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NIGERIAN GOVERNMENT SUSPENSION OF TWITTER: IS IT BREACH OF FUNDAMENTAL RIGHTS?

Arans Tabaruka

By Manfred Ekpe

Human & Civil Right Activist

LAGOS

Legal practitioners, students of law and politico-Juris analysts have given legal opinions on the suspension of Twitter by the federal government of Nigeria. In a letter purportedly written by Cyprian Edward-Ekpo, Esq to the Attorney General of the federation (hereinafter, AGF) dated 5th June 2021 and titled “YOUR PRESS IS STATEMENT ON THE PROSECUTION OF TWITTER USERS: WHAT IS MORE OUTLANDISH THAN THIS?”, he raises salient legal issues, inter alia, that;

(1) Right to social media is a fundamental right under section 40 of the constitution of the Federal Republic of Nigeria (1999) as amended (hereinafter, the constitution) and international instruments namely, the Universal Declaration of Human Rights 1948 (hereinafter, UDHR) and International Convention on Civil & Political Rights (Hereinafter, ICCPR). (2) And that suspension of Twitter infringes this fundamental right.

Learned counsel concluded that section 305 of the constitution donates to the president powers to temporarily derogate from the fundamental rights of citizens but that this section is effective and effectuated only during periods of national emergency.

With respect, I seek to differ from the reasoning of the learned counsel. May I pick on the issues as hereunder traversed?

SOCIAL MEDIA AS FUNDAMENTAL RIGHTS

Fundamental Rights are inalienable rights given to man from nature and enjoyed simply because one is a human being. Right to Freedom of speech, expression, the press, right to hold and disseminate one’s opinion, are fundamental rights under international and municipal laws guaranteed under the UDHR, ICCPR and Section 39 of the Constitution of Nigeria.

LAWFUL DEROGATION FROM HUMAN RIGHTS

Human rights are not absolute. According to the legendary Nigerian legal icon, Fabian Ajogwu, SAN, derogation from human rights refers to a temporary suspension of certain human rights recognized in human rights instruments or Bill of Rights for the overall public interest.
All over the world even in the most advanced democracies, human rights are temporarily suspended in the national or public interest. National interest and public safety supersede individual human rights under international and domestic laws. Hence international treaties permit state parties to alter adherence to or limit human rights temporarily in special circumstances, such as time of public emergency threatening the life or social fabric of the nation. Article 4 of the ICCPR; Article 15 of the European Convention on Human Right (ECHR); Article 27 of the American Convention on Human Rights (ACHR), all permit temporary derogation from human rights for overriding public interest, and national security.

Under the Nigerian constitution, section 45(2)(a) and (b) thereof allows temporary derogation from human rights under circumstances reasonably justifiable in a democratic society for the purpose of defense, public safety, public order, public morality or public health, or for the purpose of protecting the rights and freedom on others.

However, the suspension or derogation from human rights is not done in vacuo but must be REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY. The test of justifiability is objectively based on the real danger on the ground as held in the case of _State vs. Ivory Trumpets (1984) 5 NCLR 736. _ See also _Chike Obi vs. DPP (1961) 1 All NLR 186; MDPDT vs. Okonkwo (2001) FWLR(Pt.44) 542_ where the Supreme Court of Nigeria held that derogation from individual human right is justifiable _inter alia_ for the public interest.

In the case at hand, Nnamdi Kanu, a British National and fugitive criminal who jumped bail in Nigeria for crimes of treason, hides in the UK under the protection of the British Government, using the Twitter platform to mobilize and incite a part of the Nigerian public against the Nigerian Government. He openly posts on his official Twitter handle that security agents should be attacked. More than 15 police stations have been burnt down, over 10 police vehicles burnt, over 20 security officers killed within one month. Arson and destruction of private and public assets including about 8 offices of the country’s electoral commission— The Independent National Electoral Commission (INEC).

Twitter encourages these acts of carnage, subversion of national sovereignty and holding of a nation hostage by allowing its platform to be used despite several concerns expressed by the federal government.

These acts of subversion of national security and threat to public order, life and property gives rise to reasonable justifiability in a democratic society to temporarily suspend human rights in accordance with the jurisprudence in the *Ivory Trumpets case* _supra._

The president who owes the duty under the constitution to protect the territorial integrity of Nigeria and to protect lives and property, was right to have made an Executive Order under section under Sections 5, 45 and 315 of the constitution temporarily suspending Twitter in Nigeria, a channel being used to commit these crimes. This also amounts to temporarily derogation from the citizens fundamental right of expression via the Twitter microblogger platform.

ON THE LEGALITY OF THE SUSPENSION ORDER WITHOUT LEGISLATION

No law operates in a vacuum. There must be a legal framework upon which every presidential order such as suspension of the fundamental rights of Nigerians from using Twitter must stand. Learned counsel’s Legal opinion is that section 45 and 305 read together applies only to times of emergency, which under section 45(3) times of emergency means that there must be a proclamation of a state of emergency over Nigeria under section 305 before sections 45(1)(2) of the constitution can be put into motion or effectuated; that is to say— temporary derogation from the right to freedom of speech and expression via Twitter. With respect, I disagree with this reasoning in its entirety.

It is a generally accepted principle of law that persons conferred with a duty may also take steps that are incidental to, or consequential upon the discharge of such duty when there is no constitutional provision or legislation to perform that function. For instance, The Rome Statute of the International Criminal Court (The Rome Statute) imposes a duty of COMMAND RESPONSIBILITY on heads of government. This means that heads of government must prosecute soldiers from their countries who have been indicted by the ICC war crimes and crimes against humanity.

The effect of this international law provision is that where a given country does not have in its law the duty to prosecute such soldiers, the president has the powers incidental to his function as commander-in-chief of the armed forces to prosecute such soldiers and such prosecution cannot be held as a nullity.

Flowing from the foregoing, where the law does not expressly provide for the modus by which a public officer shall perform a function, such public officer, in this case, the president of Nigeria, may make an order incidental to his functions in section 5 and 315 of the constitution to make an instrument for the performance of that function. In Nigeria and the United States, such incidental or consequential powers are effected through the issuance of Executive Orders.

Executive Orders have effect of law and do not stand on its own, but must have its roots in legislative instrument and the constitution.

In 2018 President Buhari of Nigeria made Executive Order number 6 of 2018 (Hereinafter referred to as EO6/2018), to temporarily forfeit, pending trial, assets of individuals suspected to have acquired same by acts of corruption. This E06/2018 was a temporary derogation from sections section 6 of the constitution which gives functions to the courts of judicature, Section 36 of the constitution which guarantees the fundamental right of presumption of Innocence, and sections 42 and 43 which guarantees right to property.

The legality of E06/2018 was challenged on these grounds in the Federal High Court Abuja in the case of _Ikenga Ugochinyere & Kenneth Udeze vs Attorney General of the Federation suit No.FHC/ABJ/CS/740/2018, (unreported), _ where the applicants inter alia, argued that issuing Executive Orders by the president of Nigeria has no constitutional backing and that by doing so the president had usurped the legislative powers of the National Assembly and the judicial powers of the judiciary. That Executive Orders are laws which ought to be made by Parliament. And that E06/2018 usurps the functions of the courts established under Section 6 of the constitution and the right to presumption of innocence under section 36 because the forfeiture order is punitive before a finding or plea of guilt.

The court held that the president has the power rooted in section 5 of the constitution to make Executive Orders. And that the E06/2018 is lawful and is a practice directive by the president.

This court pronouncement clearly approves of the powers of the president to make orders incidental to, or consequential upon his functions as president, commander–in–chief of the armed forces, where legislation or the constitution have not expressly provided for the modus for implementation of such provision.

Applying this principle to the case at hand, section 5 of the constitution gives powers to the president to ensure the security of life and property, maintain law and order, and the territorial integrity of Nigeria. Section 315 empowers the president to alter or modify existing laws to conform with the constitution so as to, among others, make it enforceable. But whereas section 39 donates to citizens the fundamental right of freedom of speech. Section 45 permits temporary derogation from such right under certain circumstances. Section 45(2) says that such circumstances mean times of national emergency. And subsection (3) of the same section defines the time of emergency as the period where there is the proclamation of a state of emergency in Nigeria or a part thereof. Section 305 gives conditions and directive upon which a state of emergency may be proclaimed.

There is clearly a lacuna in the constitution to implement the powers of the president to protect life and property, maintain public order and security of Nigerians under which the president found himself where a fugitive criminal is harboured by the Government of a foreign country from where he uses the social media (Twitter) to mobilize his cohorts back home to cause carnage, kill, maim, destroy public and private assets etc in a proportion that does not meet the conditions under section 305 for a declaration of a state of emergency.

In such a case must the president remain helpless since there is no express law to deal with the exigency? It is reasonable to sum that the president has the powers incidental to or consequent upon his functions under section 5 of the constitution and on the jurisprudence of the *Ikenga Ugochinyere case* _supra_ to take necessary action reasonably justified in a democratic society to deal with the situation. See *Ivory Trumpets case* _supra. _

Flowing from the hereinabove stated authorities, it is my considered legal opinion that the Federal Government Order temporarily suspending the citizens’ right to use Twitter in the exercise of their fundamental right of expression, is fair and just under the prevailing circumstances, and is constitutional. The note must be taken that the order does not ban all medium of expression of free speech and opinion under section 39 of the constitution, but only Twitter. The balance of convenience favours the presidential directive.

I wish to also contribute to the jurisprudential development of our law, which in the same way recognized in equity that where there are two equal equities, the first in time prevails, also where there is an equal need to protect two contentious fundamental rights, the superior right should prevail. In the circumstances at hand, between protecting the absolute fundamental right of expression and speech by a minor derogation from the right to use Twitter on the one hand, and the need to protect life, property and territorial integrity of the nation, on the other hand, the latter is superior and should supersede the former.

PROSECUTION OF TWITTER USERS:

Section 36(8) of the Constitution provides that no person shall be punished for an act that did not constitute an offence at the time of the commission of the Act. Except for the learned Attorney General of the federation shows to the contrary, I am not aware of any law for the time being in force in Nigeria criminalizing and spelling out punishment for any person using the social media after a ban or suspension of the platform. The threat to punish users is, therefore, in my view, more of rhetoric than practical. I, therefore, call on the National Assembly to pass the social media regulation Bills presently before it.

Taking all the facts into consideration and brewed from a neutral legal mind, the presidential Order temporarily suspending the right to freedom of speech and expression via Twitter is reasonably justifiable in a democratic society, is constitutional and lawful. But sadly the federal government has to law with which to punish those who defy this ban order!

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Arans Tabaruka
Arans Tabaruka

Editor and Africa correspondent

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