The Nigerian Cybercrime Act: Legal Practitioner highlights critical issues that need to be addressed
Barrister Kunle Adegoke, a legal practitioner and partner with M.A. Banire & Co. has highlighted some critical issues on the Nigerian Cybercrime Act 2015 which need to addressed by the Nigerian legislative body.
While speaking at the National Cyber Security Awareness Month Conference (NASCAM), Adegoke said one of the critical point for consideration in the Nigerian Cybercrime Act is that it adds to the overburdening of the Federal High Court by making the prosecution of cybercrimes an exclusive jurisdiction of the High Court.
Adegoke said making the prosecution of cybercrimes exclusive jurisdiction of the Federal High Court by Section 50 of the Act is an additional burden in view of the fact that the High Court is already saddled with numerous other workloads by the1999 Constitution of the Federal Republic of Nigeria, and also, cybercrime today is growing at an alarming rate.
“The jurisdiction to try matters pertaining to the Act is vested exclusively in the Federal High Court by virtue of Section 50. The Federal High Court being saddled with this responsibility will be overburdened by the work load, this position is foreseeable,” he said.
“This provision derives validity from Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) which confers on the National Assembly the power to confer additional jurisdiction on the Federal High Court.
“Considering the fact that numerous items listed in Section 251(1) are exclusive to the Federal High Court and the fact that the opening paragraph of Section 251(1) has been interpreted to extend to such other matters though not listed in Section 251(1), is it not likely that making prosecution of cybercrimes exclusive jurisdiction of the Federal High Court is an additional burden which may occasion greater delay in the administration of justice? This becomes more realistic in view of the tremendous nature of evil growth recorded in cybercrime on a daily basis,” he added.
The new Cybercrimes Act was signed into law on May 15, 2015. It provides for possible crimes that can be perpetrated under the regime of an electronic commerce economy and makes provisions for penalties to deter such crimes.
The Act is divided into fifty-nine sections with eight parts with each part dealing with Objectives and Application; Protection of Critical Information Infrastructure; Offences and Penalties; Duties of Financial Institutions; Administration and Enforcement; Arrest, Search, Seizure and Prosecution; Jurisdiction and International Cooperation; Miscellaneous respectively.
Adegoke also believes that since the prosecution of cybercrimes requires being equipped with the knowledge of the cyber world, making the prosecution of cybercrimes an exclusive jurisdiction of the Federal High Court is likely to create hurdles for judges in carrying out of their duties.
“This is likely to create hurdles for judges in the dispensation of their duties. The prosecution of cybercrimes under the Act requires an in-depth knowledge and understanding of the operations of the cyber world by the Federal High Court Judges who may be deficient in this area of technological advancement vis-à-vis the legal regime to govern its dynamism,” he said.
The legal practitioner also pointed out some “inherent weaknesses of the Act” including the Section 7 of the Cybercrimes Act, which makes it mandatory for cybercafes to register with Corporate Affairs Commission as well as Computer Professionals’ and Registration Council, but made no provision for sanction if a cybercafe refuses or neglects to register.
“Section 7 of the Cybercrimes Act, though makes it mandatory for cybercafes to register with Corporate Affairs Commission as well as Computer Professionals’ and Registration Council and maintain a register of users through sign-in register, it has made no provision for sanction if a cybercafe refuses or neglects to register.
“For a cybercafé owner to be liable under the Cybercrime Act, there must have been proof of connivance in online fraud and there is no liability for failure to register a cybercafé simpliciter. This appears to be a lacuna in the Act and will continue to hinder full compliance of same more so when it comes to prevention and investigation of cybercrimes. There is need to make failure to register itself an offence punishable under the law,” he explained.
Adegoke further said the Section 10 of the Act which makes provision against committing crime called “tampering with critical infrastructure” did not include “Civil Servants” among those who are likely to commit this offence.
While mentioning Local government staff, private organization or financial institutions who work with any critical infrastructure, electronic mails when not authorized by the worker’s contract of service, as those who are likely to commit this offence, Adegoke said: “One wonders, why the Cybercrime Act did not include ‘Civil Servants’ to extend the net beyond local government workers to all workers in government employ. In effect when any government worker who is not in the employ of the local government commits this offence, a defense may be available that the accused is neither employed by a local government, private company nor financial institution.”
The lawyer also believes that the Cybercrimes Act has a tendency to weaken the principles of freedom of expression online in Nigeria. According to him, the Section 24(1)(b)of the Act, which suggests state regulation and management of the social media, “may become a useful tool in the hands of dictators, tyrants and overzealous security enforcement agents.”
“It is best advised that this section is carefully implemented so as not to constitute an albatross on the necks of innocent commentators and whistle blowers and have regard for the human right freedom of expression,” he advised.
Another curious aspect of the Cybercrimes Act of 2015 that caught the lawyer’s attention is the issue of which agency has the power to prosecute. He said Section 47 of the Act provides that subject to the powers of the Attorney General, relevant law enforcement agencies (LEA) shall have power to prosecute offences under the Act. Adegoke however pointed out that there is no clarity as to which LEA in particular would handle these enforcement matters.
“There should be a harmonized national agenda regarding enforcement of the Act’s provisions, it would be advised that a specific Law Enforcement Agency with statutory powers should be created for these purposes, or an existing one was assigned thereof,” said the lawyer.
Referring to Section 58 which defines “law enforcement agencies” to include “any agency for the time being responsible for implementation and enforcement of the provisions of this Act”, he said “the stipulation, as it is, could lead to abuse of power and conflict among enthusiastic and relevance-seeking bodies to compete for recognition by assuming the power to prosecute cybercriminals.”
In his words, he said: “There appears to be a decentralized and distributed enforcement framework as the National Security Agency is just to coordinate enforcement by all LEA and Security Agencies; Cybercrime investigation, prosecution and enforcement are all separated. The traditional approach in our Criminal Justice System usually based on conferred authority has now been departed from. It is an unprecedented departure from the norm, and very unlikely to work.”
While pointing out the problem of expertise of the LEA’s in prosecuting cybercrime as a special area of law, Adegoke called for the need for prior training of these relevant agencies before prosecution could begin, as well as continued efforts to keep prosecutors’ knowledge up to the global standard.
Kunle Adegoke is a legal practitioner of diverse experience. Having handled many cases involving a number of telecommunication companies in Nigeria, he is an expert in telecommunication litigation in Nigeria. He is also an expert in Private International Law and is versatile in property and commercial documentation and trade financing.
Success Kafoi, is a Lagos-Nigerian based ICT Journalist and a Guest Blogger for Nexxy Tech. you can connect with him on twitter @