By Ebun-Olu Adegboruwa SAN
We are in perilous times in our land, given the flurry of events in the past one week. It started with the meeting between the President and the Independent National Electoral Commission (INEC) which was said to have been convened to apprise the President with plans for the various elections on the timetable of INEC, especially the ones slated for 2023.
Prior to that meeting, INEC had convened several town hall meetings with relevant stakeholders, to examine the likely effects of the activities of arsonists who have targeted several offices, facilities and equipment of INEC, particularly in the South East.
The President had on that occasion challenged anyone to prove that he has not been running the country in line with the Constitution. He then said, in relation to the agitations for Biafra by IPOB activists, that his government will treat them “in the language that they understand”, which many took to be a veiled reference to the unfortunate carnage that took place during the 30-month long civil war that ravaged Nigeria in the late 60’s. The five minutes long video went viral, with different groups giving it varied interpretations.
The presentation by the President was summarised by his media handlers and posted on Twitter, a global micro-blogging site, which has a large following in Nigeria, especially amongst the youth.
On June 2, 2021, Twitter deleted the post by the President, which it claimed violates its safety rule. In response, the President directed the Minister of Information, Alhaji Lai Mohammed, himself a lawyer, to take steps to suspend Twitter operations in Nigeria. Let us look at the matter in closer detail. The President’s offending post states as follows:
“Many of those misbehaving today are too young to be aware of the 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.”
The Twitter safety rule states as follows:
“Violence: You may not threaten violence against an individual or a group of people. We also prohibit the glorification of violence.”
But why is the Twitter ban so important to generate national discourse? In law, we deal with precedents, by which an occurrence serves as a benchmark to determine other subsequent ones. So, if it happens to Twitter, it can happen to Facebook, or Linkedin, Instagram, WhatsApp, Google, Yahoo or even the entire World Wide Web and can even graduate dangerously, to the print and electronic media, ultimately. The other point is the effect that social media has had on the exercise of the constitutional rights to freedom of expression, guaranteed under the Constitution and other international legislations. Section 39 (1) of the 1999 Constitution provides that: “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”
In the words of the learned authors of Merriam-Webster Online Dictionary, EXPRESSION means “an act, process, or instance of representing in a medium (such as words); utterance; a significant word or phrase; a mode, means, or use of significant representation or symbolism.” In essence therefore, social media has become a platform for the exercise of the freedom granted by the Constitution, for citizens to express themselves. Whereas the law permits some form of transparent regulation by the government in respect of the traditional media, the advent of internet and social media has assisted in no small measure, in facilitating the exercise of the freedom of expression. Whatever is done to hinder, limit or deny the medium or process of that expression, should be a source of concern to all lovers of democracy.
Before the present Twitter imbroglio, the Federal Government had always been very uncomfortable with the freedom enjoyed by the press. Earlier this year, the Honourable Minister of Information, Alhaji Lai Mohammed, informed us of the resolve of the government to regulate social media, with the attendant threats of sanctions for defaulters. He revealed that the President had approved the recommendations of a five-man Review Committee, set up to examine the existing National Broadcasting Code, which came up with several far-reaching recommendations, including suspension or withdrawal of broadcasting licence, outrageous sums to be imposed as fines, criminal prosecution, etc.
In a democracy, it is dangerous for the government to seek to control the media space, be it social or traditional media, as it is illogical to supervise those who are to hold you accountable. Furthermore, in seeking to overregulate the media, the executive arm of government is indirectly straying into the province of the judicial arm of government, in seeking to impose fines, shut down media houses or restrict access to the internet, without a court order to that effect.
First, section 22 of the 1999 Constitution imposes a mandatory obligation upon the press and mass media to hold the government accountable to the people. How can this be done in an atmosphere where the media is gagged and strangled? Second, section 39 (1) of the Constitution grants direct, express and explicit freedom of expression, including the freedom to receive, disseminate and impart ideas and information without interference, the emphasis being on the words ‘without interference’, which simply means without disturbance, without any hindrance or obstruction. Third, it is totally wrong and unlawful for the executive arm to always seek to take over, whittle down or undermine the constitutional responsibilities of the other arms of government, especially the judiciary.
One should also be concerned about the economic impact of the suspension of Twitter on Nigeria. It is said that there are not less than forty million users of Twitter in Nigeria, accounting for about 25.52% or about ¼ of the 100 internet users across the nation. How will these citizens not be affected by the apparent denial or restriction of their constitutional right to freedom of expression? So far, it is reported that Nigeria has lost about N7.5B in just three days and stands to lose about N65B in 30 days, if the ban persists. Surely, the government could not have deliberately set out to violate the right granted by the Constitution to its citizens, as Twitter users cut across families, political parties, religion and even tribes. It has also been stated that a number of young Nigerians and entrepreneurs deploy Twitter to promote their businesses and brands. The government is daily talking about promoting the ease of doing business, with the E-Commerce economy now said to be in the average of $12B. In a country where many sectors have been adversely affected by the global coronavirus pandemic, where the deteriorating security situation has led to the closure of many businesses and vocations, social media offers a veritable platform for the actualisation of business plans, especially for the youth cadre. This should form a major consideration in the minds of those in authority, as when two elephants fight, the grass always takes the brunt.
The worrisome aspect of this whole matter is the threat by the Honourable Attorney-General of the Federation, to prosecute anyone found violating the policy of the government on the suspension of Twitter. I believe even as I write this now, there is still no law in force in Nigeria, making the use of Twitter an offence. It is thus doubtful therefore, if the threat of prosecution is to be based upon the declarations of the Honourable Minister of Information alone or the arbitrary disconnection of Twitter users by the telecommunication companies, all of which must have subscribed their customers to unlimited internet usage.
Section 36 (12) of the Constitution provides that “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore 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, and subsidiary legislation or instrument under the provisions of a law.” This protection granted by the Constitution was tested in the 1962 case of Aoko v Fagbemi, the defendant was arrested and charged to court for adultery in that she was cohabiting with a man who was not her lawful husband. She pleaded guilty and was summarily sentenced. On appeal, Chief Rotimi Williams, SAN, contended that the court had no jurisdiction to try her for an offence that was not defined and punished by law. The appeal was allowed. I do not think it is proper for anyone to threaten citizens with prosecution for statements made by government officials. Things cannot get that bad for our democratic country.
My take on all these is that both parties should have exercised some restraint in the actions that they have taken. Twitter being a private organization that the President willingly subscribed to, he is bound by the Rules set up by the owners of the business and should not deploy his official position in aid of a personal grievance. On the other hand, Twitter should learn to give room for first offenders, by creating the template for warnings and such other sanctions that would not lead to outright punishment. It is the first time that the President has had this challenge and he should have been given an opportunity to remedy the alleged breach of the Rules of engagement. I do not agree however, that our beloved nation Nigeria should be ranked amongst countries like China, North Korea and other totalitarian regimes that have the infamous record of banning, suspending or hindering social media. I urge the President to direct the reinstatement of Twitter in Nigeria whilst Twitter should take a second look at its policies and Rules to give room for engagement when perceived violations occur.
The statement by the President, re-igniting the echoes of the civil war was bad enough; to then proceed to post it on social media and insist that it should be kept as such, is most provocative and unexpected of the father of any nation. We cannot in good conscience compare the President with Mr. Nnamdi Kanu or any other individual, in deciding the enormity or weight to ascribe to posts to be retained on social media. Indeed, there have been very positive sides to social media, especially in aiding criminal investigations, in gathering intelligence and in tracking criminals and their sponsors. If we proceed on account of individual biases to block the channels that these platforms provide, we may end up cutting our nose to spite our face. Suspending Twitter on this occasion, is definitely an overkill.
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