ECOWAS COURT JUDGMENT COMPELLING NIGERIA TO REPEAL OR AMEND ITS CYBERCRIME (PROHIBITION, PREVENTION, E.T.C) ACT OF 2015

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By Olumide Babalola

When in 2016, the trio of Edeaten Ojo (Media Rights Agenda), Gbenga Sesan (Paradigm Initiative) and Adeolu Adekola (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 was clearly cut out.

In a 2016 report titled “How Nigeria’s cybercrime law is being used to try to muzzle the press”, Peter Nkanga, an investigative journalist and Committee to Protect Journalists’ (CPJ) West Africa representative, narrated how the Act has been used to intimidate and incarcerate journalists who criticised politicians and businessmen online and on social media.

On May 23, 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 (PIN), EiE Nigeria (EiE) and Media Rights Agenda (MRA) against the Attorney General of the Federation, the National Assembly and the Inspector General of Police seeking certain declarative reliefs nullifying Sections 24 and 38 of the Cybercrime Act.

By the time the Federal High Court, per M.B. Idris (now JCA), delivered its judgment on January 20, 2017 striking out the suit; there had been more cases 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), and Musa Balarable Azare (Section 24(1)(b).

Dissatisfied with the decision of the erudite and venerable Idris, J. (as he then was), we immediately appealed. The appeal was dismissed on June 1, 2018. However, 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.”

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 judgement, we approached the Supreme Court where our appeal has been lodged and appellant brief filed since February 2019. Unfortunately, due to the frightening workload of the apex court, almost 18 months later, we still do not have a hearing date for the appeal.

In the interim, Laws and Rights Awareness Initiative, another NGO that we represent, approached the Community Court of Justice (ECOWAS Court) in 2018 on the unconstitutionality of Sections 24 and 38 of the Nigerian Cybercrime Act in Suit No. ECW/CCJ/APP/53/18 and on July 10, 2020, the court delivered a 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 is, 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 be 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.

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 African 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
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.

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 citizens, journalists and bloggers who write critical stories about them.

Elected and appointed office holders 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 the public has a right to demand.

Lessons for the Judiciary
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. 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 trash cans 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. 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.