By Haruna Mohammed
Since the enactment of Cybercrimes Act 2015, there are growing apprehensions from some individuals and groups such as Human Rights and Civil society organisations that the Act will be detrimental to Human Rights of the Citizens especially as it relates to freedom of expression and opinion as enshrined in Chapter Four of the 1999 Constitution as amended and article 19 of the Universal Declaration of Human Rights adopted by the UN General Assembly on the 10 December, 1948.
This fear was borne out of the fact that politicians and law enforcement agencies could rely on the act and silence perceived rivals or opponents from voicing their grievances through the social media platforms.
In another development, there are growing concern that the law criminalize individuals who either knowingly or unknowingly allow their premises or computers to be used by scammers or internet fraudsters (yahoo boys) to perpetrate cybercrime as contained in section 38 of the Act oblivious of the fact that government has the responsibility to protect her citizens and citizens of other nations against criminal elements who swindle innocent people through the social media platforms under false pretense in order to defraud or cheat their victims.
Such acts are greatly affecting the nation socially, economically and politically apart from tarnishing the image of the entire nation in the eyes of the international community.
In its editorial of Monday 17th November, 2016, Thisday newspaper clearly stated the consequences of cybercrimes in Nigeria.
According to the editorial “Nigeria was ranked third in global internet crime after the United States of America and United Kingdom, while 7.5 percent of the world hackers are said to be Nigerians committed mostly by the young, often called Yahoo Boys, a precursor of the infamous “419” email scammers. The fraudsters are increasingly taking advantage of the rise in online transactions, electronic shopping, e-commerce and the electronic messaging systems to engage in heinous crimes.
Also in 2017, the Central Bank of Nigeria (CBN) reported that 70 percent of attempted or successful fraud/forgery cases in Nigeria were perpetrated through the electronic channels.
“Between 2000 and 2013, banks in the country lost N159 billion to electronic fraud and cybercrime”
Also according to Dr. Abdulfatai Buhari (2017), “Nigeria records about 127 billion Naira loss annually to cybercrime which represents 0.8 percent of the country’s GDP”.
This is not to deny the fact that kidnappings and global terrorism are also thriving due to internet communications which is greatly affecting safety and security of the nation.
Digital Rights and the Nigeria Police Force:
As a leading law enforcement agency in the country, the Nigeria Police Force respects and safeguard digital rights of the citizens in the discharge of its duties of enforcing law and order. Such rights include but not limited to the following;
-Freedom of expression enshrined in the 1999 Constitution is applicable to digital Rights in online platforms.
-The Nigeria Police will continue to protect all citizens against all forms of harassment as they interact legitimately online.
-The Nigeria Cybercrime Act does not take away fundamental rights and freedom provided by the Constitution.
However, in trying to exercise their digital rights, citizens shall be mindful not to violate other people’s rights through false accusations, defamation, slandering and libel which constitute an act often referred to as cyber stalking. Cyber stalking is an offence in which the suspect intentionally harasses his victim using electronic communication such as email, Facebook or instant messaging or posted to a website.
For the purpose of this paper we are going to focus on cyber stalking using Section 24 of Cybercrime Act 2015 to enable us understand our limitations when using the social media in order not to be found wanting.
According to Section (24) of the Cybercrimes Act 2015;
(1) 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 commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
(2) Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network
(a) to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person containing any threat to kidnap any person or any threat to harm the person of another, any demand or request for a ransom for the release of any kidnapped person, to extort from any person, firm, association or corporation, any money or other thing of value; or
(c) containing any threat to harm the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, to extort from any person, firm, association, or corporation, any money or other thing of value commits an offence under this Act and shall be liable on conviction –
(i) in the case of paragraphs (a) and (b) of this subsection to imprisonment for a term of 10 years and/or a minimum fine of N25,000,000.00; and
(ii) in the case of paragraphs (c) and (d) of this subsection, to imprisonment for a term of 5 years and/or a minimum fine of N15,000,000.00.
Challenges of Enforcing Cybercrime Act by the Police and other Law Enforcement Agencies
Cybercrimes Act is a Federal offence hence prosecution of cybercrimes are done at the Federal or States high Courts in accordance with the Administration of Criminal Justice Act 2015.The implication here is that Magistrate Courts lacks the jurisdiction to try cyber related offences and their limitations in awarding sentences stipulated in Cybercrime Act 2015.
Cases such as insults, harassment and false accusation as contained in section 24 of the Act could ordinarily be investigated and charged to the Magistrate Courts by the Police at the divisional levels under the Criminal and Penal Codes laws but relying on the new Cybercrime Act, such cases must be transferred to States Criminal investigation and intelligence Departments (CIID) and forwarded to Department for Public Prosecution (DPP) for legal advice before charging the matter to High Court. This procedure requires a Police lawyer to prosecute the suspects at the high Court and could also take a long period of time.
Also, slandering offences under section 24 of the Act such as libel, defamation and false accusations are civil in nature hence applying states apparatus to prosecute such cases negates the Law of Tort and could also attract civil litigations and enforcement of Fundamental Human Rights by the defendants which could lead to the award of garnishee order against the Law enforcement Agencies.
In view of the foregoing, it is glaring that there is a big lacuna in the enforcement of Sections 24 and 38 of Cybercrimes Act 2015 particularly in terms of jurisdiction, prosecution and enforcement of the Act.
However, to address the above shortcomings, there is need to harmonize the new Cybercrimes Act 2015 and existing criminal and penal code laws on cyber stalking in order to avoid civil matters which could attract civil litigations.
There is need for adequate sensitization and awareness campaign by Ministry of Justice, law enforcement agencies and Human Rights organizations to enlighten members of the public about digital rights and their limitations in order not to violate other people’s rights as well.
Finally, there is need for amendment of Cybercrimes Act 2015 especially on offences already stated in the Criminal and Penal Codes laws of the Federation in order to avoid ambiguity and miscarriage of Justice.
SP Haruna Mohammed is the Police Public Relations Officer, Anambra State Police Command. He can be reached through firstname.lastname@example.org.
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