Why Nigerian Government Cannot Prosecute Twitter Users

Daily Law Tips (Tip 809) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:

On 5 June 2021, Twitter was banned in Nigeria for deleting the public messages of the President of Nigeria. According to Twitter Inc., the messages where offensive, while according to Nigeria, the ban was “for activities that are capable of undermining Nigeria’s corporate existence.” Sequel to the ban, many Nigerians have continued the use Twitter through Virtual Private Networks (VPN), even as world leaders and Nigerians condemn the ban as an undemocratic violation of human rights.

Following the continued use of the banned Twitter by Nigerians, the Attorney General of the Federation (Mr. Abubakar Malami) threatened to prosecute Twitter Users in Nigeria. As reported in the Guardian Newspaper, Umar Jibrilu Gwandu (spokesman to Malami), revealed that; “Malami directed the Director of Public Prosecution of the Federation (DPPF) at the Office of the Attorney General of the Federation and Minister of Justice, to swing into action and commence in earnest the process of prosecution of violators of the Federal Government De-activation of operations of Twitter in Nigeria,”. Mr. Malami is a Senior Advocate of Nigeria and Nigeria’s Chief Legal Officer.

This work analyzes the threat of the Federal Government of Nigeria to prosecute Twitter Users in Nigeria. It questions the powers of government to criminalize actions and inactions, viz-a-viz the fundamental human rights in Nigeria, especially the right not to be prosecuted under a non-existing law. It ultimately reveals the illegalities in prosecuting Twitter Users in courts in Nigeria. In this work, the words/terms; “Lawful Violation” and “Lawfully Violate” are used contextually to refer to rights that can be lawfully suspended, derogated and challenged by government, not minding their grammatical propriety.

Nigerian Human Rights:

There are fundamental human rights in Nigeria and there are contained in the Constitution of Nigeria. The rights are for persons in Nigeria, including businesses, enterprises and corporate bodies. Learn more on this via; “Twitter vs. Nigeria; The Human Rights of Twitter Inc. and the Twitter Users”. Fundamental human rights are basic, elementary, mandatory, compulsory and unshakable entitlements of persons. Fundamental human rights are never purchased rather they are inborn and inbuilt on every person (human being or corporate being). List of Fundamental Human Rights In Nigeria.

The fundamental human rights contained in the constitution of Nigeria are: Right to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Fair Hearing, Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peaceful Assembly and Association, Right to Freedom of Movement, Right to Freedom from Discrimination and then, Right to Acquire and Own Immovable Property anywhere in Nigeria.

Fundamental human rights are sacred, however, some of them can be suspended, limited, derogated and “lawfully violated” by government in Nigeria, without any liabilities. You may read more on this issue, via “Government Can Lawfully Violate Human Rights: The Case of Twitter vs. Nigeria”. It is also important to note that a few of the fundamental human rights are absolute, untouchable and unchallengeable by any person or government. The absolute human rights are only about three; learn more on this via; “Human Rights That Are Truly Absolute And Untouchable In Nigeria”.

Human Rights of Offenders & Suspected Offenders:

In Nigeria nothing is a crime, unless there is a written federal or state law that declares the thing (action or inaction) to be a crime. A common example is adultery. There is no general law in Nigeria that makes adultery a crime, however, in some states in the Northern part of Nigeria, adultery is a crime. You may read more on this issue via; “Adultery Is Not An Offence In All States In Nigeria”. 

Laws are made by the federal or state Legislature and not by the Executive or Judiciary. The Executive is to only implement laws, while the Judiciary interprets law. In some cases, to avoid delay (administrative convenience), the Legislature may delegate some powers in writing to the Executive, for the Executive to make some regulations (as subsidiary legislations to the main/parent laws made by the Legislature). This allows the President of Nigeria to rely on a federal law to make Regulations.

Every offender or suspected offender has fundamental human rights, like every other person in Nigeria. Even a man on a death row has human rights and must be respected. A suspect that is arrested for using Twitter has fundamental human rights, including the right to fair hearing. Under the right to fair hearing is the right not-to-be prosecuted or found guilty of a non-existing offence.

Human Rights of Suspected Twitter Users:

Millions of Nigerians have been using Twitter in Nigeria until the Federal Government of Nigeria banned Twitter on 5 June 2021. Following the ban on Twitter, and the continued use of Twitter by Nigerians, the Federal Government of Nigeria threatened to prosecute all Twitter Users. So, the focus here is on the human rights of any suspected Twitter User in Nigeria and this will ultimately reveal whether Twitter Users can be prosecuted in courts in Nigeria.

To prosecute a suspect in Nigeria, the prosecution must prove that the suspect has violated a written criminal law. At the time that Twitter was banned in Nigeria till date, there is no state or federal law that criminalizes the use of Twitter or any social media platform in any part of Nigeria. Also, the President of Nigeria has not signed any Regulation criminalizing the use of Twitter. As such, there is no legal basis for any person in Nigeria to be investigated, arrested or charged to any court for using Twitter.

By the working of the few absolute fundamental human rights, specifically; “Right not to be held guilty of a non-existing offence”, no person in Nigeria can be prosecuted for using the banned twitter or any social media platform. There is no written law that prohibits Twitter in any part of Nigeria, so there is no legal authority for the arrest and prosecution of persons using Twitter in Nigeria. Whether the ban on Twitter is lawful or not, there is no single law that prohibits persons in Nigeria from using Twitter or any other social media platform. So, there is no law for criminal charges on use of Twitter to be prepared and issued against any person in Nigeria. Criminal laws are not made by mere executive television messages of the President of Nigeria or the Attorney General of Nigeria.

Although the Federal Government of Nigeria can lawfully suspend Twitter through a federal law (if the law is democratic and reasonably justifiable in the interest of defence, public good, public health or public safety), presently, there is no such law yet. Also, there is no law criminalizing the use of Twitter in any part of Nigeria.

Conclusion: 

Although the President of Nigeria is the Chief Executive Officer of Nigeria, he is bound by the Constitution of Nigeria. The President of Nigeria and his appointees (including the Attorney General of Federation) are by the Constitution of Nigeria prohibited from investigating, arresting and prosecuting any person in Nigeria for an offence that does not exists. The President and his appointees have not convinced the Legislature to enact a law criminalizing the use of Twitter in Nigeria. Until there is such law, no person can be lawfully arrested and prosecuted for using Twitter in Nigeria.

In the present state of lawlessness and executive impunity in Nigeria, it is not impossible for Twitter Users to be arrested and charged to court for no offence. It will also not be strange to find lawyers and prosecutors, arguing for the guilt of Twitter Users under no known law in a court of law. The processes of such shameful arguments may fetch suspected Twitter Users some weeks, if not months, in the overcrowded Correctional Facilities in Nigeria. Such suspected Twitter Users can stay for years on the notorious Awaiting-Trial Lists of Correctional Centers, until death or political mercy comes. So, although, it is legally wrong for any person to be prosecuted for using Twitter since there is no law against the use of Twitter, it is not impossible to find unscrupulous prosecutors that may seek to prosecute Twitter Users for a non-existing offence.

My authorities, are:

1. Sections 14, 20, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 305, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Article 19 of the Universal Declaration for Human Rights.
3. Sections 6, 7, 8 and 22 of the National Human Rights Commission (Amendment) Act 2010 and Sections 1, 2, 5 and 6, the National Human Rights Commission (Amendment) Act 1995.
4. Sections 387 and 388 of the Penal Code Act, 1960
5. The judgment of the Supreme Court of Nigeria (on meaning and nature of fundamental human rights) in the case of RANSOME-KUTI & ORS v. AG FEDERATION & ORS (1985) LPELR-2940(SC)
6. The judgment of the Supreme Court of Nigeria (on meaning and nature of fundamental human rights) in the case of AGBAI & ORS v. OKOGBUE (1991) LPELR-225(SC).
7. The judgment of the Supreme Court of Nigeria (on when and why fundamental human rights can be restricted/suspended) in the case of DOKUBO-ASARI v. FRN (2007) LPELR-958(SC).
8. The Supreme Court judgment on “Meaning of Regulation” in the case of AG LAGOS STATE v. EKO HOTELS LTD & ANOR (2006) LPELR-3161(SC)
9. The Court of Appeal judgment on “Meaning of Executive Order/Regulation” in the case of ELEPHANT GROUP PLC v. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528(CA)
10. The Supreme Court judgment on “Policy Documents/Guidance” in the case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. COMPTROLLER ABDULLAHI B. GUSAU (2017) LPELR-42081(SC).
11. The Supreme Court judgment on “Policy Documents/Guidance” in the case of UNION BANK OF NIGERIA PLC & ANOR. v. IFEOLUWA NIG. ENTERPRISES LTD (2007) 7 NWLR (Pt.1032) 71 at 84.
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75. Onyekachi Umah, “When Is Seduction Or Indecent Dressing A Justification For Rape In Nigeria?” (LearnNigerianLaws.com, 18 June 2020) <https://learnnigerianlaws.com/when-is-seduction-or-indecent-dressing-a-justification-for-rape-in-nigeria-daily-law-tips-tip-591-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 20 April 2021
76. Onyekachi Umah, “New Punishment For Rape In Nigeria” (LearnNigerianLaws.com, 23 June 2020) <https://learnnigerianlaws.com/new-punishment-for-rape-in-nigeria-daily-law-tips-tip-594-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 20 April 2021
77. Onyekachi Umah, “Rape Cannot Be Settled Out Of Court (No Room For Pay-Off/Forgiveness/Withdrawal Of Complaints” (LearnNigerianLaws.com,26 June 2020) <https://learnnigerianlaws.com/rape-cannot-be-settled-out-of-court-no-room-for-pay-off-forgiveness-withdrawal-of-complaints-daily-law-tips-tip-596-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 20 April 2021
78. Onyekachi Umah, “A Female Too, Can BE Guilty Of Rape” (LearnNigerianLaws.com, 13 December 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-248-a-female-too-can-be-guilty-of-rape-in-nigeria/ > accessed 20 April 2021
79. Onyekachi Umah, “Ages At Which Sexual Intercourse With Consent Will Amount To Rape” (LearnNigerianLaws.com, 20 February 2020) <https://learnnigerianlaws.com/ages-at-which-sexual-intercourse-with-consent-will-amount-to-rape-daily-law-tips-tip-509-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 20 April 2021
80. Onyekachi Umah, “How To Prove Rape In Nigeria).” (LearnNigerianLaws.com, 2 July 2019) <https://learnnigerianlaws.com/how-to-prove-rape-in-nigeria-daily-law-tips-tip-363-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 20 April 2021
81. Onyekachi Umah, “Can a Married Woman Inherit Her Parents’ Property?”, (LearnNigerianLaws.com, 27 March 2020) <https://learnnigerianlaws.com/can-a-married-woman-inherit-her-parents-property-daily-law-tips-tip-535-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 20 April 2021
82. Onyekachi Umah, “Female Genital Mutilation/Cutting/Elongation, Breasts Ironing And Forced Marriage Are Now Criminal Offences In Nigeria” (Daily Law Tips [443]) <https://learnnigerianlaws.com/female-genital-mutilation-cutting-elongation-breasts-ironing-and-forced-marriage-are-now-criminal-offences-in-nigeria-daily-law-tips-tip-443-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 20 April 2021
83. Onyekachi Umah, “Harmful Widowhood Practices (Traditions) Are Illegal In Nigeria” (Daily Law Tips [Tip 589]) <https://learnnigerianlaws.com/harmful-widowhood-practices-traditions-are-illegal-in-nigeria-daily-law-tips-tip-589-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 20 April 2021
84. Onyekachi Umah, “Forceful Isolation/Separation Of Family Members/Friends Is Now An Offence In Nigeria” (Daily Law Tips [356]) <https://learnnigerianlaws.com/forceful-isolation-separation-of-family-members-friends-is-now-an-offence-in-nigeria-daily-law-tips-tip-356-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 120 April 2021
85. Onyekachi Umah, “Abolished Anti-Women Custom of Onitsha People of Anambra State, Nigeria” (LearnNigerianLaws, 10 March 2020) <https://learnnigerianlaws.com/abolished-anti-women-custom-of-onitsha-people-of-anambra-state-nigeria-daily-law-tips-tip-522-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 20 April 2021
86. Onyekachi Umah, “Citizen By Marriage Is Discriminatory and Against Nigerian Women”, (LearnNigerianLaws.com, 14 September 2020) <https://learnnigerianlaws.com/citizen-by-marriage-is-discriminatory-and-against-nigerian-women/ > accessed 20 April 2021
87. Onyekachi Umah, “Abolished Anti-Women Custom of Yoruba People of Nigeria”, (LearnNigerianLaws.com, 11 March 2020) <https://learnnigerianlaws.com/abolished-anti-women-custom-of-yoruba-people-of-nigeria-daily-law-tips-tip-523-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 20 April 2021
88. Onyekachi Umah, “Can a Married Woman Inherit Her Parents Property?” (LearnNigerianLaws.com, 27 March 2020) <https://learnnigerianlaws.com/can-a-married-woman-inherit-her-parents-property-daily-law-tips-tip-535-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 20 April 2021
89. Onyekachi Umah, “Approval For Marriage Of Female Officers/Staff Is Unconstitutional and Discriminatory”, (LearnNigerianLaws.com, 23 September 2020) <https://learnnigerianlaws.com/approval-for-marriage-of-female-officers-staff-is-unconstitutional-and-discriminatory/ > accessed 20 April 2021
90. Onyekachi Umah, “It Is An Offence To Chase Out Wife/Husband From A Home Or Even Attempt To Do So” (LearnNigerianLaws.com, 17 May 2019) <https://learnnigerianlaws.com/it-is-an-offence-to-chase-out-wife-husband-from-a-home-or-even-attempt-to-do-so-daily-law-tips-tip-333-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 20 April 2021
91. Onyekachi Umah, “Examining Brutalization of House Helps in Nigeria. (An Exposé on Anti-Cruel Labour Laws in Nigeria)” (LearnNigerianLaws.com, 3 August 2020) <https://learnnigerianlaws.com/examining-brutalization-of-house-helps-in-nigeria-an-expose-on-anti-cruel-labour-laws-in-nigeria-daily-law-tips-tip-623-by-onyekachi-umah-esq-ll-m-aciarbuk/> accessed 27 April 2021
92. Onyekachi Umah, “11 States That Do Not Protect Children In Nigeria” (LearnNigerianLaws.com, 31 May 2021) <https://learnnigerianlaws.com/11-states-that-do-not-protect-children-in-nigeria/> accessed 31 May 2021.
93. Onyekachi Umah, “Government Can Lawfully Violate Human Rights: The Case of Twitter vs. Nigeria” (LearnNigerianLaws.com, 9 June 2021) < https://learnnigerianlaws.com/government-can-lawfully-violate-human-rights-the-case-of-twitter-vs-nigeria/> accessed 9 June 2021
94. Onyekachi Umah, “Human Rights That Are Truly Absolute And Untouchable In Nigeria” (LearnNigerianLaws.com, 10 June 2021) < https://learnnigerianlaws.com/human-rights-that-are-truly-absolute-and-untouchable-in-nigeria/> accessed 11 June 2021
95. Onyekachi Umah, “Adultery Is Not An Offence In All States In Nigeria” (LearnNigerianLaws.com, 19 October 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-209-adultery-is-not-an-offence-in-all-states-in-nigeria/> accessed 11 June 2021.
96. Dennis Erezi, “Twitter ban: Nigeria’s attorney general to prosecute offenders” (TheGuardian, 5 June 2021) <https://guardian.ng/news/twitter-ban-nigerias-attorney-general-to-prosecute-offenders/> accessed 11 June 2021

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