A lawyer has written on the effect of Twitter ban on freedom of expression.
In this article, Lagos lawyer Ogbonna Uwalaka examines the constitutionality or otherwise of the Twitter ban.
This right to freedom of expression as contained in Section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), provides for freedom to hold an opinion and to receive and impart ideas and information without interference.
To put all of this in context, the Constitution is regarded as the “grundnorm” of all laws in Nigeria, the law from which all other laws, policies, regulations, and guidelines draw their legality.
The right to freedom of expression, like most other rights in Nigeria’s 1999 Constitution, is not absolute. The only condition for restriction, suspension and/or ban is where it is expressly provided for by law or as a matter of national security, public order, or the reputation of others.
The freedom of expression provisions of the constitution contains clauses that set out when the right can be derogated or restricted.
The first case is the prevention of exposure of information received in confidence, the maintenance of the authority and independence of courts, the regulation of telephone, wireless broadcasting, television or the exhibition of cinematograph films.
The second is the putting of restrictions on the freedom of expression of public office holders at the federal or state levels, members of the armed forces or Nigeria Police Force or other government security services or agencies established by law to keep official and state secrets.
It may seem rather strange that speech or press should be accorded greater importance that life itself. One would have thought that life is more basic and valuable, since without it there can be no speech and no press. Freedom of speech and press are indeed the very life of the political community in the sense that speech against and/or concerning public affairs has rightly been said to be more than self-expression; it is the essence of self-government. It is the crux of civic involvement in the art of governance, without which the citizens will be left out in the decision making of the government.
To underscore the importance of these rights, they have been codified in our Grundnorm (The 1999 Constitution as amended). Section 39 of the 1999 Constitution of the Federal Republic of Nigeria provides thus: “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. (Emphasis ours).
Speech concerning public affairs has rightly been said to be more than self-expression; it is the essence of self-government. Free speech and free press are instruments of self-government by the people because they enable the people to be informed and educated about affairs of government, thereby enabling them to form and express intelligent opinion on such matters. Free dissemination and discussion of ideas and opinions is thus indispensable to democratic government and Nigeria cannot afford to be different. Political responsibility as a concept of democratic government requires that public opinion should be one of the factors informing the actions of the government. Indeed, an extreme view of political responsibility postulates public opinion as the determinant policy.
The priority accorded to freedom of speech and of the press is predicated further on the belief that free discussion is indispensable to the discovery of political truth. Thus, when ideas compete in the political space, it is free speech and press that exposes the falsehood.
More important, by allowing free discussion, ideas held by the government and those advocated by its opponents have the opportunity to compete for acceptance by the public. Public opinion to a large extent determines the acceptance of a governmental policy.
Free speech and free press also enables corruption, abuse of office and other official wrongdoing by public servants to be publicly exposed. The fact that their actions and inactions are open to public opinion and debate in the mass media may be accounted the greater check on official misconduct.
Are there any limitation on fundamental rights to frreedom of expression and press?
Yes. There is the general limitation clause in section 45 of the Nigerian constitution. The section allows fundamental rights to be limited in the interest of defence, public safety, public order, public morality or public health. It also permits the limitation of fundamental rights to protect the rights and freedom of other persons.
This limitation must, however, be by a reasonably justifiable law and it requires three conditions.
Legality – there must be a law of general application authorising the limitation.
Proportionality – This means that the procedures utilized to restrict rights must be proportional to the objectives of the restriction.
Necessity – That means the least restrictive method that must be employed to achieve the objectives of limitation.
The Twitter Ban could be supported under either of the permissible grounds of limitation under section 45 of the Constitution. However, an analysis of the facts surrounding the ban shows that it fails the test of legality. For one, it was announced by the country’s Minister of Information at a press conference rather than being effected through a law of general application as required by Section 45 of the 1999 Constitution.
The conditions for derogating from human rights under the constitution were not met. An executive decision cannot be considered law as there is no legislation from the National Assembly prohibiting the use of Twitter in Nigeria.
Furthermore, Section 36 (8) and (12) of the 1999 Constitution states that no one can be held guilty of a criminal offence as a result of any act or omission that did not amount to an offence under any law at the time the act or omissions was done.
Under section 36 (12), no person can be convicted of a criminal offence unless that offence is defined and the penalty prescribed in a written law.
Essentially, no act or omission can amount to an offence under the current constitutional dispensation in Nigeria in the absence of a written law. After a perusal of the existing law, one is hard-pressed to find any law specifically proscribing the use of Twitter or VPN in Nigeria.
Effects of ban on Twitter to the fundamental rights of freedom of speech and press
Any democratically elected government that tends to stifle the freedom of speech and press is likened to a military junta. It means that the citizens can no longer contribute to how they are governed. Note that freedom of speech and press enhances public opinion, which in turn informs government policy and decision.
Any attempt to hinder the freedom to speech and press, will lead and weaken the fight against corruption and abuse of human rights. The unpopular and draconic policies of government will hold sway. The fact that their conducts and characters are open to public debate in the mass media may be account for a good tool for check on official misconduct.
It hinders the chances of self-government by the citizens as the citizens no longer have the right to make meaningful contribution on how they should be led and governed. It will erode the possibility of having balanced policy in the polity and there will be no room to ex-ray and sample public opinion on a topical issue of public importance.
It is instructive to note that in suspending the operations of Twitter, the Federal Government did not rely on any law that gives them such powers. This is because there are no such laws. Neither the Cybercrimes Act 2015 (that deals with the improper usage of digital communication) nor the Nigerian Communications Commission Act 2003 (under which the NCC draws its powers) provides for the shutting down of social media sites.
The Ban is an onslaught and suppression of the freedom of expression guaranteed under the Constitution.