The Federal Government has presented to the National Assembly a Bill for a law to, among others, punish cyber criminals. Lawyers are seeking what they call a critical scrutiny of the bill to ensure that adequate measures are taken to prevent rights abuses. ERIC IKHILAE reports.
As a measure against growing insecurity, the Fed eral Government has presented to the National Assembly a Bill for an Act to prohibit cybercrimes.
The Bill, titled: Cybercrime Bill 2013, was approved by the Executive Council last August. It seeks a law to empower security agencies to intercept and record electronic communications between individuals and seize data from internet service providers and mobile networks.
It also seeks to allow security agencies to request telecommunication companies to conduct surveillance on individuals and release user data to authorities.
A key provision in the bill is that, where there is no urgency, but reasonable suspicion, an ex-parte order must first be obtained from the court before a law enforcement officer conducts a cybercrime investigation.
Section 22 of the Bill provides: “Where there are reasonable grounds to suspect that the content of any electronic communication is reasonably required for the purposes of a criminal investigation or proceedings, a judge may on the basis of information on oath:
“(a) order a service provider, through the application of technical means to collect, record, permit or assist competent authorities with the collection or recording of content data associated with specified communications transmitted by means of a computer system; or
“(b) authorise a law enforcement officer to collect or record such data through application of technical means.”
The Bill, however, provides that such requirement could be sidestepped where there is “verifiable urgency” to intercept and record electronic communications.
Section 21 empowers security agencies to order internet service providers or telecom companies to “preserve, hold or retain any traffic data, subscriber information or related content.”
The Bill also seeks to prohibit the transmission of false electronic messages, child pornography, pedophilia and cyber-terrorism.
It has also suggested punishments to be attached to any breach of its provisions. For instance, it provides that where a service provider refuses to release its subscriber’s data, as requested by the security agencies, such service provider will be liable to N10million fine, while each of its directors, managers or officers shall be liable for three years jail term or N7 million fine or both.
In Section 15 (1) it provides for a jail term of not less than one year or a fine of N2 million for “any person who, by means of a public electronic communications network persistently sends a message or other matter that (a) is grossly offensive 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, the purpose of causing annoyance, inconvenience or needless anxiety to another or cause.”
The Bill further prescribes death sentence for a person, who commits crime against “critical national information infrastructure,” defined as “certain computer systems, networks and information infrastructure vital to the national security of Nigeria or the economy and social well-being of its citizens.”
It provides that if the offence did not result in death, but led to “grievous bodily injury,” the offender shall be liable to imprisonment for a minimum term of 15 years.
As it relates to terrorism, the Bill prescribes life imprisonment for “any person that accesses or causes to be accessed any computer or computer system or network for purposes of terrorism.” It adopted the definition of terrorism as contained the Terrorism (Prevention) Act, 2011 (as amended).
The Bill suggests a minimum jail term of 10 years or a N20 million fine for any person convicted for producing and distributing child pornography. It specifies 10 years in jail, N15million fine or both for act of pedophilia.
Information Minister Labaran Maku said after the Executive Council meeting in August, last year, that the Bill seeks to provide an effective, unified and comprehensive legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in the country, as well as promote cyber security and ensure the protection of critical national information infrastructure.
Justifying the necessity for such a law, Maku noted that terrorists and other criminals have been using our cyber space to commit crimes. He argued that all democratic countries of the world have cyber control laws and that there is no nation whose cyber space is not monitored.
The minister said the Bill is in conformity with existing Nigerian laws, the Budapest Convention on Cybercrime, which reflects Nigeria’s obligations under the soon-to-be finalised African Union Convention on the subject matter.
The Budapest Convention, better known as the Convention on Cybercrime (which influenced the new Bill), is the first international treaty seeking to address Internet and computer crime by harmonising national laws, improving investigative techniques, and increasing cooperation among nations.
It was drawn up by the Council of Europe in Strasbourg, France, with the active participation of the Council of Europe’s observer states of Canada and Japan. It was adopted by the Committee of Ministers of the Council of Europe at its 109th Session on November 8, 2001. It was opened for signature in Budapest, on November 23, 2001 and it entered into force on July 1, 2004.
On March 1, 2006 the Additional Protocol to the Convention on Cybercrime came into force. Those states that have ratified the additional protocol are required to criminalise the dissemination of racist and xenophobic material through computer systems, as well as threats and insults motivated by racism or xenophobia. As of November 2013, 41 states have ratified it, while 11 others have signed, but yet to ratify the convention.
Proponents of this initiative have applauded the government and argued that it is a step in the right direction, particularly in view of the current security situation in the country; the bad reputation 419 and related cybercrimes have attracted to the country and the requirement by every country to effectively man and police its cyberspace.
They also observed that the law, when enacted, will further aid the government in discharging its constitutional responsibilities under Section 14(2)(b), where it is provided: “The security and welfare of the people shall be the primary purpose of government.”
Critics are, however, of the view that it is coming late in the day – years after the coming into force of the Budapest Convention.
To them, effort by the country to domesticate this international provision, must take into account local peculiarities by criminalising for instance, undue promotion of ethnicity, tribalism, among others in the nation’s cyberspace, in view of their negative implication for the nation’s unity and growth.
They argued that in view of the inherent weakness in the nation’s criminal justice process, great efforts must be made by the National Assembly to create measures against abuses. They suggested the inclusion of specific provisions for conditions and safeguards, to prevent abuses, as it is the case with Article 15 of the Budapest Convention.
Article 15(1) of the Convention provides: “Each party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.’’
Lawyers, including Alex Iziyon (SAN), Yusuf Ali (SAN), Dr. Abdulazeez Ahmed and Solomon Tumba, said much as it is too early in the day to doubt the government’s intention in initiating the Bill, the National Assembly should subject it to critical scrutiny and ensure that provisions are made to guard against abuses and provide sufficient redress mechanisms.
They suggest that, if passed into law, those saddled with its application should always be guided by the need to always draw distinction between private rights, public interest and national security.
Iziyon argued that there is the need for the balancing of the private rights – the constitutional rights of the citizens and that of the state – as it concerns national security. He said there has to be a balance, because such law exists all over the world.
“The issue is that where the private rights is important. But, even the constitution says, your private rights stop if what you are doing is going to affect national interest. For example, you cannot say you have a right to kill somebody because you have a right to carry gun. So, there is a limitation, and that is also there in the Constitution – limitation of the rights.
“So, with this Cybercrimes Bill, there has to be a balancing. The balancing will have to be that where state’s interest is involved, and there is suspicion of the commission of a crime, and such crime can be tracked, the right of the private individual stops there. You cannot then say there is an invasion of your privacy.
“But, where the law seeks to go into the bedroom of people that are innocent, and starts monitoring their private e-mails and text messages, then you can now say there an invasion of privacy. I do not think that is what the intention of the Cybercrimes Bill is.”
Ali said: “Well, I do not think we should bother ourselves much about the intention behind the Bill. We should wait for it to be passed into law first. Provided it is not deployed to witch hunt anybody, particularly those seen as opponents of the state.
“The beauty of it is that if the law turns out to be unconstitutional, the courts are there. There is no reason for anyone to be apprehensive about the provisions of the Bill. It is only when it becomes law that it can be challenged in court. So, we should wait for it to be passed first.”
Ahmed said: “I think there is actually nothing bad in the move for a law against cybercrimes in the country. What one should be particular about is its application. You know the problem with this country is not the paucity of laws. We have enough laws, the problem is enforcement and abuses.
‘’While the state is seeking to have more laws, the mechanism for criminal justice administration should equally be strengthened to enable it cope.’’
“What I am saying in effect is that the security personnel, the court officials and those in charge of the prisons should be subjected to periodic training and provided with enhanced remuneration. This is because the cyberspace and the criminals that operate there are highly skilled and exposed to huge funds.”
Tumba noted: “As is stands today, it is still a Bill to be subjected to the legislative mills. We hope the legislature will do a thorough job, organise public hearing where experts’ opinion will be sought and provided.
‘’Many countries have this kind of law. Some have even expanded on their cybercrimes laws.
“Countries, such as the United States and the United Kingdom, are examples of countries that have greatly expanded on the law. With the growing sophistication in terrorism and other grievous crimes, it is wise for any country to deploy what it has to protect itself. What we should only guard against is abuse and misapplication.”
It is, however, expected that the National Assembly will cast aside political considerations and diligently consider this Bill in view of its importance to national security, which many argued, is greatly threatened with the relentless attack by the Boko Haram sect, rising incidents of oil theft, kidnapping, among others.
