The ECOWAS Court of Justice has directed the Federal Republic of Nigeria to amend Section 24 of its Cybercrime (Prohibition, Prevention etc) Act in accordance with its obligations under Article 1 of the African Charter on Human and Peoples Rights (ACHPR).
The Court held that “Section 24 of the Cyber Crime Act is not in conformity with Article 9 of ACHPR and Article 19 of International Convention on Civil and Political Rights (ICCPR).”
However, the Federal Republic of Nigeria has refuted that assertion.
The Court directive came after the Registered Trustees of the Socio-economic and Accountability Project (SERAP) had filed a writ against the Federal Republic of Nigeria over its Cybercrime Act.
SERAP, a Non-governmental organisation, had gone to court over the legality and compatibility of the provision of the Cybercrime (Prohibition, Prevention etc) Act especially Section 24 of the Act which was against the guarantee of the rights to freedom of expression and information.
SERAP, the applicant, contended that there was a violation of the rights to freedom of expression, information and other rights of human rights activities, bloggers, journalists, broadcasters, and social media users, through the repressive use, interpretation, and implementation of the alleged vaguely and ambiguous provision of Nigeria’s Cybercrime Act.
It was the contention of the Applicant that since the passage of the Cybercrime Act, (Prohibition, Prevention, etc), Act 2015, the Federal Republic of Nigeria (respondent) and its agents have used the provisions of the Act to allegedly harass, intimidate, arbitrarily, arrest and detained and unfair prosecution users of the social media, human right defenders, activists, journalists, broadcasters and bloggers who expressed views perceived to be critical of the government both at the Federal and State levels.
SERAP listed 12 high profile cases of victims of harassment and intimidation, arrest and unlawful detention, prosecution and imprisonment of journalists’ bloggers etc by the respondent, its agents, and several states of Nigeria between August 2015 and November 2018 for alleged cyberstalking.
The applicant further held that “it is only when the Cybercrime Act 2015 is rendered incompatible with treaties on freedom of expression, right to information, and press freedom and declared unlawful that these rights will be fully and effectively respected, protected, promoted and fulfilled in Nigeria.”
The Nigerian government in its response said the question of interpretation of Section 24 of the Cybercrime Act, must be submitted to the “domestic courts” and not the ECOWAS Court, as the case was not within the competence of the ECOWAS Court because the matter bordered on the interpretation of “extant laws”.
The respondent contended that the Cybercrime Act was enacted in 2015 after it had been subjected to all the requisite constitutional and legal processes which include, public hearings of which the applicant was aware, and they did not protest its passage.
The respondent said “the Act was not enacted to muzzle the freedom of expression in Nigeria but to curtail the activities of criminals carried out on the internet.
That in addition to the criminalization of cyberstalking, other criminalized acts are child pornography, xenophobia, racism, internet fraud, intimidation, the threat of bodily harm via the internet among others.”
The respondents held that the Cybercrime Act was in line with the provisions of Section 45 of the 1999 Constitution as amended.
It, therefore, prayed the court to dismiss the applicant’s writ as it was “misplaced, unproved and the same was unguardable.”
The three-member panel, however, held that the court has jurisdiction to hear the matter.
The court however held that the applicant failed to submit “uncontroverted evidence of arrest although it submitted online newspapers (blogs) clippings of the alleged arrest, adding that “it failed to corroborate the same with an independent source of persuasive value.”
“The assertion by the applicants that several people were prosecuted and convicted has not been supported with evidence,” the court said.
It, therefore, dismissed the applicant’s claim for compensation.