Law & Human Rights

May 30, 2024

Controversial cybercrime law: The way out, by lawyers

Controversial cybercrime law: The way out, by lawyers

In  this report, Vanguard’s Law & Human Rights examines the Cybercrime 2015 Bill passed by the two chambers of the National Assembly and signed into law by the administration of President Jonathan Goodluck to curb troubling criminal activities in the cyberspace, including the publication of purported offensive messages or fallacious information on the Internet against another; the manner of enforcement of the law by government agents since it was enacted, the recent amendment of the 2015 Act and the implication of the implementation of the law so far on journalism practice in Nigeria. Lawyers also spoke on the way out.

By Ise-Oluwa Ige

On May 15, 2015, President Goodluck Jonathan signed the Cybercrime (Prohibition, Prevention, etc) 2015 Bill into law. That was few days before his tenure expired. The Cybercrime Act 2015 was a response to various emerging criminal activities in the cyberspace including a disturbing case of Cynthia  Osokogu, now deceased, which sparked provoking reactions in July 2012.

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 the hotel.

The Cybercrime Act

The 2015 Cybercrime Act, a 43-page document, repealed the 2013 Cybercrime Act which itself had the Economic and Financial Crimes Commission, EFCC and the Advanced Fee Fraud Act as its precursor.

The administration of former President Olusegun Obasanjo had signed into law the EFCC Establishment Act in 2002 and Advance Fee Fraud Act in 2007 after Emmanuel Nwude,  who was aided by Amaka Anajemba, in 1998, defrauded a Brazilian bank the whopping sum of $242 million and sold a fake airport to the bank.

That fraud till today has remained the largest scam in Nigerian history.

The civilian administrations of Presidents Obasanjo and Jonathan had noble intention to bring the laws into being even though there were pieces of evidence that they were on few occasions implemented in breach of their objectives.

Although the administration of ex-President Jonathan signed the 2015 Cybercrime Act, it came into full operation during the tenure of the immediate past President Buhari.

The 2015 Cyber law, from its preamble, was designed to provide an effective, unified and comprehensive legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria.

The Act also not only ensures the protection of critical national information infrastructure, it promotes cybersecurity and the protection of computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights.

A peep into the 2015 Cybercrime Act, a 43-page document, showed that its entire content is neatly structured into eight parts with a creation of 36 separate offences and their penalties which can be categorized into five major groups—General offences, pornographic offences, race and xenophobia offences, offences relating to E-tools and offences relating to Electronic cards.

A couple of years after the legislation came into full operation, a lot of Nigerians, particularly journalists, rights activists, lawyers and other members of the society, expressed worry not only about the inadequacies noticed in the drafting of the legislation but also the manner with which it was implemented by law enforcement agencies, particularly against journalists.

Enforcement of the Cybercrime law

For instance, on August 1, 2019, some unidentified men had picked a social media critic, Abubakar Idris, also known as Dadiyata, renowned for his frequent criticism of the Nigerian government and its policies in Kaduna State. He is yet to be found.

In fact, some months before Dadiyata’s case, the officers of the Nigeria Police in Kaduna arrested Steven Kefason, a journalist and critic of the government. They subsequently detained him for 162 days over a Facebook post.

Similarly, on August 22, 2019, a journalist, Agba Jalingo, was arrested in Lagos by a team of eight police officers over allegations that he had committed offences under the Cybercrimes (Prohibition, Prevention, etc.) Act of 2015, the Terrorism (Prevention Amendment) Act of 2013, and the Criminal Code Act.

Specifically, he was accused of publishing an article on his media platform, Cross River Watch in which he made claims that the Cross River State Governor had illegally diverted a substantial sum of 500 million Naira from the Cross River Microfinance Bank. He spent 119 days in detention before he was released.

Similarly, in May 2021, Sunday Egena Odeh, a state house correspondent of People’s Daily, an Abuja-based newspaper, was arrested by officers of the Nigeria Police Force on the orders of the Benue State Government. Odeh’s offence was his Facebook criticism of ex-governor, Samuel Ortom, over the way he handled a communal conflict in the state.

Many other popular journalists including Luka Binniyat, Jones Abiri, amongst others, have been illegally detained through the law.

Stakeholders are contending that things are now so bad in the country that social media critics and journalists are picked up like fowls on the street anytime they publish anything considered offensive to top government officials and public figures regardless of the fact that constitution guarantees freedom to hold opinions and express same.

Pressures were mounted on the government to either drop the entire legislation or amend it quickly for it to serve its purpose.

Indeed, on February 7, 2020, the Socio-Economic Rights and Accountability Project, SERAP, a Nigerian NGO, filed the Original Application against the Federal Republic of Nigeria and the Government of Cross River State, before the Community Court of Justice of the Economic Community of West African States, ECOWAS, to challenge the legality of the 2015 Cybercrime law.

Critique of Cybercrime Act 2015

One of the provisions of the law that Nigerians claimed was allegedly used and severally too, to harass innocent citizens, gag the press and return it to authoritarian press system, one of the oldest and worst press systems in the world, was its section 24 (1) (a) and (b) of the 2015 Act which they claimed was being used to harass practising journalists.

The section provides: “Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that (a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or (b) he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will  or needless anxiety to another or causes such a message to be sent.”

According to a respected silk, Tayo Oyetibo, SAN, in a paper titled: The Constitutionality and Legality of the Cybercrimes Act in Nigeria, he said in creating criminal offences, section 24(1) of the Cybercrimes Act 2015 used words that were entirely subjective in meaning to describe the actus reus elements of the offences, when in fact the actus reus of an offence ought to be capable of objective and not subjective definition.

Section 24 (1) of the Cybercrime Act 2015 should be deleted outright—Oyetibo, SAN

Oyetibo who made his point  at a media interaction organised by the civil society said the Cybercrimes Act made no effort to give certainty to the meanings of any of the words used in its section 24(1) by defining them anywhere in the Act meaning that only judicial definitions could be given to those words in any case where a person is charged with an offence under section 24(1) of the Act.

“The simple recommendation is that section 24(1) be entirely deleted from the Cybercrimes Act, due to its apparent irreconcilability with the provisions of section 36(12) and 39(1) of the Constitution,” he had argued to which several experts and corporate bodies agreed.

But instead of deleting the section 24 (1) (a) (b), the National Assembly merely removed some words from the controversial provision to address some of the criticisms against the statutory provision, a development that had divided the legal community.

NASS reviews 2015 Cybercrime law

Specifically, the 2024 Act amended six of the 36 offences created by the 2015 law—electronic signature; reporting of cyber threats; identity theft and impersonation; cyberstalking; attempt, conspiracy, aiding and abetting and manipulation of ATM/PoS terminal.

The lawmakers, in a 7-page amendment  already signed by President Tinubu, also amended other provisions of the principal Act relating to duties of financial institution, record retention and protection of data, coordination and enforcement, establishment of national cyber security and order of forfeiture of assets.

Specifically, Section 24 (1) (a) (b) of the Cybercrime Act 2024 now reads: The section provides: “Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that (a) is pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or (b) he knows to be false, for the purpose of causing a breakdown of law and order, posing a threat to life or causing such a message to be sent.”

Although many of the critics of the 2015 Cybercrime Act said the amendment is much an improvement on what it used to be, yet, they said the document still raised significant concerns about its potential misuse by law enforcement agencies.

With 2024 Cybercrime Act, it is not yet uhuru —Akuma, SAN

According to Chief Solo Akuma (SAN),  even as the new law stands, it is still not yet uhuru because every Nigerian has the right to freedom of thought and expression as guaranteed by the constitution and that people are free to criticize the government and people in authority subject to the prevailing laws of defamation.  He said the Cybercrime Act 2024 cannot be superior to the Constitution.

Also contributing, Mr Elvis Asia cautioned against criminalizing opinions on public issues, adding that though he acknowledged the prevalence of hate speech and defamatory publications online but warned against allowing the law to become a tool of oppression.

“We must properly balance the competing interests and focus on encouraging people to use civil actions to protect their image rather than criminalizing opinions on public figures in society,” Asia stated.