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FG to amend cybercrime act

FG to amend cybercrime act
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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 Nigeria’s
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 The Act should immediately be repealed or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 government’s 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 reuselements 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 court’s
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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Dairo Habib

Government should provide job also