The number of victims and near-victims grows daily. They include Emperor Ogbonna, Musa Babale Azare, Abubakar Sidiq Usman, Kemi Olunloyo, Chris Kehinde Nwandu, and Seun Oloketuyi. The last two escaped as the petitioner heeded wise counsel and withdrew the case. The above are all persons touched by the infected hands of the Cybercrimes Act, 2015.
Just in the last two weeks there was Ugochinyere Ikenga of the Conference of United Political Parties. The case of Ikenga versus House of Representatives Speaker Femi Gbajabiamila has all the issues in contention concerning the Cybercrimes Act, 2015.
The Cybercrimes Act 2015 is a utility hole in the middle of an expressway. Anyone can drive into it, even in broad daylight. It is one of the ill-prepared legislations in our statute books that commenced with good intentions but missed its way and became a clear and present danger to citizens in our democracy. It is time to repeal the offensive aspects of that legislation.
State Governors and many highly placed citizens are deploying the Cybercrimes Act, 2015 and other similar laws to nefarious purposes other than the intendment of the legislation. The cases are multiplying daily, and some of the affected still languish in prisons without the benefit of trials.
Barrister Emperor Ogbonna of Aba is still in prison. Ogbonna fell foul of the authorities in Abia State. He libelled Governor Okezie Ikpeazu in a Facebook post. The Abia State government did what similar powers have done since the inclusion in the Cybercrimes Act 2015 of a section on reputation. They petitioned the police against Ogbonna. In return, the police arrested the lawyer and then procured a detention order from a magistrate’s court.
The Aba chapter of the Nigerian Bar Association fought and secured liberal bail terms for him. Just as he perfected his papers, the Chief of Staff to Governor Ikpeazu got the DSS to detain Ogbonna. They transferred him to Abuja. This time the charge is defaming President Muhammadu Buhari. Since April, DSS has yet to file any charge against Ogbonna.
Many are familiar with the case of Ms Kemi Olunloyo, who spent 18 months in prison in Port Harcourt for vending libel against a pastor in that city. She spent that time in jail without trial. Why? Cybercrimes Act of 2015.
Speaker Femi Gbajabiamila fluffed the chance to test our laws on defamation. Mr Ikenga charged publicly that Gbajabiamila collected $10m from Bill Gates and his team to push the Infectious Diseases Bill through Nigeria’s parliament.
Rather than sue in the best traditions of civil liberty and jurisprudence, Gbajabiamila took advantage of his office. He got the House to speak against Ikenga and then petitioned the Police to do the rest through the Cybercrimes Act. The courts stopped them. We hope they will do the needful.
It negatively is the new normal. Officials deploy the Cybercrimes Act to hound persons. Nigeria’s Cybercrimes Act seeks to contain abuse of the cyberspace, following efforts in several other countries. Nigeria’s version of the law against violations of the cyberspace is peculiar for the criminalisation of defamation and the double jeopardy that poses for journalists and citizens alike.
In Part Three, Section 24, the Cybercrimes Act steps into the territory of libel, otherwise captured in existing laws. It criminalises “message or other matter” sent using computer systems or networks by anyone. The offence happens when “he knows to be false”. It also qualifies the motive as to cause “annoyance, inconvenience, danger, destruction, insult, injury, criminal intimidation, enmity, hatred, ill-will or needless anxiety to another.”
The Cybercrimes Act makes defamation a criminal offence. Ordinarily, defamation is a civil offence. It is one of damage to the reputation of someone through messaging in any medium to other persons. Offended parties sue and seek redress through litigation. Because of the Cybercrimes Act, 2015, there are now two laws in the Statute books on defamation, one civil and the other criminal.
The danger is that influential people can turn civil matters into criminal ones by influencing the police to do so. Not surprisingly, offended parties are no longer taking the civil remedies route of libel suits but are now using the Nigerian Police Force and the Cybercrimes Act. Moreover, the law is loose and ropes in so much of what citizens engage in on “computer networks.”
The authorities have yet to convict anyone based on the section on reputation in the Cybercrimes Act. It merely is a gifted noose to public officials to punish critics while pretending to act within the law. The Abia State Chief of Staff to the governor claimed they had complied with the law as justification for the continued detention without trial of Emperor Ogbonna.
Another growing recourse is to charge critics with terrorism or treason. Social media influencer Ambrose Nwaogwugwu is in jail courtesy of the Imo State Government on the charge of terrorism. Terrorism? The State government used the DSS to bring a six-count case against him under the Terrorism Prevention Act, 2011 at the Magistrate Court, Owerri. They deliberately took the matter to the Magistrate Court, whereas the legislation stipulates trial in a High Court. Pettiness using deception and delay because lawyers will argue first on jurisdiction as time goes before then dwelling on the substantive matter.
The Agba Jalingo matter played out the same way. He spent 170 days in police detention and jail courtesy of Governor Ben Ayade of Cross River State. The police arrested the publisher of Cross River Watch on 22 August 2019, over a report alleging that Cross River State governor, Ben Ayade, diverted N500 million belonging to the state. The Cross River State Government took over prosecution of the case from the Nigerian Police to underline the fact that it is personal to the governor. Jalingo is temporarily free on bail.
In many instances, these cases are the fallouts of quarrels among friends. They should settle them in the best traditions of civil liberty, which is to sue for libel. The current aggressive approach is akin to military rule.
It is sad, on the other hand, to note that many of the persons failed the test of truth and best practice in the reports for which the governments are pillorying them. Even so, two wrongs do not make a right. Properly pursue your matter and avoid the deception of obnoxious legislation.
Governors pretending to be emperors must realise that citizens and the media ensured the realisation of this Fought Republic. The goal was to have a democratic space since all evidence showed that Nigeria performed better on all indices under democratic governance. The recourse to a monarchical rule where the king does no wrong through the enablement of loopholes in legislation would not serve them well. Nor would it further our democracy.
The National Assembly should please review the Cybercrimes Act and remove the section on reputation and defamation. There are existing laws. They should do so bearing in mind that anyone can fall into this utility hole on the highway.
––Nwakanma is a consultant and public affairs analyst as well as on the Adjunct Faculty of the School of Media and Communication, Pan Atlantic University.