Socio-Economic Rights and Accountability Project (SERAP) has urged President Muhammadu Buhari to “enforce the judgment by the ECOWAS Court of Justice compelling your government to delete the offence of 'insulting or stalking public officials online' from the Cybercrime Act.”

SERAP urged him to “urgently send an executive bill to the National Assembly to repeal the unlawful provisions,and reform all laws, which are inconsistent and incompatible with freedom ofexpression and media freedom.”

The judgment, delivered by the court last week in Accra, Ghana followed the suit number ECW/CCJ/APP/09/19 brought by SERAP.

SERAP also urged him to “direct Mr Abubakar Malami, SAN the Attorney General of the Federation and Minister of Justice to withdraw all pending charges of 'insulting or stalking public officials online' against activists, critics and journalists, and immediately ensure their release from unlawful detention.”

SERAP urged him to ensure that “those who have faced unfair prosecutions under the unlawful provisions receive adequate compensation.”

In the open letter dated 2 April, 2022 and signed by SERAP deputy director Kolawole Oluwadare, the organisation said, “This judgment is a victory for many Nigerians who continue to face harassment, intimidation and unfair prosecutions solely for peacefully exercising their human rights online.”

The provisions of section 24 of the Cybercrime Act among others criminalise sending or causing to be sent an “offensive, insulting or annoying” message via a computer system or network.” The offence is punishable including by a fine of up to N7,000,000.00 or imprisonment of up to 3 years or both.

SERAP had argued before the ECOWAS Court that, “The Federal Government and several state governments have used the vaguely worded provisions of the Cybercrime Act to trample on the rights to freedom of expression and information of bloggers, journalists, activists, and social media users.”

In its judgment, the court agreed, and ruled that “section 24 of Cybercrime Act is inconsistent and incompatible with Article 9 of the African Charter on Human and Peoples' Rights and Article 19 of the International Covenant on Civil and Political Rights to which Nigeria is a state party.”

The court then ordered the Federal Government to “amend section 24 of the Cybercrime Prohibition Act in accordance with Nigerian obligations under Article 1 of the African Charter on Human and Peoples' Rights.”

The letter, read in part: “The immediate enforcement and implementation of the judgment by your government will be a victory for the rule of law, the right to freedom of expression and media freedom online. This will improve citizens' participation in their own government, and provide an impetus for the anti-corruption fight.”

“By implementing the judgment, your government will be demonstrating Nigeria's leadership within the ECOWAS sub-region, and sending a powerful message to other countries to embrace the rule of law and human rights.”

“With the ECOWAS Court judgment, all federal and state authorities must now stop using the provisions of section 24 of the Cybercrime Act to target, harass, intimidate, arbitrarily arrest and detain and unfairly prosecute social media users, activists, and journalists who express views perceived to be critical of governments.”

“SERAP notes that Article 15(4) of the ECOWAS Treaty makes the Judgment of the Court binding on Member States, including Nigeria. Also, Article 19(2) of the 1991 Protocol provides that the decisions of the Court shall be final and immediately enforceable.”

“Furthermore, non-compliance with the judgment of the Court can be sanctioned under Article 24 of the Supplementary Protocol of the ECOWAS Court of Justice, and Article 77 of the ECOWAS Treaty.”

“SERAP trusts that you will see compliance with this judgment as a central aspect of the rule of law; an essential stepping stone to constructing a basic institutional framework for legality, constitutionality. We therefore look forward to your positive response and action on the judgment.”

“The judgment read by Hon. Justice Gberi-De Quattara (Presiding Judge), Hon. Justice Dupe Atoki (Member) and Hon. Justice Keikura Bangura (Member), chronicled details of Nigerian government officials using the Cybercrime Act, particularly its section 24 as a pretext to harass, intimidate, detain, prosecute and imprison activists, journalists, bloggers, and social media users.”

“In its judgement, the ECOWAS Court held that 'The court has the jurisdiction to hear and determine the suit. In a plethora of decisions, the court has upheld that the mere allegation of human rights violations is sufficient to invoke this human rights mandate pursuant to Article 9 (4) of the Supplementary Protocol.'”

 

“In view of the fact that this application is premised on human rights violations pursuant to Article 9(4) of the supplementary protocol, the court holds that it has jurisdiction to hear and determine the suit.”

 

“According to the ECOWAS Court, 'The allegation of SERAP before the Court for determination on merit is whether the provision of the Cybercrime Act has violated the right to freedom of expression, information, opinion, and privacy in contravention of Article 9(1) and (2) of the African Charter on Human and Peoples' Rights and Article 19 of the International Convention on Civil and Political Rights.'”

 

“The ECOWAS Court then stated that, 'Section 24 of the Cybercrime Act is not in conformity with Article 9 of the African Charter and Article 19 of the International Convention on Civil and Political Rights. As for reparation, Nigerian Government is ordered to amend section 24 of the Cybercrime Act, in accordance with the obligations under Article 1 of the African Charter of Human and Peoples' Rights.'”

 

“SERAP also notes that by virtue of Article 24(4) of the Protocol A/P.1/7/91 relating to the ECOWAS Community Court of Justice as amended by the Supplementary Protocol A/SP.1/01/05 in January 2005, every member state of the Economic Community of West African States is required to designate a National Authority for the enforcement of the judgments of the Community Court of Justice.”

“Pursuant to the provisions of the article 24 of the Protocol of the Community Court, the Federal Government decided in 2014 to designate the office of the Attorney-General of the Federation and Minister of Justice as the Competent National Authority for the enforcement of the decisions of the court in Nigeria.”

The letter was copied to Mr Malami.

His Excellency
Muhammadu Buhari GCFR
President, Federal Republic of Nigeria
Aso Rock Presidential Villa
Abuja

C/O
Professor Ibrahim Gambari
Chief of Staff to the President
Aso Rock Presidential Villa
Abuja

Your Excellency,

Re: Request to enforce the judgment by the ECOWAS Court of Justice directing and compelling your government to delete the offence of 'insulting or stalking public officials online' from the Cybercrime Act

Socio-Economic Rights and Accountability Project (SERAP) is writing to request you to use your good offices and leadership position to enforce the judgment by the ECOWAS Court of Justice directing and compelling your government to delete the offence of 'insulting or stalking public officials online' from the Cybercrime Act by urgently sending an executive bill to the National Assembly to repeal the provisions, and reform all laws which are inconsistent and incompatible with freedom of expression and media freedom.

SERAP also urges you to direct Mr Abubakar Malami, SAN the Attorney General of the Federation and Minister of Justice to withdraw all charges of 'insulting or stalking public officials online' against activists, critics and journalists, immediately ensure their release from unlawful detention, and to pay adequate compensation to those who have faced unfair prosecutions on the basis of the unlawful provisions.

The judgment delivered last week in Accra, Ghana followed the suit number ECW/CCJ/APP/09/19 brought by SERAP challenging the legality of section 24 of the Cybercrime Act, which is frequently used by federal and state authorities to repress the right to freedom of expression and media freedom in Nigeria.

SERAP is a non-profit, nonpartisan, legal and advocacy organization devoted to promoting transparency, accountability and respect for socio-economic rights in Nigeria. SERAP received the Wole Soyinka Anti-Corruption Defender Award in 2014, and was nominated for the UN Civil Society Award and Ford Foundation's Jubilee Transparency Award. SERAP is a member of the UNCAC Coalition, a global anti-corruption network of over 350 civil society organizations (CSOs) in over 100 countries, which is committed to promoting the ratification, implementation and monitoring of the UN Convention against Corruption. SERAP previously served as one of two Sub-Saharan African civil society representatives on the governing Committee of the Coalition.

In the judgment, the ECOWAS Court ruled that section 24 of Cybercrime (Prohibition, Prevention, etc) Act, 2015 is inconsistent and incompatible with Article 9 of the African Charter on Human and Peoples' Rights and Article 19 of the International Covenant on Civil and Political Rights to which Nigeria is a state party.

The ECOWAS Court also ordered your government to “amend section 24 of the Cybercrime Prohibition Act, 2015 in accordance with the obligation under Article 1 of the African Charter on Human and Peoples Rights.” The unlawful provisions of section 24 of the Cybercrime Act among others criminalise sending or causing to be sent an “offensive, insulting or annoying” message via a computer system.

With the ECOWAS Court judgment, all federal and state authorities must now stop using the provisions of section 24 of the Cybercrime Act to target, harass, intimidate, arbitrarily arrest and detain and unfairly prosecute users of the social media, human rights defenders, activists, journalists, broadcasters and bloggers who express views perceived to be critical of governments both at the Federal and State levels.

The judgment read by Hon. Justice Gberi-De Quattara (Presiding Judge), Hon. Justice Dupe Atoki (Member) and Hon. Justice Keikura Bangura (Member), chronicled details of Nigerian government officials arbitrarily using the Cybercrime Act, particularly its section 24 as a pretext to harass, intimidate, arrest, detain, prosecute and imprison activists, journalists, bloggers, and social media users.

In its judgement, the ECOWAS Court held that “The court has the jurisdiction to hear and determine the suit. In a plethora of decisions, the court has upheld that the mere allegation of human rights violations is sufficient to invoke this human rights mandate pursuant to Article 9 (4) of the Supplementary Protocol. In view of the fact that this application is premised on human rights violations pursuant to Article 9(4) of the supplementary protocol, the court holds that it has jurisdiction to hear and determine the suit.”

According to the ECOWAS Court, “The allegation of SERAP before the Court for determination on merit is whether the provision of the Cybercrime Act has violated the right to freedom of expression, information, opinion, and privacy in contravention of Article 9(1) and (2) of the African Charter on Human and Peoples' Rights and Article 19 of the International Convention on Civil and Political Rights.”

The ECOWAS Court then stated that, “Section 24 of the Cybercrime Act is not in accordance/conformity with Article 9 of the African Charter and Article 19 of the International Convention on Civil and Political Rights. As for reparation, Nigerian Government is ordered to amend section 24 of the Cybercrime Prohibition Act, 2015 in accordance with the obligations under Article 1 of the African Charter of Human and Peoples' Rights.”

SERAP notes that Article 15(4) of the ECOWAS Treaty makes the Judgment of the Court binding on Member States, including Nigeria. Also, Article 19(2) of the 1991 Protocol provides that the decisions of the Court shall be final and immediately enforceable. Furthermore, non-compliance with the judgment of the Court can be sanctioned under Article 24 of the Supplementary Protocol of the ECOWAS Court of Justice, and Article 77 of the ECOWAS Treaty.

SERAP also notes that by virtue of Article 24(4) of the Protocol A/P.1/7/91 relating to the ECOWAS Community Court of Justice as amended by the Supplementary Protocol A/SP.1/01/05 in January 2005, every member state of the Economic Community of West African States is required to designate a National Authority for the enforcement of the judgments of the Community Court of Justice.

Pursuant to the provisions of the article 24 of the Protocol of the Community Court, the Federal Government decided in 2014 to designate the office of the Attorney-General of the Federation and Minister of Justice as the Competent National Authority for the enforcement of the decisions of the court in Nigeria.

This judgment is a victory for many Nigerians who continue to face harassment, intimidation and unfair prosecution solely for peacefully exercising their human rights online.

The immediate enforcement and implementation of the judgment by your government will be a victory for the rule of law, the right to freedom of expression and media freedom, including online. This will in turn improve citizens' participation in their own government, and provide an impetus for the anti-corruption fight.

By implementing the judgment, your government will be demonstrating Nigeria's leadership within the ECOWAS sub-region, and sending a powerful message to other countries to embrace the rule of law and human rights.

SERAP trusts that you will see compliance with this judgment as a central aspect of the rule of law; an essential stepping stone to constructing a basic institutional framework for legality, constitutionality, the rule of law practice and culture in the country. We therefore look forward to your positive response and action on the judgment.

Please accept the expression of our highest consideration. Thanking you in advance of your attention to the matter.

Yours sincerely,

Kolawole Oluwadare
Deputy Director

CC
Mr Abubakar Malami, SAN
Honourable Attorney General of the Federation and Minister of Justice
Federal Ministry of Justice
Shehu Shagari Way,
Central Area
Abuja