AN APPRAISAL OF THE EFFICACY OF THE LEGAL AND INSTITUTIONAL FRAMEWORKS FOR COMBATING CYBER CRIMES IN NIGERIA

ABSTRACT
Advances in Artificial Intelligence are credited to have given the world computers that can defeat people at chess as well as drive cars and manage calendars. However, despite the progress made, scientists are still unable to develop machines that are capable of replacing human beings. Cyberspace, credited to be network of interdependent information technology, infrastructures, telecommunication networks and computer processing system, have provided new opportunities for new crimes to emerge. Cybercrimes are „new genus of crimes which use computers for criminal activities. They are crimes committed by means of a special knowledge of computer technology.‟ Cybercrimes became a source of concern with the proliferation of computer technology in Nigeria. Some youths in Nigeria have used the new communication channels for crimes and they are noted to be sending fraudulent proposals to people and organizations, the world over. The youths have succeeded in carving for Nigeria negative names and appellations among nations, with global anti-crime bodies such as the International Police (Interpol) and Financial Action Task Force (FATF) blacklisting Nigeria as one of the most crime vulnerable countries in the World. Nigeria has in place legal regimes and institutional measures for combating cybercrimes. The aim of this study is to examine the legal regimes and institutional measures adopted by the Nigerian Government in combating cyber and computer related crimes with the view to determine their efficacy or otherwise. To achieve this, the study relied on information such as books, journals, conference papers, newspapers and internet materials. The findings revealed the inadequacy of the legislative measures to combat the various cyber specific offences; some of the legislation were enacted to provide for offences of cheating, obtaining property by false pretences, fraud and related offences and did not envisage the circumstances where such offences could assume the sophistication and extra-territoriality they are presently. These shortcomings, coupled with the dearth of trained personnel with the technical skills, knowhow and resources to investigate and prosecute offenders, created additional challenges to the enforcement institutions established to combat the crimes. Equally, the pre-May, 2015 state of Nigerian cyber related legislation exhibited lack of political will on the part of the Nigerian Government to combat the scourge of cybercrimes as it took the Nigerian Government ten years to enact the Nigerian Cybercrimes Act 2015. Besides, the increasing incidence of crimes and cybercrimes in particular cannot be divorced from the high rate of corruption, unemployment and extreme poverty bedeviling the Nigerian society. These societal ills breed criminality in the country. The study recommends the enactment of additional legislation that will reduce cybercrimes and criminality and provide adequate security and safety to internet and cyberspace users. It is equally recommended that enforcement institutions be equipped by the Nigerian Government with skills, manpower and technological knowledge required for investigation and prosecution of cybercrimes. Again, effort should be made to reduce the socio-economic injustices that allow crime and criminality to flourish in Nigerian society.
TABLE OF CONTENTS
Title Page – – – – – – – – – i
Declaration – – – – – – – – – ii
Certification – – – – – – – – – iii
Dedication – – – – – – – – – iv
Acknowledgment – – – – – – – – v
Table of Cases – – – – – – – – vii
Table of Statutes – – – – – – – – x
List of Abbreviation – – – – – – – – xii
Abstract – – – – – – – – – xvi
Table of Content – – – – – – – – xvii
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Research – – – – – – 1
1.2 Statement of the Research Problem – – – – – 10
1.3 Aims and Objectives of the Research – – – – 13
1.4 Justification of the Research – – – – – – 13
1.5 Scope of the Research – – – – – – – 13
1.6 Research Methodology – – – – – – 14
1.7 Literature Review – – – – – – 14
1.8 Organizational Layout – – – – – – 24
CHAPTER TWO
CONCEPTUAL CLARIFICATION OF RELEVANT KEY TERMS
2.1 Introduction – – – – – – – 26
2.2 The Concept of Artificial Intelligence (AI) – – – – 26
2.3 The Concept of Cyber Space – – – – – – 28
2.4 The Concept of Crime – – – – – – 32
17
2.5 The Concept and Nature of Cybercrimes – – – – 35
2.5.1 The Concept and Nature of Criminal Responsibility in Cybercrimes- 40
2.5.2 Motivations for Cybercrimes – – – – – – 43
2.5.3 Classifications/Taxonomies of Cybercrimes – – – – 45
2.5.4 Distinctions between Cybercrimes and Other Traditional Forms of
Crimes – – – – – – – – – 58
2.6 The Concept of Cyber Jurisdiction – – – – – 61
2.7 The Concepts of Cyber Law and Cyber Security – – – 70
2.8 Relationship between Cybercrimes, Economy and National Security 72
2.8.1 Cyber Threats against the Private Sector – – – – 72
2.8.2 Cyber Threats to Critical Infrastructure – – – – 73
2.8.3 Intellectual Property Theft and Supply Chain Risks – – 73
2.8.4 Botnets – – – – – – – – 73
2.8.5 The “Not for Profit” Cybercriminals – – – – – 75
2.8.6 Cyber Warfare – – – – – – – – 76
2.8.7 Financial Estimates of Damages – – – – – 77
2.9 Concluding Remarks – – – – – – – 79
CHAPTER THREE
AN APPRAISAL OF THE LEGAL FRAMEWORK FOR COMBATING CYBERCRIMES IN NIGERIA
3.1 Introduction – – – – – – – 82
3.2 Existing Legislation on Cybercrimes in Nigeria – – – 82
3.2.1 The Economic and Financial Crimes Commission Act, 2004 – 82
3.2.2 The Advance Fee Fraud and Other Fraud Related Offences Act, 2006 85
3.2.3 The Criminal Law of Lagos State – – – – – 109
3.3 An Overview of Developments of Legislation for Combating
Cybercrimes in Nigeria – – – – – – 110
18
3.3.1 Computer Security and Critical Infrastructure Protection Bill 2005 – 110
3.3.2 Cyber Security and Data Protection Agency Bill 2008 – – 111
3.3.3 Electronic Fraud (Prohibition) Bill 2008 – – – – 113
3.3.4 Cyber Security Bill 2011 – – – – – – 115
3.3.5 Nigerian Cybercrimes Bill, 2013 – – – – – 116
3.4 Cybercrimes (Prohibition, Prevention, etc) Act, 2015 – – 117
3.5 Nigeria‟s National Cyber Security Policy and Strategy 2014 – 122
3.6 Selected Municipal Legislation for Combating Cybercrimes – – 124
3.6.1 The United Kingdom Computer Misuse Act, 1990 – – – 124
3.6.2 The United Kingdom Fraud Act, 2006 – – – – 125
3.6.3 The United States Computer Fraud and Abuse Act, 1986 – – 129
3.6.4 The United States Patriot Act, 2001 – – – – – 134
3.6.5 The United States Homeland Security Act, 2002 – – – 135
3.6.6 The Indian Information Technology Act, 2000 – – – 136
3.6.7 The South African Electronic Communications and Transactions Act 137
3.7 Concluding Remarks – – – – – – – 139
CHAPTER FOUR
AN EXAMINATION OF THE EFFICACY OF THE INSTITUTIONAL FRAMEWORK FOR COMBATING CYBERCRIMES IN NIGERIA
4.1 Introduction – – – – – – – 141
4.2 National Institutional Framework for Combating Cybercrimes – 141
4.2.1 Nigeria Cybercrimes Working Group (NCWG) – – – 141
4.2.2 National Information Technology Development Agency (NITDA) – 143
4.2.3 Nigerian Communications Commission (NCC) – – – 149
4.2.4 Economic and Financial Crimes Commission (EFCC) – – 150
4.2.5 Office of the National Security Adviser, Department of State Security
and Directorate of Cybersecurity – – – – – 156
19
4.2.6 Nigeria Police Special Fraud Unit – – – – – 159
4.2.7 Computer Crime Prosecution Unit, Federal Ministry of Justice – 159
4.2.8 The Central Bank of Nigeria – – – – – – 161
4.2.9 The Judiciary – – – – – – – – 162
4.3 International Institutional Collaborations in Combating Cybercrimes 168
4.3.1 International Police (Interpole) – – – – – 169
4.3.2 Financial Action Task Force (FATF) – – – – – 171
4.4 Problems and Challenges of Enforcement – – – – 174
4.4.1 Cyber Jurisdictions – – – – – – – 174
4.4.2 Problems of Investigation – – – – – – 177
4.4.3 Evidential Issues – – – – – – – 178
4.5 Concluding Remarks – – – – – – – 181
CHAPTER FIVE
SUMMARY AND CONCLUSION
5.1 Introduction – – – – – – – 183
5.2 Summary – – – – – – – – 183
5.3 Findings – – – – – – – – 189
5.3.1 The Use of AFFA 2006 to Combat Cybercrimes in Nigeria – – 190
5.3.2 Lack of Judicial Consistency in Terms of Punishment of Cyber Offenders 190
5.3.3 Absence of Political Will on the Part of Nigerian Government at
Combating the Menace of Cybercrimes – – – – 190
5.3.4 Dearth of Trained Staff or Personnel with Necessary Technical Skills
and Tools for Response to Cyber Attacks – – – – 191
5.3.5 Absence of Public Awareness and Enlightenment on the Ills of
Cybercrimes – – – – – – – – 191
5.3.6 Absence of Reliable System for Cooperation between and/or Among
the Enforcement Institution within and without the Country – 192
20
5.3.7 Corruption, Poverty and Unemployment – – – – 192
5.4 Recommendations – – – – – – 192
5.4.1 Legislative Reform – – – – – – – 193
5.4.2 Institutional Reform – – – – – – – 194
5.4.3 Need for Strategic Implementation and Enforcement of the
Anti-Cybercrimes Legislation and the Support of the General Public 196
5.4.4 Coalition and Collaborative Approach in Combating Cybercrimes – 196
5.4.5 Role of Press, Civil Societies, Organisations and Workshops – 197
5.5 Conclusion- – – – – – – – 199
BIBLIOGRAPHY – – – – – – – 200