AKEEM NAFIU writes that lawyers have thrown their weights behind the judgement of the ECOWAS Court of Justice which ordered the Federal Government to amend Section 24 of the Cybercrime Act 2015 for contravening International Treaties
Some senior lawyers have hailed a recent judgement by the ECOWAS Court of Justice which ordered the Nigerian government to amend the controversial Section 24 of the Cybercrime Act 2015.
The lawyers while speaking on the issue at the weekend described the judgement as victory for the rule of law, saying it has upheld Nigeria’s international statutory obligations.
The ECOWAS Court of Justice had on March 25, 2022 in Accra, Ghana, while delivering judgement in a suit filed by a rights organization, the Socio-Economic Rights and Accountability Project (SERAP) ordered the Federal Government to amend Section 24 of Cybercrime Act 2015 to ensure its compliance with provisions of some International Treaties.
The court in its judgement declared that Section 24 of Cybercrime Act “is not in conformity with Articles 9 of the African Charter on Human and Peoples’ Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR)”.
In its judgement, a 3-man panel of the court presided over by Justice Keikura Bangura, mandated the Federal Government to amend Section 24 “in order to ensure conformity with the country’s obligations” under the ACHPR and ICCPR. Other members of the court’s panel were; Gberi-Be Ouattara and Dupe Atoki.
In the suit marked ECW/CCJ/ APP/09/19, SERAP challenged the legality and compatibility of Section 24 of the Cybercrime Act 2015 in relation to the guaranteed freedom of expression and information enshrined in Articles 9 of the ACHPR and Article 19 of the ICCPR respectively.
Section 24 of the Cybercrime Act 2015 reads: “Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that; (a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or (b) 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.
The Act further states in Subsection 2 that, “Any person who intentionally transmits any communication through a computer system 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 the suit, SERAP contended that Section 24 violated the rights to freedom of expression, information and other rights of human rights defenders, activists, bloggers, journalists, broadcasters and social media users, and that government had used its provisions to harass, intimidate, arbitrarily arrest, detain and unfairly prosecute them.
However, in its objection, the Federal Government urged the court to dismiss the suit on the grounds that it was misconceived and that the prayers being sought were not grantable in law.
The Federal Government further contended that the interpretation of Section 24 of Cybercrime Act must be submitted to domestic courts and not the ECOWAS Court as this is not within its competence as it concerns the interpretation of extant laws.
Lawyers hail judgement
In the meantime, some senior lawyers have urged the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN) to promptly set machinery in motion to comply with the order of the ECOWAS Court of Justice for the amendment of Section 24 of the Cybercrime Act.
The lawyers said Nigeria is obligated to complying with the order because it is a signatory to the African Charter on Human and Peoples Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR).
Speaking on the issue, a Senior Advocate of Nigeria (SAN), Mr. Tayo Oyetibo, noted that Cybercrimes Act makes no effort to give certainty to the meanings of any of the words used in Section 24(1) and as such only judicial definitions can be given to the words in a situation where a person is charged with an offence under the Section.
Oyetibo said: “In the context of the constitutionally guaranteed right of citizens to freedom of speech under the Nigerian constitution, there is the pressing question of whether the Cybercrimes Act is fit for the purpose pursuant to which it was enacted, particularly in view of the provisions of its Section 24(1).
“It would appear that the answer to this poser is in the negative, which means that it is imperative for deliberate steps to be taken to remedy the situation, particularly against the backdrop of widespread complaints against the deliberate misuse and abuse of the Cybercrimes Act against certain categories of persons in Nigeria. “In this regard, this is not a matter in which long winding technical recommendations are necessary.
The simple recommendation is that Section 24(1) be entirely deleted from the Cybercrimes Act, due to its apparent irreconcilability with the provisions of Section 36(12) and 39(1) of the constitution”. In his own submissions, a former Vice-President of the Nigerian Bar Association (NBA), Mr. Adekunle Ojo (SAN), said the court’s decision was commendable. “In essence, as far as I am concerned, the decision of the court was quite commendable.
The court has done wonderfully well, even in the past, using international laws to determine cases positively.
However, because these laws are at variance with our Constitution, enforcing judgements emanating from this regional court has always been difficult. “Like I said earlier, I am in agreement with the court regarding its decision on the amendment of Section 24 of the Cybercrime Act.
This is because if the law does not enhance the fundamental rights of a man that was alleged to have committed a crime, then, it has breached the Treaties and International Instruments to which Nigeria is a signatory”, Ojo said.
Speaking in the same vein, a former University lecturer, Dr. Fassy Yusuf, said Nigeria is obligated to obey the ECOWAS Court’s order because it is a signatory International Conventions.
Yusuf said: “Since Nigeria is a signatory to the African Charter on Human and Peoples Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR), and the National Assembly having ratified this Conventions, Nigeria is obligated to enforce them.
“So, if any court of competent jurisdiction, in this case, the ECOWAS Court, feels that Section 24 of the Cybercrime Act is not in conformity with Articles 9 of ACHPR and the ICCPR, then, Nigeria is obligated to amend such a law.
However, the problem we have is that the Federal Government has not been complying with the decisions of the ECOWAS Court. Whereas, it is one of the prime movers of the ECOWAS Court and indeed the originator of the Economic Community of West African States (ECOWAS).
“So, I want to advise the Federal Ministry of Justice to look into the controversial Section 24 of the Cybercrime Act to see how it can be amended in line with the order of ECOWAS Court”.
A rights activist, Mr. Tosin Ojaomo, noted that the court’s judgement has upheld Nigerians’ constitutional right to freedom of speech “The judgement of the ECOWAS Court of Justice on this matter is another victory for the rule of law as it relates to freedom of speech as allowed in a democratic state as Nigeria claims to be.
“The fact that the pronouncement of the ECOWAS Court of Justice clearly stated that the said provision is contrary to several international treaties and obligations to which Nigeria is a signatory, implies that the provision can no longer be considered as part of the municipal laws of Nigeria. “We must not forget that the judgement of the ECOWAS Court of Justice is final and cannot be appealed to any Appellate Court.
The judgement has not only upheld our international statutory obligations, it has also upheld our constitutional right to freedom of speech though with limitations but not to silence opposing views.
“Conclusively, Section 24 of the Cybercrime Act was enacted ultra vires the constitutional powers of the National Assembly and is therefore deleted by implication of the order of the ECOWAS Court of Justice which is binding on the Nigeria State”, Ojaomo said.