By Emmanuel Elebeke

Ewelukwa: Technology is ahead of law here

Nnaemeka Ewelukwa is a Senior Teaching Fellow in International Trade Law at the School of Oriental and African Studies, University of London. He also manages African Legal Consulting Limited, London UK, a firm that consults on the legal aspects of investing or doing business in Africa, and at the same time a consulting partner in Chancellor Chambers, a law firm based in Victoria Island, Lagos. He was a guest speaker at the just concluded DigitalSense Africa Forum which held in Lagos, where he spoke on “E-commerce: The Nigeria Factor and the Way Forward”. Shortly after the event, CyberLIFE cornered him to speak on e-commerce transactions in Nigeria, the effect of cyber crime, and other matters. Excerpts:

How would you assess the level of e-commerce in Nigeria?

I will start by saying that a lot has happened in Nigeria over the past decade. Recent statistics shows that about 28.9 % of Nigerians have access to the internet. That is 28.9% internet penetration and connectivity. To put that in context, the average internet penetration in African is about 10.9%. So, if average African internet penetration is 10.9% per population, then Nigeria is not doing too badly with 28.9% internet penetration. The statistics further showed that about 39.6% African users of internet are actually Nigerians. Electronic commerce is not just about internet but also about electronic means of payment, of which in that area, Nigeria had done creditably well, over the past ten years. A lot of banks and other financial institutions have introduced all sorts of electronic means of transferring money, using debit and credit cards. Today, there is Nigerian credit card in the market and more coming into the country. Based on this, I can say that in terms of electronic commerce infrastructure, Nigeria has tried. Between 2000 and 2010, according to world internet report, Nigeria internet penetration increased by 21.891%. That is really phenomenal in terms of electronic transaction. The Central Bank of Nigeria, CBN has put a regulation in place to regulate electronic transaction and money transfer in Nigeria. The Nigerian Communication Commission, NCC also has a policy for regulating internet connectivity and issues relating to cyber café usage. So, we have tried in the market.

Since the introduction of e-commerce, how do we sustain peoples’ confidence, given that many have fallen prey to fraudsters?

First, we must know is that it is not good for technology to run faster than law. Whenever, technology moves faster than law, what you will have is a legal vacuum. In Nigeria at the moment, the advance fee fraud and other fraud related offences Act of 2006, which is part of the laws the EFCC is trying to use to check issues relating to cyber crime and electronic fraud is inadequate because the law essentially covers issues relating to internet services and usage but does not cover the whole range of issues relating to cyber Crime and all sorts of electronic crimes that are prevalent. The issue is that, over the years, Nigeria has developed a lot of legislative bills to check some of these crimes. But quite unfortunately, those bills have not been able to see the light of the day, in terms of being finally enacted into law.

Laws needed against cyber crime You don’t just build a house without an architect. It then becomes difficult for the EFCC and other security agencies to track cyber criminals. At the moment, some of the legislative framework we have in the country have not been enacted, including the EFCC Act of 2010, sponsored by Hon. Abubakar. There is need for the law-makers to amend the EFCC Act for them to be able to arrest and prosecute cyber criminals in the most effective way.

Even before the EFCC Amendment Act of 2010, there were some other bills that were also drafted and have been sent to the National Assembly, part of which have not yet being enacted as well. In 2005, there was the Computer Security and Critical Infrastructure protection bill sponsored by another law maker, that bill has never being enacted. In 2008, the Cyber Security Agency bill was sponsored by Hon. Bassey Etim, it hasn’t been enacted also. Again, in 2008, the Electronic Service Provision bill sponsored by Senator Ayo Arise hasn’t been enacted. Again, the Nigerian Security and Agency bill of 2009, another Executive bill sponsored was not enacted. Also, the Computer Misuse bill sponsored by Hon. Wilson Aki is equally not enacted. The issue is that, we have all these good bills, but none has been enacted by the people in parliament, which makes it difficult for the EFFC to operate as expected. Otherwise, it would look like a policeman chasing an armed robber without a gun because it is one thing to prosecute people and another thing to convict them. When you do not have the legal basis to prosecute people, you will only be wasting your time. This is after spending huge sum of money and a lot of time going to court, the criminal will still go free.

The laws we have are outdated, while the new ones proposed have not been enacted. With this development, what would you attribute the reluctant attitude of our leaders to?

I have actually been reflecting on that. However, I will think that part of the problems is simply that a lot of awareness about the importance of this bill has not been created. The various committees in charge of these bills appear not to have understood the urgency required by these bills. Stakeholders in the industry need to sensitize the relevant committee chairmen in the National Assembly and possibly lobby them to pass these bills. Even, the NCC and NITDA have a role to play here as well. The CBN on its part, I will say has done well in this regard, by the recent policy it put in place to regulate e-transactions and money transfers by the banks. It can also exert some influence in collaboration with other stakeholders to get these bills enacted, as it can not afford to achieve a lot without their passage into law.

What’s your take on the negative impact on the nation?

The negative impact of cyber criminality affects the economy more. It is not helpful to the government’s economic growth effort and poverty reduction strategy. Electronic commerce can help us boost agriculture, small scale and medium scale enterprises, intentional trade. At the moment, a lot of people use their bank cards as a means of electronic payment, sending and withdrawing money.

It is obvious that most Nigerians have some reservations about e-transactions, what do you think is responsible?

People must understand that in e-transaction, it is machine that is involved, not man. So, anything involving online transaction, people usually devise different ways to commit fraud. Essentially, trust is the bedrock of every business, if you do not trust someone, you cannot do business with him. In the Nigeria context, due to the fact that we do not have the relevant laws in place that deal on issues relating to cyber crime, people are bound to be a bit concerned. With the prevalent cases of ATM fraud in Nigeria, people are bound to express reservations. It is important that government agencies re-orientate people about the use of electronic transactions and also explained to them some of the measures being taken to hold people accountable when some thing goes wrong. As long as people are sure of the system, I think that there will be an up take in the electronic system transaction in the country.