Obey ECOWAS judgment, end prosecutions for ‘insulting public officials’, SERAP tells Buhari

Socio-Economic Rights and Accountability Project (SERAP) has urged President Muhammadu Buhari to “enforce the judgment by the ECOWAS Court of Justice compelling your government to delete the offence of ‘insulting or stalking public officials online’ from the Cybercrime Act.”

SERAP urged him to “urgently send an executive bill to the National Assembly to repeal the unlawful provisions, and reform all laws, which are inconsistent and incompatible with freedom of expression and media freedom.”

The judgment, delivered by the court last week in Accra, Ghana followed the suit number ECW/CCJ/APP/09/19 brought by SERAP.

SERAP also urged him to “direct Mr Abubakar Malami, SAN the Attorney General of the Federation and Minister of Justice to withdraw all pending charges of ‘insulting or stalking public officials online’ against activists, critics and journalists, and immediately ensure their release from unlawful detention.”

SERAP urged him to ensure that “those who have faced unfair prosecutions under the unlawful provisions receive adequate compensation.”

In the open letter dated 2 April, 2022 and signed by SERAP deputy director Kolawole Oluwadare, the organisation said, “This judgment is a victory for many Nigerians who continue to face harassment, intimidation and unfair prosecutions solely for peacefully exercising their human rights online.”

The provisions of section 24 of the Cybercrime Act among others criminalise sending or causing to be sent an “offensive, insulting or annoying” message via a computer system or network.” The offence is punishable including by a fine of up to N7,000,000.00 or imprisonment of up to 3 years or both.

SERAP had argued before the ECOWAS Court that, “The Federal Government and several state governments have used the vaguely worded provisions of the Cybercrime Act to trample on the rights to freedom of expression and information of bloggers, journalists, activists, and social media users.”

In its judgment, the court agreed, and ruled that “section 24 of Cybercrime Act is inconsistent and incompatible with Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights to which Nigeria is a state party.”

The court then ordered the Federal Government to “amend section 24 of the Cybercrime Prohibition Act in accordance with Nigerian obligations under Article 1 of the African Charter on Human and Peoples’ Rights.”

The letter, read in part: “The immediate enforcement and implementation of the judgment by your government will be a victory for the rule of law, the right to freedom of expression and media freedom online. This will improve citizens’ participation in their own government, and provide an impetus for the anti-corruption fight.”

“By implementing the judgment, your government will be demonstrating Nigeria’s leadership within the ECOWAS sub-region, and sending a powerful message to other countries to embrace the rule of law and human rights.”

“With the ECOWAS Court judgment, all federal and state authorities must now stop using the provisions of section 24 of the Cybercrime Act to target, harass, intimidate, arbitrarily arrest and detain and unfairly prosecute social media users, activists, and journalists who express views perceived to be critical of governments.”

“SERAP notes that Article 15(4) of the ECOWAS Treaty makes the Judgment of the Court binding on Member States, including Nigeria. Also, Article 19(2) of the 1991 Protocol provides that the decisions of the Court shall be final and immediately enforceable.”

“Furthermore, non-compliance with the judgment of the Court can be sanctioned under Article 24 of the Supplementary Protocol of the ECOWAS Court of Justice, and Article 77 of the ECOWAS Treaty.”

“SERAP trusts that you will see compliance with this judgment as a central aspect of the rule of law; an essential stepping stone to constructing a basic institutional framework for legality, constitutionality. We therefore look forward to your positive response and action on the judgment.”

“The judgment read by Hon. Justice Gberi-De Quattara (Presiding Judge), Hon. Justice Dupe Atoki (Member) and Hon. Justice Keikura Bangura (Member), chronicled details of Nigerian government officials using the Cybercrime Act, particularly its section 24 as a pretext to harass, intimidate, detain, prosecute and imprison activists, journalists, bloggers, and social media users.”

“In its judgement, the ECOWAS Court held that ‘The court has the jurisdiction to hear and determine the suit. In a plethora of decisions, the court has upheld that the mere allegation of human rights violations is sufficient to invoke this human rights mandate pursuant to Article 9 (4) of the Supplementary Protocol.’”

“In view of the fact that this application is premised on human rights violations pursuant to Article 9(4) of the supplementary protocol, the court holds that it has jurisdiction to hear and determine the suit.”

“According to the ECOWAS Court, ‘The allegation of SERAP before the Court for determination on merit is whether the provision of the Cybercrime Act has violated the right to freedom of expression, information, opinion, and privacy in contravention of Article 9(1) and (2) of the African Charter on Human and Peoples’ Rights and Article 19 of the International Convention on Civil and Political Rights.’”

“The ECOWAS Court then stated that, ‘Section 24 of the Cybercrime Act is not in conformity with Article 9 of the African Charter and Article 19 of the International Convention on Civil and Political Rights. As for reparation, Nigerian Government is ordered to amend section 24 of the Cybercrime Act, in accordance with the obligations under Article 1 of the African Charter of Human and Peoples’ Rights.’”

“SERAP also notes that by virtue of Article 24(4) of the Protocol A/P.1/7/91 relating to the ECOWAS Community Court of Justice as amended by the Supplementary Protocol A/SP.1/01/05 in January 2005, every member state of the Economic Community of West African States is required to designate a National Authority for the enforcement of the judgments of the Community Court of Justice.”

“Pursuant to the provisions of the article 24 of the Protocol of the Community Court, the Federal Government decided in 2014 to designate the office of the Attorney-General of the Federation and Minister of Justice as the Competent National Authority for the enforcement of the decisions of the court in Nigeria.”

The letter was copied to Mr Malami.