Critical reflections on internet fraud and the cyber crimes act: too many chiefs, not enough Indians
By Destiny Osayi Ogedegbe
At the risk of over-erestimation, no less than ten out of every dozen of Nigerian people are actively involved in cyber fraud as of now. The negligible remainder of guys consists of heavily distraught individuals who lose sleep as a result of serious contemplations in that regard.
This is bad enough. But, what is worse is that cyber fraudsters have brazenly suffocated the atmosphere with unquestionable profligacy, choked non-indulgers with regrets and traumatizing ambivalence and worst still, they have repeatedly received the red carpet treatment in Nigeria. From being completely demonized to receiving indifference, the act of cyber fraud together with its perpetrators appears to have assumed a position that enjoys open validation from the public. This disconcerting trend is pretty much the most conspicuous lack of a moral touchstone against which practices in Nigeria are examined.
To ebb it, modest parents have warned, concerned individuals have evangelised the need to desist from cyber fraud but, adamantly, this criminal upsurge appears to have spiralled like cancer into deep tendrils of the society to the extent that it has exemplified the slippery nature of our moral lines. As it is obtainable in every society, where social opprobrium can no longer impair the continuance of a menacing practice, the law and the machinery of its enforcement become the recourse that sheds off deaf ears. Hence, there is a need to evaluate the crime from a legal perspective.
What has been unfashionably styled as “Yahoo” or “G” in Nigeria is the colloquial term for CYBER IDENTITY FRAUD”. It involves most times, the impersonation of a person other than the perpetrator and the misrepresentation of facts with a view to gaining economic benefits. It is criminalised in Nigeria under the Cyber Crimes Act, 2015 (Hereinafter referred to as the CCA.) Consequently, this work focuses on the law on cyber fraud particularly the model adopted by Nigerian fraudsters and the endemic prosecutorial hiccups. It is the modest view of this writer that there are profound difficulties in securing convictions for cyber fraud in Nigeria given the following bumpy rides:
1. THE INCONCLUSIVE WORDINGS OF THE CRIME IN THE ACT
For a start, this tenuous yet important detail has to be addressed. Cyber Identity Fraud, which involves fraudulent impersonation and calculated set of misrepresentations geared towards fraudulent acquisition of economic benefits, is defined under Sections 14 (2) and 22(3-4) of the Cyber Crimes Act.
The genesis of prosecutorial challenges bedevilling cyber fraud is that the Act restricts the offence only between parties in Nigeria. The definition of the crime makes no mention of any person other than a Nigerian whereas, in Nigeria, the most pervasive cyber identity frauds have foreigners as victims. Thus, an allegation of cyber identity fraud between a Nigerian and an American will be very much debatable since it appears, by a community reading of the sections of the Act, that it only intends to criminalise cyber crimes committed by Nigerians against Nigerians. While the defrauded American cannot sue the offender in America, the defrauding party enjoys from the debatableness of the Act’s silence with regard to the class of persons which could fall under the purview of the crime.
Adekemi Omotubora in his work on “Comparative Perspectives on Cyber Crimes Legislation in Nigeria and the U. K” which featured in the 2016 version of the European Journal on Law and Technology, argues it is superfluous to include foreigners in the definition of cyber crimes under the Nigerian Act as victims as the lack of it occasions no jurisdictional complexity. It is believed by this writer that his point is fair but to the extent of its prosecutorial implications, he respectfully disagrees for two reasons: First, such lousy craftsmanship is a ridiculous display of absentmindedness to the practical realities of the offence in Nigeria. If cyber fraud must be curbed in Nigeria, a legislation that fashions an opportunity for defence lawyers and criminals to leverage upon must be put paid to. Yahoo Boys defraud foreigners and hardly ever Nigerians. Thus, in proving that a crime has been committed, there is a connection between the crime committed and the victim. In fact, the absence of knowledge of the victim’s plight automatically implies no crime has been committed. If all evidence of a suspects fraud leads to a foreigner and the latter is not contemplated by the Act, then a can of worms is opened and the chances of securing a conviction recedes to the footnote. The United Kingdom Computer Misuse Act, 1990 carefully uses the term “any person in the UK or elsewhere” in order to avoid situations where criminals go home smiling like cats that ate canaries because of an avoidable inconclusiveness of verbiage. Secondly, the commission of cyber fraud against foreigners is heavily in contravention of Section 24(b) of the Constitution of Nigeria, 1999 which obligates citizens to uphold and enhance the good name of Nigeria. Since the implication of cyber fraud in Nigeria is a soured national integrity, it follows that the foreign victims, in order to ensure a consummate legislation, should be included in the spectrum of persons against whom the crimes spelt out in sections 14 and 22 of The CCA may be committed.
It must be emphasized that what is said above does not imply that a person found wanting of the offence of cyber fraud in Nigeria cannot be prosecuted in Nigeria. Section 50 of the Cyber Crimes Act gives the Federal High Court the jurisdiction to entertain any matter relating to cyber crimes in so far as the offender committed the offence in Nigeria, is a citizen of Nigeria and it is immaterial whether he lives permanently in Nigeria or not.
2. ARREST AND SEARCH BY LAW ENFORCEMENT AGENCIES
Methodologically, cyber fraud is a covert operation. Those who engage in it do so within their privates. But, knowing full well the rampant nature of cyber fraud, police officers and members of other law enforcement agencies harass every passerby who, to their minds, suffers a personality attributable to criminal insinuations. Some are arrested because they parade with ostentatious cars, have tattoos and dreadlocks or for having foreign contacts on their phones. While it may be morally salutary to restrain delinquent-looking persons from improper behaviour, these things do not constitute any evidence of cyber fraud nor can a legal arrest be hinged on them.
The tenor of section 45 of the Cyber Crimes Act of is to the effect that a police officer or any other law enforcement agent can only effect an arrest and or search upon application to a judge whom in turn issues a warrant of arrest or search. The Act does not provide circumstances in which an officer can arrest without prior issuance of a warrant. Even upon application to a judge, the judge may refuse to grant the warrant under Section 46 if he is not satisfied by the grounds proffered by the officer. There must be reasonable grounds to suspect the commission of the offence before a warrant can be issued. Thus, it is obvious that the unwarranted stoppages and searches conducted by law enforcement agencies, to the extent that they confiscate gadgets and operate them, is unlawful.
Mere suspicions that a person with a funny hair cut and a deluxe car is not enough. Morbid anxieties and suspicions can only be followed up by an arrest and search upon having been granted a warrant by a judge. The omnibus provisions of the Police Act 2004 which gives the police the right to arrest without a warrant upon reasonable suspicion of the commission of a crime does not include searches and certainly does not apply to passersby who give no reasonable suspicion of the commission of any offence. Arresting suspected cyber criminals without warrant probably explains why the popular Club 57 raid by EFCC officials in Lagos is questionable.
The implication of an arrest without a warrant in this circumstance is that the apprehended party has a legal right to institute an action against the arresting law officer for breach of his fundamental rights to privacy and movement under sections 37 and 41 of the constitution of Nigeria, 1999. As a matter of fact, not only is the officer open to litigation but also the entire police force can be sued, under the authority of Hassan v Atanyi (2002) 8 NWLR Pt. 770; 551.
In June 2018, the Federal Bureau of Investigation (FBI) in the United States went on a world raid of cyber criminals, an operation that was styled “Operation Wire Wire”. With impeccable information and investigation from Homeland Security followed by warrants from Federal Courts, the FBI secured a neat arrest of over 70 criminals from different countries, 24 of whom were traced down to Nigeria. Evidently, the unsophisticated nature of police arrests and amateurish investigations in Nigeria will always constitute a problem to the prosecution of cyber criminals. Some officers are deft only with the use of physical might. Technological investigations is so much to ask of such not to mention that they don’t even know that a warrant is necessary before an arrest of a suspected cyber criminal. Only swift, covert bails are sublimely executed.
3. LITIGATION AND EVIDENTIAL PROOF
Not only a few persons will agree with the fact that our legal system was forged in the physical world, for physical crimes. Thus, the impalpability of cyber crimes strengthens the impracticability of its suability.
First, section 135 of the Evidence Act, 2011 requires that all criminal matters must be proved beyond reasonable doubt. Cyber crimes are no exception. Now, Under Section 22 of the Cyber Crimes Act 2015, the ingredients of cyber identity fraud are that: (a) the criminal must have fraudulently impersonated (b) he must intend to gain from the fraudulent impersonation, some personal benefits. Under Section 14, the ingredients are that the person must have intended to defraud, and he must have in fact defrauded the person by means of electronic misrepresentations which the other person acted upon under the misapprehension.
Take the scenario of an arrested undergraduate who engages a white lady in a whatsapp chat. They enter a romantic affair, he uses a display picture other than his actual picture, uses a different name and location. She sends money with a mindset equipped with the belief in a productive relationship. But how can these things be proved beyond reasonable doubt when all a defence lawyer has to do is to puncture the charges? How can it be proven that the person relied on the misrepresentation? Where it is a romantic affair, it has to be proved that if they victim were seised with the true identity she wouldn’t have sent the money. They may require the physical presence of the victim which is hardly ever gotten. Cases abound where the true identities of the fraudsters came to the fore and it had no change to the unflinching love of the moneybag. Misrepresentation and fraud are cumbrous to prove in criminal cases. What if some messages containing the actual misrepresentations as to identity have been deleted? Can it be retrieved from the other party or the service providers? If they can, how about their admissibility? What if some of the incriminating messages were not sent by the arrested person? A friend could have, without his knowledge, sent some of the messages. Can he be tried for those messages if he denies sending them himself? Will the ownership of the gadget raise a presumption that he sent all the messages? If so, in the presence or proof that the chain of messages came disjointedly from different persons at different occasions, without the knowledge of one another? What does the prosecution do? The accused could altogether deny sending all the messages, putting the defence to the strictest of proofs. To worsen all of these, the accused cannot be compelled to testify to any of these claims. This will violate one of the fundamental rights of an accused person as enshrined in section 36(11) of the constitution of Nigeria, 1999. As a matter of fact, the Supreme Court in Igabele v State (2006) All FWLR Pt. 311; 1797, the Supreme Court held that the constitutional right of an accused to remain silent equally implies that not even that court may compel the accused by a subpoena to testify in his own trial. Sadly therefore, a prosecuting counsel who was unaware of how the whole process commenced has to tediously prove facts largely beyond his ken.
While the prosecution is battling to smart out of the jackboots of an insufferable burden to prove the allegations, he is faced with the hellish difficulty of admissibility. The real trouble with cyber crimes in terms of proof is that they are carried out through the help of electronic devices and their contents are incredibly difficult to admit in courts. Section 84(2) and (4) of the Evidence Act, 2011 require that the person relying on the electronic evidence (in this case being the prosecution trying to secure a conviction of the “Yahoo Boy”) must lead testimony to show that the device or devices containing the evidence were used regularly, properly for the purposes of activities regularly carrier out by it in the ordinary course of these activities and a certificate of authentication must be before the court. Although the Court of Appeal in Brila Energy Ltd v Federal Republic of Nigeria (2018) LPELR – 43926 held that oral testimony may be adduced in place of the certification, the true problem is that the only person that can satisfy Section 84 of the Evidence Act, is the accused or any person in whose custody such device has been regularly and consistently operated. Yet, the accused cannot be compelled to testify to these facts.
Evidently from the above, prosecution of cyber crimes is never a run-of-the-mill. This explains why Nigeria has not secured a single conviction for a cyber crime until date. The United Kingdom has secured over 60 convictions while the United States has secured countless of convictions. In all these countries, Nigeria is the only country littered with an immeasurable number of cyber criminals. Recently, in April 2018, the US.News reported that two Nigerians, Alu and Austin were tried in the Federal Court in Texas for cyber identity fraud and were convicted accordingly. The following month, eight Nigerians were tried in Minnesota and convicted accordingly. One is forced to ask, “which way Nigeria?”
It can be easily mistaken that this work is quietly intended to bolster criminal proclivities as it exposes the absurdities of the law and defeats prosecutorial pretensions. But, in actual fact, this writer seeks to demonstrate that the interplay between legislations as they are increasingly made, can occasion difficuties. The Cyber Crimes Act, when its provisions are interspersed with the Evidence Act, Criminal Code and Police Act, could wrest off vitality from the criminal system in respect of cyber crimes and that is the gravamen of this work. Hence, the following recommendations.
It is often easier to secure convictions in foreign countries especially America because of the relaxed criminal justice system over there. Extradition and call for international support is very much needed. Nigerian Police officers are largely confronted with the temptation to be corrupt and indeed they fall, every so often. Investigatons, arrests and prosecution will all remain far cries without foreign intervention to cure this malaise. This is because even law enforcement agents, a good number of them fish in these troubled waters and make good fortune out of mutual understandings
It should be lawful to arrest and search suspected criminals without warrants and the grounds should be clearly spelt out. These days, cyber fraudsters in Nigeria emblazon their trademarks in popular clubs and hot spots. An ordinary trader can spot a number of them as they have, with impunity, assumed distinctive attributes setting them widely apart from the others waiting on God’s favour. Thus, arrests and search should not be subject to bureaucratic shibboleths – warrants.
Although recommending that the Act should be amended to expressly relax the rules of arrests, search, evidence and proof with regard to cyber crimes is almost like flogging dead horses. While it is needed, it is far more expedient to call on judicial authorities to seize their moments and set rules of admissibility and proof of cyber crimes when they ar faced with it. Nobody sues the jidiciary for interpreting the law or setting guidelines which are in the interest of the public. Not even the legislature. Judicial legislation should be encouraged as far as cyber crimes are concerned. Else, this cancerous leach will soon become an uncontrollable octopus with tentacles imbued in every and any Nigerian.
Destiny Osayi Ogedegbe is a recent graduate of the Nigerian law school, Abuja Campus. He is also a graduate of law from the University of Benin. He is a prolific writer and a vocal activist. He can be reached on 09039000318 or by his mail address: firstname.lastname@example.org.