A CASE REVIEW OF JUDGEMENT DELIVERED BY THE COURT OF JUSTICE OF THE ECONOMIC COMMUNTIY OF WEST AFRICAN STATES (ECOWAS) AT ABUJA, NIGERIA ON THE 10TH DAY OF JULY 2020, IN SUIT NO ECW/CCJ/APP/53/2018 BETWEEN THE INCORPORATED TRUSTEES OF LAWS AND RIGHTS AWARENESS INTIATIVES (APPLICANT) AND THE FEDERAL REPUBLIC OF NIGERIA (DEFENDANT).

by

Mosunmola Sherifat Ikujuni LL.B (Igbinedion), BL, LLM, M.Phil (Ife),

Magistrate in Ondo State Judiciary Tel.  No. 08068381130

The ECOWAS Court of Justice delivered judgment on the 25th of March 2022 in a suit filed by Socio-Economic Rights and Accountability Project (SERAP) against the Nigerian government in Suit No: ECW/CCJ/APP/09/19, on the same subject matter filed by Incorporated Trustees of Laws and Rights Awareness Initiatives. The suit filed by SERAP and Incorporated Trustees of Laws and Rights Awareness Initiatives deals with the applicability of Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 and that the said Section of the Law infringes on the Fundamental Rights of Nigerians as same is vague, arbitrary, and unlawful.

The Applicant in this instant suit a Non-Governmental Organization (NGO) sued the Defendant (A member state of the Community) for violation of the fundamental rights of freedom of expression of its members, associates and employees under the provision of Articles 1 and 9 of the African Charter on Human and Peoples’ Right and Article 19 of the International Covenant on Civil and Political Rights due to the implementation of Section 24 of the Cybercrimes (Prohibition and Prevention, Etc.) Act 2015 by the Defendant.

The grouse of the Applicant is that Section 24 of the said Act limits the freedom of expression on the internet with the use of any computer devices and imposes fines of N10,0000 (Ten Million Naira) to 25,000,000 (Twenty-Five Million Naira) and makes provision for penal sanction ranging from Three to Ten years imprisonment. That since the enactment of the Act, the Defendant has continuously used the Act to intimidate, harass, Imprison, and torture the Applicant, its members, associates, and employees. The Applicant mentioned some of its members who have been arrested. Some of the arrested members were detained for few hours and released, while some were charged to court and later imprisoned. The Applicant further submits that Section 24 of the Cybercrimes (Prohibition and Prevention, Etc.) Act 2015 provides for the offence of cyber stalking, and that same is vague and has been used severally by the Respondent and its agents to intimidate, harass, and witch hunt anyone that publishes facts criticizing the government or its officials.

It is the case of the Applicant that the continuous execution and application of Section 24 of the Act by the Defendant is a continuous violation of the freedom of expression enshrined in the African Charter on Human and Peoples’ Rights, as well as the Respondent’s obligation under the ECOWAS Revised Treaty. The Applicant further argued that Section 24 of the Cybercrimes Act is unconstitutional as it contravenes the provision of Section 39 of the 1999 Constitution of the Federal Republic of Nigeria. That if this provision of the Act is not repealed or amended, it will completely undermine the rule of law in Nigeria.

The Applicant maintains that Section 24 of the Act contains the word “Offensive” without defining what may amount to offensive. That the degree or limits of what amounts to offensive was not specified thus makes the provision vague, and ambiguous in nature. Section 24 of the Act does not provide safeguards against law enforcement officers who rely on this vague provision of the law to freely exercise their discretionary power by arresting, accusing, prosecuting and/or convicting a person arbitrarily. It is the argument of the Applicant that the sanctions provided in Section 24 of the Act constitute a restriction on the right to freedom of expression that is not established by law, it does not pursue a legitimate objective and they are not necessary nor proportional. The Applicant cited case laws earlier pronounced by the ECOWAS court and other international courts to support its position.

In Conclusion, the Applicant prayed the court to declare that the Defendant’s action in applying the said Section of the Act to detain and arrest the Applicant, members and associates violates their right as provided in Article 9, Paragraphs 1 & 2 of the African Charter on Human and Peoples’ Rights as well as International Law. It further prayed the court to declare that the provisions of Section 24 of the Cybercrimes (Prohibition and Prevention, Etc.) Act 2015 violate Article 9, Paragraphs 1 & 2 of the African Charter on Human and Peoples’ Rights as well as International Law. The Applicant also prayed the Court to declare that the continued application of the said Section of the Act amounts to the Defendant failing to fulfill its obligations under the ECOWAS Revised Treaty and the African Charter on Human and People’s Right. It prayed the court to eliminate the provisions of Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 from its legislation. The Applicant finally prayed the Court to order a permanent injunction which prevents the Defendant from continuing to give effect to the provisions of the said Section of the Act.

On the other hand, the Defendant submitted that it never intimidated, harassed, jailed nor tortured any member of the press for exercising their freedom of expression within the law including the Applicant’s members, associates, and employees. That it never violated the freedom of expression of any citizen on the internet or anywhere as it always maintained the rule of law. The Defendant maintained that Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 has never been used as a tool to violate the freedom of expression and the press which is legally guaranteed under the rights of the African Charter on Human and Peoples’ Rights, the ECOWAS Revised treaty and the 1999 Constitution of the Federal Republic of Nigeria (As Amended). That the provisions in Section 24 of the Act deals with acts which the law considers illegal.

It is the argument of the Defendant that the phrase “within the law”  mentioned in Article 9(2) of the African Charter on Human and Peoples’ Right means any law that has passed the legal criteria in a democratic society such as passing through a national assembly democratically constituted and approved by the democratically elected President of the country, and that is the exact criterion that Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 went through before becoming a law in the Federal Republic of Nigeria. The Defendant further states that Section 24 of the said Act provides restrictions that are permitted by law with the purpose of respecting the rights and reputation of others. That the said Section is an integral part of the fundamental rights of others living in the Federal Republic of Nigeria and anything like such adulteration of rights set out in the said section is equivalent to placing restrictions or derogation from those rights.

The Defendant submits that Section 39(3)(a) of the 1999 Constitution (As Amended) provides that the Federal Republic of Nigeria has the power to legislate with the purpose of regulating telephony, wireless transmission, and television. Furthermore Article 45(1)(a)(b) African Charter on Human and Peoples’ Rights provides that Nigeria as an ECOWAS Member State can make laws for the defense, public security, public order, morality, health or to protect other people’s rights and freedom. That such is the purpose for which Section 24 of the Cybercrimes (Prohibition, Prevention Etc.) Act 2015 was enacted as a law in Nigeria to provide a measure against the excesses and abuses resulting from the exercise of the right to freedom of expression legally guaranteed under the Constitution. The Defendant argues further that the Applicant wants the court to interfere in the domestic laws of a member state i.e., Federal Republic of Nigeria and that Section 24 of the Cybercrime (Prohibition and Prevention) Act 2015 is under the domestic laws of Nigeria. The Defendant cited and relied on case laws earlier pronounced by the ECOWAS court.

The Defendant concluded that the Applicant failed in presenting an actionable error committed by the Defendant which would justify to the court the analysis of the reliefs sought by the Applicant. The Defendant further prayed the Court to consider its argument and to dismiss the Applicant’s claim as same is frivolous, incompetent and lacks merit in the light of international and domestic laws.

The Court’s Decision

The Court affirmed its jurisdiction to entertain this case as it borders on the allegation of violation of human rights which is protected by the provisions of Articles 1 and 89 of the African Charter on Human and Peoples Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR). The Court further held that the present case filed by the Applicants is not before another international court hence it is saddled with the competent jurisdiction to hear same. The court concluded that it is competent to examine a law of a Member State where an allegation of human rights violation arises.

The Court in arriving at its final decision considered whether the restrictions on the exercise of freedom of expression imposed by the Respondent through the provision of Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 are provisions provided for by Law of international standard, whether they pursue legitimate objectives and whether they are necessary and proportionate in achieving the objectives pursued.

The Court in its findings held that it is not enough for restrictions to be established by law, rather such restrictions must be formulated with sufficient precision, that is, it must be sufficiently clear to allow the individual to adapt his conduct to its predictions and still allow the enforcers of the rule to determine which forms of expression are legitimately restricted and the one that are unduly restricted. That the provisions of Section 24 of the Act talk about criminal conduct and defines the applicable sanctions, therefore it must in all ramifications be legally well written and its elements must be clearly defined to avoid any ambiguity in their meanings. Relying on international case laws as well as cases earlier decided by this court on similar matters, this Court further held that when a law does not define the parameters or elements of the crime that it typifies, it therefore cannot pass the test of legality since by its nature it will be arbitrary.

The Court admitted that the expression “grossly offensive” stated in Section 24 of the Act may be subject to varied interpretation. It further notes that some expressions contained in the said Section 24 are shown in a generic way. Such expression includes indecent, obscene, menacing character, annoyance, inconvenience, insult, enmity, ill will or needless anxiety. The Court in its opinion considered the margin of appreciation enjoyed by the Defendant in the definition and prohibition of certain conduct which it qualifies as crimes in its national legislation, and also taking into account that the interpretation of the aforementioned provisions occurs within the scope of the current legal system, this Court is of the view that the provisions in Section 24 of the Act provides adequate information to individuals to adapt to their conduct accordingly. The Court therefore concluded that Section 24 of the Cybercrimes Act meets the” Law” requirement stipulated in Article 9(2) of the African Charter on Human and People’s Rights (ACHPR).

The Court in its findings further held that contrary to Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR), Article 9 of the African Charter on Human and People’s Rights (ACHPR) does not establish a list of legitimate purposes that legitimize restrictions on freedom of expression. However, the general limitation clause contained in Paragraph 2 of Article 27 of the African Charter requires that all rights and freedoms be exercised with due regard to the right of others, collective security, morality, and common interest. This Court therefore held that restrictions on the exercise of the right to freedom of expression can only be based on the reasons provided for in Articles 27(2) of the African Charter and 19(3) of the ICCPR. The Court concluded that the objectives pursued by the provisions of Section 24 of the Act proves to be legitimate, since they fall within the motives provided for in Articles 19(3) of the ICCPR and 27(2) of the ACHPR and aims at safeguarding due regard to the right of others, collective security, morality, and common interest.

The Court also considered whether the restrictions in Section 24 of the Cybercrimes Act are necessary and proportional for the intended purposes. The Court in its findings held that in law, the principle of proportional justice is used to describe the idea that the punishment of a particular criminal offence must be proportional to the seriousness of the criminal offence itself. In other words, the principle of proportionality seeks to determine whether through the action of the Defendant, a fair balance has been achieved between the protection of the rights and freedoms of the individual and the interest of the society. The Court in its findings relied on cases pronounced by the African Court as well as cases decided upon by the European and Inter American Courts. It further relied on No 34 of the General Comments of the Human Rights Committee and cases decided by this same court. This Court noted that the European and Inter-American jurisprudence has pointed out that States should only use criminalization as a last resort and when there is a serious threat to the enjoyment of other human rights. They argue that States should make preferential use of civil procedure rather than criminal procedure. The European and Inter American Jurisprudence reject the penalization of the crime of defamation with imprisonment, considering it disproportionate and in violation of freedom of expression.

In view of the aforementioned, this Court concluded that the provisions of Section 24 of the Cybercrimes Act as regard penal punishments for conducts that it considers offensive are unnecessary in a democratic society as it disproportionately violates the right to freedom of expression guaranteed by Articles 9(2) of ACPHR and 19 of ICCPR.

As regards the Applicant’s claim that since the law came into effect in 2015, the Defendant has religiously used the Act to intimidate the Applicants, its members, associates and employees, the Court noted that the Applicants did not tender any other means of evidence such as the oral testimony and/or witness statements of the alleged victims to corroborate the alleged violations. That the online newspaper clippings tendered by the Applicants are insufficient in discharging the burden of proof required by the law. In other words, the Applicant failed in tendering sufficient evidence in confirming the arrests, imprisonments and to clarify the conditions and motivations underlying them to enable the Court in assessing whether the alleged human rights violations actually occurred. The Court further held that the Applicants failed in proving or convincing the court that the alleged arrests or imprisonment were motivated by the interpretation and application of the provisions of Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 made by the agents of the Respondent.

In conclusion, the Court held that:

(a) it is competent to examine the cause of action considering that it is admissible.

(b) That the Defendant by adopting the provisions of Section 24 of the Cybercrime (Prohibition and Prevention) Act 2015 violates Article 9(2) of the African Charter on Human and Peoples’ Right and 19(3) of the International Covenant on Civil and Political Rights.

(c) That the Applicant has not proved that the right of its members, associates, and employees to freedom of expression has been violated by the Defendant.

(d) The Court therefore orders the Defendant to repeal or amend Section 24 of the Cybercrime (Prohibition, Prevention, Etc.) Act 2015 in accordance with its obligation under Article 1 of the African Charter on Human and Peoples’ Right and the International Covenant on Civil and Political Rights.

(e). The Court dismisses the other claims of the Applicants.

Analysis                                                                    

It is trite that the freedom of expression and opinions are rights accruing to every Nigerian Citizen. These rights are provided for in Section 39(1) of the 1999 Constitution (As Amended) which provides that; “Every person shall be entitled to freedom to hold opinions and to receive and impart ideas and information without interference”. Section 45 of the said Constitution further provide restrictions on and derogation from fundamental human rights. The said Section provides that nothing in Sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedoms of other person. It therefore means that Section 39 of the 1999 Constitution (As Amended) shall not operate to invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedoms of other persons.

Section 39(1) of the 1999 Constitution (As Amended) entitles a person to freedom of expression and imparting ideas and information, it is however not an absolute right. Such freedom of expression or imparting information must not be utilized or invoked in such a way that would trample upon the rights of other persons in the society. Such a person must not act in a way that would defame another person’s character or endanger their health or morality. In fact, such opinions must not be one that would endanger or be injurious to the society at large. The Constitution further recognizes that if such a person acts to the detriment of others, he can be liable in civil action. However, the Constitution further recognises that if the defamation goes beyond the right of an injured individual but has to do with the society at large then it is appropriate to criminalize such conduct. See the case of AVIOMOH V COP & ANOR (2014) LPELR-23039 CA, PG 15-17, PARAS F-D, PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ORS V ISA & ORS (2017) 3 NWLR PT 15553 PG 347.

Based on the aforementioned, the Cybercrimes Act was promulgated to protect the rights of the people and the society at large as provided for in the Constitution. Section 24 of the said Act is an integral part of the fundamental rights of others living in the Federal Republic of Nigeria. The objectives sought to be achieved by the Act is provided for in Section 1 of the Act and it includes; (a) to provide an effective and unified legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria; (b) to ensure the protection of critical national information infrastructure; (c) to promote cyber security and the protection of computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights. Section 1 of the Cybercrimes Act conveys the determination of the legislature to protect several rights including the privacy rights of the Nigerian Citizens. It is therefore appropriate to state that the purpose for which the Act was enacted is “within the law” since they fall within the motives provided for in Articles 19(3) of the International Covenant on Civil and Political Rights (ICCPR) and 27(2) of the African Charter on Human and Peoples’ Right (ACHPR).

The Applicant alleged that the expression “grossly offensive” is vague and imprecise, and that the said expression allows arbitrary interpretation and application. In other words, Section 24 of the Cybercrimes Act failed in providing what constitutes “grossly offensive”. I agree with the reasoning of the ECOWAS Community Court of Justice that the expression “grossly offensive” may be subject to different interpretation. However, the court noted further that some other expressions contained in the provisions of Section 24 of the Act are shown in a generic way. Expressions used in the said section includes indecent, obscene, menacing character, annoyance, inconvenience, insult, enmity, ill will or needless anxiety. I submit that these expressions have given further meaning on what constitutes “grossly offensive”. I further agree with the decision of the court that the said expression “grossly offensive” as stated in Section 24 of the Act provides adequate information to individuals to adapt to their conduct accordingly. In other words, the expression “grossly offensive” provides sufficient and adequate information for individuals to act cautiously.

The ECOWAS Community Court of Justice in its decision further held that the penal punishment provided for in Section 24 of the Cybercrimes Act is not necessary and proportional in a democratic state. In other words, the punishment and fines provided in the said Section of the Act is not commensurate to the offences committed. The Court relied on international cases laws wherein the international courts frown at criminalizing actions that deals with freedom of expression and opinion but advocates for civil remedies.

I agree with the decision of the ECOWAS Court to the fact that offences committed should be commensurate with the punishment and fines imposed. I further agree with the reasoning of the European and Inter-American jurisprudence that criminalization should be used as a last resort when there is a serious threat or breach to the enjoyment of other human rights or the society at large. In other words, the Nigerian government should adopt civil procedures and make people pay for damages when they are found liable. The penalization of defamation with terms of imprisonment and/or payment of fines as provided by Section 24 of the Cybercrimes Act amounts to a gross violation of the freedom of expression.

I further agree with the reasoning of the ECOWAS Court of Justice as to the fact that the Applicant did not place sufficient evidence in proving to the court how its members were harassed or intimidated, and also not showing that the harassment and intimidation was caused by the provisions of Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 Act.

It is trite law that he who asserts the existence of a fact must prove same. Therefore, the onus of proof lies on that person who would fail if no evidence were adduced on either side. See Sections 131 and 132 of the Evidence Act 2011 and the cases of TUMBIDO B INEC & ORS (2023) LPELR-60004 SC, PG 42, PARAS A-B, DEMATIC NIG LTD V UTUK & ANOR (2022) LPELR-56868 SC.

Furthermore, a court of law cannot speculate or conjecture on possible facts as it has no jurisdiction to do so. The court cannot go on a wild goose chase to scout or fish for evidence where there is none. A court of law is not permitted by the law to go on a voyage of discovery. The only jurisdiction a court has is to make use of the facts of the case as presented by parties and use same. A court of law cannot do more or less as a Judge is not a soothsayer or a metaphysician. See the case of ORJI V UGOCHUKWU & ORS (2010) LPELR-9136 CA, PG 33-34, PARAS A.  Since the Applicant has failed in availing the court with sufficient, cogent, and credible evidence as to how its members, employees etc. were harassed and intimidated, then that relief of the Applicant must also fail.

In an interview granted on the 1st day of April 2023 by the Deputy Director of Socio-Economic Rights and Accountability Project (SERAP) in person of Mr Kolawole Oluwadare, he urged the Nigerian government against reducing the civic space with the usage of the Cybercrimes Act and other repressive laws. It is SERAP’s belief that the immediate enforcement of the ECOWAS judgment would enhance the freedom of press and of speech. It is important to state that the ECOWAS Court of Justice re-echoed in its judgment of 25th of March 2022 in the suit filed by SERAP against the Nigerian Government that Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act 2015 should be amended or repealed as it infringes on the fundamental rights of the Nigerian Citizens.

It is therefore high time for the Nigerian Government to comply with the judgments of the ECOWAS Community Court of Justice in the suits filed by SERAP and Incorporated Trustees of Laws and Rights Awareness Initiative, by amending or repealing the said Section 24 of the Cybercrimes Act as the decision of the said court is final and cannot be appealed against. This is because an order of court must be obeyed at all times. Obedience to order of court is part and parcel of the rule of law which in turn is sine qua non for orderliness and development of democracy in any society. See the case of OGUNLEYE V AINA (2012) LPELR-7877 CA, PG 55-56, PARAS F-D. On the contrary, disobedience to an order of the court is capable of igniting chaos and anarchy in any country. The non-compliance with the Judgment of the ECOWAS Court of Justice can be sanctioned under Article 24 of the Supplementary Protocol of the ECOWAS Court, and Article 77 of the ECOWAS Treaty.

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