This piece is not principally about whether El-Rufai is guilty or
innocent of whatever conduct the DSS suspects him of. That is a matter for
trial. What is worth examining carefully, and somewhat urgently, is whether the
DSS and whoever supervised this prosecution got the law right. The short answer
is: they did not. And the implications of that error go beyond procedural
embarrassment.
What the DSS Actually Charged
According to media reports, the first two counts of the charge invoke
Section 12(1) and Section 27(b) of the Cybercrimes (Prohibition, Prevention,
etc.) Amendment Act, 2024. These references are presented as if they are
straightforward provisions of the law under which El-Rufai must answer. They
are not.
Here is why.
The 2024 Amendment Act Is Not a Standalone Penal
Law
The Cybercrimes (Prohibition, Prevention, etc.) Amendment Act, 2024 is,
as its very title makes clear, an amendment. It exists for one purpose: to
amend specific provisions of the principal legislation, which is the
Cybercrimes (Prohibition, Prevention, etc.) Act, 2015. An amendment act does
not create an independent, self-contained body of criminal law. It modifies,
inserts, deletes, or replaces sections of the parent Act. Once it has done that
work, the operative legal instrument remains the principal Act, now updated
with whatever changes the amendment introduced.
This is not a technicality. This is elementary legislation. Anyone who
has studied law in Nigeria, or indeed any common law jurisdiction, understands
that you charge a suspect under the principal Act as amended, not under the
amending statute itself.
Now, let us look at what Section 12(1) of the 2024 Amendment Act
actually says. It reads, in its entirety: "Section 48 of the Principal
Act is amended by deleting subsection (4)." That is it. Section 12 of
the 2024 Amendment Act is a housekeeping provision. It performs a narrow
editorial function. It deletes a subsection from Section 48 of the 2015 Act. It
creates no offence, prescribes no penalty, and defines no criminal conduct
whatsoever. Charging anyone under Section 12(1) of the 2024 Amendment Act as if
it were a substantive criminal provision is legally incoherent.
Similarly, Section 27(b) of the 2024 Amendment Act simply does not exist.
The entire Amendment Act has only 12 sections!
The Correct Provisions Are in the 2015 Act
The actual substantive offences that the DSS appears to have intended to
charge El-Rufai with are clearly found in the Cybercrimes (Prohibition,Prevention, etc.) Act, 2015 as amended. Two provisions in particular stand out
as the appropriate basis for the first two counts.
The first is Section 12(1) of the 2015 Act, which provides:
"A person, who intentionally and without authorization, intercepts
by technical means, non-public transmissions of Computer Data, content, or
traffic data, including electromagnetic emissions or signals from a Computer,
Computer System or Network carrying or emitting signals, to or from a Computer,
Computer System or connected system or network, commits an offence and is
liable on conviction to a term of imprisonment of not more than 2 years or to a
fine of not more than ₦5,000,000.00 or both."
That is the unlawful interception provision. It targets the deliberate,
unauthorized interception of electronic communications. If the DSS believes
that El-Rufai or persons connected to him engaged in unauthorized interception
of digital communications, this is the provision they should have cited. It is
clear, it creates a specific offence, it has a defined penalty, and it sits
properly in the principal Act.
The second relevant provision is Section 27(1)(b) of the 2015 Act, which
provides:
"A person who aids, abets, conspires, counsels or procures another
person to commit any offence under this Act, commits an offence and is liable
on conviction to the punishment provided for the principal offence under this
Act."
This is the conspiracy and abetting provision under the Cybercrimes Act.
It is the appropriate section to charge someone who did not personally carry
out the alleged cyber conduct but who may have facilitated, assisted, or
procured another person to do so. Again, it is in the 2015 Act, not the 2024
Amendment Act.
The charges should have read: "Count 1: Contrary to Section 12(1)
of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015 as amended"
and "Count 2: Contrary to Section 27(1)(b) of the Cybercrimes
(Prohibition, Prevention, etc.) Act, 2015 as amended." The failure to
frame it this way is not a minor drafting infelicity. It is a substantive legal
error that, depending on how the trial court views it, could affect the
validity of the charge or at the very least embarrass the prosecution.
Why This Matters: The Consequences of
Charging Under the Wrong Law
Some might argue that this is a technicality and that the court will
simply look through to the underlying facts. The courts do have some latitude
in treating errors in charge drafting, and the prosecution may seek to amend
the charge. But that argument misses the broader point. In criminal
proceedings, precision matters. The defendant is entitled to know exactly what
law they are said to have violated. A charge that cites a non-existent
substantive provision denies the accused a fair opportunity to understand and
challenge the case against them. It also exposes the prosecution to objections
at every stage of proceedings, from arraignment to trial.
More practically, prosecutorial credibility matters. When the agency
bringing the charge cannot correctly identify the statute it is relying on, it
raises legitimate questions about the quality of the investigation and the
legal supervision of the case. It makes it harder for courts, the public, and
legal observers to take the prosecution seriously on its merits.
The Rules of Professional Conduct for Legal Practitioners, 2023 speak
directly to this. Rule 37(4) states that "the primary duty of a lawyer
engaged in public prosecution is not to convict but to see that justice is
done." Rule 37(5) goes further and is even more pointed: "A
public prosecutor shall not institute or cause to be instituted a criminal
charge, if he knows or ought reasonably to know that the charge is not
supported by the probable evidence." Read together, these provisions
draw a clear boundary. A public prosecutor is not an instrument of political
will. They carry an independent professional duty to ensure that charges
are legally sound before they are filed. Filing a charge under provisions that
either do not exist or carry no substantive criminal content is not a clerical
slip. It is a departure from that duty, and the Rules make no allowance for
institutional pressure as an excuse.
The Uncomfortable Question: Was This
Prosecution Rushed?
There is an uncomfortable dimension to all of this that cannot be
avoided. The DSS is the country's secret police. It operates under the direct
supervision of the Presidency. El-Rufai, since leaving government, has become
an increasingly vocal and uncomfortable presence in opposition circles. The
timing of the charges, and now the elementary legal error embedded in them,
raises a question that serious observers cannot simply dismiss: was this
prosecution properly prepared, or was it rushed to court to satisfy political
pressure from above?
Cybercrime investigations, when done properly, take time. They require
forensic analysis of devices and networks, the establishment of chains of
digital evidence, careful assessment of the relevant statutory provisions, and
thorough legal review before charges are filed. None of that is quick work.
When charges are filed that cite provisions of an amendment act as if they were
substantive offences, when those provisions turn out to be mere housekeeping
clauses or simply non-existent as criminal provisions, one is entitled to
wonder whether any serious legal review happened at all.
It is hard not to reach for an explanation. And the most obvious one is
that someone in the DSS, under pressure to produce a result quickly, drafted
and filed these charges without adequate scrutiny. The error is the kind that a law student should catch. That it appeared in a charge filed by a
national security agency suggests either that the legal review was cursory or
that no meaningful legal review happened at all.
The Pressure Cooker: Government Lawyers and
Their Political Bosses
This brings us to a pattern that is unfortunately familiar in public law
practice. Lawyers who work for government agencies, security services, and
state institutions operate in an environment that is structurally different
from private practice. They have clients, yes, but their clients are
institutions that are themselves answerable to political principals. The
Attorney-General's office, the DSS legal directorate, the Nigeria Police Force
legal directorate, the Nigeria Army legal directorate and similar bodies do not
exist in a professional vacuum. They operate within a chain of authority that
runs, ultimately, to political appointees and to elected or appointed officials
with agendas and timelines.
The foundation of the profession, however, does not shift with that
chain of command. Rule 1 of the Rules of Professional Conduct for Legal Practitioners, 2023 is unambiguous on this: "A lawyer shall uphold and
observe the rule of law, promote, and foster the course of justice, maintain a
high standard of professional conduct, and shall not engage in any conduct
which is unbecoming of a legal practitioner." That obligation does
not have a carve-out for government lawyers. It does not say "except
when your boss is in a hurry" or "unless the agency director wants
results by Friday." It is absolute. It applies to the lawyer in private practice
and equally to the lawyer sitting in the legal directorate of a security
service drafting charges at the instruction of a political superior.
The pressure to file quickly, to show results, to demonstrate that the
agency is active and effective, is real and pervasive. A political boss who
wants a charge filed will not always appreciate being told that the forensic
work is incomplete or that the legal drafting needs another week of review.
Junior lawyers and even senior ones know that pushing back on a political boss
carries professional risk. The path of least resistance is to file what you
have, fix it later, and hope the court is tolerant.
The problem, of course, is that this approach does a disservice to
everyone. It harms the prosecution's case. It potentially harms the defendant,
who must navigate proceedings built on faulty foundations. It undermines public
confidence in the justice system. And it harms the lawyers themselves, who are
identifiable in the public record as the authors of a flawed charge.
It appears that government lawyers everywhere navigate the tension
between professional duty and institutional loyalty. But the tension is
particularly acute in environments where security agencies operate with limited
independent oversight, where political pressure on prosecutorial decisions is
normalized, and where the consequences of being seen as obstructive to the
boss's agenda are swift and severe.
A Word to In-House Counsel Under Political
Pressure
If you are a lawyer working within a government agency or under the
supervision of a politically appointed superior, this case should serve as a
sobering reminder of something you already know but perhaps find difficult to
act on.
Your professional obligation runs to the law first. Not to your boss,
not to the agency, not to the political agenda of the moment. Rule 1 of the
Rules of Professional Conduct has already stated this plainly, and Rule 37 has
sharpened it in the specific context of criminal prosecution. A public
prosecutor who files a legally defective charge is not just making a technical
error. They are, on the plain reading of those rules, failing in their primary
professional duty. When a superior directs you to file a charge that you know
is legally defective, you are not merely being asked to take a professional
risk. You are being asked to participate in a process that may ultimately
embarrass the institution you serve and, more importantly, undermine justice.
The practical advice here is straightforward, even if it is not always
easy to follow. Push back in writing. Document your legal concerns in a
memorandum. If you believe the charges as drafted cite the wrong legislation,
say so clearly and in a format that creates a record. You may be overruled, and
that is a reality of institutional practice. But you will have discharged your
professional duty, and you will have evidence that you raised the issue. That
documentation matters, both professionally and ethically.
If you are overruled and the defective charge is filed anyway, at the
very least ensure that the record reflects the correct statutory basis for any
subsequent amendment. Do not compound the initial error by defending it as if
it were correct. Courts, opposing counsel, and the public are watching. And in
the age of legal commentary, public analysis, and digital archives, elementary
legal errors in high-profile cases do not disappear quietly.
More broadly, think carefully about the long game. A prosecution that
collapses because it was built on a wrong statutory foundation does not serve
the political boss who ordered it. It does not serve the agency that filed it.
It certainly does not serve justice. The lawyer who stood up early and said
"we need to get the law right before we file" is ultimately serving
everyone better, even if that is not how it feels in the moment of political
pressure.
The El-Rufai case, whatever its ultimate outcome, is an object lesson in
what happens when the rush to please the boss overrides the duty to get the law
right. The charges may be amended. The prosecution may proceed. But the
elementary error is now on the public record. And that, for any lawyer worth
their call to bar, should be reason enough to slow down next time, check the
statute carefully, and file correctly the first time.
This article is written for legal commentary purposes and does not
constitute legal advice. The author examined the publicly reported charges and
the relevant statutory provisions on the basis of publicly available legal
texts.
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