THE Community Court of ECOWAS has ordered Nigeria to amend Section 24 of its Cybercrime (Prohibition, Prevention, etc) Act of 2015, to conform to the country’s obligations under the African Charter on Human and Peoples’ Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR).
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In a judgment delivered in Accra (Ghana) on Friday, Justice Keikura Bangura, who read the decision of the court, noted that the section of the Cybercrime Act was not in conformity with Articles 9 of the ACHPR and 19 of the ICCPR to which the country is signatory.
The judgment was on the suit by a group, the Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP).
According to a statement issued by the court, SERAP had sued, challenging the legality and compatibility of Section 24 of the Cybercrime Act 2005 in relation to the guarantees of freedom of expression and information enshrined in Article 9 of the ACHPR and Article 19 of the ICCPR, respectively.
It particularly alleged that Section 24 violated the rights to freedom of expression, information and other rights of human rights defenders, activists, bloggers, journalists, broadcasters and social media users through the repressive use, interpretation and by agents of the respondent, the same being vaguely worded and ambiguous.
The applicant argued that since the passage of the Act, the respondent and its agents have used the provisions of the Act to harass, intimidate, arbitrarily arrest and detain and unfairly prosecute users of the social media, human rights defenders, activists, journalists, broadcasters and bloggers who express their views perceived to be critical of the governments at the Federal and state levels.
The applicant listed 12 high profile cases of the alleged victims of harassment, intimidation, arrest unlawful detention, prosecution and imprisonment of journalists, bloggers, broadcasters, social media users, human rights defenders and activists, by the respondent, its agents and several states between August 2015 and November 2018, for alleged cyber-stalking and urged the court to make several declarations and orders that will underscore the incompatibility of the Act with the provisions of the two international instruments.
In its defence, the respondent (Nigeria) urged the court to dismiss the suit on the grounds that it was misplaced and unproved and the reliefs sought were not grantable in law.
In particular, the respondent contended that the application was not only pending before the national court for the same reliefs but that the interpretation of Section 24 of the Act must be submitted to domestic courts and not the ECOWAS Court as this is not within its competence as it concerns the interpretation of extant laws.
The respondent also argued that the Act was not only in line with Section 45 of the country’s 1999 Constitution, but was subjected to the requisite constitutional and legal processes before its passage which the applicant was aware of but did not protest its passage.
In its judgment, the court recalled that it had in a plethora of decided cases upheld that mere allegation of human rights violation is sufficient to invoke its human rights mandate pursuant to Article 9 (4) of the Supplementary Protocol as long as the two requirements of accessing the court has been met, that is, it was not anonymous and that the case was not before another international court.
The court dismissed the claim of the applicant as it failed to discharge the burden of proof required by law. It also dismissed the claim for compensation and ordered both parties to bear their costs pursuant to Article 66 of the Rules of the court.
Also on the panel of that heard the case were Justices Gberi-Be Ouattara and Dupe Atoki.
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