Lawyers and activists have deplored the growing trend of the police arresting journalists under the Cybercrime Act rather than filing a civil action for libel. This is seen as a serious threat to free speech in a democracy and another way of stopping the media from holding public officials to account through investigative journalism, writes Deputy News Editor JOSEPH JIBUEZE.
If the powerful elite who deploy the police against journalists over reports they do not like is to have their way, the media’s role of holding the government to account will be imperilled and the press will be rendered impotent.
And that seems to be the direction things are heading, if not resisted.
Left to such powerful individuals who exercise undue influence over the police, the role assigned to the press in Section 22 of the 1999 Constitution should be jettisoned.
It provides: “The press, radio, television and other agencies of the mass media shall at all times be free to uphold…the responsibility and accountability of the government to the people.”
Observers have wondered how the media can fulfil this important obligation if journalists are arrested at will for simply doing their jobs.
The escalating trend is the arrest of journalists for violating Section 24(1) of the Cybercrime Act.
It provides: “A person who knowingly or intentionally sends a message or other matter by means of computer systems or network that is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be sent, or he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent commits an offence under this Act and is liable on conviction to a fine of not more than N7, 000, 000.00 or imprisonment for a term, not more than three years or both.”
The latest of such arrests involved Daniel Ojukwu of the Foundation for Investigative Journalism (FIJ), who was abducted by the police in Lagos. He was held for from May 1 to May 10.
Ojukwu’s arrest was over a story alleging that a top government official in the Presidency caused N147 million, originally allocated to build a school, to be paid into the account of a restaurant in Abuja.
The police and anti-graft agencies were expected to investigate such tip-offs rather than hounding the journalist.
Falana: Cybercrime section has been outlawed
Activist lawyer, Femi Falana (SAN), has argued that the police lack powers to arrest journalists for cyberstalking, insulting, causing annoyance,sending offensive messages and criminal intimidation.
According to him, Section 24 of the Cybercrime Act 2015 no longer criminalises them.
The SAN noted that in the cases of Laws and Rights Awareness Initiative (Suit No. ECW/CCJ/APP/53/18) and Socio-Economic Rights and Accountability Project (Suit No ECW/CCJ/APP/09/19), the ECOWAS Court declared Section 24 of the Cybercrime Act 2015 illegal.
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Falana said the court directed the Federal Government to amend the section to make the law conform to the fundamental right of Nigerian citizens to freedom of expression guaranteed by Section 39 of the 1999 Constitution and Article 9 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria 2004.
Section 39 of the 1999 Constitution guarantees the right to freedom of expression.
It provides: “Every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference.”
Article 9 says: “Every individual shall have the right to receive information. (2). Every individual shall have the right to express and disseminate his opinions within the law.”
Falana stressed that the section of the Cybercrime Act on which the police rely to arrest journalists has been repealed.
He said: “In line with both judgments of the ECOWAS Court, the Government of Nigeria has repealed Section 24 by removing the provisions relating to ‘cyberstalking’, ‘insult’, ‘causing annoyance’, ‘sending offensive messages’, and ‘criminal intimidation’ from the Cybercrime Act 2015 and replaced same with Section 5 of the Cybercrime Amendment Act which provides as follows:
“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that is (a) Pornographic: or (b) He knows to be false, for the purpose of causing a breakdown of law and order, posting a threat to life or causing such a message to be sent commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than three years or to both such fine and imprisonment.”
Falana added: “From the foregoing, it is crystal clear that the police and other security agencies lack the power to arrest, detain and prosecute Nigerian citizens for the so-called offences of ‘cyberstalking’, ‘insult’, ‘causing annoyance’, ‘sending offensive messages’, and ‘criminal intimidation’.
“Consequently, all pending cases filed on the basis of the repealed aspects of Section 24 of the Cybercrime Act 2015 should be discontinued without any further delay.”
Threats of arrest persist
Days after Ojukwu was released, the Nigeria Police Force National Cybercrime Centre (NPF-NCCC) invited Nurudeen Yahaya Akewushola, a reporter with the International Centre for Investigative Reporting (ICIR), following a report detailing how past police bosses used their offices for official corruption.
The cybercrime centre also invited the ‘managing directors of the media platform, accusing them of cyberstalking.
The management of the ICIR pointed out some irregularities in the invitation letter, saying until those lapses were fixed, it would not honour the invitation.
These developments are seen as threats to the right to freedom of expression, which is fundamental in a civilised society, as citizens’ ability to express themselves is one of the hallmarks of democracy.
The constitution guarantees the freedom of the press to hold individuals and the government to account.
Such freedom implies the absence of interference from an overreaching state or powerful entities who use the law as a tool of oppression.
The United Nations’ 1948 Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and impart information and ideas through any media regardless of frontiers.”
Granted, no right is absolute. One of the major ways of limiting the right to freedom of expression is through the law on defamation. But this remedy is now being jettisoned.
Lord Denning, as quoted by learnnigerianlaw.com, says: “To our way of thinking it is elementary that each man should be able to inquire and seek after the truth until he has found it.
“Everyone in kind should be free to think his own thought, have his own opinions, and to give voice to them, in public or in private, so long as he does not speak ill of his neighbour.”
Those who are accused of “speaking ill” of others are now readily arrested and detained under the Cybercrime Act.
Media Rights Agenda condemns police harassment of journalists
The Media Rights Agenda (MRA) condemned the harassment and intimidation of journalists and media organisations by the NPF-NCC over their reporting.
It called on President Bola Ahmed Tinubu to take urgent measures to safeguard media freedom and terminate the abuse of the police and the Cybercrimes Act by powerful political figures and rich individuals to hound journalists performing their constitutional duties.
Citing a police invitation to Mr. Nurudeen Yahaya Akewushola, a reporter with the ICIR, and the organisation’s “Managing Directors” over a purported investigation into a case of alleged cyberstalking and defamation of character as the latest example of this trend, MRA said unless President Tinubu approves of and condones these police abuses and misuse of the Law to harass journalists, he should be extremely concerned about the unflattering record they have created for him in just one year in office.
The Police invitation to the ICIR, dated April 16, 2024, but delivered to the organisation on Wednesday, May 15, demanded the presence of Mr. Akewushola and the ICIR managing directors at the NPF-NCC in Abuja on Wednesday, April 24, to discuss a purported case of cyberstalking and defamation of character in which, according to NPF-NCC, Mr. Akewushola “featured prominently”.
In a statement condemning the actions of the Police, MRA’s Communications Officer, Mr. Idowu Adewale, said: “MRA notes with alarm the troubling pattern of harassment and intimidation faced by journalists in Nigeria, particularly through the misuse of the Cybercrimes Act.
“We are particularly disturbed by the upsurge in this deplorable police practice under the Administration of President Tinubu, a man who owns multiple media organisations and built his political career on a history of democratic struggle.”
Noting ICIR’s concerns that the police invitation may be linked to Mr. Akewushola’s investigative reporting, which uncovered allegations of corruption involving former Inspectors General of Police, Mr. Adewale said such actions by the police to shield former heads of the force from scrutiny constitute an odious abuse of power.
He added that MRA was concerned, based on a pattern established by the Police in previous cases where it has invited journalists for questioning, that their intention is to detain Mr. Akewushola as punishment for his investigative reporting.
MRA suspects that the plan is to subsequently release him on bail indefinitely, since he is being invited over an alleged investigation into a purported offence that has been abolished, to the knowledge of the Police.
The group was referring to the amendment to Section 24 of the Cybercrime Act.
It added that no one, including the ICIR reporter, can be prosecuted by the police under any circumstance for an alleged offence that no longer exists in law.
The group called on President Tinubu to instruct the police to desist from the misuse of the Cybercrime Act to suppress journalistic freedom, and harass or intimidate journalists and the media.
MRA added: “A free and independent press is essential to the effective functioning of any democratic system of government.”
Recent instances of abuse
Erisco Foods Ltd received a barrage of backlash over the arrest of a female customer, Chioma Egodi, who gave a negative review of its product. The criminal defamation case by the police is pending.
An activist and social commentator, Boniface Okonkwo, has been in detention since January 3 when he was arrested following a complaint by businessman Sir Emeka Offor.
He was denied bail by Justice Vincent Agbata of the High Court sitting in Nnewi, Anambra State.
A social media user, Chude Nnamdi, was arrested in Anambra and transported to Abuja by officers attached to the police cybercrime unit.
The police later said the matter was linked to a tweet by Nnamdi that allegedly cast Offor in a bad light.
A Bayelsa-based blogger, Bara Ogidi, was charged with cyberstalking under the Cyber Crime Act.
The State Security Service (SSS) arraigned him over an alleged false report.
Speaker’s ominous warning
House of Representatives Speaker Tajudeen Abbas, during a rare press conference, faulted alleged false reports against Femi Gbajabiamila, his predecessor and Chief of Staff to President Bola Ahmed Tinubu.
The Speaker warned against misinformation and defamation, saying there were plans to strengthen defamation laws.
He said: “There has been a rise in defamation campaigns on social media involving the deliberate dissemination of false and misleading information with the intent to harm the reputation of individuals or organisations.
“These campaigns often target political opponents, seeking to undermine their credibility, integrity, and public trust.
“The recent unjustified and baseless allegations against…Gbajabiamila points to the danger of unfettered and unaccountable social media.
“Such acts not only undermine the integrity of our democracy but also erode the fabric of our national unity.
“Yet, Femi is just one of millions of Nigerians who suffer cyberbullying and coordinated campaigns of defamation daily. Too many victims are not as powerful as him to defend themselves…”
The Speaker referred to Section 375 of the Criminal Code Act, which states that a person who publishes any defamatory matter, is guilty of a misdemeanour and is liable to imprisonment for one year; and any person who publishes any defamatory matter knowing it to be false, is liable to imprisonment for two years.
He also cited Section 24 of the Cybercrimes Act, adding: “The House intends to strengthen libel, slander, and defamation legislation in this regard.”
Speaking at a book launch early in the year, Gbajabiamila described social media as a “societal menace”.
He argued that if left unchecked, abuse of social media has the potential of causing “great danger” not just to society, but the individuals at the receiving end of damaging claims.
“Who do you hold more responsible – the purveyor of the fake news or the person who reads and believes it? The jury is out on that,” he said.
Recalling that the House under his leadership attempted to regulate social media but was resisted by civil society, he said the chickens have come home to roost, adding: “Social media is a menace and it must be regulated”.
But X (formerly Twitter) users were quick to remind Gbajabiamila of his tweet on March 1, 2014, in which he criticised the Nigerian Immigration Service (NIS) for accepting over 520,000 applications for 4,556 available job openings.
With the applicants trooping to the 60,000-capacity Abuja National Stadium for an interview, a stampede occurred, resulting in the death of about seven applicants.
The NIS was said to have made over half a billion naira from the application fees.
Gbajabiamila, who was in the opposition then, tweeted: “Now if obtaining mny from 520k pple for 4.5k jobs isn’t 419 someone needs to tell me what is!! Vagabonds in Power n Babarians at the gate!!”
Gbajamiala’s critics noted that he did not call for social media regulation then because it served his purposes, but he now sees the need to do so because he is at the receiving end.
Is free speech endangered?
The Cybercrimes (Prohibition and Prevention) Act was signed into law on May 15, 2015, by former President Goodluck Jonathan at the twilight of his administration.
The law was enacted based on the understanding that threats to information and communication technology are a danger to national security, capable of affecting the country’s “economic, political, and social fabric”.
The Act seeks to ensure the protection of critical national information infrastructure, promote cybersecurity and protect computer systems and networks, electronic communications, data and computer programmes, intellectual property and privacy rights.
But, a lawyer, Pelumi Olajengbesi, Managing Partner at Law Corridor, fears the law has been manipulated to suppress press liberty and freedom of expression.
He maintained that the political class manipulated the provisions of the law to police journalists and suppress freedom of expression and thought while abandoning its primary objectives.
Olajengbesi, therefore, called on the government to apply the law properly.
Lawyers seek balance
Lawyers have stressed the need to preserve the right to constitutionally guaranteed freedom of speech.
A legal expert, Jonathan Iyieke, emphasised that freedom of expression or speech is inalienable, imperative and undeniable, especially in a truly democratic society.
“Even God in his infinite supremacy never denied Adam and Eve this quintessential right to speech,” he noted.
Iyieke believes that Section 24 (1) (b) of the Cybercrime Act 2015 conflicts with constitutional guarantees of freedom of expression.
The lawyer said: “It is, in my opinion, inconsistent with constitutional provision in Section 1 (1) (supremacy of the Constitution) and as such it should be declared null to the extent of its inconsistency.
“Section 1 (3) of 1999 Constitution (if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail) should, therefore, be invoked.”
Associate Partner at Olisa Agbakoba Legal (OAL), Collins Okeke, also thinks that Section 375 of the Criminal Code Act and Section 24 (1)b of the Cybercrime Act violate Section 39 (1) of the Constitution concerning the media.
He urged the press to challenge these laws.
Okeke, also legal director at the Human Rights Law Service (HURILAWS), said: “These provisions are relics of our colonial past. The colonialists used them to intimidate and avoid transparency and accountability.
“Unfortunately, our politicians have retained them in our law books to prevent citizens and journalists from holding them accountable.
“False or injurious publication is a civil wrong and so ought to be resolved by civil remedy in the form of damages or a public apology.
“How it has been elevated to a crime is what I struggle to understand.”
Some civil society organisations, in a joint statement to mark the recent World Press Freedom Day, said: “Over the last year, we have monitored the state of media freedom and we have been disappointed and disturbed by numerous reported attacks on journalists and media houses across the country.
“These attacks, coming in various forms have included arbitrary arrests and detention, kidnappings, threats, battery, and even two killings.
“This signals a disheartening continuation of the trend of violence and intimidation against journalists.
“Victims of these attacks include both males and females.”
The groups called for vigilance in the face of these threats to democratic rights.
