By Evans Ufeli Esq
The charges laid by the Nigerian State Security Services present a compact legal narrative distilled from a television interview; yet when one teases apart the threads of statutory text, evidentiary principle, and constitutional shelter, the craft frays in several important respects. Below I offer a critical appraisal of the three-count charge-sheet, focusing on elements the prosecution must, and perhaps cannot, prove beyond reasonable doubt, the evidentiary challenges inherent in relying on a media admission, and the constitutional and statutory defences that may properly be invoked.
At the outset, criminal liability is a creature of two indispensable limbs: the actus reus (the prohibited act) and the mens rea (the requisite mental state). The first count, premised on Section 12(1) of the Cybercrimes (Prohibition, Prevention, etc.) Amendment Act, 2024, charges admission of unlawful interception. The prosecution’s architectural plan appears to rest largely on El‑Rufai’s televised statement that “someone wiretapped” Ribadu’s phone and that he and “cohorts” intercepted communications. Here the law demands a sober parsing: did the accused himself perform the interception, procure it, conspire to do so, or merely repeat a report of another’s act? An incriminatory utterance on television may be a dangerous piece of evidence, but it must be bridled by rules of admissibility, context, and proof of causation.
First, the content and context of the on‑air statement are ambiguous. The phrase “someone wiretapped” is imprecise: it identifies no agent, no time, no method, and no locus of control. Statutory provisions against interception typically require proof that the accused intentionally and unlawfully intercepted communications or knowingly facilitated such interception. Vagueness in the accused’s words opens a substantial lacuna for the defence to argue lack of personal participation and absence of mens rea. An admission must be voluntary, clear, and unambiguous to carry the weight the prosecution seeks; a casual remark in an interview, susceptible to multiple readings, may not meet that threshold.
Second, reliance on an out‑of‑court statement to prove the core criminal act raises evidentiary headaches. The prosecution must produce reliable recording of the interview, verify its integrity, and be prepared for defence challenges on authenticity, context, and potential misquotation. If the interview is the primary evidence of the alleged confession, corroboration becomes vital. Courts are rightly wary of convictions resting solely on extra‑judicial statements without independent proof -telephone records, device logs, metadata, witness testimony from those who conducted the interception, or forensic analysis of the alleged technical equipment. Absent such corroboration, reasonable doubt inevitably remains.
Count two, invoking Section 27(b) of the Cybercrimes Amendment, charges failure to report knowledge of unlawful interception. This count raises doctrinal and mens rea questions. Is there a statutory or common‑law duty on every citizen to report offences of this nature to security agencies, and if so, what is the temporal and substantive scope of that duty? The charge must prove that the accused actually knew that a specific individual had committed an offence, and then intentionally refrained from reporting. Mere acquaintance with persons who “may have” engaged in wrongdoing, or hearsay of purported acts, falls short of the knowledge requirement. The prosecution must show that the accused had positive, reliable knowledge sufficient to trigger the statutory duty and that the omission to report was both voluntary and culpable. Absent such proof, the failure‑to‑report count risks collapse.
The third count, under Section 131(2) of the Nigerian Communications Act 2003, alleges the use of technical equipment or systems that compromised public safety and instilled reasonable apprehension of insecurity. This charge imports elements of causation and foreseeability. It is one thing to intercept a private communication; it is a separate and more difficult thing to prove that such interception materially compromised public safety or created a reasonable apprehension of widespread insecurity among the citizenry. The prosecution must show not only that the defendant or his associates used equipment improperly, but also that the use had the requisite nexus to public safety harms; fear, disruption, or credible threats emanating from the interception. Proving such societal impact typically requires expert testimony, contemporaneous events linking the interception to specific harms, or demonstrable dissemination of the intercepted content to actors likely to destabilise security. The charge as framed; with the amorphous allegation “sometime in 2026” and “others still at large” may founder on its failure to particularise when, how, and with what consequences the alleged acts occurred.
Constitutional considerations also loom large. Freedom of expression and the right to communicate may not be a sword for illegality, but they are a shield against overbroad prosecutions. A statute applied in a way that chills legitimate public discourse; where a political actor’s statements about wrongdoing are criminalised without clear proof of agreement or participation; risks being struck down as overbroad or incompatible with due process principles. The prosecution must therefore proceed with care to avoid collapsing political speech into criminal confession. Moreover, the presumption of innocence remains an unassailable bulwark: media frictions and public clamour must not substitute for the prosecutor’s burden to prove guilt beyond reasonable doubt.
Procedurally, the prosecution will have to surmount chain‑of‑custody requirements for any digital evidence, secure expert witnesses to explain telecommunications forensics, and navigate potential claims of privilege or political motivation. The defence will likely attack the reliability of telecommunication records, request disclosure of source materials, and press for particulars on “cohorts” and “technical equipment.” If the accused’s remarks were equivocal, counsel will press for acquittal on the basis that the statutory elements are unmet.
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Finally, there is the prudential question of proportionality and public interest. Interception offences are rightly treated seriously, but the criminal law is not an all‑purpose instrument to be wielded where investigatory measures and administrative sanctions might be more apt. If the State’s case depends predominantly on a televised utterance, it risks being perceived as prosecutorial zeal rather than dispassionate enforcement. A mature prosecution will therefore seek corroborative, forensic evidence sufficient to convict; otherwise, the better path may be investigation to establish concrete proof before resorting to criminal charges.
The charges as presented contain rhetorical force but legal fragility. Ambiguities in the alleged admission, the heavy lift required to prove mens rea and causation, evidentiary hurdles around media statements and digital forensics, and constitutional protections for speech and due process together suggest that the State must thread a narrow needle to secure convictions. Absent robust corroboration; telecom records, forensic device analysis, credible witnesses, and clear proof of harm; the case may founder on reasonable doubt, reminding us that the cloak of public accusation does not dispense with the ancient and salutary demand for proof.
