Interrogating legality of prosecuting persons violating Twitter ban in Nigeria
Nigerian government is angry with Twitter, a global micro-blogging site. Her anger stems from the fact that Twitter took down a tweet by President Muhammadu Buhari, which it considered offensive, without doing same to tweets posted by the leader of the Indigenous Peoples of Biafra (IPOB), Mazi Nnamdi Kanu. Kanu, who is based in Britain, is vehemently asking for a referendum to secede from Nigeria and has in recent times increased his level of vituperations in frustration that the new Republic he so much desired, has not happened. The government claims he is inciting violence with his posts while Twitter looks away, but wielded its hammer on the president.
Announcement for the ban and indeed, carrying it out weren’t palatable to Nigerians, especially the youths, who are Twitter freaks and the elderly who are technologically savvy. In fact, many citizens can’t just come to terms with the idea of living in 21st century without social media, especially Twitter.
Outraged, Nigerians vowed to circumvent the ban by using the Virtual Private Network (VPN), insisting that the ban was a ploy to stifle free speech.
But the Federal Government wasn’t joking and wasn’t going to tolerate such acts of insubordination from citizens. Consequently, the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), threatened that his office would prosecute every act of defiance. He instructed the director of public prosecution to perfect his instruction by ensuring that those who tweet via VPN are prosecuted.
Human rights lawyer, Mr. Ebun-Olu Adegboruwa (SAN) considers the threat to prosecute anyone found violating the policy of the government on the suspension of Twitter worrisome. “I believe even as I write this now, there is still no law in force in Nigeria, making the use of Twitter an offence. It is thus doubtful therefore, if the threat of prosecution is to be based upon the declarations of the minister of information alone or the arbitrary disconnection of Twitter users by the telecommunication companies,” he stated.
According to him, Section 36 (12) of the Constitution provides that “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, and subsidiary legislation or instrument under the provisions of a law.”
This protection granted by the Constitution, he argued, was tested in the 1962 case of Aoko v Fagbemi, where the defendant was arrested and charged to court for adultery because she was cohabiting with a man who was not her lawful husband. “She pleaded guilty and was summarily sentenced. On appeal, Chief Rotimi Williams (SAN) contended that the court had no jurisdiction to try her for an offence that was not defined and punished by law. The appeal was allowed. I do not think it is proper for anyone to threaten citizens with prosecution for statements made by government officials. Things cannot get that bad for our democratic country.
“Indeed, there have been very positive sides to social media, especially in aiding criminal investigations, in gathering intelligence and in tracking criminals and their sponsors. If we proceed on account of individual biases to block the channels that these platforms provide, we may end up cutting our nose to spite our face. Suspending Twitter on this occasion, is definitely an overkill,” he declared.
For Emeka Okpoko (SAN), to determine the legality of prosecuting those who violate Twitter ban, it must be examined from the prism of the Constitution. “Remember that this ban was made pursuant to the pronouncement of the Minister of Information and Culture. At best, that statement can be a policy statement and therefore not traceable to any written law such as an Act of the National Assembly, Law of a State Assembly or Subsidiary Legislation.
“My understanding is that for any body to be prosecuted for violating the said Twitter ban, that ban must be codified in a written law detailing out the ingredients of the offence and the punishment thereof. As long as that requirement of the law is not satisfied, one is in doubt if the court would be persuaded to entertain the prosecution,” he argued.
Referring to Section 36(12) of the 1999 Constitution, Okpoko insisted that the fact that no person shall be convicted of a criminal offence, unless that offence is defined and the penalty prescribed in a written law is explicit and precise.
He said: “It does appear to me that the language of the Constitution is as clear as crystal and consequently the court has no other duty in the circumstance than to interpret it as it is. While this issue is better left for the court to determine, yet if I’m asked, I can only suggest that I’m unable to find my way clearly to the legality of prosecuting those who purportedly violate the said Twitter ban, since the said ban is not codified in any Act of the National Assembly, State Law or Subsidiary Legislation.”
Reacting to the issue, Lagos lawyer, Mr. Tony Odiadi, said the ban further touches on the constitutionality of denying citizens right to freedom of the Press, expression and association as enshrined in Sections 22, 39(1) & 40 of the 1999 Constitution. The right to Information, he added, was given additional legal teeth through the Freedom of Information Act (FOIA), 2011.
He said: “Regulating the Social Media is like attempting to hold back the hands of the clock. A new normal has entered global reality and a factual part of our existence in the century. Added to this, is the fact that whoever signs to the handle agrees to terms and conditions, part of which is to avoid what the Administrators consider to be ‘hate speeches’.
“And so, the recent announcement that those who continue to use their Twitter handle may face prosecution quite clearly goes against the grain of our criminal law. Who is the law-making agency of Nigeria? Is it the AGF, the Minister of Information or the National Assembly as enshrined in Section 4 of the 1999 Constitution under the legislative powers? Truth is, what constitutes a crime known to law with attendant liability is a serious matter for the society, never left to the whimsical impulsions of an individual state officer.”
So, Odiadi explained that government officials could make pronouncements, but face the daunting task of enforcement. The lawyer insisted that such prosecution is impracticable, wondering which agency of government would track violators with the full-scale security challenges in Nigeria today. “Which Police or Army will begin to track violators tweeting in the privacy of their homes? The Government should have a rethink,” he advised.
Nigerian human rights lawyer and the 2018 International Bar Association (IBA) Human Rights lawyer of the year, Adeola Oyinlade, believes that the directive is illegal and unconstitutional.
The executive order, he said, cannot override the 1999 Constitution.
According to him, in plethora of cases decided in Nigeria, the Supreme Court has held that before a crime can be committed, it has to be defined by law validly enacted by the National Assembly or States House of Assembly with punishment described.
Oyinlade also referred to the Supreme Court decision in the case of Aoko v Fagbemi, where the apex court held that nobody could be punished for an offence that was not part of a written law at the time it was committed. The implication of the court decision, he insisted, is that a man may be punished for a breach of the law, but he cannot be punished for nothing else. In other words, powers can only be exercised in accordance with written law made by the lawmakers, he said, adding that the use of VPN by many Nigerians cannot amount to crime in Nigeria.
He said: “Arrest and prosecution of Nigerian citizens for using Twitter contravenes the grundnorm, which is the constitution of Nigeria. I humbly remind the office of the AGF that mere directive from the government cannot take a place of law. The purported order if not quickly reversed, will lead to arrest of citizens who cannot be arraigned within the timeframe stipulated by the Constitution in breach of their fundamental human rights.
“The Constitution is so supreme to the extent that any other law that contravenes its provisions shall be declared null and void to the extent of its inconsistency. However, in this case, we are talking of an executive order.
“I will like to add that the right to freedom of expression is one of those rights seen as very essential and fundamental to the development of a civilised society. It is the foundation for the enforcement of other rights, encroachment of which is made known by expression. A major determinant of nations’ respect for the rights of its people today is the extent to which they can express themselves.”
Also contributing to the debate, Associate Professor of Law and Director, Abuja School of Social and Political Thought, Sam Amadi, argued that prosecuting those who use Twitter as a means of communication would be the equivalent of Kafka’s trial. He said such would be a pure work of legal sorcery.
Amadi said it would be a deliberate totalitarian assault on the fundamental principles of criminal justice and a violation of constitutional due process. “First, there is no crime defined in law relating to the use of Twitter as a means of communication. So, unless there is such a law, we cannot even think of prosecution. At this stage we are not yet discussing whether such a law would be constitutional. The point is that the law does not exist. It is true that the Constitution limits the exercise of certain fundamental rights in very severe circumstances that involves national security emergency, but the underlying consideration for such restriction to be constitutional is that “there is law acceptable in a democracy” that restricts the exercise of such rights.
“There are two constitutional requirements before you can restrict the rights of citizens for national security reasons. First, such restriction must be through a law, not through an administrative or executive pronouncement. The statement of the President or any of his aides is not sufficient because those are not laws. The law must be made by the National Assembly or an administrative agency through rule-making procedures and based on clear authorisation.
“Two, the law or regulation so made must be such that is acceptable in a democracy. This means such law restricting fundamental right must fall in line with the logic of democratic freedom. So, it must be a restriction that ultimately improves the freedoms of Nigerian citizens. If you judge the present Twitter ban by these two constitutional law criteria, it fails to effectively restrict the right of expression of Nigerians,” he explained.
Amadi further explained that although the government has the right to control the medium of expression through regulations, it does not have the right to control how people express themselves. He pointed out that Section 39 of the Constitution empowers the government to regulate the means of communication through licensing and other forms of entry and exit. But, said it does not have the power to regulate expression of opinion.
So, what this means, he said, is that through due process regulations, government can restrict the operations of platforms in Nigeria, but cannot criminalise the use of those platforms, where they exist. According to him, if citizens use a virtual platform that is not subject to government regulation to communicate, there is no substantial link to Nigeria for the government to exercise regulatory power and subsequently criminalise usage.
“To say otherwise is to say that the Nigerian government can criminalise our thoughts and expressions, irrespective of their content. Government can prosecute citizens for the thoughts they express if those thoughts are injurious to other citizens in clear manners (criminal libel, hate crimes, etc.) but cannot criminalise the act of thinking or expressing itself,” he emphasised.
Theophilus Akanwa, also a lawyer based in Lagos stressed that the position of the law is that an offence must be defined by law and sanctions well spelt out. “Laws are made by legislators and not the office of the AGF. Nobody will be unlawfully punished for an offence unknown to law,” he stated, adding that he has not come across any law prohibiting freedom of expression yet.
Reacting to Malami’s outburst that violators would know their offence when they get to court, vocal lawyer, Adeyinka Olumide-Fusika (SAN) knocked the AGF for talking about a route that is purely unconstitutional.
“The law under which supposed offenders will be prosecuted is a secret to be revealed to journalists by the prosecuting authority at the time of prosecution! The offence to be charged is, as of the moment, against an unknown law! This portends grave calamity for the rule of law (as against rule of man) in Nigeria,” he stated, declaring that the so-called democracy is in serious danger.