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be repealed or dropped, as many of its provisions blatantly offend the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 reus elements 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.”