Just a Twitter Ban or A Cover for Unchecked Violations of the Fundamental Human Rights of Nigerian Citizens?

In a move that is still as dizzying as it is shocking, the Federal Government of the Federal Republic of Nigeria woke up on the 4th of June 2021 and decided it will suspend (or rather ban) Twitter in Nigeria. And we all thought it was a joke only for Nigerians to wake up yesterday being the 5th of June 2021 and most could not access their Twitter account. With a speed that even Bolt would be envious of, the Nigerian government was able to within less than 24 hours enforce the ban. Some Nigerians have managed to circumvent the barrier by making use of VPNs but that’s another story for another time.

The ban comes on the heels of Twitter’s deletion of the President’s tweet on the 1st June 2021 where the President made seriously controversial statements which by any standards amounted to a threat on citizens by a sitting Head of State. And let me let you decide my last opinion by reproducing what the deleted tweet said (check out the screenshot of it here): “Many of those misbehaving today are too young to be aware of destruction and loss of lives that occurred during the Nigerian Civil War. Those of us in the fields for 30 months, who went through the war, will treat them in the language they understand.”

What does this even mean? Who are these people misbehaving and in what way are they misbehaving? What is this language they understand? Treat them how? Anyway this is not a post about analyzing the President’s deleted tweet. Needless to say that a sitting Head of State who is supposed to be the father of the nation should exercise more prudence and discretion in his choice of words at any point in time especially in a public social space like Twitter where those words without more is prone to many types of interpretation.

Personally I find the move by the Federal Government a little worrisome. Maybe I’ve watched too many espionage movies and read too many of such books but I worry that this may not just be a ban. Is there a more sinister agenda at play here? Let me give two background facts which leads me to think along these lines:

1. The Anti Social Media Bill from the past.

Sometime in November 2019, the government wanted to introduce an Anti-Social Media Bill whose main focus would be to gag freedom of expression on the social media space. This Bill was met with serious outcry from all sectors. As a result of the outcry, the Government shelved the Bill.

And then after Black Tuesday (the Lekki massacre), the Government sought to awaken the Bill again. And the Government seemed hell bent after Black Tuesday because it was not pleased with how social media became a potent and powerful tool in spotlighting the atrocities that took place during the ENDSARS protest. Of course this move to want to reintroduce the shelved Bill was still met with outrage. And silently we never heard of the Bill again.

All of a sudden and out of the blue, without any process of law-making, the executive arm of government has gone ahead to place a ban on social media. Is this a sneaking of the said Anti-Social Media Bill through the backdoor? I’ll leave that for you the reader to decide but it certainly smells fishy.

And to help you in making that decision let me point out that the ban does not apply only to Twitter. If you pay attention to the terms of the ban, all social media platforms are now to be under the control of the National Broadcasting Commission. According to excerpts of the Government’s position seen on the verified Twitter handle of the Federal Ministry of Information, “The Minister said the Federal Government has also directed the National Broadcasting l Commission (NBC) to immediately commence the process of licensing all OTT and social media operations in Nigeria.”

2. The ongoing judicial strike.

Since April of this year, the judiciary has been on standstill. In an earlier blog which you can read here, I had talked about the significance of the demands of the striking workers for the financial independence of the judiciary. Now, it would appear that the government has decided to exploit what started out as a noble strike to push for some very dangerous maneuvers that spells doom for any democracy. I will speak to this aspect some more later. Suffice it to say that the ongoing judicial strike means that there are no constitutionally established courts where any legal challenge to any governmental action will be filed.

And here’s a stark practical illustration of this conundrum. Not long after the Government announced the ban on Twitter, SERAP tweeted that it would take the government to court over the ban for the obvious constitutional violation the ban represents. But where would this lawsuit be filed since no court is currently sitting? Would this ban satisfy the test of urgency and see some support staff pulled out of the strike to see to the filing and eventual hearing of the urgent process? Your guess is as good as mine on what the obvious answer to that question is in our country.

And here’s why the current strike now seems problematic in the face of the new state of affairs in the country. As matters stand presently, the strike is said to be approaching an end based on the outcome of current negotiations with the government. According to news reports seen here and here, the government entered a Memorandum of Action with the Union on 20th May 2021 that it would take concrete steps towards this financial autonomy within a defined period of time. And until those steps have been taken, the strike will continue indefinitely. The implementation of financial autonomy also depends to a large extent on the cooperation of the State Governors. Earlier this week, one of such State Governors (for Rivers state) expressly stated that he did not consider that agreement binding on his State (read excerpts of what he said in this news report here).

And thus this means that for so long as the courts remain shut, violations of constitutional rights can go on unchecked. This is because the Courts are the only constitutionally established institution where citizens can air any grievance of an alleged infringement of their constitutional right in terms of section 6(6)(b) of the 1999 Constitution of the federal Republic of Nigeria (“CFRN”) (as amended) as read with section 46(1) CFRN:

The judicial powers vested in accordance with the foregoing provisions of this section –

(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

Section 46(1)

Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

And then when these two background facts converge here is what it means in practical terms to paint a grim picture and further buttress why I chose the title of this post:

You can get arrested for an unknown crime and would have no recourse to the judicial process to challenge such illegality.

I say this because while we as Nigerians were still trying to wrap our mind around the ban, boom the Attorney General of the Federation (“AGF”) is heard as saying that anyone who tweets after the ban would be prosecuted for the ban – read more about these on these news reports here and here. The AGF can also be heard to say that such arrested persons will get to know what they are being arrested for when they get charged to court.

First of all, these statements/position by the AGF is clearly unconstitutional by reason of the provisions of sections 36(12), 35(3) – (5) of the Constitution which are reproduced hereunder:

Section 36(12)

Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law. (although this latter bit is somewhat problematic due to the inherent potential for abuse.)

Section 35(3) – (5)

(3) Anyone who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.

(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –

(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or

(b) three months from the date of his arrest or detention in the case of a person who has been released on bail,

he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.

(5) In subsection (4) of this section, the expression “a reasonable time” means –

(a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and

(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.

These constitutional provisions in essence amount to the following – you cannot be arrested for an offence that is not written down in any law passed through the process of legislation. Under our law, only two codes govern criminal offences in the country – the Criminal Code (which applies in the Southern part of the country), and the Penal Code (which applies in the Northern part of the country). Nowhere in both Codes is writing a tweet criminalized. The provisions also mean that you should know within 24 hours of an arrest why you are been arrested. Waiting to be charged to court before you even know the reason for your arrest would therefore clearly be unconstitutional. And when you are arrested in your State, you should be charged to court within a day where a court exists within 40kms from the place where you were arrested.

Secondly and more ominous is what is written in between the lines of the AGF’s statement that the alleged culprits would know what offence they are guilty of when charged to court. And this is that people will remain indefinitely incarcerated with no legal recourse given the fact that the courts are currently not sitting. Or would the AGF then constitute courts for such purpose? Which would be clearly unconstitutional because he has no such powers. And so what the AGF proposes is to leave innocent citizens who did no wrong but express their constitutional right to freedom of expression at the mercy of the police, in clear violation of section 35 of the Constitution.

And then to tie up everything neatly let me conclude with another announcement that preceded the imposition of this ban. About a week ago, some persons on Twitter announced that they would celebrate our Democracy Day on June 12 by staging a protest. The ban is placed a week before the proposed protest. And then the government in the same breath also announces that should anyone tweet in the face of the ban, they will be prosecuted before courts we don’t know about because all constitutionally established courts ae currently not sitting.

Are you getting worried yet? Effectively this means that the government is shutting the main avenue where Nigerians air their grievances and then gag their ability to air these grievances by threat of prosecution just days after these citizens intimate a desire to express their constitutional right through a protest. This makes me shudder because of the Lekki massacre and what it showed about the value of human life in this country.

Is this ban a prelude to darker days ahead? Is it a guise and cover for egregious violations of the fundamental human rights of Nigerians on a larger scale and violation of the rule of law through executive orders that circumvent the law making process? This is the question we should ask ourselves in considering this ban.

I do earnestly hope that our nation is not headed for darker days. I do hope that this is just a bad decision which is a knee-jerk response to Twitter’s deleting of the President’s tweet without more. And that if it is, the said decision would be reversed very soon and before June 12 which is our Democracy Day. How ironic would it be celebrating Democracy Day with a gag on freedom of expression which is one of the fundamental hallmarks of a truly democratic society.

This morning, as I write this post, I see an interesting short line of news on Channels TV that the Presidency has issued a statement to say the ban was only temporary (lol). I would join the voice of everyone else (both local and international) to call on the federal government of Nigeria to reverse this decision which does not look good whichever way it is looked at.

As I said earlier, in my view, the ban in the current atmosphere of no judicial mechanism in the country and especially with the directive by the AGF to arrest citizens who violate the ban is very dangerous and leaves too much room for speculation about the motive behind the ban.

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