Cyber-Crimes Act Will Be Amended – FG – TheNigerialawyer

The Federal Government has stated that the Federal Ministry of
Justice is committed to pursuing the amendment of the Cybercrimes
Act, which many lawyers, journalists and activists have considered
repressive, unconstitutional and illegal.

This was stated today by Mr. Terlumun George Tyendezwa, Head,
Cybercrimes Prosecution Unit, Federal Ministry of Justice, at a
Media Interactive Session on the Constitutionality and Legality of
the Cybercrimes Act in Nigeria, organized by the Socio-Economic
Rights and Accountability Project (SERAP) in collaboration with the
National Endowment for Democracy (NED), USA.

At the Media Interactive Session held in Ikeja, Lagos, Mr.
Tyendezwa said: The Cybercrimes Act is not perfect. One of the
reasons why I am here is that I have an open door, we want to
engage on the Act. We are interested in engaging with all
stakeholders in the Justice sector.

Whatever is not useful, we can seek amendment on this. From the
point of passage, we as the operators knew that there were things
that need to change. We are presently collating memoranda on
amendment of the Act. But amendment takes time and cost money.

He also said: We know the importance of law as a social driver.
The office of the Attorney General of the Federation and Minister
of Justice continues to place high value on entrenched fundamental
human rights and engaging with all stakeholders on the Cybercrimes
Act is one of our approaches.

Earlier at the meeting, a group of lawyers, journalists,
activists and other stakeholders unanimously declared the Nigerias
Cybercrimes Act as repressive, oppressive and unconstitutional. The
Act should immediately be repealed or dropped, as many of its
provisions blatantly offend the rights to freedom of expression,
association and media freedom.

The group also called on the next Attorney General of the
Federation and Minister of Justice to prioritize challenging in
court the constitutionality and legality of the Cybercrime Act,
which is antithetical to respect for freedom of expression
including online and the governments commitment to fight grand
corruption.

Participants at the interactive session included:
representatives of the Premium Times Centre for Investigative
Journalism (PTCIJ), National Human Rights Commission, Amnesty
International, Wole Soyinka Center for Investigative Journalism,
Media Rights Agenda, the German Consulate, Director General of the
National Orientation Agency.

Others included: Mr. Terlumun George Federal Ministry of
Justice, Cybercrimes Act, Nurudeen Ogbara former Chairman Nigerian
Bar Association, Ikorodu, Folake Falana, Malachy Ugwummadu,
president, Committee For the Defence of Human Rights (CDHR) and
representatives of BudgIT, CODE, Heda Resources, Enough is Enough
Nigeria (EiE), Cleen Foundation, Federal Civil Service Pension,
Community Life Project, journalists, lawyers, activists and other
stakeholders.

Earlier, Mr Tayo Oyetibo, SAN in his paper titled The
Constitutionality and Legality of the Cybercrimes Act in Nigeria
stated: the supremacy of the constitution over every other law is
an immutable principle of Nigerian constitutional law derived from
the provisions of section 1(3) of the constitution itself.

In creating criminal offences, section 24(1) of the Cybercrimes
Act uses words that are entirely subjective in meaning to describe
the actus reus elements of the offences, despite the fact that the
actus reus of an offence ought to be capable of objective and not
subjective definition.

According to him, Worse still, the Cybercrimes Act makes 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, which
means that only judicial definitions can be given to those words in
any case where a person is charged with an offence under section
24(1) of the Act.

The paper read in part: In the context of the constitutionally
guaranteed right of citizens to freedom of speech under the
Nigerian constitution, there is the pressing question of whether
the Cybercrimes Act is fit for the purpose pursuant to which it was
enacted, particularly in view of the provisions of its section
24(1)?

It would appear that the answer to this poser is in the
negative, which means that it is imperative for deliberate steps to
be taken to remedy the situation, particularly against the backdrop
of widespread complaints against the deliberate misuse and abuse of
the Cybercrimes Act against certain categories of persons in
Nigeria.

In this regard, this is not a matter in which long winding
technical recommendations are necessary. 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.

From a practical standpoint, it means that a person charged with
an offence under section 24(1) of the Cybercrimes Act will
involuntarily be playing the lottery of judicial interpretation of
the words and phrases used in that section.

This is because virtually all of the words used in section 24(1)
of the Act are of such personal character that, any attempt to
define them is entirely subject to the whims and caprices of two
different sets of people- complainants and judges.

It is impossible for a person to be convicted of an offence
under section 24(1) of the Cybercrimes Act without conjecture or
inference by the court as to the meanings of the words used in that
section.

Worse still, such conjecture or inference can only be imputed by
the court at the point of delivering judgment in the matter, at
which point the accused person will not have had the opportunity to
be heard by the court as to the courts interpretation of the
meanings of those words and phrases.

Apart from the above, every person is constitutionally
guaranteed the right to freedom of expression, including freedom to
hold opinions and to receive and impart ideas and information
without interference under section 39(1) of the constitution.

A scenario in which a person is bound by section 24(1) of the
Cybercrimes Act to second-guess the exercise of his right to
freedom of expression under section 39(1) of the constitution is
certainly not one contemplated by the constitution in any way.

Freedom of speech and freedom of assembly are part of democratic
rights of every citizen; our legislature must guard these rights
jealously as they are part of the foundation upon which the
government itself rests.

It is clear that section 24(1) of the Cybercrimes Act portends
great danger for every person in Nigeria. This is by reason of the
fact that at the time of issuing any communication in exercise of
the right to freedom of expression, it is impossible for a person
to determine whether or not an offence is being committed under the
Cybercrimes Act.

Surely, this is the exact scenario that the framers of the
constitution sought to legislate against by the inclusion of the
express provisions that are sections 36(12) and 39(1) of the
constitution. 24(1) is a tool that readily lends itself to abuse
and misuse by those in authority against freedom of expression in
Nigeria.

This is particularly because the Cybercrimes Act contains no
safeguards whatsoever to the enforcement of section 24, which
carries with it severe criminal sanctions.

The Cybercrimes Act is already in desperate need of a
significant overhaul to ensure that it does not unwittingly and
unconstitutionally place citizens at the unfortunate risk of the
luck of a criminal draw.

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