– By Abdul Mahmud
This week, the blogger and rabid defender of the rule of unlaw, Abubakar Sidiq Usman, was arrested by operatives of the Economic and Financial Crimes Commission following a dawn raid of his Kubwa, Abuja home.
As expected the arrest and subsequent detention of Abubakar Sidiq Usman sparked a massive social media firestorm and the hashtag ‘FreeAbusidiq’ – the rallying and focal call for his release- followed soon after.
The arrest and detention of Abubakar Sidiq Usman raised questions about the power of arrest of operatives of the EFCC as it relates to non-financial crimes and common law offence of cyberstalking prescribed by Section 58, Cyber Crimes Act, 2015.
The purpose of this article, therefore, is to attempt analysis of the offence of cyberstalking, provide answers to those questions that touch on the superfluous nature of Section 24, Cyber Crimes Act, 2015, and examine the power of arrest of operatives of the EFCC under the said Act.
For clarity, the media spokesperson of the EFCC, in his attempt at dousing the social media firestorm, stated that “The Economic and Financial Crimes Commission, EFCC, today arrested Mr. Abubakar Sidiq Usman, a blogger, for OFFENCES bordering on cyberstalking. The suspect who is the publisher of Abusidiqu.com was picked up at his Kubwa, Abuja home in the early hours of Monday August 8, 2016 by operatives of the EFCC and is currently being questioned over the alleged OFFENCE which contravenes sections of the Cyber Crimes Act. The suspect has already been offered administrative bail and would be released to his elected sureties”.
At a quick glance, here, two issues problematize the press statement of the EFCC.
First, while its spokesperson claims in the first paragraph of the press statement that the EFCC “arrested Mr. Abubakar Sidiq Usman, a blogger, for OFFENCES bordering on cyberstalking, the second paragraph of the same press statement highlights the fact that Abubakar Sidiq Usman “is currently being questioned over the alleged OFFENCE which contravenes sections of the Cyber Crimes Act”.
The contra-distinctive use of offence and offences suggests that operatives of the EFCC weren’t certain of the actual offence and the nature of the offence Abubakar Sidiq Usman committed. Perhaps, in a comical way, the possibility exists, typical of our tyrannical agents of state, that Ibrahim Magu, in his state of utter confusion, barked at his men and ordered: “OC, if you can’t find an offence to hang on dat bagga, just dash am cyberstalking. Mek una check the section of the law later!”.
In addition to the foregoing, the contra-distinctive ambiguity does suggest that no investigation was carried out by operatives of the EFCC before the blogger was arrested and detained, thus affirming the judicial view espoused by Justice Gabriel Kolawole in the unreported case of Senator Abdulaziz Nyako v EFCC (2016): “it is improper for the EFCC to arrest suspects before or during without investigation”.
If the operatives of the EFCC actually investigated the blogger before he was arrested, there wouldn’t have confusion over the use of the singular and plural verbs of the noun, offence, in the same statement.
Second, the use of sections suggests that the detaining officers weren’t even certain of the specific section of the Cyber Crimes Act, 2015 that created the offence of cyberstalking. The use of sections implies that the detaining officers merely deployed the plural verb as a defence in advance of the charge of ignorance of the law.
Abubakar Sidiq Usman has since been released on bail.
Cyberstalking, “a course of conduct directed at a specific person that would cause a reasonable person to feel fear” is created by Section 58 Cyber Crimes Act, 2015 and made punishable under Section 24 of the Act, which provides that-
1) “Any person who knowingly or intentionally sends a message or other matter by means of computer system 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 sent; or
(b) he knows to be false, for the purpose of causing anyone, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or cause such a message to be sent;
Commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
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 in fear of death, violence or bodily harm 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 and shall be liable on conviction-
(i) in the case of paragraph (a) and (b) of this section to imprisonment for a term of 10 years and or minimum fine of N25,000,000.00; and
(ii) In the case of paragraph (c) and (d) of this subsection, to imprisonment for a term of 5 years and or minimum fine of N15,000,000.00.
Section 24 (3) to (5) relates to the sentencing powers of the court and the orders the court can make for the protection of victim(s) of cyberstalking or from further exposure to the alleged offences.
It is clear from the foregoing that that the elements of cyberstalking is radically not different from the offence relating to Post and Telecommunications as prescribed by Section 171(1)(b) of the Criminal Code thus:
“Any person who knowingly sends, or attempts to send, by post, anything which- encloses an indecent or obscene print, painting, photograph, lithograph, engraving, book, card, or article, or which has on it, or in it, or on its cover, any indecent, obscene or grossly offensive words, marks or designs is guilty of misdemeanor”.
A careful reading of Section 24(1)(a) and (b) Cyber Crimes Act, 2015 would show that this section is near superfluous as the elements of the offence is covered by Section 171(1) (b) of the Criminal Code.
Though it appears that “anything sent by post” as prescribed by Section 171(1)(b) suggests that cyberstalking, which specifically takes place on the internet, isn’t cognized by the Criminal Code, the theoretical proposition that “anything sent by post” makes the prosecution of cyberstalking under the Criminal Code probable since electronic or computer generated evidence is admissible by virtue of Sections 34(1)(b), 84 and 258 of the Evidence Act, 2011. In the case of Okubor v Dickson (2014) 4 NWLR (PT 1345) 534-594 the Supreme Court held that “a party that seeks to tender in evidence computer generated documents needs to do more than just tendering from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under Section 84(2) of the Evidence Act, 2011”. See also Continental v R Shipping (2013) 4 NWLR (PT 1343) at 67.
That said, and at the comparative level, Section 24 is a poor piece of legislative drafting as it lifts Section 43 of the UK Telecommunications Act, 1984 and Section 2A of the UK Protection from Harassment Act, 1997. While the UK Telecommunications Act, 1984, repealed by the Communications Act, 2003, deals extensively with malicious communications, the Protection from Harassment Act, 1997 deals with harassment and cyberstalking, the Cyber Crimes Act, 2015 lumps statutory offences of malicious communication, intimidation, sexual harassment and kidnapping already covered by other legislations together into a single section, thus making the section superfluous.
Beyond the section being superfluous, there is the danger that it lends itself out as a tyrannical weapon that can be deployed against “freedom of expression, including freedom to hold opinions, and to receive and impart ideas and information without interference” as provided by Section 39(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended.
There is no case law on the interpretation of Section 24 of the Cyber Crimes Act, 2015, but the decision of United States v Alkhabaz (1995) 8 F Supp 1375 serves as a persuasive authority against the tyranny of a substantive law. In the case the US Federal Supreme Court held that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably in assembly, and to petition the government for a redress of grievances”.
Reading the inelegant and imprecise way Section 24 is crafted, my sense here is that it is inconsistent with Sections 36(8) and 39 of the Constitution 1999, and by virtue of its inconsistency, it is ultra vires, null and void.
THE POWER OF ARREST OF OPERATIVES OF THE EFCC UNDER THE CYBER CRIMES ACT 2015 EXAMINED
Examining the power of arrest of operatives of the EFCC under the Cyber Crimes Act, 2015, I shall attempt to pose the question: do operatives of the EFCC have the powers to effect the arrest of a person or persons alleged of committing the offence of cyberstalking?
I shall attempt to answer the question by looking at the general powers preserved by Section 6(1) and (2) of the Economic and Financial Crimes (Establishment) Act, 2004 set as follows:
“The Commission has power to-
(a) cause investigation to be conducted as to whether any person has committed any offence under this Act; and
(b) with a view to ascertaining whether any person has been in offences under the Act, or in the proceeds of any such offences, cause investigation to be conducted into the properties of any person if it appears to the Commission that the person’s life style and extent of the properties are not justified by his source of income.
2) The Commission is charged with responsibility of enforcing the provisions of:
(a) the Money Laundering Act, 1995
(b) the Advance Fee Fraud and other Fraud Related Offences Act, 1995;
(c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, 1984 as amended;
(d) the Banks and other Financial Institutions a Act, 1991, as amended;
(e) Miscellaneous Offences Act; and
(f) any other law or regulations relating to economic and financial crimes.
Clearly, the Act empowers operatives to exercise power of arrest only in matters that are covered by it. However, the omnibus provision of Section 6(2)(f) of the said Act, which grants operatives the sweeping power of arrest only extends to “law and regulations relating to economic and financial crimes”. And no more.
Stalking, which the Black Law Dictionary defines as “the act or an instance of following another by stealth or the offence of following or loitering near another, often surreptitiously, with the purpose of annoying or harassing that person or committing a further crime such as assault or battery” does not come near what constitutes the elements of economic or financial crimes, such as fraud, misappropriation, etc, nor does it constitute such fraudulent elements as deceit, concealment, course of action that is predetermined, and breach of trust and fiduciary relationship to secure illegal gain, and operatives cannot exercise the power of arrest over an offence that does not fall within the purview of economic and financial crimes. Do operatives of the EFCC have power of arrest under the Cyber Crimes Act, 2015. My answer is NO!
The Court of Appeal examined the extent of the power of arrest of operatives of the EFCC in First Bank of Nigeria PLC and Ors v Attorney General of the Federation and Ors (2013) LPELR 2015 and held that “it is indisputable fact that the EFCC Act, like the EFCC, the Police, has the right to investigate, arrest and detain any person who is suspected of the commission of any offence UNDER THE EFCC ACT. Any proved detention however must be justified in law”.
The arrest and detention of Abubakar Sidiq Usman is neither justified by Section 6 of the EFCC Act, 2004, nor is it justified by Section 45 of the Cyber Crimes Act, 2015, which in its marginal note of Section 45- itself a force of law- purports to grant power of arrest, search and seizure only to law enforcement officers.
My view is this: the combined provisions of Section 45 of the Cyber Crimes Act, 2015, Section 4 of the Police Act, and Section 18(1)(a) of the Administration of Justice Act, 2015, which provides that a police officer may, without an order of court, and without a warrant, arrest a suspect whom he suspects on reasonable grounds of having committed an offence against a law in Nigeria or against the law of any other country, unless the law creating the offence provides that the suspect cannot be arrested without a warrant”, empower a police officer, to the exclusion of other law enforcement officers, to arrest a cyberstalker.
Happily, Section 45 provides that an order of a judge must be secured before the power of arrest can be exercised by a law enforcement officer.
Finally, in the unreported Federal High Court, Abuja decision of Senator Abdulaziz Nyako v EFCC (2016), Justice Gabriel Kolawole berated the EFCC for “reckless tampering with the rights of citizens in the name of discharging its statutory duties”. Isn’t it ironic that Abubakar Sidiq Usman who once famously called for the suspension of the fundamental rights provisions of the 1999 Constitution became the unfortunate prey snared by the gossamer strand of the seeming tyrannical institution of our nation-state- EFCC? Talk of the blogger getting his just desserts? Well…
Article written by Abdul Mahmud is the President, Public Interest Lawyers League (PILL)
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