By Mojirayo Ogunlana-Nkanga
There’s a good feeling to knowing that the case which you prosecuted till Judgement got an award for being an outstanding Judgement. The decision at the Community Court of Justice of the Economic Community of West African State (ECOWAS Court) in the case of AMNESTY INTERNATIONAL & ORS V. THE TOGOLESE REPUBLIC won the Global Freedom of Expression Prize 2022 for being a Significant Legal Ruling.
I completely agree with CGFOE that this decision remains outstanding in addressing the new realities of the digital world. The Judgement clearly identified and recognised that the right to internet access is an element of expression which deserves the protection of the law.
At the time this Judgement was delivered, I remember feeling sad that the Judges have somewhat created a leeway for governments in the African region to continue to deprive citizens the right to the internet because it had stated that: “… internet access is “a right that requires protection of the law” and any interference with it “must be provided for by the law specifying the grounds for such interference.” The Court found that there was no law in Togo that provided for the shutdown and held that it violated Article 9 of the African Charter on Human and Peoples’ Rights. The question is, should there be such a law in place, would the shutdown have been upheld?
In 2018, eight Applicants approached the Court of Justice on the facts that the Republic of Togo shutdown the internet on the 5th to 10th and 19th to 21st of September, 2017. The government of Togo relied on two existing laws to do this: the Law on the Information Society and the Law of 2011. The shut-downs followed widespread protests by citizens over an attempt by the President to amend the Constitution of the republic with a view to extending his term in office. International media reported the protests.
Following the shutdowns and attendant restrictions, we filed a case on behalf of the eight Applicants, including a journalist, at the ECOWAS Court. Among other things, the Applicants claimed that the internet shutdown prevented journalists from doing their work and therefore, violated their rights to freedom of expression and to journalistic activities. Other claims related to NGOs that could not do their work on account of the disruptions to different forms of electronic communications.
The applicants resorted to the ECOWAS Court because of the pivotal role it has played since the adoption of the Supplementary Protocol A/SP.1/01/05 in January 2005 which greatly expanded the jurisdiction of the Court while at the same time granting individuals direct access to it and most especially since the Court’s protocol was revised to accept applications from individuals as well as Non-governmental organizations for the enforcement of their human rights. This and the fact that the Court often undertakes independent and neutral analysis of cases before arriving at its decision encouraged the Applicants, who were aware of the Court’s previous decisions in the landmark cases of Federation of African Journalists V. The Gambia; Deyda Hydara Jr & Others V. Republic of The Gambia and many others. In addition, it is a fact that the decisions of the Court have binding effect across the sub-region and Applicants are not required to exhaust local remedies before bringing applications before the Court.
In its defence, the Republic of Togo had argued that the action by the government was justified in this circumstance because the government realized that the protests had the potential of degenerating into a civil war and therefore it was imperative to protect the national security of the state.
The Court held in favour of the Applicants as follows: That the respondent was in violation of Article 9 of the African Charter and by shutting down the internet, it violated the applicants’ rights to freedom of expression. The Court also directed Togo (the respondent state) to take all necessary measures to guarantee non-occurrence of this situation in the future and to enact and implement laws, regulations and safeguards in order to meet its obligations with respect to the right to freedom of expression in accordance with international human rights instruments. The Court also awarded compensations and costs.
Providing some context to its conclusions, the court stated that the arguments by the respondent state that it had acted in defence of national security had “merit and has been internationally recognized as a valid defense to derogate from certain rights, the fundamental basis of the exercise of the power of derogation is that it must be done in accordance with the law” and in other words, there must exist a national legislation guaranteeing the exercise of the right whilst providing the conditions under which it derogated from.
From our analysis of the judgment, we think that the Court arrived at its decision solely on the fact that the respondent state did not have a legal framework for internet shutdowns. This decision makes one wonder what the court would have done if the respondent state had a law that provided for such derogations. It does appear the Court would have held that the internet shutdown was appropriate in the circumstance. The adverse effect of this decision is that it could encourage other states in the region to go ahead to try to or pass laws on shutdowns. It also means states that have such legal frameworks in place may feel justified and argue along that line should they find themselves in Court.
The Applicants’ Brief foresaw the dilemma described above. In response, it included sufficient resources both of international and regional jurisprudence informing the Court of those standards which backed up the arguments that internet shutdowns are disproportionate and unnecessary; that the restriction or limitation on the right to freedom of expression, in this case internet shutdown measure, can never be proportionate or necessary to achieve the purported aim of protecting national security, public interest, public health, public order, etc.
There is no doubt that the judgment is a welcome development. However, there is a need to develop the jurisprudence of the Court to arrive at a decision that will forestall and restrict future internet shutdowns within the region.
Internet shutdown refers to measures taken by governments to interfere with access to the internet in order to restrict or censor opinions, dialogue, debate, online organizing, and information dissemination in general. Restricting Internet access results in tremendous individual and societal harm while impairing journalistic activities. For instance, the shutting down of twitter in Nigeria was recorded for having amounted to an approximate economic loss of about N546.5 Billion.
In 2018, AccessNow, a non-governmental organisation with a mission to defend and extend the digital civil rights of people around the world, tracked 196 internet shutdowns worldwide. In 2019, several States within the ECOWAS Community and African region imposed Internet shutdowns and this is a phenomena that has occurred in countries such as Sierra Leone, Egypt, Lebanon, Cameroon, Guinea, Zimbabwe, China, Myanmar, Chad, Ethiopia, Bahrain, Democratic Republic of Congo and India, etc. At the time we approached the ECOWAS Court, we never thought that Nigeria would join other countries in violating this sacrosanct right. In 2021, Nigeria decided to prevent some of its citizens in the Northern region, namely, Zamfara, Sokoto, Katsina, Kaduna, Kebbi and Gombe from having access to all telecommunications services in those States. This I believe is a total violation of human rights.
There are several reasons governments shut down the internet. Some claimed the need to protect the country from chaos during elections, to preserve national security and public order, to prevent students from cheating during examinations, etc. These reasons may seem cogent but in actual fact, they offer a smokescreen for the real intention namely to repress and hinder free flow of information which requires accountability on their part. For instance, a research showed that governments shut down the internet to hide gross violations of human rights. Nonetheless, the judiciary offers some hope in that individuals and groups impacted by internet shutdowns may approach the courts for redress.
The truth is, Internet shutdowns have implications for civil and political as well as socioeconomic rights. They directly violate the rights to freedom of expression, access to information, association, peaceful assembly, political participation, mental and physical health and education. Additionally, vulnerable groups are often most likely to suffer disproportionate hardships during internet shutdowns.
International human rights instruments such as the ICCPR, ICESCR and the African Charter on Human and Peoples’ Rights recognize and protect the rights impacted by internet shut-downs. Apart from breaching rights, internet shutdowns are reported to carry a lot of economic and reputational implications for ICT companies acting at the behest of governments.
The ECOWAS Court
The ECOWAS Court has a regional influence which should not be undermined because it has the potential of being the foremost human rights promoter in the region and internationally. Its past decisions have been impactful such as in the landmark Koraou (Slavery) judgment in which the ECCJ condemned Niger for failing to protect the complainant from enslavement by a third party or a recent judgment delivered in December 2019, where it held that the policy of the Republic of Sierra Leone that banned pregnant girls from attending mainstream schools is a violation of their rights to education.
The good thing is that the Court’s decisions are binding, and by virtue of Article 22(3) of the ECOWAS Revised Treaty, Member States and Institutions of ECOWAS are required to enforce the judgment by immediately taking all necessary measures to ensure execution of the decision. Execution may be undertaken through the domestic courts in the ECOWAS member state. In addition, Rule 67 provides that any costs incurred in executing a judgment or order of the ECOWAS Court must be refunded by the opposing party.
In enforcing the Judgment of the Court, Article 24(4) of the Protocol A/P.1/7/91 relating to the ECOWAS Community Court of Justice (as amended by the Supplementary Protocol A/SP.1/01/05) requires each member State to appoint a competent National Authority for the purpose of receipt and processing of the execution of judgments of the Court. It is worthy of note that only six member states have appointed the competent National Authority for the enforcement of its decisions since 2005 as prescribed by the supplementary Protocol, Ghana being the latest addition in June 2020.
Despite this fairly elaborate infrastructure for enforcement, implementing the Court’s Judgment has been a herculean task in the region as some member States have refused to enforce judgments. This was also noted by the President of the Court, Justice Edward Asante, during the opening ceremony of the 2019/2020 legal year.
I submit that the solution to the enforcement of the Judgment is mainly for the ECOWAS Authority to invoke its sanction powers under Article 77 of the revised treaty and the 2012 Supplementary Act of Sanctions against member States that fail to honor their obligations to ECOWAS, to compel member States to comply with the Judgment.