In March, a judge in
Katsina State sentenced Gambo Saeed of Muduru village in Mani Local Government
Area to nine months imprisonment for insulting and defaming the State
governor, Aminu Masari, on social media.
PREMIUM
TIMES report continues:
Isa
Liti, a police prosecutor, told the court that Mr. Saeed was arrested and
charged after a complaint from the governor’s adviser on Radio Monitoring,
Mansur Mashi.
“Mashi
said the accused person abused Masari and called him names on social media,”
Mr. Liti, a police inspector, said.
“He
said the accused person posted on the media that it was Gov. Masari who
influenced the impeachment of speaker of Katsina State House of Assembly,
Aliyu Muduru.’’
Siding
with the police, the judge, Abdul Ladan, a chief magistrate, said the court has
found the accused person guilty of the offences and sentenced him to nine
months imprisonment without the option of fine.
Mr.
Saeed was convicted in accordance with sections 114, 392 and 399 of the Penal
Code.
Similarly,
in October 2016, John Danfulani, a former lecturer of the Kaduna State
University, was charged under Section Sections 417 and 418 of the Penal
Code for a Facebook post deemed as inciting by the Kaduna State Government.
Mr.
Danfulani who resigned from his post at the state-owned university after he was
suspended by the university management for the said Facebook post, was remanded
in prison for 13 days before he was granted bail. He said he was being
persecuted for his criticism of the state governor, Nasir El-Rufai, President
Muhammadu Buhari and the ruling All Progressive Party, APC.
Inibehe
Effiong, a lawyer who actively uses social media for advocacy, said the use of
the Penal Code has undergone minimal review since the colonial era. He
questions why it should be used to try people who post critical comments on
social media, describing it as undemocratic.
“This
is a law that came into existence in 1916 during the colonial era. Its
provisions were specifically meant to protect the institution of
colonialism and their usefulness in a democracy should be questioned.
“There
have been little or no modifications to the criminal code, which most of the
states have jut copied words for words, into their own local laws. So why
should we have a colonial legislation in 2017?” he asked.
THE
PENAL CODE
The
Penal Code prescribes punishment for crimes committed in Northern states
of Nigeria and within the federal capital, Abuja. Its equivalent in the
southern states is the Criminal Code Act.
Section
114 of the Penal Code deals with inciting disturbance.
“Whoever
does an act with intent to cause or which is likely to cause a breach of the
peace or disturb the public peace shall be punished with imprisonment
which may extend to three years or with fine which may extend to six hundred
naira or with both,” it stated.
Section
392 of the legislation addresses issues of criminal defamation. It stated that
whoever uses spoken words or words reproduced by mechanical means or
“intended to be read or by signs or by visible representations makes or
publishes any imputation concerning any person,” with the intention of
knowingly harming or having reason to believe that the words will harm the
reputation of that person is said to have defamed that person.
The
section subsequently stipulates a punishment of imprisonment for up to two
years for anyone found guilty of the section.
Section
399 of the code deals with issues of criminal intimidation, insult and
annoyance. It states that anyone who uses “insulting or abusive language
concerning, or otherwise conducts himself towards, a person or class or group
of persons, whether the person or any member of that class or group is present
or not, in a manner likely to give the provocation to a person present as
to cause the last mentioned person to break the public peace or to commit any
other offence” has run afoul of the law and shall be punished with imprisonment
of up to two years or with fine or with both.
Similarly,
section 417 of the code deals with “exciting hatred between classes” of people
while Section 418 deals with the publication of false news with the intent
to cause offence against the public peace. Both offences carry a jail
term of up to three years each with or without fine.
Lawyers
and activists have argued that apart from outdated nature of the penal code and
its use to silence dissenters, it is also poorly implemented.
“Ideally,
only a victim can file a criminal libel complaint before a magistrate
court. Not the police or the state,” Samuel Ogala of Falana and Falana
chambers told PREMIUM TIMES.
THE CYBERCRIME ACT 2015
THE CYBERCRIME ACT 2015
Apart
from the Penal Code, public office holders who are increasingly growing thin
skin have tried to regulate posts and comments on social media, the preferred
means used by Nigerians to express their frustrations of bad governance.
However, apparently for fear of not being seen as being antagonistic to free
speech, politicians have tried to smuggle pieces of legislation aimed at
controlling the use of social media within seemingly unrelated
bills.
One
of such attempts was the Frivolous Petitions (Prohibition, etc.) Bill sponsored
by Bala Ibn Na’Allah, the senator representing Kebbi South senatorial
district. The bill’s primary aim was to make it unlawful for any person to
submit a petition or statement intended to report the conduct of any person for
the purpose of an investigation, inquiry and or inquest without a duly sworn
affidavit in the High Court of a State or the Federal High Court confirming the
content to be true and correct. In other words, before a post containing
allegations against individuals and public officials can be made on social
media, a court affidavit should be secured.
Section
3(4) of the bill sought to put a rein on messages sent through social
media.
“Where
any person through text message, tweets, WhatsApp or through any social media
posts any abusive statement knowing same to be false with intent to set the
public against any person and group of persons, an institution of
government or such other bodies established by law shall be guilty of an
offence and upon conviction, shall be liable to an imprisonment for two years
or a fine of ₦2,000,000.00 or both fine and imprisonment,” the section
read.
In
May 2016 the Nigerian Senate was forced to withdraw the bill, which was soon
tagged Anti-Social Media Bill, after widespread public outcry that it
sought to criminalize the use of social media and muzzle critical voices.
But
the suspension of the bill has not stopped politicians, especially state
governors, from going after their critics on social media. Some state governors
have arrested and charged some of their critics on social media using the Cyber
Crimes (Prohibition, Prevention etc.) Act 2015.
Section
24 of the Cybercrimes Act, which was signed into law by former President
Goodluck Jonathan in the twilight of his tenure, specifically outlaws
“cyberstalking” and stipulates that “any person who knowingly or
intentionally sends a message or other matter by means of computer systems or
network that is grossly offensive, pornographic or of an indecent, obscene or
menacing character or causes any such message or matter to be so sent;
or
“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 ₦7,000,000.00 or imprisonment for a term of not more than 3 years or to
both such fine and imprisonment.”
Section
2 of the legislation further stated that any person who intentionally transmits
any communication through a computer system or network 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 ₦25,000,000.00.
In
August, Johnson Musa, 32, a civil servant in Kogi State was arrested and
charged for “cyberstalking” for posting a picture of the Abuja residence of
Yahaya Bello, the state governor, on social media. He was accused
of threatening and exposing Mr. Bello and his family to harm.
The
prosecuting counsel, Mohammed Abaji, a senior lawyer with the state Ministry of
Justice, told a magistrate court that Mr. Musa took the picture of the property
with the aid of a drone and posted it on social media with the caption: “This
is owned by an individual in Kogi, where hunger is the first name, in less than
one year.”
Earlier
in March, Audu Maikori, the co-founder of music recording company, Chocolate
City, was also charged for inciting the public through false information,
contrary to Section 24 of the Cybercrime Act of 2015.
He
was arrested in Lagos, where he is based and taken to Kaduna State for a
comment he posted on Twitter about the bloody clashes between Fulani herdsmen
and indigenes of Southern Kaduna. The comment turned out to be false
and Mr. Maikori later apologized for it.
Others
who have been arrested, detained, threatened or physically assaulted for posts
they made on social media include, Ruqayyat Usman, a civil servant who was
sacked by the Nasarawa State Government for criticizing the state
government’s response to an outbreak of Lassa Fever and Babale Azare who was
arrested on the alleged order of agents working for the Bauchi State Government
and accused of cyberstalking.
A
CULTURE OF REPRESSION
Mr.
Effiong said the increasing arrest and prosecution of Nigerians by public
officer holders for their social media posts is an “escalation of the culture
of repression.”
He
said since many Nigerians have adopted social media as their preferred means of
expressing their frustration with politicians, the increasing arrest of social
media critics is an attempt to stifle free speech. He explains
that the few cases of abuse of social media is not excuse for politicians to criminalize
the medium.
“I’m
particularly not comfortable with the excuse that perhaps some persons have
abused social media that the use of social media itself should be criminalize
because what they have done is the criminalization of the use of social
media,” he said.
He
said politicians are increasingly lashing out at social media critics because
they have no control over it.
“This
is so because social media is the platform and the means of communication that
the politicians are not able to control. Their inability to control or regulate
the use of social media has exposed public office holders to greater public
scrutiny.”
He
said free speech is protected by the constitution and that people who feel
their reputation has been questioned on social media should seek civil remedies
such suing for libel rather than resorting to archaic laws such as the
Penal Code and “imprecise” legislation like the Cybercrime Act.
Ikemesit
Effiong, the consulting associate at Technology Advisors, an ICT law firm, agreed
that the terms of the Cybercrime Act and other laws under which social media
critics have been charged are too broad.
“(These
laws) are so widely and inelegantly crafted that almost any form of public
expression on any matter of significant public interest can be deemed to be
offensive by any person who feels such speech offends him,” he said.
He
said as the 2019 approaches the implications of legislations such as the
Cybercrime Act will become more pronounced.
He,
however, pointed out that some of social media critics are beginning to fight
back using the instrument of the law.
“It’s
no surprise then, that a lot of the activists at the receiving end of this
clampdown, chief among which is Audu Maikori, have sought to invoke the
enforcement of this fundamental right as provided by our basic law, in their
defence of these actions in the courts,” he said.
In
May, Mr Maikori sued Governor Nasir El-Rufai of Kaduna for alleged violation of
his human rights. In the suit filed at the Federal High Court in Abuja, Mr.
Maikori asked the court to enforce his fundamental human rights against what he
said was undue harassment and intimidation by the governor and the Nigerian
Police.
Similarly,
in the same month a High Court in Kaduna State awarded a ₦50,000 damage against
Mr. El-Rufai for the breach of fundamental human rights of a lawyer, Gloria
Ballasson. Ms. Ballasson, the executive officer of the House of Justice, a
non-governmental advocacy group, had asked the court to protect her rights
after the governor allegedly threatened to arrest and prosecute her for an
article wrote in the Blueprint Newspaper in 2016. The court also
restrained the governor and his agents from arresting, prosecuting and jailing
the applicant.
Peter
Nkanga, a press freedom advocate and former West African representative of the
Committee to Protect Journalist, CPJ, said the Cybercrime Act shows the need
for Nigerians to pay more attention to bills at the national Assembly
before they are passed into law.
“This
is like medicine after death. Nigerians must understand that the greatest
threat to the democracy of this country is the legislature. It is those same
laws that the legislature pass that the executive will use to harass and
intimidate its citizenry. And they will claim internationally that it is our
law and every country is governed by laws and we have a right to implement and
enforce that law.
“When
the Cybercrime Act was being debated in the National Assembly, we should have
done more to scrutinize it and say no to some particular sections of
that law. Sadly, the governors, the police and everybody in authority has seen
a means to go after critics who speak out against them.
“Until such laws are either repealed or sections of the law are expunged it is the reality we have to live with,” he said.
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