Fundamental human rights vis-à-vis computer crimes
When looked into, it will be discovered that computer crimes are of a gross violation of fundamental human rights as entrenched in the 1999 Constitution of Nigeria. Some of these violations are in relation to:
Right to Dignity of Human Person: entrenched in Section 34, provides “Every individual is entitled to respect for the dignity of his person…. In this connection, it provides in subsection (a) and (b) that
• No person shall be subjected to torture or inhuman or degrading treatment;
• No person shall be held in slavery or servitude.
In Uzuokwu v Ezeonu II, the court defined inhuman treatment to include any act without feeling for the suffering of the other. Computer crimes have effect of suffering on victims and thereby fit into this crime. Niki Tobi, JCA (as he then was) noted that degrading treatment lowers the social status, value or position of a person. This is evident in the criminal act of cyber defamation. Slavery or servitude may also be evident in cyber terrorism.
Right to Privacy: Section 37 provides for the privacy of Nigerian citizens, their homes, correspondence, telephone conversations and telegraphic communications. Activities of computer criminals, which involve gaining unauthorised access to computer systems, programmes, websites, among others violate this fundamental right. There are basically three risk factors that are elements of privacy. The first is the risk of injustice due to significant inaccuracy in personal data, unjust interference and the gradual use of data for purposes other than those for which it was collected. The second is to one’s personal control over collection of personal information as a result of excessive and unjustified surveillance.
Finally, there is a risk to dignity as a result of exposure or embarrassment due to absence of transparency in information procedures, physical intrusion into private spaces, unnecessary identification or absence of anonymity or unnecessary or unjustified disclosure of personal information without consent.
Freedom of Expression: Section 39 provides that every person shall be entitled to freedom of expression including to hold opinions and to receive and impart ideas and information without interference. Following this provision, persons have right to impart ideas and information at will. The activities of computer criminals bursting into computer users' privacy negate this right.
The Nigerian approach to computer crimes
The three Ps - prevent, protect and prosecute are relevant here. Within technology, prevention of computer crimes and protection of computer systems are necessary. However, there is need for investigation and prosecution of offenders. The Nigerian government is not left out in finding a legal means for collecting computer crimes as the Federal Government has instituted “the Cyber Crime Project”. A presidential committee on cyber crime was founded for two reasons:
• Security of computer systems and networks;
• Protection of critical Information Communication Technology (ICT) infrastructure in Nigeria.
The Nigerian cyber crime committee came up with a report that:
• Recommended the creation of a legal and institutional framework for cyber crime in Nigeria;
• Created central agency to enforce cyber crime or situate responsibility within existing law enforcement institutions;
• Created the Nigerian Cyber Crime Working Group (NCWG) as an inter-agency body of law enforcement, intelligence, security and ICT institutions, plus private sector; and
• Proposed a draft Nigerian computer Security and Protection Act.
Some of this working group agencies are the EFCC, the Nigeria Police, the National Security Adviser (NSA), the Nigerian Communications Commission (NCC), Department of State Services (DSS); National Internet Group (NIG); Internet Service Providers’ Association of Nigeria (ISPAN); National Information Technology Development Agency (NITDA), and individual citizens representing public interest.
The duties of the working groups include engaging in public enlightenment programmes, building institutional consensus among existing agencies, providing technical assistance to the National Assembly on cyber crime and in the drafting of the Cyber Crime Act; laying the groundwork for a cyber crime agency that will eventually emerge to take charge of fighting cyber crime in Nigeria.
In addition, the working group is tasked with the responsibility of working with global cyber crime enforcement agencies in the USA, the UK and other countries, which are at forefront of fighting cyber crime.
Some other Nigerian laws that may be applicable in the prosecution of computer crimes are Independent and Corrupt Practices and other related Offences Commission (EFCC) Act, Copy Rights Act and Criminal Code Act.
Jurisdictional issues in prosecuting computer crimes
Since cyber crimes cross multiple jurisdictions, the obvious difficulty in any legislation enacted to regulate conduct in cyberspace is empowering domestic courts with the rights to hear cases on crimes committed in foreign countries and involving international personalities. For example, the state prosecutor of a country will have to consider the issue of whether foreign operators of a website situated in cyberspace or in another country that offers online illegal activities, such as gambling and pornography, maybe prosecuted in the former country that outlawed gambling and pornography.
A negative will impair the ability of the prosecuting state to control or regulate the prohibited activities in its own country. This is because the perpetrators of such activities could avoid criminal liability simply by operating their websites out of jurisdiction. It may be due to this jurisdictional difficulty that Section 14 of the Criminal Code provides that the accused person may be treated as if he had committed the offence in Nigeria even if the offence was committed outside the country.
More complications arise when the laws in the countries in which these foreign operators operate from recognise the online activities as legal, example online gambling and adult sites may well be legal in certain states in the United States and Australia. The issue then is the status of the actions of such individuals as far as the laws of those countries, which outlawed those activities, are concerned. Can these persons be arrested for having committed an offence in the other countries when they step foot there? Likewise, can operators of certain websites in Nigeria be incarcerated in neighbouring countries where such sites are outlawed, assuming their cyber laws have extraterritorial effect? Whatever the answer may be, one thing is certain: steps will have to be taken to evolve universally accepted laws to govern cyberspace in order to avoid an absurd situation whereby the legality of virtual acts are determined by the location of commission, which would be totally inconsistent with the borderless realm of cyberspace. |
