The controversial Nigerian laws public officials use to go after social media users, critics
In March, a judge in Katsina State sentenced Gambo Saeed of Muduru village in Mani Local Government Area to nine months imprisonment for insulting and defaming the state governor, Aminu Masari, on social media.
Isa Liti, a police prosecutor, told the court that Mr. Saeed was arrested and charged after a complaint from the governor’s adviser on Radio Monitoring, Mansur Mashi.
“Mashi said the accused person abused Masari and called him names on social media,” Mr. Liti, a police inspector, said.
“He said the accused person posted on the media that it was Gov. Masari who influenced the impeachment of speaker of Katsina State House of Assembly, Aliyu Muduru.’’
Siding with the police, the judge, Abdul Ladan, a chief magistrate, said the court has found the accused person guilty of the offences and sentenced him to nine months imprisonment without the option of fine.
Mr. Saeed was convicted in accordance with sections 114, 392 and 399 of the Penal Code.
Similarly, in October 2016, John Danfulani, a former lecturer of the Kaduna State University, was charged under Section Sections 417 and 418 of the Penal Code for a Facebook post deemed as inciting by the Kaduna State government.
Mr. Danfulani who resigned from his post at the state-owned university after he was suspended by the university management for the said Facebook post, was remanded in prison for 13 days before he was granted bail. He said he was being persecuted for his criticism of the state governor, Nasir El-Rufai, President Muhammadu Buhari and the ruling All Progressive Party, APC.
Inibehe Effiong, a lawyer who actively uses social media for advocacy, said the use of the Penal Code has undergone minimal review since the colonial era. He questions why it should be used to try people who post critical comments on social media, describing it as undemocratic.
“This is a law that came into existence in 1916 during the colonial era. Its provisions were specifically meant to protect the institution of colonialism and their usefulness in a democracy should be questioned.
“There have been little or no modifications to the criminal code, which most of the states have jut copied words for words, into their own local laws. So why should we have a colonial legislation in 2017?” he asked.
THE PENAL CODE
The Penal Code prescribes punishment for crimes committed in Northern states of Nigeria and within the federal capital, Abuja. Its equivalent in the southern states is the Criminal Code Act.
Section 114 of the Penal Code deals with inciting disturbance.
“Whoever does an act with intent to cause or which is likely to cause a breach of the peace or disturb the public peace shall be punished with imprisonment which may extend to three years or with fine which may extend to six hundred naira or with both,” it stated.
Section 392 of the legislation addresses issues of criminal defamation. It stated that whoever uses spoken words or words reproduced by mechanical means or “intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person,” with the intention of knowingly harming or having reason to believe that the words will harm the reputation of that person is said to have defamed that person.
The section subsequently stipulates a punishment of imprisonment for up to two years for anyone found guilty of the section.
Section 399 of the code deals with issues of criminal intimidation, insult and annoyance. It states that anyone who uses “insulting or abusive language concerning, or otherwise conducts himself towards, a person or class or group of persons, whether the person or any member of that class or group is present or not, in a manner likely to give the provocation to a person present as to cause the last mentioned person to break the public peace or to commit any other offence” has run afoul of the law and shall be punished with imprisonment of up to two years or with fine or with both.
Similarly, section 417 of the code deals with “exciting hatred between classes” of people while Section 418 deals with the publication of false news with the intent to cause offence against the public peace. Both offences carry a jail term of up to three years each with or without fine.
Lawyers and activists have argued that apart from outdated nature of the penal code and its use to silence dissenters, it is also poorly implemented.
“Ideally, only a victim can file a criminal libel complaint before a magistrate court. Not the police or the state,” Samuel Ogala of Falana and Falana chambers told PREMIUM TIMES.
THE CYBERCRIME ACT 2015
Apart from the Penal Code, public office holders who are increasingly growing thin skin have tried to regulate posts and comments on social media, the preferred means used by Nigerians to express their frustrations of bad governance. However, apparently for fear of not being seen as being antagonistic to free speech, politicians have tried to smuggle pieces of legislation aimed at controlling the use of social media within seemingly unrelated bills.
One of such attempts was the Frivolous Petitions (Prohibition, etc.) Bill sponsored by Bala Ibn Na’Allah, the senator representing Kebbi South senatorial district. The bill’s primary aim was to make it unlawful for any person to submit a petition or statement intended to report the conduct of any person for the purpose of an investigation, inquiry and or inquest without a duly sworn affidavit in the High Court of a State or the Federal High Court confirming the content to be true and correct. In other words, before a post containing allegations against individuals and public officials can be made on social media, a court affidavit should be secured.
Section 3(4) of the bill sought to put a rein on messages sent through social media.
“Where any person through text message, tweets, WhatsApp or through any social media posts any abusive statement knowing same to be false with intent to set the public against any person and group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction, shall be liable to an imprisonment for two years or a fine of N2,000,000.00 or both fine and imprisonment,” the section read.
In May 2016 the Nigerian Senate was forced to withdraw the bill, which was soon tagged Anti-Social Media Bill, after widespread public outcry that it sought to criminalise the use of social media and muzzle critical voices.
But the suspension of the bill has not stopped politicians, especially state governors, from going after their critics on social media. Some state governors have arrested and charged some of their critics on social media using the Cyber Crimes (Prohibition, Prevention etc.) Act 2015.
Section 24 of the Cybercrimes Act, which was signed into law by former President Goodluck Jonathan in the twilight of his tenure, specifically outlaws “cyberstalking” and stipulates that “any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or
“He knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.”
Section 2 of the legislation further stated that any person who intentionally transmits any communication through a computer system or network to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person” commits an offence under the act and shall be liable on conviction to a term of 10 years and/or a minimum fine of N25,000,000.00.
In August, Johnson Musa, 32, a civil servant in Kogi State was arrested and charged for “cyberstalking” for posting a picture of the Abuja residence of Yahaya Bello, the state governor, on social media. He was accused of threatening and exposing Mr. Bello and his family to harm.
The prosecuting counsel, Mohammed Abaji, a senior lawyer with the state Ministry of Justice, told a magistrate court that Mr. Musa took the picture of the property with the aid of a drone and posted it on social media with the caption: “This is owned by an individual in Kogi, where hunger is the first name, in less than one year.”
Earlier in March, Audu Maikori, the co-founder of music recording company, Chocolate City, was also charged for inciting the public through false information, contrary to Section 24 of the Cybercrime Act of 2015.
He was arrested in Lagos, where he is based and taken to Kaduna State for a comment he posted on Twitter about the bloody clashes between Fulani herdsmen and indigenes of Southern Kaduna. The comment turned out to be false and Mr. Maikori later apologised for it.
Others who have been arrested, detained, threatened or physically assaulted for posts they made on social media include, Ruqayyat Usman, a civil servant who was sacked by the Nasarawa state government for criticising the state government’s response to an outbreak of Lassa Fever and Babale Azare who was arrested on the alleged order of agents working for the Bauchi State government and accused of cyberstalking.
A CULTURE OF REPRESSION
Mr. Effiong said the increasing arrest and prosecution of Nigerians by public officer holders for their social media posts is an “escalation of the culture of repression.”
He said since many Nigerians have adopted social media as their preferred means of expressing their frustration with politicians, the increasing arrest of social media critics is an attempt to stifle free speech. He explains that the few cases of abuse of social media is not excuse for politicians to criminalise the medium.
“I’m particularly not comfortable with the excuse that perhaps some persons have abused social media that the use of social media itself should be criminalise because what they have done is the criminalisation of the use of social media,” he said.
He said politicians are increasingly lashing out at social media critics because they have no control over it.
“This is so because social media is the platform and the means of communication that the politicians are not able to control. Their inability to control or regulate the use of social media has exposed public office holders to greater public scrutiny.”
He said free speech is protected by the constitution and that people who feel their reputation has been questioned on social media should seek civil remedies such suing for libel rather than resorting to archaic laws such as the Penal Code and “imprecise” legislation like the Cybercrime Act.
Ikemesit Effiong, the consulting associate at Technology Advisors, an ICT law firm, agreed that the terms of the Cybercrime Act and other laws under which social media critics have been charged are too broad.
“(These laws) are so widely and inelegantly crafted that almost any form of public expression on any matter of significant public interest can be deemed to be offensive by any person who feels such speech offends him,” he said.
He said as the 2019 approaches the implications of legislations such as the Cybercrime Act will become more pronounced.
He, however, pointed out that some of social media critics are beginning to fight back using the instrument of the law.
“It’s no surprise then, that a lot of the activists at the receiving end of this clampdown, chief among which is Audu Maikori, have sought to invoke the enforcement of this fundamental right as provided by our basic law, in their defence of these actions in the courts,” he said.
In May, Mr Maikori sued Governor Nasir El-Rufai of Kaduna for alleged violation of his human rights. In the suit filed at the Federal High Court in Abuja, Mr. Maikori asked the court to enforce his fundamental human rights against what he said was undue harassment and intimidation by the governor and the Nigerian Police.
Similarly, in the same month a High Court in Kaduna State awarded a N50,000 damage against Mr. El-Rufai for the breach of fundamental human rights of a lawyer, Gloria Ballasson. Ms. Ballasson, the executive officer of the House of Justice, a non-governmental advocacy group, had asked the court to protect her rights after the governor allegedly threatened to arrest and prosecute her for an article wrote in the Blueprint Newspaper in 2016. The court also restrained the governor and his agents from arresting, prosecuting and jailing the applicant.
Peter Nkanga, a press freedom advocate and former West African representative of the Committee to Protect Journalist, CPJ, said the Cybercrime Act shows the need for Nigerians to pay more attention to bills at the national Assembly before they are passed into law.
“This is like medicine after death. Nigerians must understand that the greatest threat to the democracy of this country is the legislature. It is those same laws that the legislature pass that the executive will use to harass and intimidate its citizenry. And they will claim internationally that it is our law and every country is governed by laws and we have a right to implement and enforce that law.
“When the Cybercrime Act was being debated in the National Assembly, we should have done more to scrutinise it and say no to some particular sections of that law. Sadly, the governors, the police and everybody in authority has seen a means to go after critics who speak out against them.
“Until such laws are either repealed or sections of the law are expunged it is the reality we have to live with,” he said.