Police and other security agencies lack legal power to make arrest over cyberstalking in amended Cybercrime Act
By Jeph Ajobaju, Chief Copy Editor
Rights lawyer Femi Falana, SAN has reminded the police and other security agencies that they do not have the power to arrest, detain, and prosecute citizens over cyberstalking, based on the amended Cybercrime Act 2015.
Falana sought discontinuation of all pending cases filed under Section 24 of the Act, reminding Abuja the Economic Community of West African States (ECOWAS) Court has declared the Section illegal.
It is in the portfolio of Federal Attorney General and Justice Minister Lateef Fabemi to update all arms of government on legal matters, but the ‘Tinubu boy’ does not seem concerned about what the President does not prioritise, even if that means breaking the law.
The army and the police have in the past two months arrested, detained, and tortured two journalists purportedly under the Cybercrime Act – Segun Olatunji, then-Editor of First News (detained in March) and Daniel Ojukwu of Foundation for Investigative Journalism (FIJ) (detained in May).
Olatunji resigned from his job this month, after his release from military detention on March 28.
Falana noted the ECOWAS Court had directed the federal government to amend Section 24 of the Cybercrime Act to conform with the rights of Nigerians to freedom of expression – an order the government has since obeyed.
“It has become illegal to arrest journalists for cyberstalking, insult, causing annoyance, offensive message and criminal intimidation,” he said in a statement.
“Section 24 of the Cybercrime Act, 2015 had criminalised ‘cyberstalking’, ‘insult’, ‘causing annoyance’, ‘sending offensive messages’, and ‘criminal intimidation’ ‘insult’, ‘causing annoyance’, ‘sending offensive messages’, and ‘criminal intimidation’.
“Specifically, Section 24 [originally] provided as follows: (a) Any person who, knowingly or intentionally sends a message or other matter using computer systems 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 so sent; or (b) He knows to be false for 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 shall be liable on conviction to a fine of not more than N7 million or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
“However, in the cases of Laws and Rights Awareness Initiative (Suit No. ECW/CCJ/APP/53/18) and Socio-Economic Rights and Accountability Project (Suit Laws and Rights Awareness Initiative (Suit No ECW/CCJ/APP/09/19), the ECOWAS Court declared Section 24 of the Cybercrime Act 2015 illegal and directed the federal government to amend the Section to make the law conform with the fundamental rights of Nigerian citizens to freedom of expression guaranteed by Section 39 of the Constitution of the Federal Republic of Nigeria,1999 and Article 9 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria 2004.
“In line with both judgments of the ECOWAS Court, the Government of Nigeria has repealed Section 24 by removing the provisions relating to ‘cyber stalking’, ‘insult’, ‘causing annoyance’, ‘sending offensive messages’, and ‘criminal intimidation’ from the Cybercrime Act 2015 and replaced same with Section 5 of the Cybercrime Amendment Act which provides as follows: Any person who knowingly or intentionally sends a message or other matter using computer systems or networks, aiming to disrupt law and order or pose a threat to life, commits an offence and may face a fine up to N7,000,000, imprisonment for up to three years, or both.
“From the foregoing, it is crystal clear that the Police and other security agencies lack the power to arrest, detain and prosecute Nigerian citizens for the so-called offences of ‘cyberstalking’, ”insult’, ‘causing annoyance’, ‘sending offensive messages’, and ‘criminal intimidation’.
“Consequently, all pending cases filed on the basis of the repealed aspects of Section 24 of the Cybercrime Act 2015 should be discontinued without any further delay.”
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