Following the ban of Twitter and the consequential order for the prosecution of any person or organisation breaching the order by the FG, there has been massive outcry from home and abroad; by opposition parties and the international community on the effect of this ban on freedom of expression: Twitter in a related tweet stated that: “Access to the free and #OpenInternet is an essential human right in modern society. We will work to restore access for all those in Nigeria who rely on Twitter to communicate and connect with the world”.
This write up is to look at the legality of the actions by the FG and its impact on freedom of press and expression and also the FG’s power in the case of likely of danger to public order, public safety or public moral.
Section 39 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (herein after referred to as “the Constitution”) provides that “Every person shall be entitled to freedom of expression, including freedom to hold opinions and impart ideas and information without interference”. The only restriction on these rights are in the instance where a law is promulgated to prevent disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or imposing restrictions upon person holding office under the government of the Federal or State- (Section 39 (3) (a) and (b)).
The Constitution in Section 45(1) (a) provides that “nothing in the above section 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 freedom of other persons”. These rights has been guaranteed by the Constitution and the law has provided a means by which such rights can and should be protected. Please note the power of the High Court of a State where a person’s right is being or is likely to be contravened, to provide redress upon application by such person whose right is being infringed upon (Section 46 (1)). I do not believe it is necessary to remind the government of the supremacy of the Constitution as outlined in Section 1, which makes any law inconsistent with the provision of the Constitution to be void.
Going by the above provisions of the Constitution, unless in circumstances where public safety and order is compromised, the freedom of expression, including freedom to hold opinions is one that is highly regarded in the Nigeria and this opinion should not be interfered with. The President of the Federal Republic of Nigeria can and is guaranteed to express his opinion, however, where such statement is seen to endanger public safety and order, such statement can be curtailed. Hence the outcry by the populace, which triggered the deletion of the statement by Twitter as it also breached the policy of the company. The FG accused Twitter of carrying out “activities that are capable of undermining Nigeria’s corporate existence”, without citing any examples of such acts by Twitter. The only crime by Twitter is providing an avenue for the citizens of Nigeria to express their opinion, of which the same government have used to express themselves in time past.
The efforts of the Socio-Economic Rights and Accountability Project (SERAP) should be commended; it has been reported that the ECOWAS Community Court of Justice has fixed June 22 2021 for a hearing a motion in a suit challenging the FG’s suspension of operation of Twitter in Nigeria. The SERAP along with 420 concerned Nigerians are suing over “the unlawful suspension of Twitter in Nigeria, criminalisation of Nigerians and other people using Twitter, and the escalating repression of human rights, particularly the rights to freedom of expression, access to information, and media freedom in the country.” This suit is brought further to international conventions which Nigeria is a party to and being ratified in the Constitution- “The suspension and threat of prosecution by the Federal Government of Nigeria constitute a fundamental breach of the country’s international human rights obligations, including under Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of International Covenant on Civil and Political Rights to which Nigeria is a state party.”
If the FG has any proof or any activity which it can bring forward to show that the activities of Twitter have in any way endangered public safety, public order, public moral or public health, now is a good time to bring it to the fore and let appropriate legal actions be taken against Twitter and not an arbitrary action of banning means of expression which is guaranteed by the Constitution and which right the FG have exercised on many occasion without anyone gagging them.
Taiwo Peregrino is a Lagos based Attorney.