My name is Comrade Deji Adeyanju, a human rights activist and I write this memorandum to the Senate Committee on Judiciary, Human Rights and Legal Matters (hereinafter referred to as ‘the Committee’) ahead of the planned public hearing to discuss the Protection from Internet Falsehood and Manipulation Bill, 2019 (hereinafter referred to as ‘the bill’), in an attempt to draw the attention of the committee to the looming dangers inherent in the bill.
As a human rights activists, who has been at the receiving end of persecution by state actors, using the instrumentality of anti peoples’ laws, similar to the bill under consideration, I believe I am in a position to advise the committee and proffer reasons why the consideration of this bill should be discontinued, in the interest of the generality of Nigerians.
This memo is therefore submitted on the grounds contained herein.
1. It offends the constitution
There is no denying the fact, and it is in fact, elementary law, for which the committee should be conversant with, that the Constitution of the Federal Republic of Nigeria, 1999, (as amended), is the grundnorm upon which every other laws draws strength from, and any law that is inconsistent with the constitution, shall, to the extent of such inconsistency, be null and void. This position is captured in section 1(3) therefore.
In furtherance of its overriding authority, the drafters of the constitution, as is the case from the first post independence constitution, found it necessary to reflect thereof, a set of rules, otherwise known as fundamental human rights, for the special protection of the rights of the average Nigerians. In an attempt to demonstrate the importance of these provisions, the Chief Justice of Nigeria has enacted separate rules of Court for the regulation and determination of any breach or threatened breach of the provisions. These constitutional provisions are that important!!!
Accordingly, at section 39 of the Constitution, the freedom of expression and the press is totally and irrevocably guaranteed. In this guise, the Constitution affirms the inalienable right of every citizen to be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. However, the bill under consideration, is a surreptitious attempt to circumvent the constitution and provide a situation where the citizens, on whose pleasure the government exists, will begin to walk on egg shells, in an attempt to avoid falling into the trap created by anti peoples’ laws like the bill under consideration.
Furthermore, all over the world, the press is recognised as the fourth estate of the realm, the conscience of every society. Section 22 of our constitution places a responsibility of them to hold government accountable. It is for this reason that the Constitution, as aforesaid, has granted it special rights as it relates to the freedom of expression and the press. A bill that, therefore, seeks to curtail or unduly regulate the social media, a citizens’ press tool, is one that cuts through the heart of the Constitution. It should not be heard of, that those who have been elected to protect the constitution, with their life, if need be, are the same persons who are attempting to initiate laws that seeks to tear the constitution apart.
Assuming there is even a need to derogate from the rights donated to the citizens by the constitution, the same constitution has provided grounds upon which such rights may be derogated from. There is nothing, absolutely nothing in the bill under consideration that justifies the attempt by the promoters of the bill to derogate from the constitution. It is for this reason that the penultimate court held in Akila v Director General State Security Services (2013) LPELR-20274 (CA) thus;
“The Constitution of the Federal Republic of Nigeria, 1999, (as amended), is very clear, unambiguous, uncompromising and categorical about the rights of its citizens…The civil rights contained in the Constitution…which is protected by the enforcement of the fundamental right provisions should not be restricted in any way by technicalities where none is justified by the Constitution.”
It is even more worrisome that at a time when world leaders are leveraging on the powers of the social media to better govern their countries and be in direct communication with the citizens, the Nigerian legislature is seeking to introduce a law that will ultimately take the nation back to the short and brutish days of the military. On this very important score, the committee is respectfully urged to discontinue the consideration of this bill.
2. It will be used as an instrument of persecution by the government in power, and successive governments.
Another reason why the consideration of this bill should be discontinued, is that in the absence of a proper, well run, independent national institutions (which Nigeria obviously lack at the moment), the bill, if passed into law, will become a tool for vendetta in the hands of state actors and many of you who are today on the side of government may become victims when the table turns. A few example will suffice to buttress this point. Sometime in 2018, I led a protest against the government in power, owing to the abysmal manner the state was, and is still being, run. Apparently embarrassed by the protest, the government of the day bore its fangs and charged me to court under the Cyber Crimes Act 2015, in an attempt to gag me and curtail my right to freedom of assembly and expression. Ultimately, the charge was struck out. Further aggrieved, the government of the day filed a murder charge against me, over a matter that had been conclusively dealt with years ago and caught under the principle of res judicata. Again, this charge was ultimately dismissed by the High Court, sitting in Kano State, but not before I had spent about three months in unlawful detention.
Jones Abiri, a Nigerian citizen, loving husband and father, was abducted from his home state of Bayelsa, transported, under the cover of the night to a state facility in Abuja and detained for over two years without charge, on the ground that he wrote articles critical of the government in power. It took the intervention of local and international human rights organizations for the department of state services to release him on bail. Few months later, he was charged to court under the cyber crimes Act, for writing an article! An article!!! Jones Abiri’s trial is ongoing.
Just recently, Aba Jalingo was charged to court for treason on the ground that he wrote an article criticising a state government. He will latter spend six months in prison before he was reluctantly granted bail by his persecutors.
Looking at the foregoing, some issues are common among the aforementioned examples. To wit, these persons, as responsible citizens, used their voices to draw the attention of the government and the citizens to the misrule being perpetuated by the government of the day, both at the Federal and State level; the government responded by arresting them and keeping each one of them in detention for a period between six months and two years; Almost all the charges brought against them bothered on the cyber crimes Act, 2015;
The question that should therefore agitate the minds of the committee, is what measures have been put in place to ensure that state actors do not abuse the bill, if passed into law, and use it an instrument of oppression to hound innocent citizens? Perhaps, more importantly, the Committee must note that in the absence of these independent institutions, even the members of the committee are not safe from being hounded when they fall out of favour in the future. Again, it is for this reason that the committee is respectfully urged to halt any further consideration of this bill.
3. Replication of Extant Laws
This point is particularly noteworthy, as a consideration of same will bring out the folly inherent in enacting a law seeking to curtail the dissemination of false information, when there are already tens of existing laws that adequately covers the field.
i. Cybercrimes Act, 2015:
Although I have adequately enumerated, above, the evil for which the Cybercrimes Act, 2015 has been put to use, and in fact, strongly advised the National Assembly against passing the bill, like I am also doing now, there is, however, no denying the fact that it is an extant law that must be given recognition to until it is repealed.
Now, the bill under consideration seeks to regulate social media and curtail the spread of false information, amongst others. However, sections 24 and 38 of the Cyber Crimes Act, had adequately addressed the aforementioned issues. Why then do we still need another law seeking to provide further regulations over the same issue, when the Cyber Crimes Act is barely 5 years old and still serves its purpose, notwithstanding the fact that the law is anti people?
For example, S. 3 (b)(v) of the bill under consideration has been covered by Section 24 (1) of the Cybercrimes Act, which states:
“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that – (a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or (b) he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.”
ii. Criminal Code and Penal code
While these two laws have served its purpose in combating crimes in Nigeria, there, however, contains certain provisions that were deliberately inserted by the colonial masters in a bid to suppress any form of criticisms by the citizens. Sadly, although the colonial masters left almost sixty years ago, these laws are yet to be amended or repealed, and there continue to retain provisions that have adequately dealt with issues or offences that the bill under consideration seeks to regulate. Some of these offences are captured hereunder;
Section 50(2) of the Criminal Code (as applicable to Southern Nigeria) provides for the offence of sedition, and in the process, criminalises and act whereby a person through conduct or words of mouth, attempt to or incites people to rebel against the government or authority of a state or country. The Act equally goes further to provide for punishment ranging from two to three years imprisonment or option of fine, for the offence of sedition.
Now, the bill under consideration seeks to criminalise anyone who deliberately attempt to pass false information for the purpose of inciting people against other set of people or inciting people against the government. However, it has been demonstrated above that the criminal code has adequately covered this issue under the offence of sedition? Why then do we still need a new law to over flog the issue???
The bill under consideration seeks to provide punishment for the offence of criminal defamation. Now what is criminal defamation? It can be defined as the publication of words that brings another person to disrepute and lower his reputation in the eyes of reasonable members the general public or those who, hitherto, held him in high esteem. This act, even though, it should ordinarily be a purely tortious matter between two individuals, has been criminalised in section 373 of the Criminal code, and adequate punishment provided thereof.
Accordingly, one may yet ask that lingering question, why is the national assembly seeking to pass a law that further criminalizes defamation? In fact, all over the world, jurisdictions are moving away from the criminalization of issues like sedition and defamation, and are earnestly moving towards keeping it within the realm of tortious acts, where it truly belongs. However, Nigeria is doing otherwise.
The danger here, as is prevalent in almost all the sections of the bill under consideration, is that most of the offences are not adequately defined, therefore leaving a gap that can be exploited by unscrupulous state agents in an attempt to hound innocent citizens and human rights activists like myself, Jones Abiri, Aba Jalingo and other notable citizens whose only offence is that they have demanded and continue to demand for a better life for the generality of Nigerians!!!
iii. Inciting disaffection
The Penal code, in section 416, 417 and 418 thereof, provides for the offence of inciting disaffection, inciting hatred and contempt against any class of person, and publication of false news, respectively. These are the exact offences that the bill under consideration seek to regulate and criminalise. Again, it amounts to multiplicity of laws over a single issue.
4. Case Laws:
There are so many cases decided by the supreme court where the apex courts have declared that any law which seeks to take away the constitutional safeguards on freedom of expression in section 39 of our constitution is null and void. See:
AUTHUR NWANKWO V. THE STATE: Here, the supreme Court declared that the law of sedition which seeks to restrict the freedom of expression of citizens guaranteed in section 39 CFRN is inconsistent with our laws and must give way.
DPP V. CHIKE OBI: In this case, the court also declared that the freedom of expression guaranteed to all citizens in the constitution cannot be taken away by any inconsistent laws in the country.
TONY MOMOH V. THE SENATE: This principle was also further established in this case and the Supreme Court even went further to state that journalists cannot be forced to disclose their source.
ISMAILA ISAH V. PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA: Here also, the Supreme Court declared that the attempt to restrict the freedom of expression of any citizen will amount to a violation of section 39 of CFRN.
While there is no denying the fact that some persons use social media for actions that are inimical to the safety of others, it must, however, be noted that these persons represent a very minute number from the total number of Nigerians that use social media to promote good cause. More often than not, actions that would have taken weeks and months to be addressed by the government, are addressed within hours, owing to the power of social media. Social media brings closer to reality, the social contract between the citizens and the state. The constituent, for example, can see his representative, speak with him and hear from him, without having to travel thousands of miles to Abuja.
Accordingly, with the numerous existing laws on this issue, some of which have been mentioned above, there is no difficulty or obstacle placed on the way of the government in fishing out those minute number of persons who misuse social media, and prosecute them (not persecute), to the extent permitted by the law. This is what is obtainable all over the world and this is what the Nigerian government should adopt.
Accordingly, instead of creating new laws for every problem, let us seek for ways by which we can use the existing laws to fight the problem.
It must be noted that, all over the world, governments exist at the pleasure of the people, and not the other way round. A government that seek to pass draconian laws to hound and oppress its citizens may succeed once or twice, but will not perpetually succeed.
We must therefore take a cue from the people and government of Hong Kong, the people and government of Tunisia, Libya, Egypt etc, and recognise the fact that it is better and safer to listen to citizens’ representations against draconian laws, as against damning the consequences and leaving the nation to an uncertain future, as characterised by the events in the aforementioned countries.
It is on the basis of the foregoing that I respectfully urge the committee to halt further consideration of the bill.
Comrade Deji Adeyanju is the Convener of Concerned Nigerians, a civil rights movement dedicated to protection of human rights and rule of law