A government cannot succeed if every complaint is seen as an affront — Digital Rights Lawyer

When Nigeria’s Federal Government suspended Twitter operations in the country on June 5, 2021 the diplomatic missions of the EU, U.S., Britain, Canada and Ireland in a joint statement made a remarkable statement. “Banning systems of expression is not the answer.”

They also stressed that this is: “Precisely the moment when Nigeria needs to foster inclusive dialogue and expression of opinions, as well as share vital information in this time of the Covid-19 pandemic… The path to a more secure Nigeria lies in more, not less, communication.” The Federal Government has not changed its mind.

However, condemnations have continued to trail what many see as a ploy to gag freedom of expression. Mojirayo Ogunlana Nkanga, Digital Rights Advocate and Press Freedom Lawyer is representing five NGOs, including Paradigm Initiative, and four journalists at the Community Court of Justice, ECOWAS Abuja. They are asking the court to declare the indefinite suspension of Twitter in Nigeria a violation of their human rights under international law. Ogunlana Nkanga spoke with Lillian Okenwa.

L&S: You sued the Federal Government of Nigeria for banning Twitter. What in your opinion is the effect of twitter ban on Nigerian youths?  

I have actually handled cases concerning violation of fundamental human rights and freedom of expression for journalists several times before the ECOWAS court. But I have never taken any case against the Federal Government of Nigeria. It has always been in respect of The Gambia, Sierra Leone and Togo and last year June 25 we got a judgment. The ECOWAS court had ruled that the government of Togo violated and restricted the freedom of expression of the citizens by shutting down the internet during the election period.

Those judgments we win are the fuel. They make us feel there is hope for the people. Now why do I say that? Compared to the Nigerian national courts, I have noticed that the judges are not willing to be activists.  The judges before them like Kayode Eso and Justice George Oguntade were not restricted to the text of a law. They were able to do what the equity court was set up to do in the past.

Every Nigerian has a right to receive information and share it. Irrespective of the fora, you can do that because these rights are not only guaranteed by the 1999 Constitution but also by the treaties, instruments signed and ratified by Nigeria such as the African Charter.  So it was necessary for us to head to the court. The Twitter ban was not only dealing with Nigerians; on the international level, the Nigerian government is trying to control the kind of information Nigerians share on social media.

In 2019 they tried to pass the social media bill and I was part of the team that fought that bill. I also submitted a memorandum before the House of Representatives at that time. This is what I do apart from being a Gender Rights Advocate. I am also a Digital Rights Advocate and a Press Freedom Lawyer. When we go before the courts we expect that they put into perspectives the vast jurisprudence of the right of people online and the right to share and express themselves on platforms online. So what the government came up with is against the constitution. It is ultra vires and against the legal due process and rule of law for the government to shut down a particular platform without a legal backing. Now they may come up with this idea that Section 45 of the Constitution says: ‘The right of freedom of expression is not absolute.’ But the law has some conditions when it is not absolute and it is very clear

1.  Whenever one is proclaiming the right to freedom of expression, it must be legitimate and pursue a legitimate aim.

• It must be necessary and justifiable in a democratic society

L&S: What if the government says it’s with regards to national security?

National Security if you look at the position of the United Nations is not a condition alone. It must be proven that the aim is legitimate and in this case you cannot claim it is a legitimate. It is not necessary in a democratic society

For instance, you can’t tell Nigerians what platform to use to express themselves. People use Twitter because it is the fastest and easiest way to seek Justice. But for Twitter, a lot of cases would have gone unnoticed. In the past, it was so easy to violate a woman and get away with it. For instance you go to the police station and you are being told directly to your face that your mouth is too sharp, why did you talk back to your husband? These are the people that are supposed to be protecting your rights but they are already biased and prejudiced when you take your case before them

A girl seeking for job in Akwa Ibom State was raped, killed and buried. Till today the alleged offender has not been charged and I just saw on the news that the DSS has taken over the case. All you need to do to kill a case in Nigeria is to have the right connection. But with the social media, it is impossible. People will analyse your issues based on being human and not because they have politicians paying their fees.

The government fails to understand that a lot of Nigerians have gotten economic and financial benefits through Twitter. People have gotten employment through twitter. We have people called social media influencers who get paid for having large followership and we have a lot of them in Nigeria. Some people did some statistics and found that shutting down Twitter is causing Nigeria a lot of money but the government will not see that.

L&S: But the government said Twitter sponsored the EndSARS protest.

That isn’t true. They have been unable to prove it.

L&S: It did appear that the EndSARS protest endangered the lives of Nigerians. Could that be reason why the government is against it?

Let me talk about EndSARS. A popular musician was killed by the SARS and Nigerians took to Twitter and tweeted about it and talked on how they have gone through a lot with SARS. I personally have had experiences with SARS but it didn’t get to the point where I was beaten or tortured. But I can tell you I have met a lot of Nigerians who have been tortured by SARS. What Nigerians did is no different from the Black Lives Matter that happened in US when George Floyd was killed. People were in solidarity all over.

L&S: But the government said the protesters destroyed properties.

Those where government paid hoodlums because the youths were organised. For instance if what happened in Lekki had happened in Abuja, I would have been a victim. I joined protesters at the Unity Fountain or at Berger. Also, they made sure they cleaned the environment whenever they ate and drank. They were very organised. It was a peaceful protest until hoodlums came into the situation. And they claimed they were paid 500 naira by government officials. We saw video footages of guys who came in suits and government vehicle to either drop them off or carry them. They claim to have been given 500 naira to go and destroy the protest.

Twitter wasn’t used by Nigerians to sponsor and cause harm during the ENDSARS Protest. It was just a platform used and it has a lot of audience. It didn’t involve Jack Dorsey. It was used to communicate the ills of the government. When Nigerians in diaspora saw the ENDSARS Protest, they began to send in money into a particular account in Nigeria before the Nigerian government froze the account. The government then tried to block every avenue for such.

The government has failed in every aspect. The popular saying ‘The Police is your friend’ is a big lie because their activities and extortion is proving itself. I recall an incident with a Police officer who said he joined the force in 1985, the year I was born.  As we tried to resolve the matter, the man said I was lucky because he would have sexually assaulted me. He couldn’t have said that to a man. It’s emotional violence.

L&S: You recall the case of an 18 year old girl who was involved in the ENDSARS protest that gave birth while in detention.

It is an unfortunate situation. People went out to protest and instead of government to provide protection for the protesters, the government were feeling threatened. A government cannot succeed if everything people are complaining about is seen as an affront. You can never get the support of the people by so doing. They are always on defensive. During the June 12 protest, the governor of Oyo State came out to protest and we saw how people were praising him and rallying around because he chose to be a governor of the people. When people come out they should not be arrested or tear gassed. How can you harass innocent people who said they are not comfortable?

That lady probably had been pregnant since October and you locked her up because she has nobody. In Nigeria, when one has nobody to connect with, when you are poor, the government is against you. For example, I once went to the National Assembly to drop off a letter. When I got there I was told to leave my phone at the gate. I was not comfortable because as a digital rights lawyer I know what can happen when a phone is left at the hands of a third party. So I said, let me keep it in my car and I would leave my driver’s licence. But they refused and said they are not taking my documents.

L&S: Why would they do that, what if you didn’t have a phone?  

Exactly. I would have gone in. Would they have made it an issue? It will shock you that it’s because I didn’t come in with a big car, because some people were allowed to enter right in my presence without being questioned. So that could have been the same case with that lady. She didn’t have anybody. Again people made an issue about it on Twitter and that was how the governor of Ondo State heard about it.

If not for Twitter then she would have remained in detention. You can see how Twitter is even enhancing governance.

L&S: I’m also wondering. EndSARS protesters being clamped down, Twitter ban, yet kidnappers are running amok all over the country. I recall the Minister of Information saying they know where the kidnappers are but that they are being careful. What’s your take on this?

I have heard Governor Nasir El Rufai of Kaduna State saying that they know all the people causing havoc in Nigeria and I am wondering, what is the sovereignty of Nigeria? Now, you left the border of Niger Republic open knowing fully well that the country is going through a volatile moment and people that are not indigenous to Nigeria are walking into the country because the borders are open. Two years from now, they will claim citizenship of Nigeria and start battling your country with you. You know about the herdsmen cases that are killing farmers and destroying crops. You know about the Boko Haram and bandits but you didn’t give any hope of dealing with them and destroying their enclaves. No. You pick up innocent Nigerians who are not armed at all.

What those children had on October 20th 2020 was their flags and their mouths singing the National anthem when the Nigerian government ordered that they be shot.

L&S: But the Nigeria government said they didn’t kill anybody.

What are you denying when it has come out that there were live bullets? I was on live stream watching DJ Switch on Instagram. So it was not as if someone told me. It was live. Look at the Army. At first they said they were not there when they appeared at the Panel. But when pictures and videos started appearing they said they were there. Look at the trajectory of the government. They cleared out the Makoko community, the fishermen community close to Lekki because the boys saw what happened. Apart from that, children would have been killed and the government would have gotten away with it, but what we saw was very clear. Yet the government was saying it’s fake news. The government is not building trust.

L&S: Why will government kill children and protect bandits?

That is the question I haven’t been able to answer because during the ENDSARS Protest, the sponsors of the hoodlums told them that people have gathered against their President and it became an issue of the north against the south. In the south the ENDSARS protest was on-going but the northerners claimed that SARS do not harass them. There is so much to be done. Nigeria cannot continue on the level that we are on. We need to sit down and discuss this issue.

L&S: The President said there’s nothing to restructure.

He said restructuring isn’t something we should be talking about because he has a mind-set that restructuring will lead to division when in reality restructuring won’t lead to division. It means we should discuss. For example when the Hindus and the Muslims couldn’t live together in India, the Muslims went away and formed Pakistan. The president and presidency should move away from the illusion that restructuring generally means dividing and breaking the country.

L&S: That brings us to IPOB that is asking for a referendum. Unfortunately things have taken a different turn with the military moving a huge detachment of troops from Northern Nigeria where bandits and terrorists are raging to the South East.

It is disguise. The military have no business inside Nigeria unless there’s a war. They should be manning the borders and volatile areas of Nigeria. This is something the police should handle. There have been news of police stations being burnt down and that shows that the police can’t handle situation. The last time IPOB ordered a sit at home, I was wondering if it is people that are at home that will be roaming the street and causing mayhem.

It seems they have forgotten that every Nigerian has a right to self-determination under the international instruments. The presidency should order the governors to dialogue with the people and make it referendum of what the people want. Also a legislative council should be on hand to put those demands into law.

The Igbo’s are innovative with a lot of creativity but the government refuses to utilise their energy. Instead the government is encouraging a monopoly. Why should a single individual from the northern hold us to ransom with regards to fuel importation? Why can’t we have modular refineries? Why should government create opportunity for one individual to build a refinery to the detriment of an entire country? People in the South South refine crude in their backyards yet we can’t have small refineries. Now one individual has been given a monopoly over an entire nation.

L&S: And there’s money to pump into refineries that have been pronounced dead by different panel of enquiries.

It is crazy. In the United States for instance, when someone has a high potential of producing things, they try to contain them inside their territory because of the potential threat it will have from outside.

So when the boys at the creeks refine oil successfully you should dialogue with them. Bring them into the government, empower and then train them so they can understand the value to create good refineries that will benefit not only their states but Nigeria as a whole. It means you believe in the citizenry and stop the division where only certain persons get appointed, certain persons benefit in business. You cannot have the trust of the people when only one section is made to benefit from what belongs to all.