McAsh's Thoughts

December 27, 2011

Combating Cybercrimes in Nigeria II

Filed under: Nigeria — David Ashaolu (McAsh) @ 7:26 pm

In the first series, I explained the reasons prosecuting cybercrimes in Nigeria is a mirage. I examined the impact of absence of cyberlaws in the country and the efforts currently being undertaken by the government to enact the Nigerian Cybersecurity Act. In this series, I shall be exposing the procedural predicaments faced by law enforcement agents even where the crime is triable under traditional criminal law provisions.

Procedural Inadequacies in Combating Cybercrimes in Nigeria

As stated in the previous series, most cybercrimes have no definition in Nigeria’s criminal law. Thus, they can not be a cause of action, or basis for liability in a criminal case.  On certain occasions, however, the criminal acts complained of on the Internet may come within the ambit of the traditional legislations as with certain instances of cybercrime like fraud and cyber theft. Where this happens, the law enforcement has in its hands an accusatorial tool for bringing cybercriminals to book. And on lesser occasions, they have secured very highly priced convictions.

The reason the rate of convictions recorded is inversely proportional to the number of  trials executed is the backward state of our criminal justice system in Nigeria. The two legislations which are responsible for that aspect of our law are the Criminal Procedure Act[1] and the Evidence Act.[2]

(a)    The Criminal Procedure Act (CPA)

The Act was enacted June 1, 1945,[3] decades before the Internet was invented and scores before Internet licences were granted in Nigeria. It makes provisions for the mode of prosecuting criminals including certain fundamental issues like jurisdiction, examination of witnesses and admissibility of evidences. Unfortunately, however, the CPA was not enacted with ICT in mind. This is understandable as the cyberspace was still in oblivion as at the time it was codified.

Under the CPA, witnesses are expected to be physically present in court during trials. In fact, any witness who fails to appear personally could be summoned (subpoenaed) and detained and may be released on bail upon the same bail conditions available to the accused person.[4] Even children, infants and young persons (below 17 years) who may need to give evidences in court in camera for security and other reasons still have to be physically present or their testimonies would not be accepted.[5]

Cybercrime offences are trans-border and the needed witness who would give the very material evidence may not be in Nigeria to attend the proceedings. Upon that ground, the accused may be acquitted for failure to establish a prima facie case against him by reason of insufficient evidence. He may also be discharged for want of diligent prosecution. This was not envisaged by the drafters of the Act.

This position is contrary to what obtains in England, for example. The Criminal Justice Act 1988[6] makes an important provision for the admission of video recordings of interview with child witnesses carried out before the trial. By Section 28(1) of the same Act, cross-examinations and re-examinations can be recorded and televised in court.

Another insufficiency evidenced in the CPA is the provision of Section 171 of the Act which is to the effect that once a person is convicted of attempting to commit a crime, he cannot be charged subsequently with committing the offence where the crime is eventually occasioned. The rationale behind this provision hangs in the balance of reasoning as the effect of a crime being committed eventually and the resultant damage is far greater than that of its attempt. For example, a person convicted of attempting to disseminate a virus or malicious code will definitely serve a lesser punishment than if he had actually disseminated it. Where, unknown to the law enforcement agents at the time of his arrest, he had released the virus and the brutal effect had been found out later, he technically escapes proper punishment.

Also worth mentioning is the conventional evidential practice of the court visitation to the locus in quo.[7] While in some other jurisdictions a video recording of the locus will suffice,[8] our laws still mandate our Judges in this 21st century to travel to the locus with the accused and physically inspect it.

On admissibility and relevance of evidences tendered to prove a criminal act and other activities relating to witnesses, the CPA provides that the Evidence Act shall apply in the criminal proceedings.[9] The provisions of the Evidence Act 2011 shall be considered in a later blog, with particular focus on the provisions of the new Act as regards computer generated evidence.

(b)          Criminal Justice (Misc. Prov) Act

This Act is an addendum to the Criminal Code and the Criminal Procedure Act. It is an Act to impose “stiffer penalties” on persons who damage, disrupt or destroy telecommunications, electrical transmission lines and oil pipelines. The provisions as they relate to cybercrimes are examined hereunder.

Any person who… prevents or obstructs the sending or delivering of communications by means of telecommunications… is guilty of an offence.”[10]

The penalty is a fine of N500 or 3 years imprisonment or both.[11] Thus, hacking, where interception is occasioned, can come under this heading, since a hacker uses the telecoms. This will also sufficiently cover offences like illegal interception. Dissemination of viruses and other malicious codes, especially where the motive is a DDoS (Denial of Service attack), will naturally “prevent or obstruct” the to and fro movement of communication codes. All these can be tried under this statute.

Section 9 defines “telephone works” as meaning wire or wires used for telegram and telecommunications, with any casing, coating, tube, pipe, insulator, etc and including any apparatus for transmitting messages or other matters including the television, by means of electronic signals whether by overhead lines or underground cables or cables lying under water and any apparatus for transmitting messages with or without wires.[12]

The futuristic manner in which this Act was drafted is highly commendable. It is intriguing for an Act drafted October 16, 1975[13] — two decades before the first ISP licence was issued in Nigeria — to envisage wireless connections and hydro-optic fibre cables. However, one could still argue that from the strict interpretation of the wordings of the definition, a computer system was not in the contemplation of the drafters of the law, neither was the Internet. The consistent mentioning of cables and wires and other physical equipments, specifically the express mention of a television shows that the cyberspace was unknown to the drafters at the time, which was understandable. One can safely deduct that its aim is to protect government appliances and equipment and other public property from sabotage, damage and theft.

A major inadequacy in the Act is visible in the provision of Section 7(1) and (2) which puts prosecution at the instance of the Attorney-General of the Federation. With that office being more politically concerned than it is with the administration of justice, prosecution may never happen. Also, the hilarious fine of N500 makes it seem to me like this obsolete law is more of a toothless dog, whose bark is worse than its bite. Elsewhere in the world where cybercrimes are prohibited, fines range from ten thousand dollars ($10,000) to millions.

My conclusion remains the same. Only a cyber specific legislation that expressly provides for procedures in cyber litigation can sufficiently help police the cyberspace.
The regime of the law of evidence in Nigeria as contained in the new Evidence Act shall be the subject of my next blog, available here next Tuesday. Specifically, I shall be focusing on the new provisions concerning the admissibility of computer generated evidence.
Thanks for your time.

[1] Cap C41, LFN 2004. See as addendum, Criminal Justice (Misc. Prov) Act, Cap C39, LFN 2004 and by necessary implication, the Criminal Procedure Code.

[2] Cap E18, LFN 2004 effectively repealed by the Evidence Act, 2011 (HB 214)

[3] CPA page C41-21. It is yet to be amended.

[4] Section 186-198, CPA provides for the witness’ expenses and convenience

[5] Section 204

[6] Section 32A Also Sec 54, Criminal Justice Act, 1991

[7] Section 207 CPA

[8] In USA, 3-dimensional images of scenes which afford the court the opportunity to reach out, touch and handle objects have been used in both civil and criminal cases. See D O’Flaherty, “Computer-Generated Displays in Courtrooms: For Better or Worse?” available at http://webjcli.ncl.ac.uk/2001/issue1/girvan1.html

[9] Section 199 CPA

[10] Section 1 (1) (b)

[11] Section 7 (2) (b)

[12] Section 9 (a) and (b) This may be construed extensively to include the Internet

[13] See Criminal Justice (Misc. Prov) Act page C39-1. I am yet to find any prosecution under this Act, neither has it been amended since it was first enacted.

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