Has the Cybercrime Act Become a Weapon Against Free Speech?
The increasing arrests of journalists on allegations of cyberstalking and defamation have raised concerns about whether the Cybercrime Act is being misused to stifle free expression and restrict the public’s right to information. Despite amendments to the Act in February 2024, there are growing fears that it is being weaponised to suppress dissent and intimidate the press. Sunday Ehigiator examines the implications of these developments and questions whether the law, originally designed to combat cybercrime, is now being turned against those it was meant to protect.
At about 6 p.m. on Wednesday, May 22, 2024, in his residence in Lugbe, FCT Abuja, the Global-upfront Editor-in-Chief, Madu Onuorah was whisked away by men of the Nigerian Police Force, and released after 48 hours.
Recounting how he was arrested, Onuorah said the police officers, numbering 10, met him outside and said he should not go further inside to do anything but follow him.
“They didn’t allow me to go inside to change or even call my lawyer, they just insisted that I follow them without even disclosing where they are taking me,” he said.
He said he later got to know that he was arrested because his platform published a story about a Reverend Sister, Ngozi Mamah, who assaulted her 75-year-old stepmother.
“I was taken away by the police and was locked up in a cell in Lugbe until the DPO came and asked them to put me at the reception. I was then moved to Abakaliki and then to Ebonyi.
“I was taken to the commissioner of Police and the CP told me how to do my job. He said I should not have written a story like that, I was accused of defamation of character and the police arrested me because of that without a court order or evidence.
“I asked the CP if what we had published was true or not but he said I should have done it otherwise. He was teaching me my job. He said they should release me but I should go and reconcile with the woman. Reconcile on what? Did I write wrongly about her?
“I was not physically tortured but I was mentally tortured. The boxer I have been wearing for the past three days is still with me as I am talking to you now,” he said.
Aiyetan and Akewushola’s Case
The Global-upfront Editor-in-Chief, Madu Onuorah, the Executive Director of The International Centre for Investigative Reporting (ICIR), Dayo Aiyetan, and a reporter of the Centre, Nurudeen Akewushola, were also arrested.
According to a statement released by the ICIR, “Aiyetan and Akewushola accompanied by the company’s lawyers had gone to the Centre since noon today, May 28, 2024, and they have been unreachable including the lawyers. The ICIR was, however, able to gather that there is likely a sinister move by the Centre to detain both Aiyetan and Akewushola.
“Earlier on May 15, 2024, the ICIR received letters of invitation addressed to one of its reporters, Akewushola, and another to its ‘Managing Directors’ by the Nigeria Police Force National Cybercrime Centre.
“The letters dated April 16, 2024, were delivered at the ICIR’s office on Wednesday, May 15, 2024. However, curiously, the Police in the letter, signed by a Commissioner of Police, Uche Ifeanyi Henry, the Centre’s Director, requested that the reporter and directors appear at its Abuja offices on Wednesday, April 24.
“Part of the letter reads, ‘The Nigeria Police Force National Cybercrime Centre is investigating a case of cyberstalking and defamation of character in which the above-named person featured prominently.
‘Given the above, you are requested to interview the Director of the Nigeria Police Force National Cybercrime Centre (NPF-NCCC) at Plot 625 Mission Road, Diplomatic Zone, Central Business District, Abuja through CSP Omaka Udodinma Chukwu on Wednesday 24th April 2024. Call 08067854241 on your arrival. Your cooperation in this regard will be highly appreciated, please.’
In its response to the first invitation, The ICIR raised some concerns to the police, including the discrepancy in invitation and delivery dates, and the lack of details of the petition which led to their investigations for cyberstalking and defamation of character.
The ICIR requested that details of the petition should be provided so that it could adequately prepare for the police interview. Following the ICIR reply, the NPF-NCC sent another set of invitation letters.
In a second set of letters from the NPF-NCCC to The ICIR dated May 20, 2024, two copies of which were addressed separately to the reporter and the ‘managing director’, the discrepancy in the dates was adjusted but details of the allegations against the centre and its reporter were not provided.
“It read in part, ‘The Nigeria Police Force National Cybercrime Centre is investigating a case of cyberstalking and defamation of character reported to the Deputy Inspector General of Police, Force Criminal Investigation Department, Area 10 Abuja, in which your presence is needed.
“‘Given the above, you are kindly requested to interview the Director, Nigeria Police Force National Cybercrime Center (NPF-NCC) Plot 625 Mission Road, Diplomatic Zone Central Business District, Abuja, through CSP Omaka Udodinma Chukwu on Monday 27 May 2024 by 10:00hrs. It is a fact-finding invitation,’ the letter read in part.
“The date and time were eventually changed to May 28, 12 noon, following a conversation between the ICIR lawyers and the Police.
“Honouring the Police Invitation today, May 28, 2024, at the stipulated time, the ICIR staff and lawyers went to the address stated in the NPF-NCC letters, and it’s been over 7 hours since they’ve been held in custody.
“The ICIR expressed concern that its reporter and manager were invited by the police on allegations of cyberstalking despite the amendments to the Cybercrime Act in February 2024.
“We are worried that this could be a ploy by the Police to detain them, even though the NPFNCC stated in its letter that ‘it is a fact-finding invitation’,” says The ICIR Editor, Bamas Victoria,
He added “The ICIR has reasonable cause to believe that the police invitation is related to an investigation that linked some former police bosses to a shady land deal. Interestingly, one of the former police bosses in a press release said he has taken the case to court. However, the ICIR has not been formally notified.”
The Cybercrime Law
The Cybercrime Act of 2015 was enacted to establish a comprehensive legal framework for preventing, detecting, investigating, and prosecuting cybercrimes in Nigeria.
This legislation was a response to the alarming rise in fraudulent activities in the cyber domain, which had previously lacked specific statutory or regulatory oversight in the country.
The Act demonstrates a proactive legislative approach to safeguarding national security by designating critical computer systems and networks as Critical National Information Infrastructure. Additionally, it aims to protect intellectual property rights, privacy, and other vital interests.
By explicitly prohibiting harmful behavioural patterns in the cyber sphere, such as cyberstalking, cybersquatting, computer-related fraud and forgery, and cyber terrorism, the Act seeks to promote a safer online environment. Violations of these provisions are punishable by various sanctions, including fines and imprisonment terms, as specified in the Act.
The law also establishes the Nigerian Computer Emergency Response Team (NgCERT) to coordinate cybercrime reporting and response. Additionally, it creates the Cybercrime Act Implementation Committee to oversee enforcement and provides for the protection of critical infrastructure and sensitive information.
The law also allows for international cooperation and mutual legal assistance in cybercrime investigations. The Act outlines specific penalties for various offences, including hacking, which carries a sentence of up to 5 years imprisonment and/or a fine of ₦5 million.
Cyberstalking is punishable by up to 2 years imprisonment and/or a fine of ₦2 million, while online fraud can lead to up to 7 years imprisonment and/or a fine of ₦10 million.
The impact of the Nigerian Cyber Crime Act includes providing a legal framework for prosecuting cybercrimes in Nigeria, enhancing the country’s ability to combat cyber threats and protect citizens’ digital rights, and demonstrating Nigeria’s commitment to cybersecurity and international cooperation.
Despite these benefits, challenges remain, including concerns about effective enforcement, implementation and fear of abuse, limited resources and technical capacity for investigations and prosecutions, and the need for ongoing awareness and education to ensure public understanding and reporting of cybercrimes.
Related amendments
In February 2024, President Bola Ahmed Tinubu signed the Cybercrimes (Amendment) Act, 2024, into law. This amendment modifies 11 sections of the original Cybercrimes Act of 2015, introducing significant changes to Nigeria’s cybersecurity landscape.
While the Explanatory Memorandum suggests that the amendment aims to insert omitted words, a closer examination reveals new provisions that clarify and refine the original Act.
Notably, the amendment revises Section 24, which previously criminalized sending offensive or false messages. The revised section now specifically targets messages that are pornographic or knowingly false, and pose a threat to law and order, life, or cause harm.
This change addresses concerns that the original provision was overly broad and vague, leading to its misuse against journalists and media practitioners.
Additionally, the amendment deletes Section 48(4), which mandated the cancellation of international passports for convicted individuals. It also establishes Sectoral National Computer Emergency Response Teams (CERTs) and Security Operations Centers (SOCs) under the CERT Coordination Center, enhancing the reporting and management of cyber threats.
Overall, the Cybercrimes (Amendment) Act, 2024, brings welcome clarity and precision to Nigeria’s cybercrime legislation, addressing concerns around freedom of expression and cybersecurity.
Right to Know and the Freedom of Expression
The public’s right to know and freedom of expression are fundamental principles in a democratic society.
The public’s right to know refers to the right of citizens to access information about matters of public concern, such as government activities, public policies, and issues affecting the community.
This right is essential for informed decision-making, participation in democratic processes, and holding those in power accountable.
Freedom of expression, on the other hand, refers to the ability of individuals to express their thoughts, opinions, and ideas without fear of retribution or censorship. This includes the right to speak, write, and disseminate information through various media channels.
Together, the public’s right to know and freedom of expression form the foundation of a well-functioning democracy, enabling citizens to access information about public matters, express their opinions and ideas, participate in informed discussions and debates, hold those in power accountable, and make informed decisions.
These principles are essential for promoting transparency, accountability, and good governance, and are protected by various international and national laws and regulations.
For instance, the right to freedom of expression is a fundamental human right which is contained in Article 19 of the Universal Declaration of Human Rights (UDHR) and it states: “Everyone has the right to freedom of opinion and expression, the rights include freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
Right to Freedom of Expression and the Press
The right to freedom of expression and the press is also contained in Chapter IV, section 39 of the 1999 Constitution of the Federal Republic of Nigeria, as amended and other International Human Rights Instruments to which Nigeria is a party.
The section states that “(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.
“(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions: Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.
“(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society – (a) to prevent 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) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.”
The exercise of these rights is essential for guaranteeing human rights, democracy and the rule of law.
Without free expression and free media, violations of human rights may remain hidden with the propensity to give rise to impunity and continuous violations by law enforcement agencies.
Expert View
Reacting to the perceived abuse of the cybercrime act, a legal practitioner, Ifenna Okeke, said, “Everything Nigerian, every law we make, the spirit seems to be nice, its terms to address an issue, but just like everything Nigerian too, at the end of the day, the power that misuses it.
“When this cybercrime act was being thought of, I was among those who spoke against it basically because, as I said back then, it will only provide an avenue for the authorities to clamp down on people.
“I agree that there are a lot of falsehoods going on the Internet that shouldn’t be there, but where information is either true or at least perceived to be true maybe in the course of reading the statement of the person, what do you do?
“So this is the problem. Journalists are now being arrested for reporting what is true and in the public sphere. I don’t agree with it. Because this amounts to choking information as it comes out, which I think is wrong.
“First of all, you have to understand that Nigeria is a peculiar terrain. It’s a country that does not even know the system of government she runs.
“It doesn’t know if it’s running democracy or the monarchy system of government. That is the origin of the confusion. Give any law to these same people. They will ruin it.
“The cybercrime act should not be. Okay, yes, make a law against outright falsehood, but to say that you are using the truth to bully somebody is wrong, and I don’t think that be, and every reasonable country will of course not want it.
“Nigeria is a cross between China and Saudi Arabia. We are somewhere between those two countries, so anything goes.
“But of course, I am expecting this to be attacked in court. Someone needs to go to court and seek the high court to declare this illegal, going by the constitutional right to freedom of expression.
“Because when you juxtapose it with the freedom of expression, the court will now determine which sides the balance weighs and come to a decision, and I want to believe that the decision will always be on the side of the constitution because that is the grand norm.”
Cybercrime Act, a Tool for Media Suppression?
The Cybercrime Act, enacted to combat cybercrimes, has been criticized for its potential to suppress press freedom and stifle free speech. Some provisions in the Act have been interpreted as overly broad, allowing authorities to crack down on journalists and media outlets for publishing controversial or critical content.
Some of its concerns include vague definitions of cybercrimes, allowing for arbitrary interpretation, criminalization of online expression, potentially chilling free speech, heavy penalties, including imprisonment, for violating the Act, and lack of safeguards for media freedom and freedom of expression.
Its critics also argue that the Act may be used to silence critical voices, stifle investigative journalism, and undermine democratic accountability, as seen in a case involving the CEO of Erisco Foods Limited, Eric Umeofia, and one of the company’s customers, Chioma Okoli.
In a typical case of ‘The Mighty versus the poor’, Chioma is being prosecuted for giving a negative review on Facebook about one of Erisco Foods products, Nagiko Tomato paste, which she said contained “too much sugar.”
The case has not only cost Chioma her unborn child, sanity, peace of mind, and freedom but has also met several public backlash, over the uncensored manner in which Umeofia has gone about pursuing the case using both governmental and nongovernmental apparatus to intimidate Chioma, while also paying deaf ears to every efforts at out of court reconciliation.
The situation is no different in the case of a reporter with the Foundation for Investigative Journalists (FIJ), Daniel Ojukwu, who was arrested by the Nigerian Police Force on May 1, 2024, on an allegation of violating the Cybercrime Act, over an investigative report him and some colleagues had done, revealing corruption implicating senior Nigerian officials.
According to the investigative report by Ojukwu, former Senior Special Assistant to President Muhammadu Buhari on Sustainable Development Goals (SDG), Adejoke Orelope-Adefulire, allegedly directed the transfer of over $106,000 in government funds to a restaurant in the capital, raising questions about the misuse of public funds intended for achieving the United Nations’ Sustainable Development Goals (SDGs) during her tenure from 2016 to 2023.
The funds had been budgeted for the creation of a school building and learning centre, but, according to Ojukwu’s report, the facilities were never created.
Legal Standpoint
When The ICIR reporter and managers were initially summoned by the NPFNCC, renowned human rights lawyer Femi Falana pointed out that arresting journalists on charges of cyberstalking and criminal intimidation was unlawful.
He argued that the relevant section of the Act (Section 24), frequently cited by the police, had been amended by the Nigerian parliament in February of this year, rendering such arrests illegitimate, however, it has fallen on deaf ears as the duo have been arrested and detained for over 72 hours and still counting.
While combating cybercrimes is essential, it must be balanced with protections for media freedom and freedom of expression to ensure a vibrant democracy.
