McAsh's Thoughts

Intellectual Property and Technology Transfer Office (IPTTO), University of Port-Harcourt, Rivers State in conjunction with Velma Consulting and Professional Services, Abuja, are organizing the International Intellectual Property Summit, 2016. The event, billed for the premises of the university, is scheduled to hold from Thursday, April 21 to Friday, April 22, 2016.

International institutions and a number of foreign renowned IP professionals from across the globe have agreed to participate at the event. The Honourable Minister of Communications Technology, Barr. Adebayo Shittu, will give the Keynote Address at the event.

The 2-day programme in the city of Port Harcourt will play host to foreign and local experts in Intellectual Property Law and Practise from all over the world. Resource persons and delegates will be hosted at some of the best hotels in Port Harcourt, adequate security will be provided and other logistics, including transportation and feeding, will be available.

Participants will be drawn from all stakeholders in intellectual property, which very much includes virtually all sectors. The legal industry, the entertainment industry, the technology research and development sector such as ICT, industrial technology, manufacturing, oil and gas, health, insurance and financial sectors, the academia and literary society, amongst others, will be present at the Summit.

The event is also an opportunity for participants to be affiliated with the university, as well as establish collaborations with other strategic partners and participants. The potential by way of synergy and business opportunities that this event will provide for participants is enormous, as its reach is wide.

THEME
Intellectual Property Rights: The Backbone for Wealth Creation

OBJECTIVES
*Create an intellectual forum/one-stop shop where the windows of opportunities inherent in Intellectual Property Rights in Nigeria will be articulated
*Expose Nigeria’s Intellectual Property Rights owners to international best practices for job and wealth creation
*Erase the limitation in establishing a legal framework for Intellectual Property in Nigeria
*Promote originality, creativity and profitability in works of arts, science and technology
*Improve understanding of the available types of Intellectual Property and how they add value to business
*Ensure balance between Proprietary and Open Innovations – IPR Strategies under current economic and business environment
*Improve understanding in the process of commercializing of Intellectual Property
*Expose techniques in optimizing Intellectual Property Portfolio with Strategic Portfolio Management
*Reveal techniques in managing Intellectual Property litigation to protect and defend Intellectual Property rights

PROJECTED OUTCOME
The Summit shall provide an informed blueprint and baseline on contemporary issues and framework on global best practices as it relates to intellectual property rights with a communiqué

RESOURCE PERSONS
More information about resource persons coming up soon.

PROTOCOLS.

Behind every successful man is a woman, they say. She is the engine that propelled the success, but has been relegated to the behind. The state of inequality the women folk suffer is more than cultural, it is systemic. It is my experience growing up in Nigeria, that socio-cultural and domestic role play allot lots of chores to girls and less tedious ones to boys, on the pretext that the boy shall grow into a man and do all the work in the future. Lies. For a family like mine of 5 boys with no girl child, we had to import a girl-cousin to be the girl in the house in order to achieve the ying-yang equilibrium.

Isaac Newton said for every action there is an equal and opposite reaction. Since the opposite of girl is boy, it goes therefore that for every unfair treatment meted to a woman, there is a corresponding favouritism enjoyed by a man. This has gone on for so long that we would need more than 35% affirmative action to correct it.

With such a systematic though arbitrary background, I find it completely unjust that a man would review a book written in furtherance of the rights of women and the girl-child. That in itself is inequality! But when I realized that the Author/Editor-in-Chief is a man as well, I was quick to pick my pen and pay my own part of the price.

One other reason I could not reject this call is the personality of the honouree. Ignore the fact that we hail from the same town and she is my Big Auntie. She is by a long length the most relevant and impactful wife of the Vice-President of Nigeria in history, and I make bold to say of any country in Africa. It was when I had to study the activities of WOTCLEF at the Harvard Berkman Centre for Internet and Society in 2012 in conjunction with the Harvard Kennedy School of Government while at the Harvard Law School on the fight against child and human trafficking that I knew she is just a prophet with little honour in her home. That is why I associate with this move to honouring Her Excellency, and will do it over again because I know that if it was a man that had done half of what she has done, no airwave spectrum would be spared in singing his praises.

That said, let us commence our ride in earnest. It’s no roller-coaster, rest assured. Rather, it has the finesse of a goddess, reeks with feminine grace, a soulful glide with a silky touch. It’s a journey I had the privilege of taking before you, so let me to be the tour guide.

Our Pilot-in-Chief, Abayomi Okubote Esq, has provided the most efficient medium for this journey: A Porsche Cayene (I love Porsche) of five gears. In the first stretch of this journey, which is the Introductory part of the book, he introduces us to the realities and basis or causes of the inequality and discrimination faced by the girl-child, in what seems to be like all facets of her life, and the need for laws to be made on the recognition of women and the girl child’s rights as part of human rights.

When I engaged the first gear, which is the first chapter of the book, I could not ignore the generality and the fundamental nature of the concept it covers: human rights. The author maintains that human rights are universal, interdependent and indivisible. May I add that human rights are multigender. Human Rights is one of the few theories which provides no discrimination on the basis of gender or sexual orientation.

Also in this chapter, the Editor-In-Chief gives a brief history of the struggle of women, both internationally and in the pre-colonial Nigeria, examining her desire to gain recognition, especially politically, from the state.

The various forms of discrimination against women were then next considered. The author raised issues in the definition of discrimination and violence against women and the girl child. One issue which caught my attention is the manner with which domestic violence is handled in Nigeria – as a private matter or family affair. The author showed concerns about the workability of the country’s approach to violence, since violence against women does not fit readily into the human right framework but within the domestic or private realm. Our law enforcement agencies are not helping matters either. Maybe by the time men start running to Police Stations to be rescued from their wives in the middle of the night, they will understand that no gender has the monopoly of domestic violence.

The author took it one gear up by examining the legal protection of human rights. A skim through this chapter will surely answer some of the most pertinent questions such as, “What causes inequality?” “How can true equality be derived?” “What is the main aim or final goal of the struggle for the recognition and acceptance of the human rights of women?” Betraying his chalkboard talents, the author addressed these issues with the aid of decided cases, statutory authorities, instruments and mechanisms that have been made and set up to protect the rights of women and the girl child.

Perhaps still worried about the state of the Chibok girls, our Pilot-in-Chief cum author devotes the following chapter to the concept of the girl-child right. By examining the definition and indefinite status of the girl child, the author explains in detail the various rights of the girl child, especially the right to education and non-discrimination from her male counterpart.

International regimes and national legislations such as the United Nations Declaration on Human Rights, Convention on Rights of the Child as well as the Matrimonial Causes Act were also considered as legal frame work for the protection and enforcement of the rights of the girl child in Nigeria. Before concluding this chapter, the author did not fail to itemize the various forms of domestic, traditional, and socio-cultural practices that militate against the girl child and enhances discrimination against her. One ravaging practice is the Female Genital Mutilation which, even in this 21st century, is still being practiced in some parts of the world.

Apart from highlighting the roles which government and non-governmental bodies have and should play in upholding the right of the girl child, the author also has a few maintenance tips on practical approaches to the protection of the rights of the girl in order to keep the wheels and their bearings oiled.

Different strokes for different folks, they say. But why are laws for women’s rights different from those of the girl-child? This is what the author dedicated the fifth and final chapter of this book to, as he examines how the conventions on women and those on the children, especially the girl child, complement each other. Bodies and mechanisms that have been set up to monitor compliance with the human right treaties on the rights of the girl child were also brought under the author’s beam light.

The author feels strongly that the inequality and discrimination faced by a woman starts from when she is a girl child and as such the actions that need to be taken to remedy her situation and stand in the society should as a matter of necessity also start from her childhood. I agree with him totally, for, as the saying goes, you achieve much success in felling an iroko tree when it is still a stalk, for when it is fully grown, it becomes a stand-alone forest. It is in the light of this reasoning that the author dedicates the final part of the book to providing the readers with the principal national and international legal instruments of the rights of women and the girl child. Some of the instruments examined include the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), United Nations Convention on the Rights of the Child (CRC), the Fourth World Conference on Women (otherwise known as the Beijing Declaration) and United Nations Global Plan of Action to Combat Trafficking in Persons, to mention a few.

The ride is not without a hitch here and there. Blame the road situation if you will. This book is therefore not without a few shortcomings, one or two which would be highlighted here. A book on such important topic should leave no room for ambiguity but the author left the issue of a married girl child begging the question. What is the position of a girl child who is married off before she becomes an adult and the husband dies before she becomes an adult, especially in relation to property and inheritance? The author made mention of this issue on the surface but did not say more or enough on the matter to make the reader very clear and well learned on the issue.

Again, the chapters and parts of the book seem muddled up and may lead to some confusion to the reader. There is no clear cut demarcation in the chapters as to which chapter is dedicated to the woman’s right and which chapter is dedicated to the girl child’s right as each of the chapters seem to somehow end up discussing both women’s right and girl-child’s right. Did our Pilot-In-Chief misread the GPS map? Or is he saying both rights are one and the same? At this stage, I invite you to be the judge.

I thereby recommend this book to everyone who is interested in the protection of the rights of the girl, and the woman she will become – perhaps all persons of all walks of life should get a copy to appreciate the woman in their lives and what the law says about her rights. Because, if what is good for the goose is good for the gander, what is good for the gander must also be good for the goose.

Thank you.
David ‘Diya Ashaolu, LL.M (Harvard)

MANAGING PARTNER,
VELMA SOLICITORS & VELMA CONSULTING,
ABUJA

08061195161

November, 2014

www.velmasolicitors.com

Understanding Cyberspace

LAWRENCE LESSIG, in CODE: VERSION 2.0 at page 9, said:

“Some in cyberspace believe they’re in a community; some confuse their lives with their cyberspace existence. Of course, no sharp line divides cyberspace from the Internet. But there is an important difference in experience between the two. Those who see the Internet simply as a kind of Yellow-Pages-on-steroids won’t recognize what citizens of cyberspace speak of. For them, “cyberspace” is simply obscure.

“Some of this difference is generational. For most of us over the age of 40, there is no “cyberspace,” even if there is an Internet. Most of us don’t live a life online that would qualify as a life in “cyberspace.” But for our kids, cyberspace is increasingly their second life. There are millions who spend hundreds of hours a month in the alternative worlds of cyberspace…”

I identify that lack of understanding of the subject matter of a concept informs misconception about it. There is great difficulty in defining the Internet, and many people including great jurists have often confused the Internet with cyberspace. Although little separates them, it needs be noted that both concepts are different and an improper definition of these terms will result in great confusion to law makers, prosecutors and even the justice system. Thus, I am sharing freely my thoughts about what I think Cyberspace is and how it differs from the world famous Internet.

The Internet can be described as an interconnected system of networks connecting computers around the world through a standard platform known as the Transmission Control Protocol/Internet Protocol (TCP/IP). Put more descriptively, the Internet provides a platform upon which computers connect with other computers in multiple networks. It is not a physical or tangible entity, even though it also comprises a physical layer.^[1] Rather, it is a giant network that links innumerable smaller groups of networks together. It is a system whereby networks are interconnected in a manner that permits any computer on any of the networks to communicate with computers on any other network in the same system. This global web of linked networks and computers is referred to, in a loose sense, as the Internet, or cyberspace.^[2]

Nadan Kamath opined that a technical analyst would define the Internet as a global network of computers based on TCP/IP and other high-speed communications protocols with thousands of nodes and millions of users, while the rest of the world see the Internet is an exciting new way to communicate.^[3] Solum and Chung simply defined the Internet as “a global network of networks that has been the platform for revolutionary innovation.”[4]

Technically, and as Lessig implies above, the cyberspace is not the Internet. In fact, the Internet is just one of the many components of the cyberspace. As noted above, the Internet is the platform upon which the cyberspace operates. While the Internet connects computers to networks through the use of gateways facilitated by the TCP/IP platform, the cyberspace defines a more general network which connects other gadgets and equipments to each other, and where necessary, to the Internet.

The use of cell phones, PDAs and Smartphones to connect with each other or with other computers connected to the Internet is a more general description that fits the cyberspace, less the Internet. The adoption of SCADA to control and maintain the public infrastructure and economic systems is another description consistent with cyberspace. Intranet – the connection  of computers within an enclosed network system through the use of closed platforms like Local Area Networks, Wireless Area Networks or Virtual Private Network without necessarily opening up to the outside world – is perhaps the closest antonym to the Internet – characterised by its opening up and unfettered access to outsiders. Yet, for as much a degree as the Internet is a part of the cyberspace, the Intranet is also. Computer game consoles, automotive sensor systems which electronically control the operations of a car,^[5] RFIDs, medical devices, smart electricity meters, alarm systems, smart thermometers, and other control systems, also form part of the cyberspace, and can be remotely accessed by computers using sophisticated tools.

While it is convenient to populate other components of the cyberspace less the Internet, the role of the Internet in enhancing and facilitating these connections and communications between gadgets cannot be over-emphasized. In fact, save for a few proprietary networks that had existed prior to the Internet, like the telephone services, Compuserve and AOL, and the fax, the emergence of this largely described cyberspace environment was influenced by the Internet.^[6]

According to Zittrain, the Internet was designed by researchers and members of the academy with no pecuniary prowess or motive, apart from whatever they got from the United States government as grants.^[7] This, he maintained, influenced its design. The engineers had no interest in controlling the network or its users’ behavior. They rather made it publicly available and shared its design freely from the earliest moments of its development. They also kept options open for later network use and growth.

Initially, the Internet was used for academic research and non-profit activities, limiting its availability to the outside world. It was managed by Jon Postel religiously in furtherance of that purpose, until it was taken over by the US government and contracted to Government Systems Inc in 1990,^[8] who allowed commercial interconnections in 1991 and consumer applications became ubiquitous on the Internet. The Internet was then thrown open, and the public at large was able to sign up, whether or not the subscriber was signing up for academic or religious purposes. Zittrain posits further that this “opened the development of Internet applications and destinations to a broad, commercially driven audience.”[9]

Legal Analysis of Government’s Plot to Disrupt Telecommunication Services in Nigeria

There is this 2-day old rumor trending in Nigeria that the government has concluded arrangements with telcos to shut down Blackberry and Internet services in order to prevent people from protesting against an unpopular policy on fuel subsidy removal. I got wind of this development early yesterday and I have taken my time to verify the claims. Lots of people have asked me about the implications that could derive from such an action. I shall be looking at some of the issues that come into play in this scenario.

True or False?

First, the news seems to be lacking any authoritative source. The only media endorsement I got was from Sahara Reporters. The fact that Sahara Reporters have a history of antagonizing the Federal Government and promoting untruth and falsehood about the government or the ruling party made me take the news with a pinch of salt. In fact, it was a certain Ogundamisi that first tweeted this “allegation”. And from there on, it spread like wild fire and is making waves now.

Constitutional Implications

There are a few implications to this development, if it is true. From a constitutional perspective, such a move will be tantamount to an abrogation and deprivation of our freedom of expression. This fundamental freedom is sacred and cannot be tampered with. It is an inalienable right. The legal framework of this right is as provided for in our constitution, Section 39. The section provides that

39.(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.

But what we should note here is that the duty imposed on government is to ensure that you are free as an individual to express yourself. They have no duty to restrict, or provide, a means of expression. In fact, subsection 2 provides that if you are not satisfied by the available means of expression and you want to own a broadcast station, once you comply with government regulations, you have such right.

This is where this whole story becomes relevant. There is a powerful exception in subsection 3, as it relates to telecommunication companies. It provides that

(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society –

(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or

(b) ….. (emphasis added)

Thus, where a breach of your freedom of expression will result by a government action that purports to “regulate telephony or wireless broadcasting”, as is the case under review, what government is simply saying is you should use alternative modes of  expression as they are immunized from liability. You may shout your lungs out, they will not disturb you. You may even print pamphlets and distribute fliers as you desire, so long as nobody is defamed and you are not propagating slander.

Alternative Means of Communication

As I stated earlier, the government has not by this action restricted expression totally. It has only told its citizens to seek alternative means of expression. The radio and television services are untouched, and peaceful protests can still be carried out. In fact, I posted a Police Protest video on my Facebook wall courtesy of “Revolution Nigeria”  showing over 300 policemen also protesting against the policy (although their actions can also be constitutionally restricted unquestionably by an executive fiat). See below

Derogation Rights

Where does government derive the authority to derogate from freedom of expression? Section 45 of the same constitution, provides that

45.(1) Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society

(a) in the interest of defence, public safety, public order, public morality or public health; or

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

Note that freedom of expression is provided for under Section 39. Thus, government can safely hide under the guise that it was necessary to prevent spread of communication through a certain means in the interest of defence (which may mean anything from self defence to defence of property, and perhaps defence of policy?), public safety and public order (which does not necessarily exclusively mean war times), public morality (the morality of those who support the subsidy removal policy) and so on. In fact, these protests are infringing the rights and freedom of others who support the policy.

This important exception allows government to restrict your right to speak at all, as it is not tied to regulations of telcos.

So I ask, “Do we have a right to express ourselves in Nigeria under our (un)democratic constitution?” I answer, “No!”.

Babaric Behaviour

It has been argued that such an action is babaric and uncivilized. In fact, Egypt comes first to mind, every time such a government directive is contemplated. In the interest of general consumption, it was the Mubarak government that most infamously in January 2011 totally shut down all communications system in Egypt during the popular uprising that eventually ousted him out of power. But is this behaviour really undemocratic? Better put, does it happen in a civilized society?

Our model of civilization, or democracy, is the United States. In the August 13 2011 post of PCMAG, a similar action was reported to have happened in San Francisco. People had the intention to protest a police brutality at the subway and the authority gallantly “turned off cellular service”. They bragged about it subsequently.

The Telcos

Can the telcos stand on the side of the people and refuse to carry out such an order? It seems like it would amount to a breach of contract.

Although I do not have it on any authority (I know this of a fact that in Egypt), the MoU signed by Telecommunication Companies when they expand into new territories usually includes a clause that gives government authority to direct them to cease service delivery. This would be in line with the constitutional provisions as elucidated above. And I assume it is standard practice.

Government Action

Does the government have the ability to carry out this directive by itself? I would think so. The NCC “is supposed” to have a “root” or directory where all connections in Nigeria are controlled from. Thus, it “should” be possible for the government through the NCC to pull the switch on telecommunications.

However, I doubt the technical ability of the Nigerian Communications Commission to maintain such a directory, and thus I strongly doubt if they can pull the plug on telecommunications in Nigeria themselves. Even in Egypt, the government was unable to force Noor to shut down its services, and throughout the shutdown period, Noor was still providing telecommunications services to Egyptians, although they serve a negligible minority of users.

Will it Work?

I do not pretend to know the answer to this question. The rate of Internet penetration and reliance of Nigerians on cyberspace for communications is alarmingly high. The bulk of the elites and literates who vigorously oppose this policy are Netizens. The most popular mode of disseminating awareness about the situation and mobilization for mass protest has been through cyber gadgets, made possible by most popularly by blackberry broadcast messages (very annoying spim), Facebook and Twitter. The number of Nigerian pressure groups formed on Facebook alone is large and they have a large followership. Our president is perhaps one of the top 3 most popular Facebook presidents and he receives consistent barrage of insults on his page from citizens who either distrust his policies, are not convinced or impressed by his leadership style or are incited by political differences. Surely, if Facebook is taken out of the way, a lot of people will find communications difficult.

How Nigerians connect to the Internet is another thing to consider. Over 80% of Nigerians connect through their cell phones. Thus, a denial of service by telcos will efficiently shut Nigerians out of the Internet.

Whether it will effectively stop the protests is another question entirely. It surely will not stop people from mobilizing, although it will make communications more difficult. It may also successfully restrict the protests to a few areas like Lagos where elites reside and opposition to the central government is rife, thereby preventing multiple protests which could have happened if protesters get the chance to communicate their success and progress to other parts of the nation.

On a number count, however, it may sound stupid but clever. The total population of Nigerians connected to the Internet is not up to a third of the total population of the people in the country. Thus, it is stupid in that it will not restrict a significant number of people. But considering that the people who are leading and are actively interested in the protests rely heavily on infotech, it will effectively affect a number of significant people. Depending on which you decide is more profitable, it is either here or there.

Will Government do it?

I leave the political implication and the will of government to take such an action to political analysts. But from my understanding of this present regime, I doubt if this plan is being considered by government in the first place for several reasons. One, government agents also use these telecommunication services to spread the government part of the story. So, they will be doing themselves a disservice to consider this step.

Two, this will be a drastic legitimacy move for a government that is far from popular. It would not want to invoke the wrath of the youth, which is already nearing a boiling point.

Three, the inability of government to take firm and decisive decisions in recent times has made everyone to term this government as weak. I doubt if this will be the kind of show of strength the government would be considering.

Finally, everyone knows our President is a lover of telecommunications. He is the first President to create the Ministry of Information Technology. Such an action will be contrary to everything he believes in.

Effect on Government

Let us not forget that it is still a mere speculation. However, while this alleged plan of the government is condemnable, it is excused by the Constitution. The government will not be subject to liability, no doubt, but will loose its democratic face and legitimacy.

Right or Wrong?

I have attempted to avoid this question severally. Any deprivation of free speech cannot be right, even if legal. The fact that there is such a loophole in our constitution says a lot about what kind of democratic system we operate. Much have been said about that “document” and I will not over flog the issue here or beat a dead horse. However, this is another aspect I implore the legislature to look into when subsequently amending (or altering) the constitution.

In the first series, I explained the reasons prosecuting cybercrimes in Nigeria is a mirage. I examined the impact of absence of cyberlaws in the country and the efforts currently being undertaken by the government to enact the Nigerian Cybersecurity Act. In this series, I shall be exposing the procedural predicaments faced by law enforcement agents even where the crime is triable under traditional criminal law provisions.

Procedural Inadequacies in Combating Cybercrimes in Nigeria

As stated in the previous series, most cybercrimes have no definition in Nigeria’s criminal law. Thus, they can not be a cause of action, or basis for liability in a criminal case.  On certain occasions, however, the criminal acts complained of on the Internet may come within the ambit of the traditional legislations as with certain instances of cybercrime like fraud and cyber theft. Where this happens, the law enforcement has in its hands an accusatorial tool for bringing cybercriminals to book. And on lesser occasions, they have secured very highly priced convictions.

The reason the rate of convictions recorded is inversely proportional to the number of  trials executed is the backward state of our criminal justice system in Nigeria. The two legislations which are responsible for that aspect of our law are the Criminal Procedure Act^[1] and the Evidence Act.^[2]

(a)    The Criminal Procedure Act (CPA)

The Act was enacted June 1, 1945,^[3] decades before the Internet was invented and scores before Internet licences were granted in Nigeria. It makes provisions for the mode of prosecuting criminals including certain fundamental issues like jurisdiction, examination of witnesses and admissibility of evidences. Unfortunately, however, the CPA was not enacted with ICT in mind. This is understandable as the cyberspace was still in oblivion as at the time it was codified.

Under the CPA, witnesses are expected to be physically present in court during trials. In fact, any witness who fails to appear personally could be summoned (subpoenaed) and detained and may be released on bail upon the same bail conditions available to the accused person.^[4] Even children, infants and young persons (below 17 years) who may need to give evidences in court in camera for security and other reasons still have to be physically present or their testimonies would not be accepted.^[5]

Cybercrime offences are trans-border and the needed witness who would give the very material evidence may not be in Nigeria to attend the proceedings. Upon that ground, the accused may be acquitted for failure to establish a prima facie case against him by reason of insufficient evidence. He may also be discharged for want of diligent prosecution. This was not envisaged by the drafters of the Act.

This position is contrary to what obtains in England, for example. The Criminal Justice Act 1988^[6] makes an important provision for the admission of video recordings of interview with child witnesses carried out before the trial. By Section 28(1) of the same Act, cross-examinations and re-examinations can be recorded and televised in court.

Another insufficiency evidenced in the CPA is the provision of Section 171 of the Act which is to the effect that once a person is convicted of attempting to commit a crime, he cannot be charged subsequently with committing the offence where the crime is eventually occasioned. The rationale behind this provision hangs in the balance of reasoning as the effect of a crime being committed eventually and the resultant damage is far greater than that of its attempt. For example, a person convicted of attempting to disseminate a virus or malicious code will definitely serve a lesser punishment than if he had actually disseminated it. Where, unknown to the law enforcement agents at the time of his arrest, he had released the virus and the brutal effect had been found out later, he technically escapes proper punishment.

Also worth mentioning is the conventional evidential practice of the court visitation to the locus in quo.^[7] While in some other jurisdictions a video recording of the locus will suffice,^[8] our laws still mandate our Judges in this 21st century to travel to the locus with the accused and physically inspect it.

On admissibility and relevance of evidences tendered to prove a criminal act and other activities relating to witnesses, the CPA provides that the Evidence Act shall apply in the criminal proceedings.^[9] The provisions of the Evidence Act 2011 shall be considered in a later blog, with particular focus on the provisions of the new Act as regards computer generated evidence.

(b)          Criminal Justice (Misc. Prov) Act

This Act is an addendum to the Criminal Code and the Criminal Procedure Act. It is an Act to impose “stiffer penalties” on persons who damage, disrupt or destroy telecommunications, electrical transmission lines and oil pipelines. The provisions as they relate to cybercrimes are examined hereunder.

“Any person who… prevents or obstructs the sending or delivering of communications by means of telecommunications… is guilty of an offence.”^[10]

The penalty is a fine of N500 or 3 years imprisonment or both.^[11] Thus, hacking, where interception is occasioned, can come under this heading, since a hacker uses the telecoms. This will also sufficiently cover offences like illegal interception. Dissemination of viruses and other malicious codes, especially where the motive is a DDoS (Denial of Service attack), will naturally “prevent or obstruct” the to and fro movement of communication codes. All these can be tried under this statute.

Section 9 defines “telephone works” as meaning wire or wires used for telegram and telecommunications, with any casing, coating, tube, pipe, insulator, etc and including any apparatus for transmitting messages or other matters including the television, by means of electronic signals whether by overhead lines or underground cables or cables lying under water and any apparatus for transmitting messages with or without wires.^[12]

The futuristic manner in which this Act was drafted is highly commendable. It is intriguing for an Act drafted October 16, 1975^[13] — two decades before the first ISP licence was issued in Nigeria — to envisage wireless connections and hydro-optic fibre cables. However, one could still argue that from the strict interpretation of the wordings of the definition, a computer system was not in the contemplation of the drafters of the law, neither was the Internet. The consistent mentioning of cables and wires and other physical equipments, specifically the express mention of a television shows that the cyberspace was unknown to the drafters at the time, which was understandable. One can safely deduct that its aim is to protect government appliances and equipment and other public property from sabotage, damage and theft.

A major inadequacy in the Act is visible in the provision of Section 7(1) and (2) which puts prosecution at the instance of the Attorney-General of the Federation. With that office being more politically concerned than it is with the administration of justice, prosecution may never happen. Also, the hilarious fine of N500 makes it seem to me like this obsolete law is more of a toothless dog, whose bark is worse than its bite. Elsewhere in the world where cybercrimes are prohibited, fines range from ten thousand dollars ($10,000) to millions.

In its most simplistic form, cybercrimes can be described as criminal actions committed on Cyberspace. They are of two major categories: crimes committed solely with the aid of the Internet, which were unknown to our criminal law prior to the advent of the Internet. Examples of such will include dissemination of viruses and other malicious codes. The second category relates to crimes which became enhanced through the aid of the Internet. These criminal activities were committed traditionally, but have been introduced to the cyberspace and their operations have been aided by Internet’s anonymity and inventiveness. Examples here include online fraud (Nigerian 419 scams).

Nigeria’s notoriety in cybercrimes worldwide is an open secret. There is hardly any crime which is not perpetrated by Nigerians more for gain than for play. Being Africa’s most populated nation and powerhouse, the behaviour of Nigerians come under the spot light as role models, and as a model of African behaviour. Nigeria should therefore be at the fore of cyberspace policing in Africa.

The legal regime of a phenomenon can be traced to two broad sources: the legislature and the judiciary. Perhaps, a third arm is the institutional framework which is the implementing agency that enforces the policies made by various authorities.^[1]

Nigeria is yet to enact an ICT Law which would criminalize unlawful acts committed via and with the aid of information technology, computers or computer networks. Since cybercrime is by nature committed on the cyberspace, a direct enactment prohibiting cybercrime in its intrinsic original cyber nature is nullus secondus in this combat.

It will be pretentious to assume that with the few cybercrime prosecutions and convictions achieved by the EFCC to date in Nigeria, we are achieving much in our fight against cybercrimes. When compared with what obtains in other countries around the world, we see we are nowhere near where we should be. Certain factors which hamper the prosecution of cybercrime in Nigeria are examined hereunder.

Challenges

The factors militating against an effective policing of Nigeria’s cyberspace are numerous. I shall take them one by one, starting with the administrative quagmire faced by prosecutors.

Administrative Predicament

Section 36(12), 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus:

“a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof prescribed in a written law; and a written law refers to an Act of the National Assembly or a law of a State”

Thus, the factors involved in the prosecution of a crime under the Nigerian law emanate from one major source: legislation. An uncodified crime is not punishable.^[2]

This fundamental fair hearing position has enjoyed tremendous support from the courts over the years.^[3] In Udokwu v Onugha^[4], the act complained of was committed 6 months before they were prohibited by legislation. The court held that the accused had committed no offence by virtue of Section 22(10), 1963 Constitution.^[5]

In prosecuting cybercrimes, the acts complained of must have been defined as criminal and punishable by a law of the land.^[6] Prosecuting an accused person for acts which, though we all know are wrong and unacceptable, are not criminalized by local enactments, will be tantamount to a breach of the fundamental right to fair hearing of the person so tried.

The major setback to the prosecution of all forms of cybercrimes is the lack of a direct legislation prohibiting these acts. At present, they are sociologically perceived as social vices and morally condemned as wrongs. But legally, they are not punishable. An ICT Law is the very first step towards ensuring a crime free ICT world.

This situation is not unique to Nigeria. In 2000, the notorious “I Love You” virus was released. It caused severe damages worldwide. Eventually, it was traced to some individuals in the Philippines after investigations that involved both the FBI and Philippine’s National Bureau of Investigation. The joint operation however ran into difficulties and eventhough they identified the criminals, they could not prosecute them since there was no ICT law in the Philippines and thus the creation and dissemination of malicious codes was not an offence.

Sometimes in 2004, the Nigerian Cyber-crime Working Group (NCWG) was set up. The NCWG was charged with the duty of producing a Cybercrime Bill, an ICT Law for Nigeria. But its members spent more resources on “resource control” than “crime control”. Instead of setting out to work with the rigour and gusto their Terms of Reference required, they spent precious time clarifying who had more powers than whom. The NITDA claimed that the Cybercrime Agency should be instituted under it while the EFCC wanted the agency to be integrated into its Commission. The Nigerian Computer Society was advocating for a fresh independent body altogether as the Cybercrime Agency. That was how seven precious years have passed us by with no meaningful progress.

As a result, law enforcement agencies have been condemned to prosecuting cybercrimes by the repertoire of traditional crime legislations. For example, a crime like cyberfraud can be prosecuted under the Advanced Fee Fraud and other Related Offences Act, 1995 or the offence of obtaining by false pretences under the Criminal Code.^[7]

Abuse of privacy crimes committed on the Internet would have been perfectly prosecuted under a Data Protection legislation. Plagiarism, piracy and other intellectual property offences currently prosecuted under the Nigerian Copyright Act is ineffective, as the definition of ‘property’ does not include data stored on the computer system or certain types of software which only exist on the ICT world.^[8]

These traditional provisions are inadequate in sufficiently catering for all forms of cybercrimes, owing to the latter’s inventiveness and cyber nature, characterized by cyber-anonymity and pseudo-identity.

It is worth mentioning here that the office of the National Security Agency (NSA) this year prepared a draft Cybersecurity Bill which is still making rounds and taking comments before a final draft is sent to the National Assembly. It is available here and comments on this bill can be made below.^[9] 

When this law is enacted, we should be singing a different tune as regards the legal regime of cybercrimes in Nigeria. But for now, law enforcement agents make do with traditional criminal law enactments to prosecute cybercrimes wherever the acts intersect. Save a special cybercrime procedural law, the existing criminal law procedural practices as contained in the criminal procedure Act, Criminal Procedure Code and the Evidence Act, shall apply at the moment to these prosecutions.

I shall be considering these procedural practices in a later blog, while exposing their inadequacies at prosecuting cybercrimes.

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