NIGERIA'S UNCONSTITUTIONAL WAR ON THE 5TH ESTATE: Review of the "Anti-Social Media" Bill
By Charles E. Uche Esq.
In Nigeria, leadership is arguably the greatest challenge inhibiting the country’s socio-economic and political progression. For a greater part of October 2020, Nigeria witnessed a revolution which emanated from social media. This revolution was embodied and catalyzed by the #EndSARS movement that campaigned for the dissolution of the Special Anti-Robbery Squad (SARS), an end to police brutality, justice for victims of police brutality and accountability of police officers found culpable.
The government, in its bid to evade accountability of her citizens’ demands through the #EndSARS movement and nationwide protests which were largely coordinated from social media platforms, is once again pushing to revive the Anti-Social Media Bill which was overwhelmingly condemned and suspended in 2019 – titled: “Protection from Internet Falsehoods and Manipulations and Other Related Matters Bill”.
The proposed law is not just draconian, but also overly broad, vague, imprecise and shrouded with defective legislative drafting, perhaps, because it was plagiarized from a similar Singaporean law – a country with the reputation of restricting fundamental freedoms and the media. Inevitably, these challenges would increase the chances of the law being misapplied and easily susceptible to abuse by an overreaching executive arm of government apprehensive to dissenting views and criticisms.
A critical review of the provisions of the bill would firmly reassure anyone that Nigeria is very far from a democracy – it still dances in the grim shadows of autocratic dispensation. The bill constitutes a significant affront to our sick, stunted democracy and seeks to violate the fundamental rights and freedoms enshrined in the Constitution of the Federal Republic of Nigeria, the African Charter on Human and Peoples Rights, and other international human right instruments.
Specifically, the bill seeks to restrict the fundamental rights to freedom of expression speech and the press; freedom of thought, conscience and religion, right to peaceful assembly and association, right to access to justice, and so forth.
The proposed law empowers the Law Enforcement Department (LED), ie; the Police and the Nigerian Communications Commission (NCC) to issue a plethora of overreaching and unconstitutional regulations or orders that violate citizens fundamental rights. Some examples of despotic provisions of the proposed law includes:
i. Section 3 of the Bill criminalises “false” declarations and statements of fact; and sections 3 (iv) and (v) prohibits the transmission of statements that may influence the outcome of an election and diminish public confidence in a public office, respectively.
Issue(s): the bill does not define “false" in the context and interpretation is largely at the discretion of the executive arm of government – in a country where critical facts are immediately labelled “fake news" by the government – sometimes, only to subsequently apologise for the very act which it labelled fake news – and other times, totally refusing to take responsibility. The bill also empowers the government to enforce the law according to its opinion and what it deems as public interest. Sadly, these powers would only stifle dissenting voices and are all too broad and liable to abuse.
ii. Sections 5 and 33 both prohibit and criminalise funding that may promote the transmission of false declaration of fact in Nigeria on a declared online location.
Issue(s): During the #EndSARS protests, funds were mobilised to provide food, water, legal, medical and other aid to protesters and victims of undue police clampdowns. This effort was mostly coordinated by a group named “Feminist Coalition” – and reportedly, attempts to utilise Fintech's to mobilise funds were met with cautionary measures and eventual freezing of bank accounts of alleged 20 #EndSARS promoters by the federal government through the Central Bank of Nigeria – after a court order was obtained. This law would only further entrench this illegality at the detriment of the citizenry.
iii. Section 12 (Access Blocking Order) unduly empowers the LED/Police to direct the NCC to order an Internet Service Provider (ISP) to block/disable end-user internet access to an online location or platform.
Issue(s): in this 21st century where internet access is considered a fundamental human right, Nigeria is strongly pushing to limit internet access and gag her citizens.
iv. Sections 13 & 24 (Appeals to High Court) which provides for the right to access to justice to vary or cancel a regulation or order issued to a person/body pursuant to the proposed law is highly restrictive. For example, section 13 (2) and 24 (2) provides to the effect that a person cannot appeal to a High Court to review or vary a regulation unless and until the person has applied to the LED/Police to vary or cancel the regulation.
Issue(s): the pathway to justice – to appeal and seek to set aside an undue regulation or order is unconstitutional – bearing in mind Section 46 (1) of the Constitution. Moreover, one cannot be a judge in his own court Nemo Judex In Causa Sua – hence, it is unreasonable, contrary to due process and fair hearing to mandate an aggrieved person to appeal a perceived overreaching regulation to the very body that issued it in the first instance. Access to justice must be unfettered.
One of the most fearful or autocratic elements of the proposed law is that a very significant portion of its enforcement is arbitrary and dependent on what the executive arm of government deems to be right or opines to be false.
Facebook, in reacting to the Targeted Correction Regulation issued to them by the government of Singapore in April 2019 pursuant to a similar law, stated that it was concerned with aspects of the law that grant “broad powers to the Singapore executive branch to compel us to remove content they deem to be false and proactively push a government notification [narrative] to users”.
Perhaps, one may argue that this proposed law is a consequence of Nigeria's gerontocratic regime - where our old, frail rulers are neither abreast nor well-informed in the effective use and prospects of social media in democratic evolution. However, recent events have also shown that even younger politicians and legislators in both the federal and state houses of assembly have shown tacit or express support for the proposed law.
Nigeria’s rulers have consistently failed to understand and appreciate that the robust use of social media entrenches the very tenets of democracy in any polity. To highlight these;
- Social media is a tool for holding the government to account through constructive engagements and criticisms;
- It is a conduit for mobilising voices and executing online protests against unfavourable public policies;
- It is a conduit for effective C-governance (citizen-led governance) and E-governance;
- It is a conduit for determining public opinions and poll taking for policy formulation and/or influencing.
- It has made politics more inclusive by allowing citizens, who were traditionally excluded from politics due to geography and demography, to gain access and partake in the political process.
Also, as witnessed during the COVID-19 pandemic lockdown, tracking of public expenditure was impracticable and transparency and accountability advocates were mostly constrained to digital accountability and advocacy measures - largely sourcing data and engaging government on social media – in a country where the government is very much digitally disinclined and apprehensive of social media.
To buttress the indispensable role of social media in a democracy, William Dutton, a professor of Internet Studies at the University of Oxford, opined that the Fifth Estate [in a democracy] is 'networked individuals' enabled by the Internet, e.g. social media, in ways that can hold the other estates “accountable”. Social media is not a conduit for communication and expression of opinions, it is a veritable tool for holding the government accountable and tracking national trends for robust policy advocacy.
Furthermore, considering the autocratic nature of the proposed law and other more pressing matters of national importance that require legislative intervention (such as corruption, energy, job creation), it is not farfetched to wonder why Nigeria, an apparent democracy, needs a whole law to regulate social media, bearing in mind that the NCC, in furtherance of its statutory mandate, has in the past made plethora of regulations regarding online communications – in addition to the Cybercrimes Act. Therefore, this proposition and attempt is nothing but an exercise of legislative rascality and insensitivity to the plights of ordinary citizens who feel empowered and included in the political process and national development.
If ever sufficient grounds should exist to support the extra regulation of social media, such regulation must not be antithetical to citizens fundamental rights and freedoms; and it must be reached through a multi-stakeholder consultative process. It is my opinion that if such time ever arises, a mere regulation by the NCC to complement already existing regulations should suffice. The Nigerian government must make all the difference in choosing not to firmly emulate anti-social media and authoritarian nations such as North Korea, China, Iran et al.
Lastly, the panacea to fake news are readily available information from the government, citizen engagement, open governance, transparency and accountability. Curbing fake news is not automatically achieved through legislative and executive bullying of citizens in a democratic setting. Dissenting views are crucial for constructive national discourse and development. Therefore, this despotic exercise must be collectively resisted at all cost and must end as an exercise in futility. Citizens must organise and exercise their fundamental rights to expression and peaceful protest.
