The Criminal Code Act / Laws
The Criminal Code Act1
is currently a legislation of general application penalizing criminal acts in
Southern Nigeria while the Penal Code Act applies in the North.
There is no doubt that most of the
crimes that are now labeled as cyber crimes are already contained in the
Criminal and Penal Code Act respectively. For instance under the Act, advance
fee fraud can qualify as a false pretence2,
while a successful internet scam would amount to a felony under section 419
which provides as follows:
Any person who by any false pretence,
and with intent to defraud, obtains from any other person anything capable of
being stolen or induces any person to deliver to another person anything
capable of being stolen, is guilty of a felony, and is liable to imprisonment
for three years. If the thing is of the value of one Thousand Naira or up
wards, he is liable to imprisonment for seven years. It is immaterial that the
thing is obtained or its delivery is induced through the medium of a contract
induced by the false pretence…
The
Penal Code also contains a similar provision.3
In a related vein, a suspect on cyber crime could alternatively be charged
under sections 421 of the Criminal Code Act which provides as follows:
Any person who by means of any
fraudulent trick or device obtained from any other person anything capable of
being stolen, or induces any other person to deliver to any person any thing
capable of being stolen or to pay or deliver to any person any goods or money
or any greater sum of money or greater quantity of goods than
he would have paid or delivered but for such trick or device, is guilty of a misdemeanor,
and is liable to imprisonment for two years.
Many Nigerian tourists abroad are
reputed to open credit card accounts online with another person’s identity, and shelf
up thousands of dollars of charges within days of using the stolen identity4. The closest definition of this type of offense just described is also contained in the Criminal Code 419 on discussed
earlier.
Occurrences on the internet where
people give false credit card details in order to access a merchant store to
perpetuate fraud can give rise to some interpretation difficulties. For a fraud
to be deemed to have occurred. it is necessary that a person must be deceived.
Where the machine was deceived to obtain a service no person as such no as
deceived section 382 of the Criminal Code requires:
that property (being an inanimate
object) which is the properly of any person, and which is moveable is the thing
capable of being stolen.
When information on a computer is
manipulated, this may be as well a matter for civil rather than criminal law.
The criminal element is perhaps at the stage where the credit card is used to
purchase an item on line and the items is ultimately delivered.
Based
on the foregoing, the critical
question is how we apply the traditional provisions of the Criminal Code
to offenses related to cyber crime, for instance, the offense of theft
or stealing
requires that tangible properly be taken away with the intention of
permanently
depriving the victim of it. Applying traditional criminal concepts to
acts
involving intangible information can only mean that amendments to our
criminal
statutes are unavoidable. A look at section 484 of the criminal code on
personification
and section 321 of the Penal Code on cheating will reveal the inadequacy
of the
existing law on this area to fight cyber crime.
Though, as noted earlier, the
Criminal Code and Penal Code accommodate certain aspects of cyber crime, one
cannot however say that the code is capable of taking care of the sophisticated
nature of cyber crimes in Nigeria.
The Criminal Code is a British
legacy which predates the internet era and understandably does not specifically
address e-mail scams. However, advance fee fraud methodology as highlighted
abore, obviously falls within the remit of the Act, for the following reasons:
first, there is a false pretense to the existence of non-existent money;
second, a solicitation for financial help to get the fictitious money released;
and third, the fraudulent retention of various fees paid to the scammers to
release the phony millions of dollars. The scammers’ modus operandi fits snugly
the elements of the offense under section 419 of the Criminal Code and section
321 of the Penal Code cited earlier, and have been used for years by the
Nigerian law enforcement agencies for prosecuting alleged acquisition of
properly by false pretense.
The Criminal Code Act Provisions on
advance fee fraud5 are, however ill-suited
for cyberspace criminal governance in light of the following drawbacks: first,
although section 419 of the Criminal Code deems fee, fraud a felony, the
provision that a suspect cannot be arrested without warrant, unless found
committing the offense does not reflect the crime’s presence or penetration in
cyberspace. Only in a rare circumstance could a suspect be caught in the act
because most of the cyber crimes are done in cyber cafes or at the comfort of
the perpetrator’s house.
The second drawback for the
provisions of the Criminal Code is the paucity of the punishments. For instance
section 390 of the Criminal Code puts the punishment for stealing at 3 years.
In the same vein, if found guilty, an advance fee fraud fraudster is liable to
a mere three years imprisonment or seven years if the value of stolen properly
exceeds 1000 Naira. Under ... The punishment, to say the least, is paltry
relative to the enormity of the crime and unjust rewards that
characteristically run into millions of dollars.
The third drawback, under the
Criminal Statutes, is lack of restitution or compensation for victims of crime.
In criminal trials, the state is the complainant, and there is hardly any
compensation for victims of crime under the Nigerian criminal justice system.
The victims could no doubt resort to civil courts for remedies. However, the
prospectus for success for the plaintiff in the typical advance fee fraud case
scenario is extremely slim. For instance, a contract to assist in the transfer
from Nigeria of millions of dollars illegally to a foreign account or to pay
bribes to certain government officials to ensure release of such monies or to
facilitate advance fee payment for patently illegal activities would be
unenforceable. In fact, the plaintiff would be branded as a party to a culpable
crime under section 7 of the Criminal Code. That, the Criminal Code is not
adequate to fight all cases of cyber crime in Nigeria can be further proved by
the development in the United Kingdom where Nigeria copied her criminal code
from. In the UK, the English courts concluded that their existing laws did not
accommodate nor reflect the changes brought about by computer technology. In R
v. Gold (unreported) the defendant was acquitted because there were no laws to
prevent unlawful access to a computer, and this led to the enactment of the Computer
Misuse Act (CMA) 1990. Even this Act was still found to be ineffective in
addressing cyber crime; thus the aging computer Misuse Act was amended and came
into force in England and Wales on the 1st October 2008.
If
other countries as noted above are updating their laws to accommodate changes
brought about by internet, there is no reason under the sun why the Nigerian
Criminal Code Act enacted in 1916 (95 years ago) could not be reviewed to take
care of the sophistications brought about be cyber crime. Continuous use of the
present Criminal Statutes to fight cyber crime will always provide the culprits
with escape routes as a result of some loopholes inherent in the existing law.
1 Cap. C 28
LFN 2004. The Act applies in Southern Nigeria
while the Penal Code applies in the North. Save for few difference the
provisions are the same.
2 Under section 418
3 Under
Section 320 of the Penal Code
4 Timber Craig: Illegal Immigrants
Internet Fraud Washington
Post Foreign Services(vol. 17,Thursday
15th December,2004.
5 Ibid pg 2
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