Obey ECOWAS judgments, end prosecutions for ‘cyberstalking’, SERAP tells Buhari

Socio-Economic Rights and Accountability Project (SERAP) has urged President Muhammadu Buhari to use his “good offices and leadership position to immediately enforce the judgment by the ECOWAS Court of Justice prohibiting prosecutions of anyone on the grounds of ‘insulting’ or ‘stalking’ public officials online.”

SERAP also urged him to “enforce and implement the ECOWAS Court judgment compelling your government to respect, protect and promote freedom of expression, access to information and media freedom.

In a letter dated 1 April, 2023 and signed by SERAP deputy director Kolawole Oluwadare, the organization expressed “serious concerns about the shrinking civic space in the country as some state governors and government institutions are reportedly using the section 24 of the Cybercrime Act and other repressive laws to crackdown on anyone seeking to assert their human rights, and media freedom.”

SERAP said, “Many Nigerians and media houses continue to face threats simply for speaking out and seeking to peacefully exercise their human rights and carry out their professional duties. This situation is contrary to the Nigerian Constitution 1999 [as amended] and the judgments by the ECOWAS Court.”

According to SERAP, “The immediate enforcement and implementation of the judgments by your government will be a victory for the rule of law, the right to freedom of expression and media freedom, including online.”

The letter, read in part: “These disturbing trends show the failure by your government to effectively comply with the country’s international obligations and the ECOWAS Court judgments on the Cybercrime Act and Twitter ban.”

“If the two judgments are not immediately enforced and implemented, SERAP will consider seeking a Writ of Execution from the ECOWAS Court, and asking the ECOWAS Authority of Heads of State and Government to impose sanctions on your government for non-compliance with these judgments.

“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.”

“The processes for the sanctions are provided for under the 2015 Supplementary Protocol, the 2012 Supplementary Act on Sanctions and the 1993 ECOWAS Revised Treaties. The sanctions may include judicial, economic and political sanctions.”

“Section 27 of the Vienna Convention on the Law of Treaties provides that, ‘A State party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform the treaty.’”

“SERAP urges you to urgently send an executive bill to the National Assembly to repeal the provisions of Section 24 of the Cybercrime Act on the offence of ‘insulting or stalking public officials online’ by ensuring the deletion of the provisions from the Act, as ordered by the ECOWAS Court.”

“SERAP also urges you to direct Mr Abubakar Malami, SAN the Attorney General of the Federation and Minister of Justice to withdraw all charges of ‘insulting or stalking public officials online’ against activists, critics and journalists, ensure their release from unlawful detention, and pay adequate compensation to those who have faced unfair prosecutions on the basis of the unlawful provisions.”

“SERAP urges you to instruct Mr Lai Mohammed, Minister of Information and Culture and the National Broadcasting Commission (NBC) to immediately reverse the arbitrary and unlawful fine of N5 million imposed on Channels TV for allegedly violating the NBC code in a programme with the Labour Party vice-presidential candidate, Datti Baba-Ahmed.”

“Some of the troubling trends showing restrictions on freedom of expression, access to information and media freedom include the recent arbitrary detention of journalist Agba Jalingo for allegedly publishing an article that was deemed ‘insulting’ to Elizabeth Ayade, the sister-in-law of Cross River Governor, Ben Ayade.”

“Another case involves Ekene Obinali of Umucheke, a traditional ruler in Imo State who was reportedly arrested for allegedly sharing a post on a WhatsApp platform which is said to be critical of Governor Hope Uzodinma.”

“Nnamdi Chude, a social media influencer, was also reportedly arrested for cyberstalking allegedly over a tweet he posted on electoral violence in Anambra State.”

“In Rivers State, three lawyers representing Tonye Cole of the All Progressives Congress were reportedly arrested and detained for preparing a petition against the outcome of the Rivers governorship election. The lawyers are Jerry Aondo, Dr Sobere Nelson, and Odum Eyiba.”

“The National Broadcasting Code (NBC) also arbitrarily imposed an unlawful fine of N5 million on Channels Television for allegedly violating the NBC code in a programme with the Labour Party vice-presidential candidate, Datti Baba-Ahmed.”

“In the first judgment in the suit number ECW/CCJ/APP/09/19 brought by SERAP, the Court ordered your government to repeal section 24 of Cybercrime Act by deleting the provisions, consistent with Nigeria’s obligation under Article 1 of the African Charter on Human and Peoples Rights.”

“The ECOWAS Court ruled that Section 24 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 unlawful 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.”

“In the second judgment in the suit No ECW/CCJ/APP/23/21 brought by SERAP and 176 concerned Nigerians, the Court ordered your government to respect and ensure freedom of expression, access to information and media freedom, consistent with Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights.”

“The two judgments mean that your government has the obligation to ensure that state governors and government institutions do not use section 24, other repressive laws, and law enforcement agencies to target, harass, intimidate, arbitrarily arrest and detain people simply for peacefully exercising their human rights.”

“Freedom of expression is a fundamental human right and the full enjoyment of this right is central to achieving individual freedom and to developing democracy. It is not only the cornerstone of democracy, but indispensable to a thriving civil society.”

“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, and Article 77 of the ECOWAS Treaty.”