Emmanuel Onwubiko: When ‘Democrats’ legislate autocracy

The current ninth National Assembly right from inception has traveled from one journey of insanity and incomparable infamy to another and seems to be in a race against time to become the most anti- people session of virtually all the sessions of the National Assembly that have come and gone since 1999 that democracy re-emerged on the political climate of Nigeria.

First and foremost, the opaque circumstances that facilitated the emergence of the current leadership of the National Assembly with cocktails of allegations of bribery, financial inducements for votes and of the external interferences of the office of the Nigerian President, have compelled the widening specter of the groundswell of suspicions from across the entire spectrum of Nigerians who are expressing the deep rooted fear that the current leadership of the Ninth National Assembly is in no way independent.

Ironically, both the speaker of the federal House of Representatives Mr. Femi Gbajabiamila and the Senate President Dr. Ahmed Lawan are not ashamed to Identify themselves as dyed-in-the wool loyalists of President Muhammadu Buhari even when the relevant sections of the constitution such as Sections 4, 5 and 6 had clearly delineated the respective powers/functions of all the arms of government and created the constitutional threshold of checks and balances.

In the sense of these provisions of the constitution, none of the three arms of government should be subservient to each other even when they are expected to identify areas of common interest in order to advance public interests. Such commonality of interests which should coalesce into the service of the public good shoyld not necessarily expose one of the arms to the overwhelming control of the other.

The senate president Dr. Ahmed Lawan of All Progressives Congress from Yobe state who has spent nearly two decades in the National Assembly had provided ample ammunitions to the critics who dismissed the Ninth National Assembly as rubber-stamped of the executive branch of government when at a recent public function he was seen stating that the National Assembly will pass all requests to it by President Muhammadu Buhari because in his warped imagination, our President means well for Nigeria.

And then, the speaker of the federal House of Representatives Mr. Femi Gbajabiamila of All Progressives Congress from Surulere Lagos was to add salt into injury by stating that there is nothing wrong if the National Assembly become active subservient partner at all times with the presidency because they were not elected to fight the president.

With the above mindset, it is therefore not a surprise that most Nigerians are not convinced about the altruism and patriotism of the actions coming out of the National Assembly under the current dispensation.

A major dispute raging on the sinister plot of some senators to railroad into legislation certain naturally undemocratic and unconstitutional bills which in effect will shut the media space and impede the enjoyment of media freedoms, is understandable.

One of such bills seeks to establish an agency of the federal government to penalize Nigerians who are deemed to have committed what they called use of hate speech and hate crimes.

The craziest of the bills is listed as “protection from internet falsehood and manipulation and other related matters bill of 2019″ sponsored by the colourless Niger state born senator, Mr. Muhammadu Sani Musa.

Already the senate committee on judiciary, Human rights and legal matters had circulated a commercial invitation asking Nigerians to attend a public hearing on Monday 9th March 2020 to debate the acceptability or rejection of the aforementioned bill.

I must state that at a recent public colloquium staged in Abuja by the African Independent Television (AIT) on those sets of anti -social media bills, the majority of the over 5,000 Nigerians at that hall shouted down those bills.

Nigerians were of the view that those bills were not only obnoxious and toxic but are absolutely unconstitutional and undemocratic even as other Nigerians think likely that certain or all the suggested provisions in those highly toxic bills are offenses already created in extant statutes just as they wonder why the National Assembly plans to duplicate laws that are already scattered in a plethora of provisions of the laws and statutes.

I patiently read through the bill on the so-called ‘protection from internet falsehood and manipulation and other related matters bill of 2019’, but I noticed that the aim and objective of this bill is not to protect National interests or public good but the bill is simply disguised to muzzle freedom of online rights to expression.

Also, the bill is not necessary since there is already in place the anti-cybercrime Act of 2015 whose provisions are even draconian and undemocratic.

The bill if passed into law is a sophisticated form of autocratic rule in which the freedoms of speech in any form would be imperiled and section 39 of the constitution as well as section 22 and all other fundamental rights provisions contained in chapter 4 of the Nigerian constitution would be endangered and stifled. How can we have Senators elected democratically by the people who are the owners of the sovereignty of Nigeria now colluding amongst themselves as reactionary forces to introduce autocratic bills?

Take a look at the aims and objective of this bill to know that it is a deliberate effort by the pliant ninth National Assembly to enthrone fascism; autocracy and dictatorship similar to what obtains in Russia under President Vladimir Putin.

I will make a detour to explain how this bill will turn Nigeria into President Putin’s Russia or communist china under President Xi Jinping whereby all the democratic rights of the citizens are muzzled and effectively put at the whims and caprices of the all-knowing political elites.

But first, let us see the aims and objectives of the bill which the sponsor senator Muhammed Sani Musa said is meant to protect them from internet falsehood and manipulation and for which they ignorantly failed to acknowledge the existence of the strong cybercrime prevention Act of 2015.

The Aims and objectives of this Act are: 1.(a) to prevent the transmission of false statements/declaration of facts in Nigeria and to enable measures to be taken to counter the effects of such transmission; (b) to suppress the financing, promotion and other support of online locations that repeatedly transmit false statements/declaration of facts in Nigeria; (c) to enable measures to be taken to detect, control and safeguard against coordinated inauthentic behavior and other misuses of online accounts and bots; and (d) to enable measures to be taken to enhance disclosure of information concerning paid content directed towards a Political end. (e) to sanction offenders; 2. The provisions of this Act shall apply throughout the Federal Republic of Nigeria.

In part 2 of the bill; (1) A person must not do any act in or outside Nigeria to transmit in Nigeria a statements knowing or having reason to believe that :- (a) it is a false statements of fact; and (b) the transmission of the statements in Nigeria is likely to :- (i) be prejudicial to the security of Nigeria or any part of Nigeria; (ii) be prejudicial to public health, public safety, public tranquility or public finances; (iii) be prejudicial to the friendly relations of Nigeria with other countries; (iv) influence the outcome of an election to any office in an election or a referendum; (v) incite feelings of enmity, hatred directed to a person or ill-will between different groups of persons; or (vi) diminish public confidence in the performance of any duty or function of, or as it relates to ability to influence negatively any public function, business, property or other economic interests, and can be shown to have caused financial loss and or personal injury or collective injuries directed at a person or entity. (2) Other online harms: These include other online contents and activities and malicious falsehoods capable of causing harm to individual users, particularly minors, or threatens our way of life in Nigeria, either by undermining national security, or by reducing trust and undermining our shared rights, responsibilities and opportunities to foster the Country’s unity and integration. (3) Subject to sub Clause (3), a person who contravenes sub Clause (1) shall be guilty of an offence and shall be liable on conviction:- (a) in the case of an individual, to a fine not exceeding N300,000 or to imprisonment for a term not exceeding 3 years or to both; or (b) in any other case, to a fine not exceeding N10 Million. (4) Where an inauthentic online account or a bot is used :-(a) to transmit in Nigeria the statements mentioned in sub Clause (1); and (b) for the purpose of accelerating such transmission, the who person is guilty of an offence under that sub Clause shall be liable on conviction – (c) in the case of an individual, to a fine not exceeding N300,000 or to imprisonment for a term not exceeding 3 years or to both; or (d) in any other case, to a fine not exceeding N10 Million. (5) Sub Clause (1) does not apply to the doing of any act for the Purpose of, or that is incidental to, the provision of :- (a) an internet intermediary service; (b) a teletransmission service; (c) a service of giving the public access to the internet; or (d) a computing resource service.

What any critical mind can deduce or decipher from this proposed bill is that the current set of legislators are so intolerant of a plural society to a hysterical extent that even what bloggers publish about Nigeria from far flung nations have constituted a considerable threats to their exercising arbitrary powers.

Professor John Keane who wrote the book “The Life and Death of Democracy,” will like us to be educated on the fundamental kernels of democracy which is the promotion of public interests above class or clique’s interests which is what the bill is set out to achieve.

The book goes thus: “The Life and Death of Democracy, the first attempt to write a life and times of democracy for well over a century, shows that the little word democracy is much older than classical Greek commentators made out”.

Its roots are in fact traceable to the Linear B script of the Mycenaean period, seven to ten centuries earlier, to the late Bronze Age civilization (c. 1500-1200 BCE) that was centered on Mycenae and other urban settlements of the Peloponnese, he submitted.

Also, the author submitted that It is unclear exactly how and when the Mycenaean learned to use the two-syllable word damos, to refer to a group of powerless people who once held land in common, or three-syllable words like damokoi, meaning an official who acts on behalf of the damos.

What in his thinking is also unclear is whether these words, and the family of terms we use today when speaking about democracy, have origins further EAST, for instance in the ancient Sumerian references to the dumu, the ‘inhabitants’ or ‘sons’ or ‘children’ of a geographic place.

But these uncertainties are tampered by another remarkable discovery by contemporary archaeologists: it turns out that the democratic practice of self-governing assemblies is also not a Greek innovation, he affirmed.

“The lamp of assembly-based democracy was first lit in the ‘East’, in lands that geographically correspond to contemporary Syria, Iraq and Iran. The custom of popular self-government was later transported eastwards, towards the Indian subcontinent, where sometime after 1500 BCE, in the early Vedic period, republics governed by assemblies became uncommon. The custom also travelled westwards, first to Phoenician cities like Byblos and Sidon, then to Athens, where during the fifth century BCE it was claimed as something unique to the West, as a sign of its superiority over the ‘barbarism’ of the East”.

Still on the etymology and historicity of the concept of democracy as it then was, the author stated that like gunpowder, print and either imports from afar, the arrival of the popular assemblies and (later) the strange-sounding word demokratia in the region that today we call the West radically altered the course of history.

His words: “It is even fair to say that it made history possible. for understood simply as people governing themselves, democracy implied something that continues to have a radical bite: it supposed that humans could invent and use institutions specially designed to allow them to decide for themselves, as equals, how they would live together on earth. The whole thing may seem rather straightforward to us, but think about it for a moment. The little dream that carried the big thought that mere mortals could organize themselves as equals into forums or assemblies, where they could pause to consider things, then decide on a course of action – democracy in this sense was a spine-tingling invention because it was in effect the first ever human form of government.”

Dan F. Hahn, tells us lucidly in his book “Political Communication: Rhetoric, Government and Citizen,” that laws made to limit people’s access to the enjoyment of such fundamental human rights like freedom of speech and information, amounts to a contempt of the people by government.

His words: “Governmental contempt for citizens is an attitude we tend to associate with the Russian communist experience, yet it is not clear that the attitude or the existence of secrecy was ever any more prevalent in Moscow than in Washington, D.C., today. And the fact that we are drawn to make this comparison is itself ironic, for these two most secret governments have had moments when they opted for openness. In 1917 Lenin proclaimed that the Soviet government “abolished secret diplomacy and, for its part, expresses its firm determination to conduct all negotiations quite openly before the whole world”.

“At about the same time president Woodrow Wilson, in one of his Fourteen Points, declared there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view. “How far both countries have strayed from those announced infections!”

The aforementioned author said further that: “From a general contempt for citizens it is a short step to contempt for their constitutional rights”.

He then told us that recently obtained files indicate that from 1981 to 1985 the F.B.I “ran a surveillance operation aimed at hundreds of people and organizations opposed to Reagan Administration’s policies in General America….”

“While the F.B.I may not have violated any law in this endeavor, it certainly demonstrated a degree of callousness towards the rights of citizens opposed to government policy. Indeed, it could be said that a major result of domestic surveillance has been a diminution of freedom. Consider how many constitutional rights are violated by surveillance: freedom of speech, freedom of assembly, freedom of association, the right to petition the government, and the Fourth Amendment (“the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures”). This bill by the Nigerian Senate is set out to achieve these fascist goals.

Dan F. Hahn said also thus: “Another outgrowth of governmental contempt of citizens is to keep them ignorant. Of especial interest to the field of communication is the fact that secrecy “insulates” bureaucrats and thereby affects their subsequent pervasiveness. Obviously, those who have information have advantages over those who do not have it. Less obvious, but equally important, is the effect of information in allowing government authorities to talk as “experts” to an audience of “uninformed citizens.”

Further, he reminds us that as communication scholar Eugene Garver points out, “the persuasion of experts claims not to be persuasion but something else, demonstration or instruction,” which creates in the audience a feeling “that they have no choice…. that they are bowing to necessity.”

“Secrecy, therefore, lifts its holders (government officials) to the category of “experts,” while simultaneously lowering the audience (citizens) to the level of “learners.” The resulting relationship is hardly to be desired in a society supposedly designed so the citizens can be the masters.”

“Further, those who held secret information can affect the societal dialogue by selectively leaking their secrets. A bureaucrat who wants to strengthen the secrecy apparatus, for example, could leak the “secret” that some potential enemy country had discovered the identity of our agents in their country. That leak might scare the Senate and House into “shoring up” secrecy requirements. How common are such occurrences? Forty-two percent of government officials admit they have leaked information to affect decision- making.”

As I stated earlier, there is indeed no major development that requires that additional media law is needed to add to an over regulated media environment.

In any event, the constitution which is supreme has guaranteed the citizens right to freedom of expression in section 39.

In their book “How Democracy Die: What history reveals about our future,” two Harvard professors of Government Steven Levitsky and Daniel Ziblatt reminds us of the supremacy of the constitution thus: “For generations, Americans have retained great faith in their constitution, as the centerpiece of a belief that the United States was a chosen nation, providentially guided, a beacon of hope and possibility to the world. Although this larger vision may be fading, trust in the Constitution remains high. A 1999 survey found 85 percent of Americans believed the Constitution was the major reason “America had been successful during this past century.” Indeed, our constitutional system of checks and balances was designed to prevent leaders from concentrating and abusing power, and for most of American history, it has succeeded.”

I strongly maintained my claim that those sets of bills to further limit people’s access to the social media as contemplated by some two senators in the Ninth National Assembly, who are working hand-in-globes with the overbearing executive arm of government, are not necessary and should be discarded.

For the simple reason that Nigeria’s online and social media space are over saturated with hard laws. Some of these laws are even supposed to be amended to allow for efficiency and effectiveness of the media.

Why introduce another law to regulate the internet when we already have the cybercrime Act of 2015?

Recently, I came across very beautiful summary of the cybercrime prevention Act of 2015 which was done by Nasir and Dolapo in which they listed expertly that the extant law has already captured offences such as child pornography with a sentence of 10 years in prison and/or a #20 million fine. The law on cybercrime has another strong provision on identity theft with a stringent three years sentence and/or a #7 million fine.

Still talking about the cybercrime law and the reason why the Ahmed Lawan-led National Assembly should discard any bills seeking to limit access to social media or introduce the hate speech legislation, we need to know as we were reminded by the aforementioned scholars that the cybercrime Act has an ample provision against cyber-stalking and cyber-bullying even as the punishment is in no way mild because it is #2 million fine and/or one year in confinement.

Dolapo and Nasir remind us that under that law, an offender when convicted can be fined up to #20 million or 10 years in prison sentence.

Other notable provisions are those that permit the nation’s president to classify certain systems, networks and information infrastructure as vital to national security even as offences relating to endangering such national assets that leads to fatality could result in the death penalty.

The distribution of racially or ethnically prejudicial or violent material through a computer system or network is prohibited. Convictions attract at least 5 year’s imprisonment and/or a minimum N10million fine just as the Internet service providers (ISPs) are required to keep records of users’ Internet traffic and their subscriber data, and must safeguard this information so that the users’ constitutional right to privacy is respected.

The above and several others are enshrined in the extsnt cybercrime prevention Act which allows electronic communication to be intercepted, but only with a court order based on reasonable grounds if it is suspected that the information is required for a criminal investigation or proceedings.

So I ask again, why waste legislative times, energy and public fund seeking to pass bills that will at best duplicate the many extant laws? I will conclude by letting Nigerians know that the media industry is already over regulated because the media laws are many including the laws on defamation (Tort on Defamation) and the law on sedition.

From the Law of sedition from www.medialaws.blogspot.com: we learned that the after cited definition for sedition is one couched by Fitzgerald J in RV. Sullivan (1886) 11 co- cc 44. He described sedition in the following words:

“Sedition is a crime against society, nearly allied to that of treason and it frequently formulated as treason by a short interval… Is a comprehensive term and it embraces all those practices, whether by word, clust or writing are calculated to disturb the tranquility of the state and lead against person to endeavor to subvert the Government and the Laws of the ethic”.

The writers remind us that under the Nigeria Criminal Law, sedition is defined under section 50 (1) of the Criminal Code (applicable to southern Nigeria; 14, (geris) defines a seditious publication as a publication having a seditious intention. And section 50 (2) defines seditious intention as an intention: (a). To bring in hatred or contempt or to excite disaffection against the person of the Head of the Federal Government, the Governor of a State, or the Government or Constitution of Nigeria or a State as by law established or against the administration of justice in Nigeria or, (b). To incite Nigerians to attempt to achieve regime change, through that which is than by lawfully means, or any other matter in Nigeria as by law established, or (c). To raise discontentment or disaffection among the inhabitants of Nigeria, or (d). To promote feelings or ill-will and hostility between different classes of the population of Nigeria.

The writers stated that a computable provision can be found under section 416 of the Northern Nigeria Penal Code Law. The section provides: “Whoever by words, either spoken or reproduced by mechanical means or intended to be read, or by signs or by visible representation or otherwise incites or attempts to incite acts of disaffection against the person of, her majesty, her heirs or successors or the person of the Governor-General or Constitution of the United Kingdom or Nigeria or any Nigeria there of or against the ministration of Justice in Nigeria or any regions thereof shall be punished with imprisonment for a term which may extend to seven years or with fine or between both”.

From the above statutory provisions, they argued powerfully that sedition can generally be defined as any statement as representation which has the intention to stir up treason, defame the person of the Head of State or Governor of a State or inciting one section of the population against another.

The objects of the law of sedition are, to induce an insurrection and stir up opposition to the Government and bring the administration of justice into contempt, and the very tendency of sedition is to incite the people to insurrection and rebellion, they affirmed.

“In a nutshell, it has the effect of: (i). Invigorating public disturbance (ii). Ignite civic/war (iii). Cast hatred or disaffection to the government (iv). Subvert obedience to the constitution when therefore any write-up or speech or any means of communication, whether by sign, tapes, caricature, etc., that has the effect of promoting any of the above, such a write-up, notwithstanding the Constitution is sedition”.

Important aspects of law of sedition the writers of that piece found in the aforementioned blog are that: The student must understand aspects law of sedition: (a). Seditious conspiracy; (b). Seditious libel; (c). Seditious speech; (d). Who may be convicted for sedition; (e). Is the law of sedition still relevant? (f). Constitutional basis of the law of sedition. (a). Seditious Conspiracy: – This is the agreement or plan by two or more persons, to overthrow or put down by unlawful means or to destroy by force the Government of the country or State. (b).

On Seditious Libel they said: – This is any communication in written form or any other permanent form which has the intention to incite people to change the Government by unlawful means or which advocates the overthrow of the Government by force or which advocates the destruction of the State. (c).

Also Seditious Speech accordingly is: – This is any speech which advocates the over-throw of the government or its destruction by force. (d).

They rhen formulated the interrogatory who may be convicted for Sedition?

The answered thus: “Section 51 of the Criminal Code makes the following persons liable for sedition: Anyone who does a seditious act or takes part in the preparation or conspires with others to commit sedition or utters seditious words. Also liable are printers, publishes, distributors, vendors, reproducers and importers of seditious publications. (e).

Is the law of sedition still relevant in the present democratic dispensation? And they responds as follows: “It has been noted that the Law was one of the first press laws enacted by the British colonial administration in the Protectorate of Southern Nigeria to check rising press criticism. Many journalists and nationalists of that era were as a result jailed and newspapers heavily fined. On the attainment of independence, therefore, the nationalists had expected that such obnoxious laws would be expunged from the statutes”.

Further they argued that “Indeed, some progressive judges had ruled that such laws had no place in an independent Nigeria. But 50 years after, the law still occupies a prominent place in the statutes.Those against the retention of the law of sedition point out that it denies people their fundamental human rights of free expression, violates the right to criticize government and denies the people their right to self-determination. They argue further that the Law of Sedition could be misused by a dictator to overreach himself thereby retarding the growth of democracy and development.”

“But those in their words who support the retention of the Law of Sedition present a counter argument.

Hear them: “They argue that the law of sedition is aimed at protecting the government and its institutions which are established by law to serve the Nigerian people. Without such a law, acts of treason, such as incitement to riots, destruction of public property and enthronement of anarchy could be perpetuated by lawless people to the detriment of the State. While arguing that the right to free expression is not absolute, they insist that such right impose a corresponding duty on the citizens to respect constituted authority and stay within the provisions of the law.”

From the above, it is clear to submit that any further effort to bring ibto bring legislations to limit access to social media services as is being contemplated by the Ahmed Lawan led Senate is unconstitutional, ultra vires the law and absolutely irrelevant and should be discarded as a bad bill meant to re-enact autocracy and Tyranny in Nigeria.

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