West Africa: Rights Violations - Ecowas Court Orders Nigerian Government to Amend Cybercrime Law

ECOWAS Court rules that the section of Nigeria's cybercrime law 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).

The ECOWAS Court of Justice has ordered the Nigerian government to amend the controversial section 24 of its cybercrime law which is widely viewed as authorities' weapon for muzzling citizens' rights to freedom of expression.

The court gave the decision on March 25, 2022 in Accra, Ghana, a statement by the court's information unit stated on Monday.

In the decision, the court ruled that the contested section 24 of Nigeria's Cybercrime (Prohibition, Prevention, etc) Act, 2015 "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)."

Keikura Bangura, the presiding judge, who read the court's decision, asked Nigerian government to amend the legal provision "in order to ensure conformity with the country's obligations" under the ACHPR and ICCPR.

Suit

The decision was delivered in a suit filed by the Socio-Economic Rights and Accountability Project (SERAP), one of the frontline civil society organisations in Nigeria.

SERAP had, in its suit, challenged the legality and compatibility of Section 24 of the Cybercrime Act 2005 in relation to the guarantees of freedom of expression and information enshrined in Article 9 of the ACHPR and Article 19 of the ICCPR, respectively.

The said section 24 of the cybercrime law criminalises sending a message via a computer system which was "grossly offensive, pornographic or of an indecent, obscene or menacing character" or to send a message or cause any such message or matter to be so sent; or to send a message, knowing it 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 to cause such a message to be sent.

It particularly alleged 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 through the repressive use, interpretation and by agents of the respondent, the same being vaguely worded and ambiguous.

The applicant contended that since the passage of the Act, the Nigerian government and its agents had used its provisions to harass, intimidate, arbitrarily arrest and detain and unfairly prosecute users of the social media, human rights defenders, activists, journalists, broadcasters and bloggers who express their views perceived to be critical of the Government both at the Federal and State levels.

The applicant listed 12 high profile cases of the alleged victims of harassment, intimidation, arrest unlawful detention, prosecution and imprisonment of journalists, bloggers, broadcasters, social media users, human rights defenders and activists, by the respondent, its agents and several states of Nigeria between August 2015 and November 2018, for alleged cyberstalking and urged the Court to make several declarations and orders that will underscore the incompatibility of the Act with the provisions of the two international instruments.

Defence

In its defence, the respondent (the Nigerian government) urged the court to dismiss the suit on the grounds that it was misconceived, adding that the prayers sought were not grantable in law.

In particular, the respondent contended that the application was not only pending before the national court for the same reliefs but that the interpretation of Section 24 of the 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.

Moreover, the respondent contended that the Act was not only in line with Section 45 of the Nigerian Constitution, but was subjected to the requisite constitutional and legal processes before its passage. It said the applicant was aware of the processes leading up to the passage of the Act into law but did not protest it at the time.

The respondent argued that 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.

Partial victory

The court's judgement turned out to be a partial victory for the two sides.

Apart from securing the decision of the court dismissing the Nigerian government's objection to the suit, the other favourable part of the ruling in the applicant's favour was the order directing the government to amend the contested provision of the law.

The applicant's other prayers were turned down.

For instance, the court dismissed its claim for compensation and ordered both parties to bear their costs pursuant to Article 66 of the Rules of the Court.

The court decided that proving a claim is imperative and that adducing a list without establishing by way of evidence, the violations suffered by those listed that resulted in breach of the respondent's obligations, cannot procure a favorable judgment.

Furthermore, the court stated that in the pursuit of proof, a claimant must support its claim with uncontroverted evidence which is of persuasive value to enable it discharge its burden of proof.

Similarly, the court held that the assertion by the applicant that several persons were prosecuted and convicted was not supported with evidence and therefore found the claims bereft of evidence of summons or a judgment containing details of parties that will persuade it on the claim for prosecution.

The court held that the applicant failed to discharge the burden of proof required by law.

But the court affirmed its jurisdiction to hear the case, noting that a mere allegation of human rights violation is sufficient to invoke its human rights mandate pursuant to Article 9 (4) of the Supplementary Protocol as long as the two requirements of accessing the Court has been met -- it was not anonymous and that the case was not before another international court.

The other members of the court's panel were Gberi-Be Ouattara and Dupe Atoki.

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