and  computer  programs, intellectual property and privacy rights”.[11]

Section 2 emphasises that the Act shall be applicable throughout the Federal Republic of Nigeria. With this, what followed thereafter was a gamut of over 60 acts or omissions that constitute cyber offences.

A peep into Sections 6 to 70 of the Act 2015 will reveal that there are five (5) categories of these Cyber offences. There are the general offences are covered from Sections 6 to 22. There are the Pornographic offences under Sections 23 to 25, There are offences relating to Race and Xenophobia in Sections 26 and 27. Sections 28 to 32 speak directly to offences relating to E-tools.

The rest of the Sections concentrate on offences relating to Electronic Cards. In the article titled “Cybercrimes And Cyber Laws In Nigeria: All, You Need To Know” Josephine Uba anchored her analysis of the Act 2015 on three (3) general divisions of offences which we shall adopt in this essay.

There are Cybercrimes against the people which include for instance, Human Trafficking, Cyber Phishing and Harassment, dissemination of Child Pornography, Online Defamation and various forms of Spoofing.

With these provisions, if the case of Cynthia Osokagu was to be reopened today, her killers would have been charged also for Human Trafficking and Cyber Stalking.

There are the property-related Cyber offences like Typo Squatting, Computer Vandalism and Intellectual Property Infringements. Shifting our attention to Offences that affect the Government directly, there are offences like destroying critical national structures, cyber terrorism, unauthorised access to the computer system or data which affects the country’s security or access to a classified information.

It is also an offence to use any Computer System or data to attack files which belongs to the State. Someone may ask: why are we taking our time to venture into this little analogy? To return an answer to this question, the above little inquiry has shown that the Cybercrime has expanded the scope of offences that can be committed in the Cyberspace unlike what we used to have before the advent of the Cybercrime Act.

It seems the above discourse may not be sufficient to drive home the points we are struggling to make. Be that as it may, the Act is a welcomed development because it has brought hope in the Nigerian business and economic sector.

At least, people can now market their business online and companies can equally send and receive data from other business partners without fear of a Cyber attack. Additionally, gone are the days when corporations go about tossing people’s personal information up and down and disseminating it with reckless abandon.

Today, the Act 2015 has equally guaranteed data protection. For emphasis, Section 55(2) of the Cybercrime Act 2015 points out that anybody requesting such information must show: (a)The authority requesting the preservation or disclosure; (c) The electronic device or information such information will be retained; (d) identity of the person responsible for the information, data, or the computer where it is stored; (e) the necessity or measure of preservation…

As a matter of fact, Section 38 (4) of the Cybercrime Act 2015 was definitive that “any data retained, procured or retained by the service provider at the request of any law enforcement agency under the Cybercrime Act shall not be utilised except for legitimate purposes. That is even a tip of the iceberg when it is observed that the Act 2015 has even provided a legal protection to musical, artistic works, films or cinematographs that are covered by Copyright.

For instance, while Section 25 of the Act 2015 makes it an offence to intentionally and without lawful authorization use a registered business name, trademark, domain name or other phrases for the purpose of interfering with their use by the owner, Section 57 of the same Act has now established an offence known as “cyber squatting.”

An offence wherein a person will be liable for using a domain name and the intellectual property of a corporation or an individual without a lawful authority which its usage was done in bad faith or to cause injury to the person or the corporation.

With the above Sections in the hands of a Copyright owners, people can now reap the full economic gains of their creativity, knowing fully well that there are bundles of laws that they can now rely on to enforce their rights depending on the one that will guarantee them adequate justice.

Aside from the fact that this law has now guaranteed to some extent the safety of online transactions and businesses, it has come to fill the lacuna that was in the area of internet and cyber-related offences. It is no longer when some defence counsel would argue that “you cannot punish someone for an offence that was not in existence in any written law.”

Thank God that ignorance of the law is not an excuse because it is now visible to the blind that there are two types of activities that can be done in Cyberspace. The lawful activities and unlawfully activities.

Before we conclude this part, there is a pressing need to also mention that the Act 2015 has now been added to the Nigerian legal framework on the Tort of Defamation.[12] Signifying that more restrictions have been set in on the way people go about expressing themselves in cyberspace and this is understandable.

Our stance is fortified by the fact that the freedom of expression is not an absolute right by virtue of Section 45 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). To buttress this point, we will rely on the case of Linda Ikeji which is germane here.

On the 22nd of April 2022, a court sitting at the Federal Capital Territory Abuja slammed a whopping sum of N25, 000, 000 (Twenty-five Million Naira) against a popular blogger, Ms. Linda Ikeji for posts which she made through her blog posts (online posts).[13] Though the matter is currently at the Court of Appeal, this decision has shown that people should really be careful about what they post online.

  1. Towards a Better Crime Prevention Mechanism: Are Legislations Enough?

Despite the laudable provisions of the Act 2015, it has been plagued with some loopholes. To this end, we will not be doing justice to this essay if we fail to point out the loopholes in the Act 2015.

Secondly, after analysing the issues with the Act 2015 and as part of contributing to the development of our criminal law jurisprudence, the thorny question which will conclude this essay is: even when the issues in the Act 2015 have been sorted out, is the Act 2015 enough to control Cybercrime in this country?

Now, starting with the issues in the Act 2015, three key issues under its provisions beg for serious attention.

First, Sections 41 and 47 of the Act 2015 speak directly to the Prosecution and Administration of cyber offences;

Second, Part IV creates the duties of financial institutions under the Act 2015 and also other issues on the nature of cyber offences.

Indeed, under Section 41(2)(c) of the Act 2015, “The Attorney General of the Federation is enjoined to strengthen and enhance the existing legal framework to ensure the effective prosecution of cybercrimes and cyber security matters”. While we were searching in the dark to see if there is any specialized agency to prosecute offences, Section 47 further compounds our problems by stating that “relevant law enforcement agencies shall have the powers to prosecute offences under the Act.

To put this issue in the proper understanding, the aforementioned Sections of the Act 2015 placed cyber offences in the position of goods and services that are sold in the market. It now leaves those goods to any interested law enforcement agency, to buy into the case and prosecute the offence.

As a matter of fact, the law enforcement agency that may proceed to prosecute the case may not have any specialised investigation department on cyber offences and to that effect, may risk the proper prosecution of the offence thereby setting criminals free.

Moving further to Part IV of the Act 2015, Section 37(3) has saddled financial institutions with the responsibility of reversing any illegal debit within 72 hours after the statement was made. This may be laudable but it appears to conflict with the mode of practice under the Central Bank Act 2007 that regulates financial Institutions on this important issue.

Under this Act, the Central Bank of Nigeria is allowed to issue circulars and regulations on the Instant Payment Transactions Reversion System. To perform this function, the Central Bank on the 17th of September 2018 issued circulars wherein it directed banks to reverse such transactions within 14 working days based on a written request made by the affected party.[14]

While this order is subsisting, there is a contrary provision in Section 37 of the Act 2015 which mandates that such should be made within 72 hours. This conflicting situation is worrisome because it has become a clog on the powers of the Central Bank to regulate financial institutions of the economy;

Last, there seems to be this general problem with enforcing laws in Nigeria which the Act 2015 is not an exception to. For instance, the Act has prohibited Cyberstalking under Section 24, but today, people still go about sending messages on social media platforms, threatening people not to come out on some designated days or will face severe consequences.[15]

In April this year, there was this disgusting case of pornographic content involving children of Christland school which circulated online freely despite the provisions of the Act 2015. The speed at which cyber offences are rising in Nigeria coupled with the unemployment rate raised concerns on whether the Act 2015 can save us from this ugly incident and improve our socio-economic life. Like we pointed out earlier, we shall conclude this essay by answering this question with recommendations.

         5.   Conclusion and Recommendations

This essay has made an attempt to examine the progress that has been made so far on crime control in Nigeria vis-a-vis offences that are committed under the Act 2015. For emphasis, we made it clear that the recurrence of some peculiar number of offences changes with time and with the advent of the internet and the cyberspace, our law enforcement agencies were faced with offences that are complex in nature.

Upon a careful perusal of the Act 2015, it was found that there was an expansion of acts or omissions that can constitute offence. We finally landed with an analysis of the problems with the Act 2015.

Before we conclude this essay, it must be stated emphatically that it will be unsafe to say that only legislations like the Act 2015 can save us from the problems of cyber offences. The time is now ripe for us to look inwardly and pay attention to policies and acts that will help to curb the menace like working closely with financial institutions and public awareness programmes.

There is also a need to make sure that those who breach the provisions of the Act 2015 are punished in accordance with the law to serve a lesson to others. The National Institutes of Technology needs to work closely with law enforcement agencies to bring about the proper investigation. Finally, there is a need to amend the Act 2015 based on the issues we have pointed out in this essay.

References:

[1] Afeez H, ‘From Anini To Evans: Top 10 Criminals That Shook Nigeria In Five Decades, [3rd April 2022] <https://dailytrust.com/from-anini-to-evans-top-10-criminals-that-shook-nigeria-in-five-decades>  accessed on 25th May 2022.

[2] Annet J, ‘The Scammer who Sold a $242 Million Imaginary Airport to a Bank’ [30th August 2020] <https://historyofyesterday.com/the-scammer-who-sold-a-242-million-imaginary-airport-to-a-bank-6bcfccdf4c9d> accessed on 25th May 2022.

[3] Oluseyi A, ‘Flashback: How Facebook friends lured Cynthia Osokogu to death’ [23rd March 2017] <https://www.thecable.ng/flashback-facebook-friends-lured-cynthia-osokogu-death/amp> accessed on 25th May 2022.

[4] F.E. Eboibi, ‘Legal Approach to Computers‟ (2014) 13 Nigerian Law And Practice Journal, 33-34.

[5] Adeyemi A, ‘Nigeria lags behind Mauritius, Ghana, others in cybersecurity ranking’ [9th July 2021] <https://guardian.ng/technology/nigeria-lags-behind-mauritius-ghana-others-in-cybersecurity-ranking/>accessed on 25th May 2022.

[6] Ibid.

[7] F.E Eboibi, ‘A Critical Exposition of the Nigerian Cybercrime (Prevention and Prohibition) Act 2015’ [2019] (5) DELSU Law Journal 74.

[8] Unreported – Suit No: FHC/L/CS/937/2017, Judgment delivered on Thursday 7 December 2017, Federal High Court, Lagos Judicial Division, Holden at Lagos, at 34.

[9] The Actors here are: the law enforcement agencies, the Court and the legal practitioners”.

[10] Under Section 58 of the Act 2015, Critical  infrastructure” means, systems and  assets which are so vital to the country that the destruction of such systems and assets would have an impact on  the security, national economic security,  national public health and safety of  the country.

[11] See the dictum of Jombo-Ofo, JCA in Julius v the Federal Republic of Nigeria (2021) LPELR-54201(CA) Pp 14 – 14 Paras A – E.

[12] Section 37 for instance.

[13] Abiola O, ‘N25 million damages: Linda Ikeji calls law firm ‘idiot’, to appeal case’ [15th April 2022] <https://nairametrics.com/2022/04/15/n25-million-damages-linda-ikeji-calls-law-firm-idiot-to-appeal-case/> accessed on 25th May 2022.

[14] Olawoyin, O, ‘CBN goes tough on Nigerian banks, announces fines for failed transaction reversals, others’ [17th September 2018] https://www.premiumtimesng.com/news/headlines/284099-cbn-goes-tough-on-nigerian-banks-announces-fines-for-failed-transaction-reversals-others.html accessed on 25tj May 2022.

[15] Tunboaun O, ‘Dubai Sex Tape: Lagos Govt Shuts Chrisland Schools Indefinitely’ [19th April 2022]

<https://tribuneonlineng.com/dubai-sex-tape-lagos-govt-shuts-chrisland-schools-indefinitely/> accessed on the 25th of April 2022.

About the Author:

Ewulum Ifechukwu Christopher is a 400 level Law student at the University of Nigeria Nsukka (UNN). This essay is ranked the 3rd best in the just concluded Annual LIFIN National Essay Competition. He can be reached at 08022523498.

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