Digitalization and internet-based activities have increased significantly in recent times, and this has led to a concomitant increase in the utilization of Information and Communication Technologies (ICTs). However, this growth has been accompanied by an increase in criminal activities, otherwise known as cybercrimes[1] owing to, among other factors, the accessibility of computers and the decreased cost of operation.[2]
Cybercrimes are criminal activities that either target or use a computer, a computer network or a networked device.[3] It is an umbrella term used to describe two distinct although closely related criminal activities which are cyber-dependent and cyber-enabled crimes. The former are offences that can only be committed by using a computer, computer networks, or other forms of ICT, while the latter are primarily acts directed against computers or network resources.[4]
As the internet continues to saturate every aspect of the society, the growth of cybercrimes has also increased. This Article examines the existing legal framework governing cybercrime prosecution, investigates the complexities surrounding the prosecution of Cybercrimes in Nigeria, analyses the efficacy of the existing laws in combating cyber offences, and explores practical challenges faced by law enforcement agencies and prosecutors. Additionally, this article discusses the challenges faced by the Cybercrime Act as well as potential reforms or strategies to enhance the effectiveness of cybercrime prosecution.
THE LEGAL FRAMEWORK FOR CYBERCRIME CONTROL IN NIGERIA:
- Nigerian Cybercrimes (Prohibition, Prevention, Etc) Act, 2015
The Nigerian Cybercrimes (Prohibition, Prevention, etc) Act 2015 is the first legal and regulatory framework enacted to regulate people’s activities in cyberspace.[5] Presently, it is the principal legislation for combating acts of cybercrime in Nigeria. Before the enactment of this Act, the Nigerian digital economy had carried on without a specific legal framework for cyber security, which was a problem for law enforcement agencies.
Therefore, with the enactment of the Cybercrime Act in 2015, Nigeria became more legally equipped in the fight against cybercrime activities. The Act was made to cope with the advancement of technological growth and the complexities involved in the investigation and prosecution of cybercrime as well as internet-based offences.[6]
The objectives of the Act are to:
- provide an effective and unified legal framework for the prohibition of cybercrimes in Nigeria;
- ensure the protection of critical national information; and
- promote cyber security.[7]
- Advance Fee Fraud and Other Related Offences Act, (AFF Act) 2006.
The AFF Act was enacted to prohibit and punish certain offences relating to advanced fee fraud.[8] The Act generally provides for ways of fighting fraud.[9] One key provision in the Act is that every internet user must now have an identity.
In the case of Harrison Odiawa (alias Abu Belgore) v. Federal Republic of Nigeria,[10] where a syndicate used the internet to defraud an American citizen of 2 million USD. The offenders were tried under the Advance Fee Fraud and Other Related Offences Act, 2006 and sentenced to twelve years and ten years imprisonment respectively, without an option of fine.
- The Economic and Financial Crimes Commission (Establishment) EFCC Act 2004.
This Act established The Economic and Financial Crimes Commission (EFCC)[11] and bestowed upon it the responsibility of enforcing and duly administering the provisions of the Act,[12] including investigating all financial crimes. [13] The EFCC Act made very elaborate provisions towards cyber security by creating a wide scope of cyber and internet crimes to which the Act applies. The provision and authority to prosecute these crimes, among others, have facilitated the Commission in achieving commendable progress in combating a range of cybercrimes.
- Money Laundering (Prohibition) Act, 2022.
The Act inter alia makes comprehensive provisions to prohibit the financing of terrorism, the laundering of the proceeds of a crime or illegal act and provides appropriate penalties. It also expands the scope of regulatory authorities to address the challenges faced in the implementation of the anti-money laundering regime in Nigeria. Although primarily aimed at combating money laundering, this law also covers offences related to electronic financial transactions and can be invoked in cases of cyber-financial crimes.[14]
Other laws interconnected with the prosecution of cybercrimes include the Nigerian Communication Act, 2003, Terrorism (Prevention) Act, 2011. Nigeria Data Protection Regulation (NDPR) etc. These laws collectively aim to address various aspects of cybercrimes and provide legal mechanisms to prosecute offenders and protect individuals and organizations from cyber threats.
COMPLEXITIES SURROUNDING THE PROSECUTION OF CYBERCRIMES IN NIGERIA
As noted above, there is no draught as regards laws seeking to prohibit, prevent, and aid the prosecution of cybercrimes in Nigeria. However, the problems with the successful application of these laws are largely similar in nature, they include:
- Evidence Gathering/Admissibility in Court: The end–to–end encryption used in messaging platforms and secure communication channels presents formidable barriers to Evidence collection. Cybercriminals in a bid to clear their tracks delete incriminating evidence and destroy the hard disk of devices used in committing the offence. Also, establishing the authenticity, integrity, and chain of custody of digital evidence is crucial for its admissibility in court. All these, constitute a problem for prosecutors who will need evidence to prove their case beyond reasonable doubt in court.
- Cyber Anonymity: Although the AFF Act provides against cyberspace users concealing their identity,[15] cybercriminals still employ various tactics such as masking their IP addresses, using Virtual Private Networks (VPNs), and employing sophisticated encryption techniques to evade identification, which makes it difficult for law enforcement agencies to track down the perpetrators.
- Resource Constraint: The constant technological advancement in the digital space is one that the prosecuting agencies must match. Limited technological infrastructure, forensic capabilities, and trained cybersecurity personnel hinder effective investigation and prosecution of cybercrimes.
- Plea Bargaining: The introduction of plea bargains in our criminal justice system has diminished the deterrence effect of cybercrime Laws, as plea bargain arrangements often result in reduced sentences which may continue to embolden offenders in the crime culture.[16]
PRACTICAL MEASURES TO ENHANCE THE EFFECTIVENESS OF CYBERCRIME PROSECUTION
Due to some defects in the current cybercrime mechanisms, there is a need to explore comprehensive reforms aimed at bolstering the legal framework and enforcement strategies to combat cybercrimes effectively. It is therefore important to outline key reform options essential for enhancing the effectiveness of cybercrime prosecution in Nigeria.
- Establishment of Specialized Cybercrime Units: The Cybercrime Act assigns the office of the National Security Adviser the duty of establishing the National Computer Emergency Response Team (CERT) to ensure to the effective execution of the provisions of the Act.[17] Other law enforcement bodies should also have dedicated cybercrime units.
- Stiffer Punishment for Cybercriminals: The penalties as contained in the Cybercrime (Prohibition, Prevention etc.) Act, 2015[18] should be increased to effectively deter people from engaging in Cybercrime.
- Continuous Training of Personnel: Periodic training programs should be held for Personnel involved in cybercrime prevention and prosecution, on cybercrime investigation techniques, digital evidence gathering and handling, and legal procedures specific to cyber offences.
- Investment in Technological Infrastructure: Investment in technological infrastructures related to cyber forensic technology and tools is essential to enhance the capacity of law enforcement agencies in collecting, preserving, and analysing digital evidence.
- Legislative Update: The existing cybercrime laws need to be constantly updated to address emerging threat areas and provide clearer provisions for cybercrimes.
Important to note is that each reform strategy plays a crucial role in safeguarding the Nigerian digital space and ensuring justice for victims of cybercrimes. Also, more should be done to strengthen cooperation with international law enforcement agencies to facilitate the extradition of cybercriminals, cross-border investigations, and mutual legal assistance in prosecuting cybercrimes.
By implementing these reforms, Nigeria can significantly enhance its capacity to prosecute cybercrimes effectively and deter the activities of cybercriminals within its jurisdiction.