By Festus Ogun
In 2015, the Nigerian government signed into law the Cybercrimes (Prohibition, Prevention, Etc) Act, 2015 (“the Act”) as “an effective, unified, and comprehensive legal, regulatory, and institutional framework for the prohibition, prevention, detection, prosecution, and punishment of cybercrimes in Nigeria”. According to the Act’s explanatory Memorandum, the instrument was also enacted to ensure the protection of critical national information infrastructure and promote cybersecurity, the protection of computer systems and networks, electronic communications, data, computer programs, intellectual property, and privacy rights.
Section 24(1) of the Act, prior to its recent amendment made it an offense to send a message via a computer system that 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. The sentence on conviction for such an offense is a fine of up to N7,000,000 (Seven Million Naira Only) or imprisonment for up to three years or both.
Over the years, several provisions of the Act, particularly Section 24(1) reproduced above, have been used by the authorities to suppress and harass critics, activists, opposition members, media organizations, and journalists for publications that are critical of powerful interests, as well as politically exposed and influential individuals. Despite the fact that the provision of Section 24(1) of the Act violated the constitutional right to freedom of expression and of the press, the Courts in Nigeria, have refused invitations by media rights lawyers and activists aimed at amending or repealing the draconian provision.
The nebulous section 24 and other sections of the Cybercrimes Act 2015 has been contested at the Federal High Court, the Court of Appeal, the Supreme Court and the ECOWAS court for violating freedom of speech. The suit was struck out at the Federal High Court and the Court of Appeal. It was then appealed to the Supreme Court in 2019, and since when the brief was filed a day has not been fixed for it. The suit was filed at the ECOWAS Court in 2018, and in a 2020 judgement by the court it ordered the Nigerian Government to repeal or amend section 24 of the 2015 Act. This judgement was not obeyed by the Federal Government until 2024 when the Federal Government gave effect to the judgement of the ECOWAS Court.
The attitude of the Nigerian courts in not nullifying the draconian provision of Section 24(1) of the Act gave a boost to the authorities to attack journalists and individuals who hold dissenting views and an opportunity to violate their rights to freedom of expression further. It is conventional wisdom that when news stories, publications, reports, or comments critical of government policies are published on the internet, these reports are typically tagged as “annoying,” “grossly offensive,” “insulting,” “inflammatory,” or “needless anxiety” “negative,” thus resulting in arrests and detentions under Section 24 of the Act.
Thankfully, by the Cybercrime (Prohibition, Prevention, Etc) (Amendment) Act, 2024, the controversial Section 24 was amended to remove the nebulous words and phrases with which the authorities suppress free speech. The newly amended Section 24(1) provides as follows:
“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that –
(a) Pornographic: or
(b) He knows to be false, for the purpose of causing a breakdown of law and order, posting a threat to life or causing 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 N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.”
The above construction makes a reason leap towards clarity, evades the previous ambiguity, and may not be easily manipulated to intimidate journalists and vocal citizens. Agreed that the amendment has taken away the very nebulous provisions, the phrase “for the purpose of causing a breakdown of law and order” used in that provision may also be weaponized by the police. The question is: who defines what publication is capable of causing “breakdown of law and order”? Recall that few years ago, a man was charged to court in Ogun State for naming his dog “Buhari” and police justification for the arraignment was that it was capable of causing breach of peace and breakdown of law and order. We are concerned that this undefined phrase may be explored by the police to clampdown on journalist and dissent voices.
Notwithstanding the amendment of the Cybercrimes Act, the Official Secret Act, Obscene and Harmful Publication Act, the Criminal and Penal Codes, and the National Broadcasting Commission Act remain subsisting laws that are being weaponized to harass and intimidate journalists and the press. It is evident that these laws pose a larger danger to the enjoyment of press freedom in Nigeria, where journalists and reporters are increasingly at risk of being arrested, detained, and prosecuted pursuant to them. The law should represent the spirit of democratic order and deserves a renewed look to be radically amended.
It remains that the newly amended Section 44(1)(a) of the Act provides for a levy of 0.5% (as opposed to the earlier 0.005%) payable by all telecommunication companies, internet service providers, banks, and other financial institutions including insurance companies and the Nigerian Stock Exchange on all electronic banking transactions and that the levy shall be remitted into the National Cyber Security Fund. There are ongoing controversies as to the legality of whether the Office of the National Security Adviser, a mere coordinating entity and non-operational institution, is absurdly mandated by the Act to implement its provisions and whether it is appropriate for citizens (taxed through these businesses) to fund national cybersecurity. It gets harder to believe that the renewed commitment to funding the National Cyber Security Fund is not connected to the strategies of the authorities to gather more resources to tackle freedom of expression and of the press under the guise of implementing the Cybercrimes Act, 2015.
In all, the media and civil society in Nigeria again received a wake-up call to remain vigilant in the wake of the government’s relentless effort at media censorship.