On the 4th day of June 2021, the Federal Government of Nigeria, through the Federal Ministry of Information & Culture issued a press release informing the entire world, ironically on Twitter, that, the operations of the global microblogging social networking site have been suspended in Nigeria. To put this far-reaching decision in proper perspective, the ministry, in a series of tweets, stated that:
“FG suspends @Twitter operations in Nigeria. The Federal Government has suspended, indefinitely, the operations of the microblogging and social networking service, Twitter in Nigeria.”
Barely 6 hours after the tweets, Nigerians’ access to twitter was systematically and gradually limited or completely blocked and thereby necessitated their resort to Virtual Private Networks (VPN) to access the all-important app/site.
In another frenetic move to ensure Nigerians do not have access to Twitter, the office of the Attorney General of the Federation was reported to have instructed the Director of Public Prosecutions to commence the prosecution of “violators of the Federal Government De-activation of operations of Twitter in Nigeria”
Upon this directive, many newspapers have reported that the purpose is to prosecute users who access twitter though VPN in spite of its suspension in Nigeria. However, this article seeks to briefly highlight some of the many legal issues that have arisen from the most reported events in the past 24 hours in Nigeria, especially among its young citizens.
1. What does it mean to ‘operate’ in Nigeria?
It is beyond doubt that, from the Ministry of Information’s tweets, what was been suspended in Nigeria are the “operations of Twitter.” Now, what does the term ‘operation’ mean under the Nigerian law? At page 275 of Babalola’s Law Dictionary (2nd edn. Noetico Repertum, Lagos, 2019), the word was defined by the Court of Appeal in Osondu v Federal Republic of Nigeria (2000) 12 NWLR (Pt. 682) 470 at 483 as:
“(1) Exertion of power; (2) the process of operating or mode of action; (3) an effect brought about in accordance with a definite plan; (4) action; and (5) activity”
From any of the definitions above, what the FG has simply done was to suspend the “activities” of Twitter in Nigeria and nothing more. It is not beyond doubt that, for business or establishment purposes, to my knowledge, Twitter neither operates an office nor does business in Nigeria within the context of its suspension by the FG.
Hence, the suspension of its operations is rather a matter for the companies that grant access to the site than for Twitter itself since the FG is aware that the company’s physical office in Africa is located in Ghana. Secondly, Twitter, a company, does not have ‘activities’ in Nigeria within the context of its business operations.
However, a discussion of the propriety of such knee jerk approach by the FG to the company’s deletion of Nigeria’s President’s controversial tweet, is another issue that is not the crux of this intervention.
2. Nigerian Communications Commission’s powers to suspend Twitter
From a press release by the Association of Licences Telecommunications Operators of Nigeria (ALTCON) dated 5 June 2021, the public was informed of the NCC’s shut down directive but the statement simply alludes to the Commission’s regulatory powers under the NCA 2003.
It must be quickly stated that, no regulator’s power to give directives is at large. Such directives must be given under specific provision(s) of the relevant enabling law. It is trite law that, an agency’s power to give directives is a delegated power which must be clearly and specifically donated by its enabling law. (See NNPC v. Famfa Oil Ltd (2012) 17 NWLR (Pt 1328) 148; FGN v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162; Ogunlaji v. A.G Rivers State (1997) 6 NWLR (Pt. 508) 209; UNTHMB v. Nnoli (1994) 5 NWLR (Pt. 36) 376)
I am aware of the NCC’s Internet Code of Practice which empowers the Commission to instruct Internet Service Providers (ISPs) to block access to certain offensive sites. For the avoidance of doubt, clause 7.5 of the Code expressly provides that:
“Upon determination by the Commission that the content reported under Paragraph 7 (2) above is indeed unlawful, the Commission shall issue a takedown notice to all IASPs to deny or disable access to the content. The IASP shall be expected to comply with such takedown notice within 24 hours of receipt of the notice.”
It is interesting to note that, in 2019, I filed a suit at the Federal High Court, Abuja against the NCC challenging the likelihood of this provision to be used to violate fundamental rights of Nigerians pursuant to sections 39 and 46 of the 1999 Constitution but the court dismissed our case as premature and speculative in spite of the instructive wording of section 46 that empowers an applicant to file a suit even when any of his fundamental rights is ‘likely’ to be interfered with.
I saw this (the arbitrary shutdown of anti-government websites) coming and we approached the court but his lordship saw otherwise in Digital Rights Lawyers Initiative v NCC, Suit No. FHC/ABJ/CS/56/2019 (Judgment delivered in 2020)
Assuming the NCC even wielded the big stick under clause 7.5, the exercise of such powers is clearly circumscribed by certain conditions which must be satisfied as condition precedent before a takedown notice can be issued. Secondly, under the clause, it is the offensive contents that are meant to be attacked but not the entire platform as done in this case.
3. The AGF’s imminent prosecution of ‘offenders’
The AGF, as the chief law officer, has simply directed the DPP to prosecute violators of the ‘de-activation’ directive. To my mind, I respectfully opine that, the very simple question that answers any speculation(s) that may arise here is – who are/were the recipients of the directive. The users or the ISPs? I think the answer is as clear as it could get.
Without necessarily deviating into any argument as to whether the FG has criminalised the use of Twitter (which would be a very preposterous thing to even imagine) and since users were never directed to de-activate their Twitter accounts or never to access Twitter, they are not under any legal obligation to ‘de-activate’ or suspend twitter unlike the ISPs who are duty bound to comply with the regulator’s directives except they are ready to ‘risk it all.’
4. Interference with freedom of expression of millions of Nigerians
CNN reported that about 39 million Nigerians have twitter accounts which mean different things to different people e.g market place, social networking, means of communication, information site etc.
By the suspension, the FG has clearly interfered (whether rightly or wrongly) with citizens’ medium of expression and reception of information in a dangerous affront to section 39 of the 1999 Constitution. I understand a number of organisations are planning to approach the courts once the JUSUN strike is over to challenge the suspension and that is the reason I will pause here.
Conclusively, there are many more legal issues that have arisen and will continue to arise from the FG’s suspension of Twitter in Nigeria. However, considering the value that Nigerians daily derive from the site which, in my modest opinion outweighs political sentiments to the contrary, it is advisable for the FG to rethink its decision. Thankfully, it is a suspension but not an outright ban.
By Olumide Babalola