ECOWAS Court’s Judgment on Nigeria’s Cybercrime Act 2015: Lessons for the Three Arms of Government – Olumide Babalola

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Again, I admittedly struggled churning a captivating topic for this intervention but I took solace in the words of Sierra Bailey that, writing isn’t about using big words to impress. It’s about using simple words in an impressive way. Therefore, I have decided to marshal my thoughts and experiences on the topic in the simplest manner as I could hereunder.

When in 2016, the trio of Edeaten Ojo (Director of Media Rights Agenda), Gbenga Sesan (Paradigm Initiative) and Adeolu Adekola (on the instructions of Yemi Adamolekun of EiE Nigeria) approached me to mount a constitutional challenge against sections 24 and 38 of the Cybercrime (Prohibition, Prevention etc) Act of 2015, little did I know that it was going be a long haul of legal battles that would take us to the regional courts.

At a time when internet scam had reached an all-time high in Nigeria, the Cybercrime Act was enacted in 2015, as evidenced by its explanatory notes, to predominantly provide an effective, unified and comprehensive legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria. However, the piece of legislation soon became a tool in the hands of a few privileged and powerful Nigerian politicians and business moguls to harass, intimidate and silence every perceived voice of dissent especially in the press. Hence, our job in the courts were clearly cut out.

It is however interesting to note that, in a report compiled by Peter Nkanga (an independent bilingual investigative journalist and Committee to Protect Journalist’s West Africa representative) published in 2016 and titled “How Nigeria’s cybercrime law is being used to try to muzzle the press”, he narrated how the Act has been used to intimidate and incarcerate journalists who criticised politicians and businessmen online and on social media.

On the 23rd day of May, 2016, I took out an originating summons with Suit No. FHC/L/CS/692/16 at the Federal High Court on behalf of Paradigm Initiative, EIE Nigeria and Media Rights Agenda against the Attorney General of the Federation, National Assembly and Inspector General of Police seeking certain declarative reliefs nullifying sections 24 and 38 of the Cybercrime Act which had over time, become tools of oppression and intimidation of journalists and bloggers alike.

By the time the Federal High Court, per M.B. Idris (now JCA) delivered its judgment on the 20th day of January 2017 striking out the suit, more casualties had been reported on the use of the Cybercrime Act by politicians against journalists. Some of the victims were: Seun Oloketuyi (section 24 of Cybercrime Act (CA) and 374 of Criminal Code Act), Chris Kehinde Nwandu (section 24 CA and 375 Criminal Code), Desmond Ike Chima (Section 24(1)(b) CA), Emmanuel Ojo (Criminal libel), Abubakar Sidiq Usman (section 24(1)(b), Musa Balarable Azare (section 24(1)(b), Jamilu Mubai, Emenike, Iroegbu etc

Dissatisfied with the decision of the erudite and venerable Idris, J. (as he then was), we immediately lodged our appeal at the Court of Appeal and after over a year (which now appears a record time) judgment (Reported by Law Pavilion Electronic Law Report at (2018) LPELR – 46655 (CA) was eventually delivered on the 1st day of June 2018 when our appeal was dismissed although the Court of Appeal, per Joseph Shagbaor Ikyegh, JCA extolled us in the following terms:

“I commend Mr. Babalola of learned counsel for the appellants, for the industry and research put in the brief for the appeal and also for the secondary copies of the foreign decisions and materials learned counsel graciously made available”

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The commendation must essentially be deflected to the fantastic legal team at Media Legal Defence Initiative (MLDI) of the United Kingdom which provided very useful materials and support for the appeal.

After the judgment, we expectedly approached the Supreme Court where our appeal has been lodged and appellant brief filed since February 2019 but due to the frightening workload of the apex court, we do not have a hearing date for the appeal.

Whereas, while our appeal was cooling in the registry of the apex court awaiting hearing date, in 2018, the Laws and Rights Awareness Initiative, another NGO that we represent, approached the Community Court of Justice (ECOWAS Court) on the unconstitutionality of sections 24 and 38 of the Nigerian Cybercrime Act in Suit No. ECW/CCJ/APP/53/18 and on the 10th day of July 2020, the court delivered judgment compelling the Nigerian court to repeal or amend the Cybercrime (Prohibition, Prevention etc) Act 2015.

The Court specifically held that:

“126. As mentioned, it is not enough that the restrictions are established by law, it must be formulated with sufficient precision, that it, it must be sufficiently clear to allow the individual to adapt his conduct to its predictions and still allow the enforcers of the rule to determine which forms of expression are legitimately restricted and which are duly restricted.

127. The provisions of section 24 of the law in question typify criminal conduct and define the applicable sanctions. For this reason, in all its ramifications, it must legally well written and its elements clearly defined to avoid any ambiguity in their meanings.

131. From the exposed above it, it can be concluded that when a law does not define the parameters or elements of the crime that it typifies, it cannot pass the test of legality since, by its nature, it will be arbitrary.

161. This judgment cited, among others, the jurisprudence of the European and Inter-American Courts, where it was concluded that the existence of laws that criminally penalize defamation, insult, false news etc, disproportionately violate the right to freedom of expression.

164. Thus, the Court understands that such provisions are not necessary in a democratic society and disproportionately violate the right to freedom of expression…”

The court then concluded that:

“The Defendant State, by adopting the provisions of section 24 of the Cybercrime (Prohibition, Prevention etc) Act 2015 violates articles 9(2) of the Afrcian Charter on Human and Peoples Rights and 19(3) of the International Covenant on Civil and Political Rights.
….
Consequently, it orders the Defendant State to repeal and amend section 24 of the Cybercrime Act 2015 in accordance with its obligation under Article 1 of the African Charter and International Convention on Civil and Political Rights”

Lessons for the National Assembly

When read side by side the Kenyan Information and Communication Act and the Indian Information Technology Act 2000, it won’t take much to discover that, the Nigerian National Assembly “copied and pasted” the Kenyan and Indian provisions in our own Cybercrime Act without necessarily subjecting same to thorough review especially since it superficially appears to favour their intended use as a tool of witch hunt and repression of the press.

It is however worthy of note that the jurisdictions where we copied from, have since retraced their steps by either expunging the offensive provisions or amending them in their respective legislation, of course, upon judicial intervention. (we relied on some of the foreign decisions in our briefs filed at the Court of Appeal and Supreme Court).

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Recently, the National Assembly made the same mistake with the Infectious Disease Bill which was attacked for being heavily plagiarised from the Singapore Infectious Diseases Act 1977 as well as having unconstitutional tendencies. Our National Assembly ought to have come of age in their legislative duties especially in the areas of legal drafting, legislative reading of bills and most importantly, transparent public involvement in their law-making process to avoid the passage of unpopular and anti-people laws.

The recent judgment of ECOWAS court sadly scores our lawmakers low on the quality of their law-making strides especially when tested against international standards with respect to fundamental human rights which are not only universally inherent but cannot also be taken away by legislative craftiness or bullying in any guise.

It is unarguable that, no serious legislature, worth its salt, anywhere in the World still criminalizes defamation in this age of vigorous campaigns for freedom of speech online and offline. Ours should do better, especially since the Court of Appeal, per Olatawura, JCA (as he then was) in the decision in Arthur Nwankwo v The State (1983) NCR 366; (1985) 6 NCLR 228 held in unmistakable terms that:

“We are no longer the illiterates or the mob society our colonial masters had in mind when the law was promulgated…To retain s.51 of the Criminal Code, in its present form, that is even if not inconsistent with freedom of expression guaranteed by our constitution will be a deadly weapon to be used at will by a corrupt government or a tyrant…Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.”

The learned justice of the Court of Appeal seemed clairvoyant as his fears of abuse of such repressive legislation for selfish aggrandizement are now playing out before our very eyes, 35 years after the well-considered judgment.

Lessons for the Executive

As far as the brazen and arbitrary “use” of the Cybercrime Act is concerned, reports continue to show that the executive remains the biggest beneficiary. Rather than use the law to fight the growing rate of cybercrime in the country, the law enforcement agencies have selected two “potent” sections of the Act to arrest and detain journalists and bloggers who write critical stories about them.

Reports further show that, the low number of prosecutions undertaken pursuant to the provisions of Cybercrime Act in relation to internet scam shows that the law enforcement agencies do not understand and/or appreciate the essence of the Act as they have sadly relegated same to a tool for criminal-defamation prosecutions which has since been held unconstitutional. In Arthur Nwankwo’s case (supra), Olatawura, JCA held further that:

“The decision of the founding fathers of this present constitution which guarantees freedom of speech which must include freedom to criticise should be praised and any attempt to derogate from it except as provided in the Constitution must be resisted. Those in public office should not be intolerant of criticism. Where a writer exceeds the bounds, there should be resort to the law of libel where the plaintiff must of necessity put his character and reputation in issue.”

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The Nigerian Executive and politicians should strive to live above board to the point where they do not necessarily see criticisms as attacks on their personalities, rather, as public probity and demand for accountability which is the public has a right to demand.

Lessons for the Judiciary

It is worthy of note that, the ECOWAS suit was filed after Paradigm Initiative & Others lodged their appeal at the Supreme Court, yet judgment was delivered by the ECOWAS court while the appeal is still pending at the apex court registry without any indication as to when it will be heard. Sadly, the court is currently hearing appeals filed in 2012 or thereabout.

There is no gain saying the Nigerian judiciary is itself aware of this monumental problem plaguing our justice system which has become a source of all sorts of jokes depicting its slow pace to the detriment of our businesses, enforcement of rights and freedoms and all other facets of our lives as a nation.

Undeniably, the problems facing the Nigerian judiciary as weightier than those of the ECOWAS court, I believe that, they are surmountable if we face them head on. First, the apex court needs to design a programme to clear the backlog of applications and appeals within a time frame, the Lagos State Judiciary has done something similar with their Backlog Elimination Programme (BEP), whether this is effective or not, time will tell.

Since the apex court is the last court in the hierarchy, it may also need to tune down on technicalities and unending applications, so appeals can be heard and disposed off within the shortest time possible, desperate times call for desperate measures.

What is remarkable in this judgment of the ECOWAS Court is that, I only appeared before the court once, the first hearing date was the day we adopted our processes and judgment day was immediately fixed, it was not adjourned for “mention” “further mention” “further directives” or “continuation of proceedings”.

It is my respectful opinion that all these terms further delay our justice delivery system. What’s more, I am yet to see any rule of court where provisions are made for adjournment of cases for “mention” yet the term has become a key practice word in delaying matters in court unconsciously or otherwise. I do not know if there is any particular reason a matter cannot be heard on the first day especially where the parties are ready. With the peculiarity of our justice system, the term “for mention” and it’s like, ought to be permanently confined to the trashcans of our judicial history.

Conclusion

The appallingly slow pace of our justice system needs to be confronted with more intensity and urgency as it appears things are getting worse by the day. All stakeholders need to be engaged to wrestle this debacle as we need to move away from the realm of paying lip service. Ultimately, it is my respectful opinion that the first decisive move must come from the heads of courts who are the masters of their courts and then, others can fall in line.

With the subsisting judgment of the ECOWAS Court, we hope the Attorney General of the Federation, as the chief law officer of the federation, will ensure compliance with the orders of the court.

Olumide Babalola, the managing partner of Olumide Babalola LP writes from Lagos.

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