Social Media Bill and Madness in the Hallowed Chambers: A Call for Sanity

"Give me liberty, or give me death!" [2]

Introduction

Oftentimes, I sit to ponder if our “honourable” lawmakers truly care about “WE THE PEOPLE OF THE FEDERAL REPUBLIC OF NIGERIA.” I wonder if truly they have our interest at heart. I get shocked at the blatant lack of a sense of responsibility, impunity and the pseudo love shown our beloved country and its citizenry by its acclaimed lawmakers. Just recently, my fears were again confirmed that perhaps, our lawmakers are simply unfair, unreasonable and have lost touch with the people they purport to represent in Parliament. Just when I thought I have seen enough, it turns out that our ever-springing-surprises lawmakers might just have birth a new crop of madness in the hallowed chambers

Having carefully studied the constitutional provisions on freedom of expression, I struggle to understand the legal basis for the recent Bill sponsored by Senator Ibn Bala Na’Allah, a member of the All Progressives Congress (APC) representing Kebbi South[2]and who also doubles as the Deputy Senate Leader, [3]disguised as a bill to “Prohibit Frivolous Petitions and Other Matters Connected Therewith”[4] (A.K.A. Social Media Bill and hereinafter referred to as the “Bill”).

Essentially, the Bill, amongst other things, seeks to prohibit frivolous petitions on the conduct of any person of an investigation, inquiry, or inquest without a duly signed affidavit.

However, a cursory look at some of the provisions of the Bill will reveal its preposterous nature and why it should not be allowed to see the light of the day; little wonder the Presidency has dissociated itself from the said Bill.[5] For instance, Section 1 of the Bill makes petitions against 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 Federal High Court unlawful.

Whilst Section 2 of the Bill prohibits any government institution, body, or agency from using petitions that do not meet the requirement in Section 1 of the Bill, Section 3(1) of the Bill provides that anybody who uses, publishes, or causes to be published, any petition or complaint, not supported by a duly sworn affidavit, shall upon conviction be sentenced to a jail term of six months without an option of fine, Section 3(2) of the Bill provides for the imposition of a two-year jail term or an option of N2,000,000 (Two Million Naira) fine for any person who acts, uses or causes unsupported petitions to be used.

The most unfriendly and anti-public interest provision is Section 3(4) of the Bill which stipulates that “Where any person through text message, tweets, WhatsApp or through any social media, post any abusive statement knowing same to be false with intent to set the public against any person and/or 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 N2,000,000 (Two Million Naira) or both such fine and imprisonment”.

The point must be made that what constitutes an abusive statement can be subject to varying interpretation and thus, prone to abuse. One may be tempted to ask our lawmakers what the test for determining an abusive statement would be: is it the subjective test or the objective test? Is it what our lawmakers think is abusive to their “esteemed offices” or what “WE THE PEOPLE” think is abusive? I bet they would rather choose the former.

Again, Section 3(3) of the Bill prohibits any person from maliciously making allegations or publishing petitions in both print and electronic media with intent to discredit or set the petitioned person against any person, group of persons, or government institution and provides for a two-year prison term or N4,000,000 (Four Million Naira) fine. In other words, our lawmakers intend to send to prison for two years anyone who makes an allegation against a public officer or institution on social media.[6]

As mentioned by its sponsors, the Bill is aimed at anyone who makes “an allegation or publish a statement or petition in the newspaper, radio, or medium of whatever description against another person, institutions of government, or any public officeholder”.[7]

The likes of Senator Dino Melaye have even taken the arguments further to the streets and personalized the "business of lawmaking, as opposed to finding what the true position of the people of his constituent is. At the Senate Proceedings held on Thursday, December 3, 2015, Sen. Dino Melaye, representing Kogi West was seen raising a Point of Order against Sahara Reporters for an alleged blackmail and intimidation. In Sen. Dino Melaye's words, Sahara Reporters was a threat to democracy.[8]

It is hightime our lawmakers refrained from robbing the people of the exercise of their fundamental rights at the expense of their own selfish interests. Indeed, nothing could be more contrary to public interest consideration than to have lawmakers who will damn any consequence of jeopardizing public interest just to cover their own mess and restrain “WE THE PEOPLE” from curbing their excesses by airing our views on issues of National importance, and expressing our displeasure at their sense of irresponsibility.

Our senators, including the likes of Sen. Dino Melaye as well as the “beloved” Senator Ben Murray-Bruce, [9]who have got an axe to grind with Sahara Reporters,[10] should seek redress in court either through the institution of civil action for defamation or instigating a criminal action against the concerned persons.

In the event that our lawmakers are allowed to have their way, it simply means an aggrieved person can no longer freely report the conduct of any person for the purpose of investigation without going through the ritual of a sworn affidavit. This to me does not help the advance the cause of justice in a country like ours where justice is often sacrificed on the altar of technicalities. I do not see any reason for a person aggrieved to file a petition and where same is found to be false and baseless, I have no doubt that the person wrongly written about is not without remedy under our present law – the law of defamation provides a remedy.

Duplication of Laws

In addition to the existing zero tolerance for defamation in Nigeria, I am equally aware that Section 51 of the Criminal Code criminalises sedition[11] while Section 375 makes it an offence to publish defamatory statements.

Section 373(1)(a) of the Criminal Code Act defines what constitutes a defamatory matter as follows:

Defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation. Such matter may he expressed in spoken words or in any audible sounds, or in words legibly marked on any substance whatever, or by any sign or object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony. It is immaterial whether at the time of the publication of the defamatory matter; the person concerning whom such matter is published is living or dead[12]

Going further, Section 373(1)(b) and (c) of the Criminal Code Act[13] provides that in the case of spoken words or audible sounds, the speaking of such words or the making of such sounds in the hearing of the person defamed or any other person and in other cases, exhibiting it in public, or causing it to be read or seen, or showing or delivering it, or causing it to he shown or delivered, with intent that it may be read or seen by the person defamed or by any other person constitutes defamation.

In the light of the foregoing, it can be rightly asserted that the existing laws provide adequate protection for anyone who feels that his or her right has been violated upon by means of false, frivolous, malicious, mischievous and vexatious petitions.[14]

Can the Social Media Bill be situated within the existing legal framework?

The foregoing notwithstanding, I am aware that Section 14(2) (a) of the Constitution of the Federal Republic of Nigeria 1999, as amended (Constitution) vests sovereignty in the “people of Nigeria” from whom government, through the Constitution derives all its powers and authority. Of course, I am also aware that Section 4(1) of the same Constitution vests the legislative powers of the Federal Republic of Nigeria in both the Senate and House of Representatives, while Section 4(2) empowers the National Assembly “to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution”.[15]

I believe that in the enactment of laws, the interest of the people must be given priority. After all, the voice of the people is the voice of God (expressed in Latin as vox populi, vox dei).

It is beyond gainsaying that the freedom of speech is an inherent and inalienable right of every man. Indeed, everyone should be able to voice their opinion freely, without fear of censorship and punishment; that is what democracy entails.

Furthermore, Article 17 of the United Nations Universal Declaration of Human Rights 1948 (UDHR) recognizes that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Of course, one does need a soothsayer to come to realize that the UDHR represents the global consensus of rights inherent to all human beings; Nigerians and non-Nigerians alike.

Moreover, the International Covenant on Civil and Political Rights, an international instrument protecting the inalienable rights of Human Beings, to which about 150 Nations, including Nigeria, is a signatory to, guarantees the freedom of speech.

In the same vein, Article 9 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act[16] provides expressly that “Every individual shall have the right to receive information and every individual shall have the right to express and disseminate his opinion within the law.”

Thus, it goes without saying that there is a general consensus that the freedom to speech, which includes the right to hold opinion as well as express one’s opinion (views), and dissemination of same without fear of punishment or censorship, is a fundamental foundation of every democratic society. Further to the foregoing, it will be foolhardy for anyone to argue in a democratic dispensation, that the citizens should not openly criticize their leaders for their unpardonable acts or omissions. It is just commonsensical for citizens of a democratic country to voice out their displeasure with the way and manner their supposed leaders are conducting the affairs of their nation.

It then follows from the foregoing that any attempt to curtail the freedom of speech is an affront on the people’s political consciousness and an encroachment on their civil liberty. This is perhaps why Benjamin Franklin asserted in his book, Freedom of Speech[17] that whoever intends to overthrow the liberty of a nation should begin with subduing the freedom of speech and the ability of people to air their views.[18]

Lending more credence to this discuss and further underscoring the importance of freedom of expression, Professor Ademola Yakubu (now of blessed memory) opined that it is quite fundamental in any civilized society for a person to have the right to express himself in respect of matters of public interest.[19] Indeed, the freedom of expression is so fundamental that it goes to the root of human civilization and enlightenment.[20] Consequent upon this, it can be said that any subtle attempt by the lawmakers to gauge the exercise of this right, by enacting a law prohibiting the right of the people to air their views freely on national issues and engage in whistle blowing whenever they see anything go wrong, is unconstitutional.

Constitutionality of the Social Media Bill

On this note, it is imperative to note that Section 39(1) of the Constitution provides that “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

A read of the foregoing provision clearly evinces an intention by the drafters of our Constitution to ensure that: (x) everyone has freedom of expression which includes freedom to hold opinions and also extends the ability to receive and impart ideas and information without any interference. For example, it may rightly asserted that the Constitution contemplates that one can decide to have an online media platform like Sahara Reporters and be a blogger like Linda Ikeji, where opinions can be freely shared with others, without any interference from any person or authority. The argument can further be stretched to protect the freewill of individuals to share their opinions on issues generally, subject of course to the principles of law on defamation (which includes libel and slander).

Also evident from the provision of Section 39(3) of the Constitution, the only constitutionally recognized exception for derogation from this fundamental right – freedom of expression is that any law that is reasonably justifiable in a democratic society - (a) for the purpose of preventing the disclosure. of information received in confidence, maintaining the authority and independence of Courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or (b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the Armed Forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.

In the same vein, Section 45 (1) of the Constitution provides inter alia that nothing in section 39 of the Constitution shall invalidate any law that is reasonably justifiable in a democratic society: (x) where such law is made in the interest of defence, public safety, public order, public morality or public health; or (y) where such law is made for the purpose of protecting the rights and freedom of other persons.

Upon a careful read of the foregoing provision of the Constitution, I find it quite hard to understand the rationale for the introduction of the “Social Media Bill.” Having reviewed the relevant provisions of the Bill, I make bold to say that the Bill is not reasonably justifiable in a democratic society like ours.

The Supreme Court, Per Oguntade JSC in Etajata v. Ologbo[21] has endorsed the definition of “reasonable” provided in Black’s Law Dictionary as follows: “Reasonable means fair, proper, moderate, and suitable under the circumstances.” The question then is whether the “Social Media Bill” is fair, proper, moderate and suitable in the present circumstance.

Similarly, the Court of Appeal, Per Owoade, JCA in Edoko v. The State[22] gave a judicial interpretation of what the test of a reasonable man is: “… the reasonable man means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society.”

Furthermore, the Supreme Court in Olawoyin v A.-G. Northern Nigeria[23] held that a restriction upon a fundamental human right, before it may be considered justifiable must: (x) be necessary in the interest of public morality and (y) not be excessive or out of proportion to the object which it is sought to achieve.[24]

Relying of the foregoing, it can be rightly argued that the “Social Media Bill” is not reasonable justifiable for same cannot be said to have been in public interest.

Again, I do not think that the argument that the Bill was made in the interest of defence, public safety, public order, public morality or public health can see the light of the day. It is my the humble view that the Bill was made in the selfish interest of lawmakers who have decided to use the law as a means of restraining “WE THE PEOPLE” from protesting their excesses and challenging the status quo. I find it quite hard to believe that the Bill is not aimed at killing the political consciousness of “WE THE PEOPLE”; for “WE THE PEOPLE”, are the very ones at the receiving end of our lawmakers’ prodigal lifestyle and questionable manner of lawmaking. 

Conclusion

In all, the law is quite clear on where lies the remedy of anyone who is aggrieved with any untrue statement made against him, damaging his or her reputation or perchance, lowering his or her reputation in the eyes of a right thinking person. Of course, the present writer is aware that there is always a need to create a balance between individual rights of citizens and non-citizens alike while ensuring that no one encroaches on other people’s rights in the exercise of the enjoyment of their individual right – for it is where someone’s rights stop, that another’s right begin. Nonetheless, it is the humble position of the present writer that any public office holder who is aggrieved by any publication and writing can sue for defamation. Borrowing the words of Honorable Justice Olatawura, J.C.A, (as he then was), those who occupy sensitive positions must be prepared to face public criticism in respect of their office so as to ensure that they are accountable to the electorate. They should not be made to feel that they live in an ivory tower and therefore belong to a different class.[25]

About the Author

Joseph, a First Class graduate of law from the University of Ibadan, is a recipient of many prestigious scholarships including the Federal Government Scholarship, Chevron National Merit Award and Total E & P National Merit Award. As a member of the Dispute Resolution Practice Department of Olaniwun Ajayi LP, a top tier law firm based in Nigeria, he has garnered considerable experience in providing general legal advisory and support services as Commercial Litigation, Corporate Law, Alternative Dispute Resolution, International Commercial Law, Insurance Law, as well as both Civil and Criminal Litigation.

Please note that this publication (represents only the view of the present writer) and is provided to highlight issues as well as for general information purposes only; it does not constitute legal advice. Whilst reasonable steps were taken to ensure the accuracy of information contained in this publication, the author nor does not accept any responsibility for any loss or damage that may arise from reliance on information contained in this publication. Should you have any questions on the issues addressed herein or on other areas of law, please contact the author on +2348137442133; [email protected].

References

[1]       See the Preamble of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)

[2]       Sahara Reporters, “Nigeria: Bill Proposing Two-Year Prison Term For “False Allegations” On Social Media Passes 2nd Reading In Senate”, available at https://saharareporters.com/2015/12/03/nigeria-bill-proposing-two-year-prison-term-%E2%80%9Cfalse-allegations%E2%80%9D-social-media-passes-2nd and accessed on December 7, 2015 at 9:17am.

[3]        Abiodun Alade, Vanguard, December 3, 2015, available at https://www.vanguardngr.com/2015/12/akpabio-to-nigerians-senate-will-not-pass-bill-to-send-social-media-users-to-prison/ and accessed on December 7, 2015 at 11:49am.

[4]       “Proposed social media bill under fire in Nigeria”, December 4, 2015, available at https://www.aljazeera.com/news/2015/12/proposed-social-media-bill-fire-nigeria-151204211513621.html and accessed on December 13, 2015.

[5]       Vanguard, “Social Media Bill: You are on your own, Buhari tells Senate”, available at https://www.vanguardngr.com/2015/12/social-media-bill-you-are-on-your-own-buhari-tells-senate/ and accessed on December 13, 2015 at 5:54pm/ It is also interesting to note that the United Nations is considering the petition filed by the Socio-Economic Rights and Accountability Project (SERAP) against the bill. See further Levinus Nwabughiogu, “Buhari tells Senate: I won’t assent Social Media Bill”, Vanguard, December 7, 2015, available at https://www.vanguardngr.com/2015/12/buhari-tells-senate-i-wont-assent-social-media-bill/ and accessed on December 13, 2015 at 5:57pm.

[6]        See Henry Umoru & Joseph Erunke, Vanguard, December 2, 2015 “Senate proposes 2-year jail for offenders of abusive statements on social media” available at https://www.vanguardngr.com/2015/12/2-year-jail-for-offenders-of-abusive-statements-on-social-media/ and accessed on December 13, 2015

[7]        Sahara Reporters, “Nigeria: Bill Proposing Two-Year Prison Term For “False Allegations” On Social Media Passes 2nd Reading In Senate”, available at https://saharareporters.com/2015/12/03/nigeria-bill-proposing-two-year-prison-term-%E2%80%9Cfalse-allegations%E2%80%9D-social-media-passes-2nd and accessed on December 7, 2015 at 9:17am.

[8]       Sahara Reporters, “Tweets Showing Nigerian Senate In Panic Over Social Media Power”, available at https://saharareporters.com/2015/12/03/tweets-showing-nigerian-senate-panic-over-social-media-power and accessed on December 13, 2015 at 6:17pm.

[9]       Sahara Reporters, “Tweets Showing Nigerian Senate In Panic Over Social Media Power”, available at https://saharareporters.com/2015/12/03/tweets-showing-nigerian-senate-panic-over-social-media-power and accessed on December 13, 2015 at 6:17pm.

[10]       Sahara Reporters, “Tweets Showing Nigerian Senate In Panic Over Social Media Power”, available at https://saharareporters.com/2015/12/03/tweets-showing-nigerian-senate-panic-over-social-media-power and accessed on December 13, 2015 at 6:17pm.

[11]      Section 51(1) of the Criminal Code Act Cap. LFN 2004 provides that “Any person who - (a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention; (b) utters any seditious words; (c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; (d) imports any seditious publication, unless he has no reason to believe that it is seditious; shall be guilty of an offence and liable on conviction for a first offence to imprisonment for two years or to a fine of two hundred naira or to both such imprisonment and fine and for a subsequent offence to imprisonment for three years and any seditious publication shall he forfeited to the State.

[12]      Section 373(1)(a) of the Criminal Code Act Cap. C38, Laws of the Federation of Nigeria 2004.

[13]      Cap. C38, Laws of the Federation of Nigeria 2004.

[14]      Nigerian Law Today, December 9, 2015, titled “Frivolous Petitions (Prohibition, etc.) Bill 2015- Threat to Nigerians' Freedom of Expression”, available at https://www.nigerianlawtoday.com/2015/12/frivolous-petitions-prohibition-etc.html and accessed on December 13, 2015 at 6:26pm.

[15]           See Section 4(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

[16]       Cap. A9 Laws of the Federation of Nigeria 2004

[17]           Pennsylvania Gazette (17 November 1737)

[18]      "On Freedom of Speech and the Press", Pennsylvania Gazette (17 November 1737)

[19]       Yakubu J.A. Press Law in Nigeria (Malthouse Press Ltd. 1999) p.33

[20]       Amaju Raphael Aondofa, “Right of Expression under the Nigerian Constitution: Issues and Challenges” https://www.unilorin.edu.ng/studproj/law/0640ia046.pdf and accessed on December 7, 2015 at 11:14am.

[21]      (2007) ALL FWLR (Pt. 386) 584 at 642; Paras A - B (SC);(2007) 16 NWLR (Pt. 1061) 554 (SC)

[22]      (2009) LPELR-4108(CA)

[23]      (1961) 1 All Nigerian Law Report (All NLR) 281 at

[24]      See further Imo J. Udofa, “Rightr to Freedom of Expression and The Law of Defamation in Nigeria”, available at https://www.icidr.org/ijalsg_vol2no1_april%202011/Right%20to%20Freedom%20of%20Expression%20and%20the%20Law%20of%20Defamation%20in%20Nigeria.pdf and accessed on December 13, 2015 at 5:30pm.

[25]      See the decision in State V Ivory Trumpet Co Ltd (1964) 5 NCLR 736