We note albeit with heavy heart the massive deployment of paraphernalia of state apparatus to gag, coerce intimidate and suppress free speech, dissent, criticism and demand for accountability by Nigerians from the government. This unpatriotic act by state actors and their cronies has further emboldened unscrupulous state-run security institutions and agencies to extend this abuse to captains of industry, clergy men and lately all kind of people that can afford to pay these security personnel to teach any Nigerian a lesson for daring to insult them.
While we admit that the Cybercrime Act as amended, 2024 is an extant legislation in Nigeria, the rationale behind such law and the despotic application of Section 24 of the Act thereof must be questioned and the committed advocacy for its outright expunge must be vigorously pursued by all Nigerians of good conscience.
Owing to years of activism and reformative campaign against an apparent obnoxious law; the Cybercrime Act, 2015. In March 2024, the ECOWAS Court of Justice in Suit No ECW/CCJ/APP/53/2018 ruled that Section 24 of the 2015 (Nigeria) Cybercrimes Act does not comply with Articles 9 of the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights. As a result, the ECOWAS Court of Justice ordered the Nigerian Government to amend Section 24 of the 2015 Act.
In SERAP VS FEDERAL REPUBLIC OF NIGERIA, ECW/CCJ/APP/09/19, we had argued that the common law offence of defamatory libel giving rise to filing of charges on matters, individuals; particularly public officials find offensive has no place in modern society and that Section 24 of the Cybercrimes Act is too vague and nebulous and gives room for abuse. In agreeing with us, the Community Court in a judgement delivered on 25th day of March, 2022 held;
“yet, it must be further emphasized that “the law” in the instant case (which is the Cybercrime Act) denotes terms aforementioned which are vague and arbitrary due to the fact that it 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. Therefore, the court finds that section 24 of the Cybercrime Act is not in accordance with Article 9 of the ACHPR AND Article 19 of the ICCPR.”
The Court concluded by ordering Nigeria to amend Section 24 of the Act.
In compliance with the judgements, the National Assembly amended several provisions of the Act in March 2024, the Amended Act refined the language of Section 24 of the 2015 Act. Sadly, the security agencies in the country have continued to deploy the act even in its amended form to suppress Nigerians. Admittedly, the cybercrime Act has several other innovative and requisite provisions, however, it is our conviction that Nigerians must demand that every provision of the Act, that seeks to criminalize and penalize free speech must be expunged completely.
The Zimbabwe Supreme Court in NEVANJI MADANHIRE V. ATTORNEY GENERAL, CCZ 2/14 unanimously held that the offence of defamation was not reasonably justifiable in a democratic society within the contemplation of Section 20(2) of the former Zimbabwe Constitution. In its words: “The harmful and undesirable consequences of criminalizing defamation, viz, the chilling possibilities of arrest detention and two years’ imprisonment are manifestly excessive in their effect. Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation put differently the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations right and freedoms of other persons in short it is not necessary to criminalize defamation statement.”
The Constitutional Court of Zimbabwe in NEVANJI MADANHIRE AND NQUABA MATZIIZI V. ATTORNEY GENERAL 2015 ZWCC 02, Patel, J. observed that “The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This in turn may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.”
In NWANKWO VS STATE [1983] 1 NCLR 366., the defendant was charged, convicted and sentenced to one-year imprisonment for publishing a pamphlet titled “How Jim Nwobodo rules Anambra State”. In setting aside the conviction and sentence on appeal, the Court of Appeal in a historic decision held that Sections 50 (2) and 51 of the Criminal Code Act were inconsistent with the provisions of Sections 36 and 41 of the 1979 Constitution (in pari materia with Sections 39 and 45 of the 1999 CFRN) and are by implication repealed from the 1st of October 1979. The court also warned Nigerians against surrendering their right cherishingly donated by the Constitution to repressive government officials. Authorities abound both in our jurisprudence and from other commonwealth nations in a validation of the submission that where the prosecution elects to use instruments of state power against persons whose acts of patriotism seems to offend the government in power, the Court can competently infer an abuse of executive power and has the mandate to halt such persecution.
It is in the light of the foregoing that we condemn the arrest, incarceration and arraignment of the former President of National Association of Nigerian students; MR ATIKU ABUABAKR ISA and MS DORIS OGALA (a governorship candidate in Abia state) over alleged cybercrime offences. Although both cases are subjudice. Our quarrel, mainly lies not with the judicial process but the background fact and wisdom (or the absence of it) that informed the arrest, detention and filing of charges against Nigerians simply to please politically exposed persons or public figures who feel defamed by the public position, postulations or criticism of persons who made comments or allegations in matters of purely public concern. We maintain that individuals who cannot accept, scrutiny, criticism, slander and or insult have no place aspiring for public office. public figures must resist the urge to employ the services of security agencies to punish individuals, who’s opinion they do not agree with for the appropriate remedy lies in the tort of defamation. In this wise, we call on the Honourable Attorney General and Minister of Justice to, in exercise of his Constitutional mandate take over the cases and in so doing, enter a nolle prosequi.
MARSHAL ABUBAKAR, LP
