By Sam Amadi
In the past week, the Nigerian government has been locked in a battle with the microblogging network, Twitter. The battle arose over Twitter’s decision to delete the President, Major General Muhammadu Buhari (retd.)’s tweet that drummed up imagery of the Civil War genocide in his expression of determination to fight the secessionists troubling his regime. Many Nigerian users of the site reported to Twitter, which in turn applied its rules and deleted the tweet for offending its rules.
The government got angry and suspended Twitter services in Nigeria. Twitter users in the country devised a manner to bypass conventional networks using Virtual Private Network (VPN) to continue to access the service. Further piqued by this, the Attorney General of the Federation and Minister of Justice, Abubakar Malami, subsequently directed prosecution of those flouting the ban on Twitter.
Many Nigerian political and social leaders are flouting the ban. Governor Nasir el-Rufai of Kadun State has continued to use his Twitter account. Prominent religious leaders, like Pastor E.A. Adeboye of the Redeemed Christian Church of God and Pastor William Kumuyi of the Deeper Christian Life Ministry continued to assert their fundamental right to use Twitter as shepherds of global community of Christians. But the regime continues to claim the power to prosecute those flouting the ban. Does it have the power to prosecute anyone who continues to use Twitter services? I do not the government can prosecute anyone simply for using Twitter. The reasons are almost self-evident.
Prosecuting those who use Twitter as a means of communication would be the equivalent of Kafka’s trial. It will be a pure work of legal sorcery. It will be a deliberate totalitarian assault on the fundamental principles of criminal justice and a violation of constitutional due process. First, there is no crime defined in law relating to the use of Twitter as a means of communication. So, unless there is such a law, we cannot even think of prosecution. At this stage, we are not yet discussing whether such a law would be constitutional. The point is that the law does not exist. It is true that the constitution limits the exercise of certain fundamental rights in very severe circumstances that involve national security emergency.
But the underlying consideration for such a restriction to be constitutional is that “there is a law acceptable in a democracy” that restricts the exercise of such rights. There are two constitutional requirements before you can restrict the rights of Nigerian citizens for national security reasons. First, such restriction must be through a law, not through an administrative or executive pronouncement. The statement of the President or any of his aides is not sufficient because those are not laws. The law must be made by the National Assembly or an administrative agency through rule-making procedures and based on clear authorisation by a law made by the National Assembly. Two, the law or regulation so made must be such that is acceptable in a democracy. This means such law restricting fundamental right must fall in line with the logic of democratic freedoms. So, it must be a restriction that ultimately improves the freedoms of Nigerian citizens.
If you judge the present Twitter ban by these two constitutional law criteria, it fails to effectively restrict the right of expression of Nigerian citizens. Another issue is that whereas the Nigerian government has the right to control the medium of expression through due process regulations, it does not have the right to control how people express themselves. Section 39 of the Constitution empowers the government to regulate the means of communication through licensing and others form of entry and exit. But it does not give government the power to regulate expression of opinion. So, what this means is that through due process regulations, government can restrict the operations of these platforms in Nigeria, but it cannot criminalise the use of those platforms where they exist. If citizens use a virtual platform that is not subject to government regulation to communicate, there is no substantial link to Nigeria for the government to exercise regulatory power and subsequently criminalise usage. To say otherwise is to say that the Nigerian government can criminalise our thoughts and expressions irrespective of their content. Government can prosecute citizens for the thoughts they express if those thoughts are injurious to other citizens in clear manners (criminal libel, hate crimes, etc) but cannot criminalise the act of thinking or expressing itself.
Prosecuting any Nigerian for using Twitter is not reasonable or conscionable except government has embarked on a lawless assault on freedom and liberty.
Dr. Sam Amadi is Associate Professor of law and Director of Abuja School of Social and Political Thoughts.