THE NIGERIAN LEGAL BLOG BY BARR.CHIDINMA DURU
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Critical Reflections on Internet Fraud and the Cyber Crimes Act: Too Many Chiefs, Not Enough Indians – Destiny Ogedegbe
POSTED BY BARR. CHIDINMA DURU
At the risk of underestimation, no less
than ten out of every dozen of Nigerian guys are actively involved in
cyber fraud as of now. The negligible remainder of guys consists of
heavily distraught individuals who lose sleep as a result of serious
contemplations in that regard. This is bad enough. But, what is worse is
that cyber fraudsters have brazenly suffocated the atmosphere with
unquestionable profligacy, choked non-indulgers with regrets and
traumatizing ambivalence and worst still, they have repeatedly received
the red carpet treatment in Nigeria. From being completely demonized to
being cautiously window-dressed, the act of cyber fraud together with
its perpetrators appears to have assumed a position that enjoys open
validation from the public. This disconcerting trend is pretty much the
most conspicuous lack of a moral touchstone against which practices in
Nigeria are examined.
To ebb it, modest parents have warned,
concerned individuals have evangelised the need to desist from cyber
fraud but, adamantly, this criminal upsurge appears to have spiralled
like cancer into deep tendrils of the society to the extent that it has
exemplified the slippery nature of our moral lines. As it is obtainable
in every society, where social opprobrium can no longer impair the
continuance of a menacing practice, the law and the machinery of its
enforcement become the recourse that sheds off deaf ears. Hence, there
is a need to evaluate the crime from a legal perspective.
What has been unfashionably styled as
“Yahoo” or “G” in Nigeria is the colloquial term for CYBER IDENTITY
FRAUD”. It involves most times, the impersonation of a person other than
the perpetrator and the misrepresentation of facts with a view to
gaining economic benefits. It is criminalised in Nigeria under the Cyber Crimes Act, 2015 (Hereinafter referred to as the CCA.) Consequently,
this work focuses on the law on cyber fraud particularly the model
adopted by Nigerian fraudsters and the endemic prosecutorial hiccups. It
is the modest view of this writer that there are profound difficulties
in securing convictions for cyber fraud in Nigeria given the following
bumpy rides:
- THE INCONCLUSIVE WORDINGS OF THE CRIME IN THE ACT
For a start, this tenuous yet important
detail has to be addressed. Cyber Identity Fraud, which involves
fraudulent impersonation and calculated set of misrepresentations geared
towards fraudulent acquisition of economic benefits, is defined under Sections 14 (2) and 22(3-4) of the Cyber Crimes Act.
The genesis of prosecutorial challenges
bedevilling cyber fraud is that the Act restricts the offence only
between parties in Nigeria. The definition of the crime makes no mention
of any person other than a Nigerian whereas, in Nigeria, the most
pervasive cyber identity frauds have foreigners as victims. Thus, an
allegation of cyber identity fraud between a Nigerian and an American
will be very much debatable since it appears, by a community reading of
the sections of the Act, that it only intends to criminalise cyber
crimes committed by Nigerians against Nigerians. While the defrauded
American cannot sue the offender in America, the defrauding party enjoys
from the debatableness of the Act’s silence with regard to the class of
persons which could fall under the purview of the crime.
Adekemi Omotubora in his work on “Comparative Perspectives on Cyber Crimes Legislation in Nigeria and the U. K”
which featured in the 2016 version of the European Journal on Law and
Technology, argues it is superfluous to include foreigners in the
definition of cyber crimes under the Nigerian Act as victims as the lack
of it occasions no jurisdictional complexity. It is believed by this
writer that his point is fair but to the extent of its prosecutorial
implications, he respectfully disagrees for two reasons: First, such
lousy craftsmanship is a ridiculous display of absent mindedness to the
practical realities of the offence in Nigeria. If cyber fraud must be
curbed in Nigeria, a legislation that fashions an opportunity for
defence lawyers and criminals to leverage upon must be put paid to.
Yahoo Boys defraud foreigners and hardly ever Nigerians. Thus, in
proving that a crime has been committed, there is a connection between
the crime committed and the victim. In fact, the absence of knowledge of
the victim’s plight automatically implies no crime has been committed.
If all evidence of a suspects fraud leads to a foreigner and the latter
is not contemplated by the Act, then a can of worms is opened and the
chances of securing a conviction recedes to the footnote. The United Kingdom Computer Misuse Act, 1990 carefully uses the term “any person in the UK or elsewhere”
in order to avoid situations where criminals go home smiling like cats
that ate canaries because of an avoidable inconclusiveness of verbiage.
Secondly, the commission of cyber fraud against foreigners is heavily in
contravention of Section 24(b) of the Constitution of Nigeria, 1999 which
obligates citizens to uphold and enhance the good name of Nigeria.
Since the implication of cyber fraud in Nigeria is a soured national
integrity, it follows that the foreign victims, in order to ensure a
consummate legislation, should be included in the spectrum of persons
against whom the crimes spelt out in sections 14 and 22 of The CCA may be committed.
It must be emphasized that what is said
above does not imply that a person found wanting of the offence of cyber
fraud in Nigeria cannot be prosecuted in Nigeria. Section 50 of the Cyber Crimes Act
gives the Federal High Court the jurisdiction to entertain any matter
relating to cyber crimes in so far as the offender committed the offence
in Nigeria, is a citizen of Nigeria and it is immaterial whether he
lives permanently in Nigeria or not.
- ARREST AND SEARCH BY LAW ENFORCEMENT AGENCIES
Methodologically, cyber fraud is a covert
operation. Those who engage in it do so within their privates. But,
knowing full well the rampant nature of cyber fraud, police officers and
members of other law enforcement agencies harass every passerby who,
to their minds, suffers a personality attributable to criminal
insinuations. Some are arrested because they parade with ostentatious
cars, have tattoos and dreadlocks or for having foreign contacts on
their phones. While it may be morally salutary to restrain
delinquent-looking persons from improper behaviour, these things do not
constitute any evidence of cyber fraud nor can a legal arrest be hinged
on them.
The tenor of section 45 of the Cyber Crimes Act of
is to the effect that a police officer or any other law enforcement
agent can only effect an arrest and or search upon application to a
judge whom in turn issues a warrant of arrest or search. The Act does
not provide circumstances in which an officer can arrest without prior
issuance of a warrant. Even upon application to a judge, the judge may
refuse to grant the warrant under Section 46 if he is
not satisfied by the grounds proffered by the officer. There must be
reasonable grounds to suspect the commission of the offence before a
warrant can be issued. Thus, it is obvious that the unwarranted
stoppages and searches conducted by law enforcement agencies, to the
extent that they confiscate gadgets and operate them, is unlawful.
Mere suspicions that a person with a
funny haircut and a deluxe car is not enough. Morbid anxieties and
suspicions can only be followed up by an arrest and search upon having
been granted a warrant by a judge. The omnibus provisions of the Police Act 2004
which gives the police the right to arrest without a warrant upon
reasonable suspicion of the commission of a crime does not include
searches and certainly does not apply to passersby who give no
reasonable suspicion of the commission of any offence. Arresting
suspected cyber criminals without warrant probably explains why the
popular Club 57 raid by EFCC officials in Lagos is questionable.
The implication of an arrest without a
warrant in this circumstance is that the apprehended party has a legal
right to institute an action against the arresting law officer for
breach of his fundamental rights to privacy and movement under sections 37 and 41 of the constitution of Nigeria, 1999.
As a matter of fact, not only is the officer open to litigation but
also the entire police force can be sued, under the authority of Hassan v Atanyi (2002) 8 NWLR Pt. 770; 551.
In June 2018, the Federal Bureau of
Investigation (FBI) in the United States went on a world raid of cyber
criminals, an operation that was styled “Operation Wire Wire”. With
impeccable information and investigation from Homeland Security followed
by warrants from Federal Courts, the FBI secured a neat arrest of over
70 criminals from different countries, 24 of whom were traced down to
Nigeria. Evidently, the unsophisticated nature of police arrests and
amateurish investigations in Nigeria will always constitute a problem to
the prosecution of cyber criminals. Some officers are deft only with
the use of physical might. Technological investigations is so much to
ask of such not to mention that they don’t even know that a warrant is
necessary before an arrest of a suspected cyber criminal. Only swift,
covert bails are sublimely executed.
Not a few persons will agree with the
fact that our legal system was forged in the physical world, for
physical crimes. Thus, the impalpability of cyber crimes strengthens the
impracticability of its suability.
First, section 135 of the Evidence Act, 2011 requires that all criminal matters must be proved beyond reasonable doubt. Cyber crimes are no exception. Now, Under Section 22 of the Cyber Crimes Act 2015,
the ingredients of cyber identity fraud are that: (a) the criminal must
have fraudulently impersonated (b) he must intend to gain from the
fraudulent impersonation, some personal benefits. Under Section 14, the
ingredients are that the person must have intended to defraud, and he
must have in fact defrauded the person by means of electronic
misrepresentations which the other person acted upon under the
misapprehension.
Take the scenario of an arrested
undergraduate who engages a white lady in a whatsapp chat. They enter a
romantic affair, he uses a display picture other than his actual
picture, uses a different name and location. She sends money with a
mindset equipped with the belief in a productive relationship. But how
can these things be proved beyond reasonable doubt when all a defence
lawyer has to do is to puncture the charges? How can it be proven that
the person relied on the misrepresentation? Where it is a romantic
affair, it has to be proved that if the victim were seised with the true
identity she wouldn’t have sent the money. They may require the
physical presence of the victim which is hardly ever gotten. Cases
abound where the true identities of the fraudsters came to the fore and
it had no change to the unflinching love of the moneybag.
Misrepresentation and fraud are cumbrous to prove in criminal cases.
What if some messages containing the actual misrepresentations as to
identity have been deleted? Can it be retrieved from the other party or
the service providers? If they can, how about their admissibility? What
if some of the incriminating messages were not sent by the arrested
person? A friend could have, without his knowledge, sent some of the
messages. Can he be tried for those messages if he denies sending them
himself? Will the ownership of the gadget raise a presumption that he
sent all the messages? If so, in the presence or proof that the chain of
messages came disjointedly from different persons at different
occasions, without the knowledge of one another? What does the
prosecution do? The accused could altogether deny sending all the
messages, putting the defence to the strictest of proofs. To worsen all
of these, the accused cannot be compelled to testify to any of these
claims. This will violate one of the fundamental rights of an accused
person as enshrined in section 36(11) of the constitution of Nigeria, 1999. As a matter of fact, the Supreme Court in Igabele v State (2006) All FWLR Pt. 311; 1797,
the Supreme Court held that the constitutional right of an accused to
remain silent equally implies that not even that court may compel the
accused by a subpoena to testify in his own trial. Sadly therefore, a
prosecuting counsel who was unaware of how the whole process commenced
has to tediously prove facts largely beyond his ken.
While the prosecution is battling to
smart out of the jackboots of an insufferable burden to prove the
allegations, he is faced with the hellish difficulty of admissibility.
The real trouble with cyber crimes in terms of proof is that they are
carried out through the help of electronic devices and their contents
are incredibly difficult to admit in courts. Section 84(2) and (4) of the Evidence Act,
2011 require that the person relying on the electronic evidence (in
this case being the prosecution trying to secure a conviction of the
“Yahoo Boy”) must lead testimony to show that the device or devices
containing the evidence were used regularly, properly for the purposes
of activities regularly carrier out by it in the ordinary course of
these activities and a certificate of authentication must be before the
court. Although the Court of Appeal in Brila Energy Ltd v Federal Republic of Nigeria (2018) LPELR – 43926
held that oral testimony may be adduced in place of the certification,
the true problem is that the only person that can satisfy Section 84 of
the Evidence Act, is the accused or any person in whose custody such
device has been regularly and consistently operated. Yet, the accused
cannot be compelled to testify to these facts.US.News reported that two Nigerians, Alu
and Austin were tried in the Federal Court in Texas for cyber identity
fraud and were convicted accordingly. The following month, eight
Nigerians were tried in Minnesota and convicted accordingly. One is
forced to ask, “Which way Nigeria?”
It can be easily mistaken that this work
is quietly intended to bolster criminal proclivities as it exposes the
absurdities of the law and defeats prosecutorial pretensions. But, in
actual fact, this writer seeks to demonstrate that the interplay between
legislations as they are increasingly made, can occasion difficulties.
The Cyber Crimes Act, when its provisions are interspersed with the
Evidence Act, Criminal Code and Police Act, could wrest off vitality
from the criminal system in respect of cyber crimes and that is the
gravamen of this work. Hence, the following recommendations.
RECOMMENDATIONS
It is often easier to secure convictions
in foreign countries especially America because of the relaxed criminal
justice system over there. Extradition and call for international
support is very much needed. Nigerian Police officers are largely
confronted with the temptation to be corrupt and indeed they fall, every
so often. Investigations, arrests and prosecution will all remain far
cries without foreign intervention to cure this malaise. This is because
even law enforcement agents, a good number of them fish in these
troubled waters and make good fortune out of mutual understandings
It should be lawful to arrest and search
suspected criminals without warrants and the grounds should be clearly
spelt out. These days, cyber fraudsters in Nigeria emblazon their
trademarks in popular clubs and hot spots. An ordinary trader can spot a
number of them as they have, with impunity, assumed distinctive
attributes setting them widely apart from the others waiting on God’s
favour. Thus, arrests and search should not be subject to bureaucratic
shibboleths – warrants.
Although recommending that the Act should
be amended to expressly relax the rules of arrests, search, evidence
and proof with regard to cyber crimes is almost like flogging dead
horses. While it is needed, it is far more expedient to call on judicial
authorities to seize their moments and set rules of admissibility and
proof of cybercrimes when they are faced with it. Nobody sues the
judiciary for interpreting the law or setting guidelines which are in
the interest of the public. Not even the legislature. Judicial
legislation should be encouraged as far as cyber crimes are concerned.
Else, this cancerous leach will soon become an uncontrollable octopus
with tentacles imbued in every and any Nigerian.
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