Old Habits vs Tech
Since Nigeria announced its ban of the Twitter social media platform in the first week of June, its reasons for the action have also evolved over time.
What is undeniable, however, is the sequence of events: two days after Twitter deleted a comment of President Muhammadu Buhari for threatening violence and violating one of its rules, the ban was announced.
While most people see it as a petulant reaction to a perceived slight, the government insists that the reason was because Twitter was undermining national security. Specifically, the government alleged that Nnamdi Kanu, the leader of the proscribed Indigenous People of Biafra (IPOB) separatist group, was using the platform for subversive and inciting messaging.
Afterward, Minister of Information and Culture Lai Mohammed, the chief purveyor of the government’s position, accused Jack Dorsey, Twitter founder and chief executive officer, of sponsoring the #EndSARS protests that rocked the country in 2020 against police extra-judicial killings and other abusive excesses. Another justification has been that Twitter isn’t registered as a business in Nigeria.
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On why the ban should supplant the fundamental rights and freedom of expression provisions in the Nigerian Constitution, the government has provided several arguments. Information Minister Mohammed, appearing before a House of Representatives investigative committee on June 22, claimed that under the “defence, public safety, public order, public morality or public health,” provisions of section 45(1) of the Constitution, the ban was justified. Security reports written by the State Security Service have implicated Twitter, and the ban is pursuant to those reports.
Furthermore, Mohammed referred to the provisions of the Terrorism (Prevention) Act 2013 that makes it a criminal offence to offer any form of support to terrorism through “the internet or any electronic means.” Then he made the argument that Twitter was providing such support to IPOB, classified by Buhari’s government as a terrorist group.
Additional justifications were also found by the government in the Cybercrimes Act of 2015, the African Union (AU) Convention on Cyber Security and Personal Data Protection, as well as Article 19(2) and (3) of the International Covenant on Civil and Political Rights.
Even a superficial examination of the government’s arguments reveals them as self-serving, discriminatory in application and deceitful in intent. The section of the Penal Code being relied on as grounds to punish Twitter users is based on the Sedition Law of 1917, a law already struck down by Nigerian courts as inconsistent with fundamental rights in a democracy.
According to Article 19 of the United Nations Declaration of human rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Nigeria is a signatory to that declaration, which has been domesticated into the fundamental rights section of the Constitution. All other laws fail to the extent they’re in conflict to the Constitution. Yet the government sought to use a mere pronouncement, not backed by any legislation, to abridge those fundamental rights.
The court of the Economic Community of West African States (ECOWAS), sitting in Abuja, was prompt in admitting a suit by the Socio-Economic Rights and Accountability Project (SERAP) and 176 concerned Nigerians challenging the government’s criminalization of Twitter use. The court was also quick to restrain the Buhari administration from interfering with Twitter users pending the final determination of the suit.
“Any interference with Twitter is viewed as inference with human rights, and that will violate human rights,” the court said in its preliminary ruling.
Femi Falana, the lawyer for SERAP, welcomed the decision of the ECOWAS Court. “It is extremely embarrassing that the Federal Government could threaten to jail Nigerians for sedition, which was annulled by the Court of Appeal in 1983, in the case of Arthur Nwankwo vs The State,” he said.
That ruling was just months before Buhari, then a military general, toppled the elected government of President Shehu Shagari in a putsch. As a military ruler, he quickly promulgated decrees two and four. Decree two allowed indefinite detention of suspected enemies of government; decree four punished journalists that published embarrassing stories about government officials, even if true.
When Buhari was running for election to be President in 2015, he described himself as “a reformed democrat” who had given up his old repressive ways. As an elected President, he has on occasions moaned about how encumbering he found democratic processes. With the Twitter ban he indicates his return to his old habits.
Closing vs Open Civic Space
Many governments all over the world are contemplating or have made attempts towards social media regulation but are grappling with how to balance this with upholding human rights provisions in domestic laws and international instruments. From Germany’s Network Enforcement Act (aka NetzDG law), which the Human Rights Watch called a flawed social media law, to the draft Online Safety Bill currently before the UK Parliament, seeking to give wide powers to a regulator to impose fines and block sites, creating a safe online environment while promoting freedom of speech and expression has become a global issue.
Within the African continent, social media regulation is quite common. Several countries such as Benin, Egypt, Ethiopia, Cameroon, Zimbabwe, Rwanda, Congo DRC, Tanzania and Uganda, to name a few, all have various forms of social media regulation. New laws are being considered where none currently exists.
For instance, the Kenya Information and Communication (Amendment) Bill, 2019 (aka “the Social Media Bill”) proposed by a Member of Parliament is particularly interesting. It seeks to amend the provisions of the Kenya Information and Communications Act (KICA) by introducing stringent regulations on the use of social media in Kenya, such as the requirement for social media companies to obtain a licence in respect of a social media platform accessible in Kenya, as well as requirement of a physical office in Kenya. Kenya also has a Digital Service Tax which came into force with their Finance Act 2020, which has implications for digital service providers to Kenyan users, whether or not such providers are resident in Kenya.
Vice President Yemi Osibanjo , Photo Credit: https://www.yemiosinbajo.ng/
The above examples are being cited because they appear to be providing Nigeria with a ready-made template. Recent utterances by the Minister of Information, Lai Mohammed and the Vice President, Professor Yemi Osibanjo is oddly reminiscent of the Kenyan example. The Minister, in providing justifications for the Twitter ban in Nigeria, stated that Twitter is not licensed to do business in Nigeria according to section 78 of the Companies and Allied Matters Act (CAMA), 2020, which mandates a foreign company to be incorporated in Nigeria in order to carry on business in the country.
The Vice President at a meeting with the Chartered Institute of Taxation of Nigeria, stated that legal provisions will be used to tax the profits of global technology and digital firms that are not based in Nigeria but have significant economic presence in the country. He made reference to section 4 of the Finance Act 2019, which amends section 13 of the Companies Income Tax Act (CITA), as empowering the Minister of Finance, by an order of the President, to determine what constitutes significant economic presence of a company other than a Nigerian company, for taxation purposes.
With the Twitter ban resuscitating conversations around social media regulation, the government appears set to explore several avenues, from taxation to licensing, to exercise more control over social media platforms and technology firms that cater to Nigerians but are not domiciled in the country.
Several logical reasons have been adduced by politicians across the world for regulation of the internet and social media. These range from protecting users from harm, scam and misinformation, protection of minors and even to ensure a consistent application of moderation rules. It however gets complicated and murky when countries with authoritarian tendencies and history of repression of free speech enter the mix. It is one thing to target offensive or abusive content targeted at individuals, or to protect privacy and individual rights, and another for governments to constitute themselves into a biased arbiter and completely stifle any form of conversation that seeks to ridicule it or even hold it to account.
If the government was truly concerned about individual and generalised social media harms, why did it wait until the President’s Tweet was deleted before it swung into action? It is no secret that the current administration sponsors and funds internet trolls to attack real and imagined opponents on social media, who have gone as far as doxing their targets who include civil society organisations. The Twitter ban by the government and subsequent legal justifications is disingenuous – and according to observers, is more of a retaliatory act than a response to overriding public interest.
With the ongoing tensions between the government and citizens, increasing global regulation of social media and the internet; and sufficient legal precedent from African and even western countries, there is a looming threat of even stricter social media regulation in Nigeria. It would serve civil society to remain vigilant to get ahead of the situation.
Cover Photo Credit: Vanguard News