The arrest and detention of a Nigerian blogger and political commentator, Mr Abubakar Sidiq Usman, popularly known as Abusidiq, on Monday the 8th of August, 2016 by the Economic and Financial Crimes Commission (EFCC) over alleged “cyber stalking related offences” has incensed the cyberspace and ignited tirades of lacerations directed at the EFCC and its Acting Chairman, Mr Ibrahim Magu.
This opinion is offered in response to the statement by the anti-corruption agency on the rationale for the arrest of the blogger.
In my first intervention on this matter, I demanded that the EFCC should disclose why it went after Abusidiq and release him without further delay.
Given the unsatisfactory and questionable explanations offered by the Commission, it is pertinent to critically appraise the offence of cyber stalking vis-a-vis the constitutionality of the offence.
What is Cyber Stalking?
Section 58 of the Cybercrimes (Prohibition, Prevention, Etc) Act, 2015 (hereinafter referred to as the Cybercrimes Act) defines cyber stalking as “a course of conduct directed at a SPECIFIC person that would cause a reasonable person to feel fear.” (emphasis mine).
The offence is created by Section 24 of the Cybercrimes Act. Section 24 (1) provides in part as follows:
“A person who knowingly sends message or other matter by means of computer systems or network that –
(a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message to be so sent, or,
(b) he knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent, commits an offence under this Act and is 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 both.”
Under Section 24 (2), “A 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 person 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, commits an offence and is liable on conviction to imprisonment for a term of 10 years or a minimum fine of N25,000,000.00.”
There are other actions relating to transmission of communication through the computer and the network under Section 24 of the Cybercrimes Act that amounts to cyber stalking.
From the foregoing provisions, it is clear that cyber stalking is an offence against the person, and not an offence against the state.
The significance of the distinction is that for any person to be arrested or charged with cyber stalking, there must be a specific victim/nominal complainant.
An individual must instigate the relevant law enforcement agencies to take action. Also, the victim must be a “reasonable person” who felt fear because of the stalker’s course of action.
Does the EFCC have power to prosecute cyber stalking?
By Section 41 of the Cybercrimes Act, the National Security Adviser is to coordinate all relevant security agencies under the Act.
Strangely, there is no specific provision on who or which agency can prosecute offences under the Act, like cyber stalking.
This is clearly a product of poor legislative draftsmanship.
However, Section 47 (1) of the Cybercrimes Act states that:
“Subject to the powers of the Attorney General, relevant law enforcement agencies shall have power to prosecute offences under this Act.”
Is the EFCC one of the said “relevant law enforcement agencies”?
Section 58 of the Cybercrimes Act defines law enforcement agencies to include “any agency for the time being responsible for the implementation and enforcement of the provisions of this Act.”
There are a total of 59 Sections in the Cybercrimes Act.
The EFCC is not mentioned anywhere in any of 59 Sections contained in the main body of the legislation.
The only place where the EFCC is mentioned in the Cybercrimes Act is in the First Schedule to the Act where the representatives of the bodies and agencies constituting the Cybercrime National Advisory Council established by Section 42 (1) of the Act are listed.
The Council has representatives from twenty-eight (28) institutions and bodies. The EFCC is number nine (9) on the list.