Stakeholders especially kicked against Section 24 sub section 1 of the Cybercrime Act at a one-day roundtable in Lagos organised by a transparency and accountability group, Socio-Economic Rights and Accountability Project, SERAP, in collaboration with the National Endowment for Democracy, NED.
The participants argued that the piece of law and some others contained in the 59 sections of the CyberCrime Act 2015 enacted by the NSA for prohibition, detection, prevention, protection and prosecution of cybercrimes in Nigeria will gag media expression and public opinion about governance.
They, therefore, described the act as repressive, oppressive and unconstitutional.
Baring their minds on the issues highlighted in the law, participants noted that formulating a legislative agenda for the 9th Assembly should be one of the multifarious strategies they must engage to ensure that government remove the piece of law in its entirety.
Leading debates on the agitation, Senior Advocate of Nigeria, Mr. Tayo Oyetibo in his paper titled: “The Constitutionality and Legality of the Cybercrimes Act in Nigeria”, pointed out inherent flaws in sections of the Act which make it both subjective and ambiguous at the same time.
“In creating criminal offences, section 24(1) of the Cybercrimes Act uses words that are entirely subjective in meaning to describe the actus reus elements of the offences, despite the fact that the actus reus of an offence ought to be capable of objective and not subjective in definition.
“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.”
Delivering an unflattering verdict on the critical question of whether the Cybercrimes Act is fit for the purpose for which it was enacted, particularly in view of the provisions of its section 24(1), SAN Oyetibo argued that: “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’, he argued. 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.
The ambiguous nature of this provision, according to Oyetibo, is such that ‘virtually all of the words used in the section of the Act are of such personal character that, any attempt to define them would result in divergent interpretations, both by 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 judgement 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.
Away from the technical deficiencies of the vexed provision, Oyetibo, like many of the stakeholders, argued that 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 as enshrined in section 39(1) of the constitution.
Therefore, “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.
Given these arguments, Oyetibo argued, therefore, that section 24(1) of the Cybercrimes Act portends danger for every Nigerians. More so that it is impossible for a person to determine whether or not an offence is being committed under the Cybercrimes Act at the point of issuing any communication in exercise of the right to freedom of expression.
“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.”
The lawyer therefore concluded that section 24(1) of the Cybercrimes Act is a tool that is susceptible to abuse and misuse by those in authority against freedom of expression in Nigeria. Especially 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, Oyetibo said.”
Addressing concerns raised by participants at the roundtable, Head, Cybercrimes Prosecution Unit in the Federal Ministry of Justice, Terlumun George agreed that the Cybercrimes Act is not perfect, therefore, the justice ministry is interested in engaging with all stakeholders in the justice sector.
“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.
Stakeholders at the roundtable included Amnesty International, National Human Rights Commission, NHRC, Committee For the Defence of Human Rights, CDHR, Wole Soyinka Centre for Investigative Journalism, WSCIJ, Premium Times Centre for Investigative Journalism, PTCIJ, Media Rights Agenda, MRA, the German Consulate as well as the National Orientation Agency.
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