The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) has fixed judgment for June 8, 2020 in a suit brought by the Laws and Rights Awareness Initiative, a non-government organization registered in Nigeria, against the Government of Nigeria contesting the constitutionality of section 24 of the Cybercrimes Act.
The Court, presided over by Justice Dupe Atoki, reserved judgement until June 8 after hearing final addresses in the suit bought by Lagos-based lawyer, Mr. Olumide Babalola, to enforce the fundamental human rights of the Laws and Rights Awareness Initiative pursuant to Article 33 of the Rules of the ECOWAS Court; Articles 56 and 66 of the Revised Treaty of ECOWAS; the Supplementary Protocol (A/SP.1/01/05) Relating to the Court; Articles 1 and 9 of the African Charter on Human and Peoples’ Rights; and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
In the suit filed on November 6, 2018, the Laws and Rights Awareness Initiative is seeking:
• A declaration that the Nigerian Government’s actions in giving effect to the provisions of section 24 of the Cybercrime (Prohibition and Prevention, etc.) Act 2015 to detain and imprison the organization’s members and associates is in violation of the organization’s rights under Article 9(1) and (2) of the African Charter on Human and Peoples Rights.
• A declaration that the provisions of section 24 of the Cybercrime (Prohibition and Prevention, etc) Act 2015 are in violation of Article 9(1) and (2) of the African Charter on Human and Peoples Rights as well as international laws.
• A declaration that by the continued enforcement of section 24 of the Cybercrime (Prohibition and Prevention, etc.) Act 2015, the Nigerian Government is in breach of its obligation under the Revised ECOWAS Treaty and the African Charter on Human and Peoples Rights.
• An order compelling the Nigerian Government to expunge the provisions of section 24 of the Cybercrime (Prohibition and Prevention, etc.) Act 2015 from the law.
• A perpetual injunction restraining the Nigerian Government from further giving effect to the provisions of section 24 of the Cybercrime (Prohibition and Prevention, etc.) Act 2015.
• Any other consequential order or orders as the court may deem fit to grant in the circumstance.
Mr. Babalola recounted in the suit that in 2015, the Nigerian Government passed into law, a bill titled “Cybercrime (Prohibition and Prevention, etc.) Act 2015” which has 59 sections and contended that Section 24 of the law in clear terms limits freedom of expression on the internet or by use of any computer device and imposes fines ranging from N10 million to N25 million and prison terms ranging from three years to 10 years.
He contended that right from the passage of the law in 2015, the Nigerian Government has “religiously used the Cybercrime (Prohibition and Prevention, etc.) Act 2015 to intimidate” the Laws and Rights Awareness Initiative, its members, associates and collaborators.
He provided particulars of the Nigerian Government’s “arbitrary use” of the Law, including the arrest on August 8, 2015 of Abubakar Sidiq Usman; the August 20, 2015 arrest of Musa BabareAzare in Bauchi State for criticizing his state Governor on Facebook and Twitter, after which he was taken to Abuja where he was detained for 36 hours; the August 25, 2015 arrest of Seun Oloketuyi, who was subsequently arraigned before a Federal High Court in Lagos on the charge of cyberstalking and was remanded in prison but later granted bail in the sum of N3 million; and the September 1, 2015 arrest of Mr. Chris Kehinde Nwandu, the President of Guild of Professional Bloggers of Nigeria, for sharing information on Facebook, who was subsequently arraigned, denied bail three times and remanded in prison for 13 days.
Other examples he gave include the September 2015 arraignment of Emmanuel Ojo at a Magistrates court over a post he made on Facebook and his later arraigned at the Federal High Court; the October 2015 charge against Desmond Ike Chima, a blogger who was arraigned at a Magistrates court on an allegation of cyberstalking and spent six months in prison before he could meet his bail conditions; the arrest and remand in prison in 2017of Ms Kemi Olunloyo, a blogger, over her posts on social media; another 2017 case of AuduMaikori, who was arrested, detained and charged under the Cybercrime Act for his tweets in respect of issues of insecurity in the country; and the 2018 arrest of the administrator and members of a Whatsapp group over discussions in their group which the Nigerian Government found discomforting.
Mr. Babalola argued that these facts show the trajectory of the Nigerian Government’s use of the Cybercrime Act, which is to intimidate, harass, incarcerate and torture the Laws and Rights Awareness Initiative’s members, associates and collaborators, thereby violating their freedom of expression and digital rights, especially on the internet.
He said the Nigerian Government’scontinued enforcement and application of section 24 of the Cybercrime Act was a continuous violation of the freedom of expression the Laws and Rights Awareness Initiatives guaranteed under the African Charter of Human and Peoples Rights as well as the Nigerian Government’s obligations under the Revised ECOWAS Treaty.
Responding on behalf of the Nigerian Government, Mr. Emmanuel Omonuwa, Director of Civil Litigation at the Federal Ministry of Justice in Abuja, argued that the facts and circumstances stated by the Laws and Rights Awareness Initiative were misleading and did not reflect the provisions of Section 24 of the Cybercrime Act, which was passed into Law to provide an effective regulatory and comprehensive legal and institutional framework for the prevention, detection, prohibition and prosecution of cybercrime in Nigeria.
He said the Act also ensures the protection of critical national information infrastructure and promotes cybersecurity and the protection of electronic communications, among others.
Besides these functions, he argued, section 24 of the Cybercrime Act also seeks to expand and complement section 39(3)(a) of the 1999 Constitution, which provided for the exception to the general rule on freedom of expression.
Mr. Omonuwa claimed that the Nigerian Government has never intimidated, harassed, incarcerated or tortured any member of the press for exercising their freedom of expression within the law, including members, associates and collaborators of the Laws and Rights Awareness Initiative.
He also denied that the Nigerian Government had ever violated the freedom of expression of any citizen of the country in the Internet or anywhere.
Mr. Omonuwa insisted that the Laws and Rights Awareness Initiative had not disclosed any actionable wrong done to it by the Nigerian Government that would warrant the court making the orders it is seeking and urged the court to dismiss the claim as lacking in merit and baseless in the light of both international and local laws.