Senator Ali Ndume, Computer Generated Evidence & Law Reporting

The case of Federal Republic of Nigeria v. Senator Mohammed Ali Ndume  is among the pioneer criminal cases that dealt with admissibility or otherwise of e-evidence or computer generated evidence e.g. call logs, SMS etc. under section 84 of the Evidence Act, 2011. In that case the trial court admitted some computer generated items in evidence but on appeal the evidence was ruled inadmissible. Therefore, the Court of Appeal judgements in Senator Mohammed Ali Ndume v. FRN delivered on 17/12/13 in Appeal No. CA/A/78/CR/2013 and CA/A/78A/CR/2013, are watershed cases with regards to interpretation or application of section 84 of the Evidence Act in CRIMINAL trials yet it seems that no law report in Nigeria has reported them.

The appellate court decisions ought to be reported so as to make them more readily or easily available to many lawyers and thus contribute to the development of our evidence law. The importance of many a lawyer having access to the appellate court judgement has become critical as many criminal trials, especially those involving highly placed persons, to a large extent is hinged on the admissibility or otherwise of text messages, call data records, bank statements and other forms of computer generated evidence. For instance one of the reasons for the court in upholding the no case submission in Ndume's case was the expulsion from evidence, certain computer generated evidence by the Court of Appeal, which pieces of evidence were vital to the prosecution’s case.

Also in the trial of Rickey Tarfa SAN on a two-count charge of obstruction of justice and attempting to pervert the course of justice, the prosecution tendered in evidence details of alleged telephone conversations and text messages between the accused and a High Court judge in an ongoing bribery case.

Furthermore, in the ongoing trial of Nwobike SAN by the EFCC on 11 counts bordering on perverting the course of justice and offering gratification to public officials, the accused was confronted with various text messages he was alleged to have sent to court officials to illegally influence court cases he was handling.

EPHRAIM v. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR-22363(CA): A CASE OF POOR INVESTIGATION

FACTS

By a criminal charge dated the 25th June 2008, the Appellant was arraigned before the Federal High Court sitting at Kaduna in the following terms:

"That you Nnachi Ephraim on or about the 4th day of April, 2008 at Prime Gate Cybercafe, 1 Okpara Street, Abakaliki, Ebonyi State within the jurisdiction of the Federal High Court, being the Manager of Prime Gate Cybercafe failed to register the Cybercafe with the Economic Financial Crimes Commission and thereby committed an office contrary to Section 13(1)(a) and punishable under Section 13(5) (c) of the Advance Fee Fraud And other Fraud Related Offences Act, 2006."

A trial was conducted as a result and, one witness each, testified on behalf of the Appellant and Respondent respectively. At the conclusion of the trial, the trial Court found the Appellant guilty.

DECISION

Upon appeal, the Court of Appeal Per ORJI-ABADUA, J.C.A. on Pp. 44-46, paras. G-F of the judgement held that:

 "For a person to be guilty under Section 13(1)(a), the person must in the normal course of business, provide telecommunications or internet services, or must be the owner or the person in the management of any premises being used as a telephone or internet cafe or by whatever name called. I must observe that the fact that the signboard of primegate cyber cafe is posted at No. 1 Okpara Street, Abakaliki notwithstanding, there must be some overt act on the part of the owner of the cybercafe to prove that he actually provides telecommunications or internet services to the public. There was no shred of evidence adduced by the prosecution establishing that Primegate Cybercafe was indeed providing telecommunications and internet services at No. 1 Okpara Street Abakaliki. The fact that the signboard of Primegate is hanging thereat does not constitute any proof that the said cybercafe was providing any internet services at the said address. I think, the saying; 'the hood does not make the monk' suits appropriately here. All the documents tendered before the lower Court profoundly showed that it was Artifice Colony cybercafe that was indeed providing both the telecommunication and internet services at No. 1 Okpara Street, Abakaliki and not Primegate. P.W.1 admitted that no investigation was carried out by the EFCC to decipher whether Primegate Cybercafe was indeed taken over by Artifice Colony Cybercafe or not. They did not obtain the tickets and receipts normally issued to customers to strongly establish that it was Prime gate Cybercafe that was running the said business. The question is; 'if there was no proof that Prime gate was indeed offering any internet or telecommunication services, where then lies the offence?' It is only when the cyber cafe or a person is offering the services enumerated in Section 13(1)(a) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 that the person or the entity is required in law to register the same. A moribund or defunct company, whose signboard is still hanging out on its former business address without any iota of proof of it running any business thereat, cannot be said to be carrying out the same services it had wound up, merely because of the continued display or affixation of its signboard at its former business address. It is not an offence to display a signboard, but, it is an offence to carry out such internet or telecommunication services or being the owner or person in the management of any premises being used as a telephone or internet cafe without registration of the cyber cafe. There must be proof of usage of the place as a telephone or internet cafe. This was lacking in the evidence proffered by the prosecution in the instant case. It is glaring that the judgment of the lower Court was not properly guided in line with principles of law. The Court terribly erred. Accordingly, I find the decision of the lower Court as being perverse."

COMMENTS

This case is from a period when majority of Nigerians could only have cheap access to the Internet via cybercafes. During that period some cybercriminals also used the cybercafes to perpetrate cybercrimes and it was perhaps thought that requiring cybercafe owners or operators to register their cybercafes with the Economic and Financial Crimes Commission (EFCC), would help in fighting or curbing the menace of cybercrime particularly "4I9" or "Yahoo Yahoo" boys.

However, with the crash in the cost of obtaining access to the Internet via subscription to any of the popular telecom provider's data plan, cybercafes have slowly gone out of business. Only a handful remain in business as many Nigerians now have smartphones and tablets and access the Internet on such devices.

The case, however, illustrates the effect of poor or shoddy investigation in a criminal case. The EFCC did not carry out thorough and proper investigations in the case and then charged the accused to court. According to the Court of Appeal:

"P.W.1 (prosecution i.e. EFCC witness) admitted that no investigation was carried out by the EFCC to decipher whether Primegate Cybercafe was indeed taken over by Artifice Colony Cybercafe or not. They did not obtain the tickets and receipts normally issued to customers to strongly establish that it was Prime gate Cybercafe that was running the said business."

This instance of poor performance by the prosecution is not limited to the EFCC only but also crops up sometimes in cases where very poor or little investigation is conducted by the Police thereby putting the prosecution lawyer in a fix when he is preparing charges or conducting trials.

It is hereby suggested that law enforcement agencies should sit up and do proper and thorough investigations before filing charges as without cogent evidence the court cannot manufacture evidence upon which to find an accused person guilty of the offence for which he has been charged with.

It must be noted that the performance of the EFCC demonstrated in this case is a one off as the EFCC has secured many convictions which are too numerous to mention here.

Freedom of Expression and the Blogger under Nigerian Law

The recent arrest of Abubakar Sidiqu; a blogger, by operatives of the Economic and financial Crimes Commission (EFCC) supposedly because of a post which is critical of the EFCC Chairman has brought to the fore once again the issue of freedom of expression and defamation especially on the Internet.

The 1999 Constitution of the Federal Republic of Nigeria (as amended) under section 39(1) provides for freedom of expression. But under section 39(3) the right to freedom of expression could be restricted by a law reasonably justifiable in a democratic society, for the purpose of preventing the disclosure of information received in confidence or for the purpose of maintaining the authority and independence of the courts and also section 45(1) which provides that nothing in section 39 shall invalidate any law that is reasonably justifiable in a democratic society, in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons.

Therefore the test to determine whether a law which limits freedom of expression is constitutional or otherwise is whether the law is:

·        (a) reasonably justifiable in a democratic society;

·        (b)for the purpose of preventing the disclosure of information received in confidence;

·        (c)for the purpose of maintaining the authority and independence of the courts;

·        (d)in the interest of defence;

·        (e)in the interest public safety;

·        (f)in the interest public order;

·        (g)in the interest public morality;

·        (h)in the interest public health; or

·        (i)for the purpose of protecting the rights and freedom of other persons.

The question that follows therefrom is whether the following laws which tend to limit freedom of expression meet or do not meet the constitutional criteria for a law limiting the freedom of expression as provided in section 39(3) and 45(1) above mentioned. The laws are as follows:

Section 24 of Cybercrime (Prohibition, Prevention, Etc.) Act, 2015 which provides that:          

“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that -

(a) is grossly offensive, pornographic 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, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act…

(2)Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network –

(a)to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person;

 (b)containing any threat to kidnap any person or any threat to harm the person of another, any demand or request for a ransom for the release of any kidnapped person, to extort from any person, firm, association or corporation, any money or other thing of value; or

(c)containing any threat to harm the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, to extort from any person, firm, association, or corporation, any money or other thing of value: commits an offence under this Act…”

Section 391(1) of the Penal Code for Northern Nigeria which provides as follows:

“whoever by words spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning a person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said, save in the cases hereinafter excepted, to defame that person.”

Section 391(2) provides for instances which are an exception to sub-section 1 above.

Section 393(1):

“Whoever, save as hereinafter expected, by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any false statement of fact, intending to harm or knowing or having reason to believe that such false statement of fact will harm the reputation of any person or class of persons or of the Government authority in the Northern Region shall be punished with imprisonment.

(2) It is not an offence under this section to make or publish in good faith a false statement of fact which the accused had reasonable grounds for believing to be substantially true and proof that he had such reasonable grounds shall lie on the accused.”

Section 394:

“Whoever prints or engraves any matter or prepares or causes to be prepared any record for the purpose of mechanical reproduction of any matter, knowing or having good reason to believe that such matter is defamatory of any person shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

Section 395:

“Whoever sells or offers for sale any printed or engraved substance containing defamatory matter or any record prepared for the purpose of the mechanical reproduction of defamatory matter, knowing that such substance or record contains such matter, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

The Criminal Code for Southern Nigeria also criminalises defamation. See sections 373 to 381 of the Criminal Code. See also chapter 7 of the Criminal Code which deals with sedition and the importation of seditious or undesirable publications. Chapter 7 contains offences such as publication of false news with intent to cause fear and alarm to the public. Section 59(1) provides that any person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that such statement, rumour or report is false is guilty of a misdemeanour and liable on conviction to imprisonment for three years. 

Furthermore Section 60  provides that any person  who,  without such justification  or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any  sign  or  visible  representation,  tending  to  expose  to hatred or contempt  in  the estimation  of  the  people  of  any  foreign  State  any  person exercising sovereign authority over that State is guilty of a misdemeanour, and is liable to imprisonment for two years. 

As can be read from above provisions, apart from section 24 of the Cybercrimes Act 2015, sections 391 and 393 of the Penal Code and sections 59 and 373 of the Criminal Code could be used to clamp down on a blogger or any person who posts contents considered to be defamatory or constitutes injurious falsehood under the Penal Code.

In 2012 Abbas Faggo was arrested and charged to court under section 393 of the Penal Code for the alleged Facebook publication, which the Attorney-General and Commissioner for Justice, Mr. Almustapha Suleiman described as “injurious falsehood and defamation to Yuguda’s (Bauchi State Governor) administration.”  Abbas Faggo was alleged to have posted comments on his Facebook account about monumental corruption in the state. He was alleged to have specifically commented on the funding of the wedding ceremony of the eldest son of Governor Isah Yuguda, Idris Yuguda, ostensibly with public funds.

In spite of the above many commentators while often condemning the provisions of section 24 of the Cybercrimes Act, 2015 as been unconstitutional often ignore the fact that even before the Cybercrimes Act, 2015 there was and there are still other laws which restrict the freedom of expression and they could be used to clamp down on bloggers and social media users who post content which the government considers to be critical of it.

The Supreme Court of India in May, 2016 in the case of Subramanian Swamy v. Union of India held that section 499 of the Indian Penal Code (IPC) which criminalizes defamation is constitutional and not a breach of freedom of expression. Section 499 of the IPC is the same and contains the exact wording as 391(1) of the Penal Code.

In that case the petitioners, Subramanian Swamy and Rahul Gandhi, argued that sections 499 and 500 of the IPC dealing with criminal defamation have an "inhibitive effect” on freedom of speech and expression, particularly political speech. The two leaders, who have been charged with criminal defamation under section 499 and 500 of the IPC for their political speeches contended that the colonial law enacted in the 19th century has become "unreasonable and arbitrary” in independent India and was continuing without debate or a test on its constitutionality.

The stand of the petitioners that defamation be treated as a "civil wrong” was opposed by the Government which advocated retaining sections 499 and 500 in the IPC, saying that criminal defamation works as deterrent against growing tendency to defame people through social media. While describing the penal provisions as "deterrent", the government had defended their retention on the grounds that while in other countries, defamation cases are decided very fast, in India it takes years even decades before they reach conclusion.

In another Indian case of Shreya Singhal and Ors. vs Union of India the Supreme Court of India was called upon to decide on the constitutionality of section 66A of the amended Information Technology Act of 2000 (which is similar; though not in exact words, but in effect or substance with portions of section 24 of the Cybercrimes Act). Section 66A defines the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction can fetch a maximum of three years in jail and a fine. The section specifically provides that:

"Any person who sends, by means of a computer resource or a communication device, —

(a)   any information that is grossly offensive or has menacing character; or

(b)  any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,

(c)   any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine."

In the case under reference two women were arrested by the Mumbai police in 2012 for comments on they posted on Facebook. The arrested women were released later on and the criminal cases against them dropped yet their arrests attracted widespread public condemnation. It was felt that the police had misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression.

The Supreme Court of India in declaring section 66A unconstitutional held that that the terms:

"annoying, offensive, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will" used in the section were vague and indefinite… If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or   “menacing”   are   so   vague   that   there   is   no   manageable standard by which a person can be said to have committed an offence or not to have committed an offence.  Quite obviously, a prospective offender of Section 66A and the authorities who are to   enforce   Section   66A   have   absolutely   no   manageable standard   by   which   to   book   a   person   for   an   offence   under Section 66A. This being the case, having regard also to the two English   precedents   cited   by   the   learned  Additional   Solicitor General, it is clear that Section 66A is unconstitutionally vague”.

The court further held that:

"Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered," the bench observed while striking down the law. "...We, therefore, hold that the section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over-breadth." 

Whereas the offence of criminal defamation has been held to be constitutional in India and section 66A which is similar to portions of section 24 of the Cybercrimes Act 2015, has been held to be unconstitutional also in India, it would be interesting to see how the Nigerian courts would decide on the constitutionality of sections 391(1), 393 of the Penal Code, sections 59 and 373 and of the Criminal Code and section 24 of the Cybercrimes Act, 2015 earlier stated if their constitutionality is challenged. The decision in the India cases may be highly persuasive to a Nigerian court deciding on the constitutionality of the Nigerian laws above mentioned.

The United Nations Special Rapporteur on freedom of expression, David Kaye on the 3^rd May 2016 in a speech to commemorate the World Press Freedom Day, said:

“Some governments target journalists, bloggers, political dissidents, activists and human rights defenders as ‘extremists’ or ‘terrorists’, criminalizing and detaining them, using legal systems to counter broad and unclear offences. The harm is felt not only by journalists but also by their audiences, the public that deserves the right to know and to access information of public interest. Freedom of expression plays a critical role in promoting equality and in combating intolerance, and the role the media, the Internet and other digital technologies play in keeping society informed is essential.”

It is hereby recommended that social media activists, human rights advocate and civil liberties organizations should avail themselves of the option of public interest litigation provided under the Fundamental  Rights  (Enforcement  Procedure)  Rules  2009  which has  drastically  increased  the potentiality of the public interest litigation as peoples’ tool against abuse of powers in  governance, to challenge the constitutionality of Nigerian laws especially those that have been highlighted in this article, which restrict or limit the freedom of expression guaranteed by the Constitution.

RICKY TARFA (SAN): THE RIGHT TO REMAIN SILENT AND PASSWORD-PROTECTED MOBILE PHONES

 On the 24^th of February, 2016 a Senior Advocate of Nigeria, Mr. Rickey Tarfa withdrew an N5billion fundamental rights violation suit he filed against the Economic and Financial Crimes Commission (EFCC) and four other respondents. The senior lawyer had filed the suit, alleging violation of his right to privacy by the respondents

Mr. Tarfa in the suit sought a court declaration that his right to privacy was violated when the call records/log on his phone with mobile number 08034600000 was allegedly accessed without his authority and made available to Sahara Reporters and other online news media without any reasonable cause or a lawful court order.

He also urged the court to hold that it was unlawful for his iPhone 6 with mobile number 08034600000 to have been used in calling one Alhaji Ado in Kaduna on mobile number 08061272929 on February 9, 2016 while the said phone was with Magu and the EFCC without any reasonable cause or any court order.

Furthermore, Mr. Tarfa also urged the court to hold that it was unlawful for the EFCC to access his bank details, clients’ information, private and confidential information contained in his iPhone 6 with number 08034600000 and Samsung 6 phone with number 08077341616 without any reasonable cause or any court order.

The writer cannot tell if Mr. Tarfa’s mobile phones were password-protected but assuming he had pass-worded/locked his mobile phones (just like Syed Rizwan Farook, one of the two killers (who were later killed in a shootout with the police) in the December 2, 2015 San Bernardino, California mass shootings, who left behind a pass-worded/locked iPhone 5c whose data the FBI has not been able to get access to) and the EFCC were unable to access the mobile phones either through hacking or guessing his passwords, would it have been lawful for the EFCC to demand from Mr. Tarfa or compel him to provide the passwords to his mobile phones?

The Position of the Law in Nigeria

According to Section 35(2) 1999 Constitution as amended:

“Any  person  who  is  arrested  or  detained  shall  have  right  to  remain silent  or  avoid  answering  any  question  until  after  consultation  with  a legal practitioner or any other person of his own choice”

Section 36(11) further provides that “No person who is tried for a criminal offence shall be compelled to give evidence”. However, section 35(2) is more germane to the issue at hand so this discourse will be limited to the said section.

The import of the section 35(2) is that whenever a suspect is in police custody, his constitutional right to remain silent begins, and this right is to the effect that he cannot be forced or coerced to say a word unless he volunteers to do so as it is the duty of the prosecution to prove its case beyond reasonable doubt. The above position of the law has been upheld by the Supreme Court of Nigeria in the case of Sugh v. State (1988) NWLR (Pt. 77)475. See also Ajudua v. FRN (2014) LPELR-24126(CA) where it was held that an  accused  has the  right  to  remain  silent  as  he  cannot  be forced to make a statement during investigation.

The Position of the Law in the United States

In the United States the general position of the law regarding the right to remain silent or right against compelled self-incrimination is provided for in the Fifth Amendment to the United States Constitution which provides that “No person shall…be compelled in any criminal case to be a witness against himself.”

In the case of Securities and Exchange Commission (SEC) v. Bonan Huang et al (Case 2:15-cv-00269-MAK), the SEC were investigating the defendants who allegedly used insider information associated with their jobs to trade stocks. The SEC suspected the mobile devices were holding evidence of insider trading and demanded (via a motion filed in court) that the defendants turn over their passcodes. The defendants declined supplying their passcodes contending that the Fifth Amendment protected them.  The issue was therefore, whether the defendants could be forced to give up passcodes to devices that were provided by their employer, but secured by passcodes chosen by the employees themselves. The Federal District Court (the Supreme Court has never ruled on the constitutionality of the issue) in Eastern Pennsylvania ruled that the defendants cannot be compelled to give up the passcode to their cell phones as doing so would be equal to giving self-incriminating  testimony.

The Position of the Law in the United Kingdom

The privilege against compelled self-incrimination or the right to remain silent is deeply rooted in the common law. Goddard LJ in Blunt v Park Lane Hotel [1942] 2 KB 53 at 257 stated thus;

"No one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose (him) to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred …" 

In Saunders v UK [1996] 23 EHRR 313 it was held that Article 6 of the European Convention of Human Rights guarantees the protection against self-incrimination.

"The right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under article 6….the right not to incriminate oneself, in particular, presupposes that the prosecution in the criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in article 6(2)".

However, the right is subject to numerous statutory exceptions which limit, amend, or abrogate the privilege in specified circumstances. Therefore, despite the privilege, individuals may sometimes be required to answer questions or provide information or documents which may incriminate them. For instance the Regulation of Investigatory Powers Act 2000 (RIPA), Part III, activated by ministerial order in October 2007, requires persons to supply decrypted information and/or keys/passwords to government representatives or law enforcement agents with a court order. Failure to disclose carries a maximum penalty of two years in jail. Thus, under the provisions of the RIPA Syed Hussain was convicted of failing to provide police with the password to the USB memory stick seized in a counter-terrorism operation. When Hussain was arrested in April 2012, police seized a USB memory stick from his home - but they discovered the information on the device was protected by sophisticated encryption technology. Hussain told detectives that he could not remember the password because he was suffering from stress – which meant they could not access its contents. Police called in experts from GCHQ, the government's secret eavesdropping and communications agency, but even they were unable to crack the device.

Oliver Drage, a 19-year old was arrested as part of an investigation into child sexual abuse images. His computer was seized by police who were unable to access some material on it thanks to a 50-character encryption password. Police formally requested the password from Drage, he refused to co-operate, an offence under the RIPA. He was accordingly sentenced to 16 weeks in a young offenders’ institution for refusing to give police the password to an encrypted file on his computer. See-

Conclusion

Considering the position or state of the law in Nigeria it may be safe to conclude that if Mr. Tarfa’s mobile phones were locked or pass-worded, the EFCC would have acted outside the law or illegally if they compelled Mr. Tarfa to disclose the passwords to his mobile phones which they seized. This is so as to the best of the writer’s knowledge there is no exception to the right to remain silent under Nigerian law; unlike the position in the UK, during interrogation in the custody of law enforcement agents.

However, as one writer observed:

“Realistically, the right to silence has a low value and not really exercised by most suspects. Only a suspect who knows the law and the right well would exercise the right as most people would not be able to withstand the mental pressures during the interrogation. False evidences, lies, isolation and many other psychological tactics are practiced to make the suspect confess the crime. As a result of this, many false confessions happen due to unbearable psychological pressures.”

It may therefore, not be out of place to suggest that it would take an extraordinarily strong-willed suspect undergoing interrogation during detention by any of the law enforcement agencies in Nigeria, especially the Nigerian Police who are notorious for torturing suspects in detention, to exercise his right to remain silent as guaranteed by section 35(2) of the 1999 Constitution as amended!

EFCC AND ATTEMPTED HACKING

On the 30^th of August, 2014 Sahara Reporters posted a news story on their website; captioned: “EFCC Arrests Three Suspected Fraudsters for Attempted Hacking.” The gist of the story is that some persons conspired to break into or compromise the computer systems/computer networks of a bank using an electronic device, for the purpose of stealing funds. However; their plan failed as an insider reported them to the Economic and Financial Crimes Commission (EFCC) and they were arrested.

The caption of the story got me wondering whether there is a law in Nigeria which directly criminalizes attempted hacking or hacking or breaking into someone’s computer networks or computer systems. To the best of my knowledge there is no such law in Nigeria that directly criminalizes hacking or breaking into or compromising someone’s computer networks or computer systems? Therefore, the caption: “EFCC Arrests Three Suspected Fraudsters for Attempted Hacking.” by Sahara Reporters is inappropriate or misleading.

In the US the Computer Fraud and Abuse Act, has prohibited certain computer crimes. The Act prohibits accessing or attempting to a computer without authorization and subsequently transmitting classified government information, theft of financial information, computer fraud, transmitting code that causes damage to a computer system, trafficking in computer passwords for the purpose of affecting interstate commerce or a government computer, etc. Also in South Africa, under the Electronic Communications and Transactions (ECT) Act 25 of 2002; unauthorised access to, interception of or interference with data on a computer or computer networks is  criminalized.

However, with regard to Nigeria, there is no law like that of the US and South Africa mentioned above. It is therefore, high time that a law regulating computer/internet crime in Nigeria is enacted. The need for a law criminalizing computer crime/cybercrime in Nigeria becomes more urgent considering the drive by the Government (Central Bank of Nigeria) to encourage cashless transactions which compels people to use electronic(computer) means of transactions. Criminals may exploit weaknesses in these electronic means of transactions to defraud customers but a computer crime/cybercrime law would be able to curb such criminal acts by punishing criminals who contravene the law.

In addition to the above, many Nigerians are now taking to online transactions/ecommerce. This can be inferred from the growth and popularity of the two leading online shops in Nigeria: Konga and Jumia. It is has therefore become necessary to pass computer crime/cybercrime laws to protect users of these ecommerce channels/shops. Apart from such computer crime /cybercrime laws there is also need for a data protection law to guard against the misuse/abuse of the personal data which operators of these ecommerce sites gather and hold concerning their customers/users. For instance in China, P.R.C. Criminal Law  stipulates criminal penalties for improper sales, provision and collection of personal data. In the same China, three men were arrested for illegal sales of millions of items of personal information.