An inquiry into the legal status of the ECOWAS cybercrime directive and the implications of its obligations for member states

Abstract

On 19 August 2011, the ECOWAS Council of Ministers adopted Directive C/DIR.1/08/11 on Fighting Cybercrime at its Sixty Sixth Ordinary Session in Abuja, Nigeria. The adoption of the Directive at that time arose from the need to tackle the growing trend in cybercrime within the ECOWAS region, as some Member States were already gaining global notoriety as major sources of email scams and Internet fraud. Accordingly, the Directive established a legal framework for the control of cybercrime within the ECOWAS region, and also imposed obligations on Member States to establish the necessary legislative, regulatory and administrative measures to tackle cybercrime. In particular, the Directive required Member States to implement those obligations “not later than 1st January, 2014″. This article undertakes an inquiry into the legal status of the Directive as an ECOWAS regional instrument in the domestic legal systems of Member States.In this regard, the article examines whether the requirement regarding the superiority or direct applicability of ECOWAS Community laws such as ECOWAS Acts and Regulations in the domestic legal systems of Member States also apply to ECOWAS Directives such as the Cybercrime Directive. The article also examines the legal implications of the Directive's obligations for Member States. The article argues that while some Member States have not implemented the obligations under the Directive, that those obligations however provide a legal basis for holding Member States accountable, where the failure to implement has encouraged the perpetration of cybercrime that infringed fundamental rights guaranteed under human right instruments such as the African Charter on Human and Peoples’ Rights or under their national laws.