Chief Wale Taiwo (SAN) and Fellow, Institute of Chartered Arbitrators (FCArb) has been in legal practice for over 36 years. In this interview with ADEBISI ONANUGA, the silk calls for attitudinal change by lawyers to reduce delay in justice dispensation. He says what the Supreme Court needs is not the reduction of the numbers of justices but rather either a reduction of jurisdiction or unbundling of the apex court.

There is so much insecurity in the land. How best do you think this can be tackled?

It is very obvious even to the blind that all is not well with the security of lives and properties in this country. This monster called insecurity reared its ugly head about 2009 in the Northeast when a group, who identified themselves as Boko Haram, bestrode that part of the country with the aim of introducing their brand of religion into the country. Ever since, the security architecture of the country has been mesmerised by the coordinated attacks on government and private structures, incessant robberies, banditry and kidnapping of adults and school children for ransom.

These security challenges have taken a different turn as they have gradually extended to other parts of the country. Banditry, armed robbery, herdmens/farmer clashes on account of open grazing leading to wanton killings, kidnapping for ransom and destruction of properties etc have been the order of the day. This has been a cause for concern to well-meaning individuals and groups who have, at one time or the other, offered suggestions as to how to stem the ugly trends.

There is the need to rejig the security architecture of the country in terms of putting round pegs in round holes. There is the need to restore the confidence and enthusiasm of our military by making sure that adequate provisions are made for their care and well-being.

The country should be prepared to invest in modern equipment that will put our military in a better position to confront the problems within the shortest possible time.

Governments at the various levels should rise to their responsibilities as enshrined in the constitution and perform them without fear or favour. They should strive to build an egalitarian and just society through the observance of due process.

Most importantly, the government should endeavour to pay attention and listen to the agitation of some groups that feel marginalised in the scheme of things in Nigeria. I think that until you listen to them, you might not be able to conclude on the genuineness or otherwise of the cause of their agitation. But in a situation where the government treats some people as being more Nigerian than others, it calls for concern and the government should re-assess itself to know whether there are areas it needs to make amends.

It is also worthy of mention that the failure of the government to engage the youth in meaningful employment and in the creation of job opportunities is also a cause of insecurity. The government should create jobs for the youth and this will automatically remove their minds from these societal vices.

There have been a lot of agitations by ethnic groups. Are they treading the right path? What is the way out?

The agitations from some ethnic groups may be due to some perceived or real inequalities in the distribution/application of the commonwealth of the country. There have been complaints of marginalisation, lopsided appointments in favour of some sections of the country. Most people are also agitating for resource control, restructuring of the country and proper federalism etc.

From my reading of the situation, the various ethnic groups ordinarily do not want the country dismembered. The hardline posture of some of them came out of frustration and the inability or call it refusal of the powers that be to address these frustrations and come out with an acceptable and agreeable solutions to these problems and concerns.

Nigerians should be very careful so that we don’t have the Southern Sudan experience where so many lives were lost before attainment of independence. I think that we should dialogue peacefully about our continued co-existence as a Federation and see how we can iron out the grey areas but in case that fails, we should be able to peacefully path ways without blood shed.

Why do we continue to experience delay in justice delivery in spite of efforts to eliminate it? What would you suggest as the way out?

The question of delay in justice delivery has continued to engage the attention of stakeholders for some time. There are various reasons for this delay, the majority of which are both human and systemic.

On the human part, we have had problems with the way our judges are appointed. Some of the appointees are not the very best. Some do not have the skills and enthusiasm for the job.There is also the issue of poor remunerations for judicial workers and the dearth of infrastructure in our courts to facilitate quick dispensation of justice. It is surprising that at this age and time, judges in some courts in the country still take proceedings in long hand, rather than by recording devices. Some of the rules of court are outdated. In addition is the attitude of some lawyers who, deliberately or through being ill-prepared for their cases, foist on the court a state of helplessness by seeking unnecessary adjournment of their cases.

Part of the way out of this is for the stakeholders in the country, particularly the government, to wake up to the realisation that the Judiciary is a critical sector in the socio-economic and political development in the country. A virile judiciary is critical for the attraction of Foreign Direct Investment, which will in turn, have positive impact on the overall economic development of the country.

There is the need to ensure full implementation of the provisions of S.81(3) of the 1999 Constitution relating to fiscal independence of the judiciary. The machinery for the appointment of judges needs to be reviewed so that tested and enthusiastic individuals are appointed as Judges. Also, there is the need to revisit our rules of court to update them in consonance with modern realities to ensure quick and effective dispensation of justice.

Again, there is the need for attitudinal change in the way some lawyers deliberately frustrate court proceedings. The Judges have a role to play in stemming this tide by ensuring that tardiness on the part of lawyers and/or their clients is discouraged by the award of substantial costs as deterrent.

What is your position on review of the constitution?

I will hasten to say that the Constitution of the Federal Republic of Nigeria is long overdue for a review. We all know the circumstances that gave birth to the 1999 Constitution that is still in operation. The influence and interest of the military in that Constitution was and still is a great source of concern and I must say that Nigeria deserves something better. We deserve a Constitution that is actually a product of the decisions of the people of Nigeria and not what was foisted upon Nigerians by the military, like the 1999 Constitution.

Do you agree with the suggestion that Nigeria should adopt the 1963 Constitution and why?

In all honesty, I do not subscribe to the total re-introduction or adoption of the 1963 Constitution. While we cannot boast of having it well with the 1999 Constitution, I do not think that the solution lies in the full importation of the 1963 Constitution. The reason is simple. There are provisions in the 1999 Constitution (as Amended) that stand tall and accord with present day realities that were not in the 1963 Constitution. So a total abrogation of the 1999 Constitution with the hope of adopting the 1963 Constitution should be a no-go area.

For instance under the 1963 Constitution, the President was elected by the National Assembly who constituted the minority instead of by the majority of the electorates. Again, under the 1963 Constitution, only the Legislative and Executive arms of government were effectively used. Under that Constitution the Parliament were superior to the Constitution and the Prime Minister was not accountable to the people but to the parliament.

While acknowledging that there were laudable provisions in the 1963 Constitution worthy of adaptation, especially the provisions that gave minimal powers or call it responsibilities to the government at the centre, that is not a licence for a full and complete re-introduction of that Constitution.

There have been suggestions that Justices of the Supreme Court (JJSC) sit on the bench for life. Is the nations’ judiciary ripe enough to accommodate?

Much as that suggestion is alluring, I don’t buy into it. Recall that the Supreme Court  became the highest appellate court following the fall out of the Adegbenro V. Akintola case (reported in (1963) AC 614 PC), and the 1963 Republican Constitution which stopped appeals from going to the Privy Council in England. Successive Constitutions have made the Supreme Court the highest appellate court with its jurisdiction – original and appellate, clearly fixed and defined, and the composition of its members as well. As the highest court, the Supreme Court should be a policy court providing guidance and interpretation for our democratic environment under the Constitution. I would have agreed to life tenure for our Supreme Court Justices but the truth is that United States where that obtains is grappling with numerous challenges, including political permutations between the two main parties – Republican and Democrat, leading to fights on confirmation of appointments to that court. There are very obvious ethnic and religious considerations in our various appointments. It would thus not be a good suggestion for life appointment for our Supreme Court Justices. Our judiciary is not ripe for such. Rather, let appointments be on merit and allow Justices to retire at 70 years as many of them hitherto would have had between 20 and 30 years’ career on the bench by that age and thus deserving of time to rest and spend with their families, and t pursue vocations of interest.

Would you agree that retired Judges be empanelled to serve on tribunals and other panels to eliminate delay in justice delivery? Will that solve the problem?

I don’t have any problem with retired judges making themselves available for quasi – judicial tribunals or panel of inquiries. For instance the recently retired Justice Doris Okuwobi of the High Court of Lagos State is still chairing the Lagos State Judicial Panel into the various Police/SARS human rights abuses. Similarly, Justice Isa Ayo Salami, former President of the Court of Appeal recently chaired a Special Panel at the instance of the Presidency to look into allegations against the former Acting Chairman of the Economic and Financial Crimes Commission (EFCC). These retired justices are better suited for such assignments because of their vast experience.

Beyond that however, election tribunals are a different proposition. I think that serving judges and justices should still be the one to adjudicate on disputes stemming out of elections because their capacity to deal with such volatile issues is protected under judicial immunity; though the effect on their time and leaving their regular court assignments cannot be under-estimated. Bringing retired justices to sit on election tribunal panels will not solve the problem of delay in our justice delivery. I will suggest that we explore the possibility of our judges and justices taking “senior status” when they clock 65. At that age, a judge can continue to work in their regular court but on a reduced workload or docket. A senior status is a form of semi-retirement.

This is the system at work in the United States Federal District Courts and the 13 Circuit Courts of Appeal, the equivalent of our Federal High Court and Court of Appeal.

Should Judges compulsorily retire at 65 when they could serve up till 70 as suggested in some quarters?

Upon reaching 65, a judge of the High Court need not be made to vacate entirely. Rather, the system should be designed for such Judges to take “senior status” which comes with a reduced workload. They might be then assigned to dealing with routine and non-contentious pre-trial or post-trial matters, thereby relieving the Judges still in active service, or who are yet to reach senior status, to focus on complex and contentious cases. I am of the view that this could help in easing the volume of work for our judges or decongesting the courts and positively impact the administration of Justice.

The CJN is proposing a reduction of justices of the Supreme Court from 21 to 16 and Appeal Court justices to be increased 100. What effect will this have on justice delivery?

As a lawyer in practice for more than three decades, I will not be saying the truth if I tell you that I am in agreement with the CJN in his proposition for a reduction of members of the Justices of the Supreme Court to 16 from the 21 that is constitutionally provided for.

I think my position here will be different if the proposition of the CJN is for a reduction of the jurisdiction of the Supreme Court so that certain appeals, especially interlocutory appeals, have their final bus-stop at the Court of Appeal but with the jurisdiction of the Supreme Court, I will say without being equivocal and contrary to the proposition of the CJN that the apex court needs more Justices than provided for under the Constitution.

As we speak, there are appeals of 2009-2010 still pending at the Supreme Court waiting for hearing dates. If I am to be very pragmatic on this issue, my take would be that the Supreme Court be unbundled with each of the Six geo-political zones in Nigeria having its own Supreme Court. That, among others, will help in the quick dispensation of justice at that level of court.

The truth is that as at present, what the Supreme Court needs is not reduction of numbers of justices but either a reduction of jurisdiction or to unbundle the apex court.

Do you agreed to a review of legal education to improve the quality of lawyers?

Yes. Perhaps the study of law should be made a second degree like in the Unites States or at least we insist on Direct Entry admission to study law after a rigorous ‘A’ level programme. Why I am making this suggestion is because of my recent experience with some of our new wigs. Many of them lacked the mental discipline to becoming a lawyer. And even after their call to bar, they lack the patience to undergo pupilage or work with experienced seniors where they could garner valuable experience and to imbibe ethical standards for a successful legal practice. Making law a second degree would make lawyers more refined in my opinion. It would equally spur experience and specialisation.

What has it been like practising law and ministering in a church? Don’t they conflict?

I have been practising law for the past 36 years. Being a church Minister was a recent experience, say about five years ago. It has been a very worthy experience. There is no conflict at all. What it has done for me is that it has made me more spiritual in my approach to issues of life, including legal issues.

Law practice is a jealous spouse that is always craving for your time. I have been able to manage my time and have, to a large extent delegate assignments that would not necessarily require my personal attention to my subordinates in office or in church and they have been very helpful.

What are lessons of the JUSUN strike for all legal practitioners?

The solidarity shown by legal practitioners to JUSUN during the strike regardless of the adverse impact the strike had on legal practitioners goes a long way in re-emphasising the fact that legal practitioners are social crusaders who by virtue of their calling and ethics will normally insist and fight for the observance of due process and entrenchment of the rule of law.

 

By Adebisi Onanuga

The Crime Victims Foundation of Nigeria (CRIVIFON) has urged the police and other law enforcement agents to arrest doctors and sanction of hospitals managements for their disobedience to the law on treatment of gunshot and accidents victims.

Executive Director of the organisation,  Mrs Gloria Egbuji in a statement, described as inhuman the refusal by hospital authorities to accept some gunshot victims for treatment before asking for police report.

She referred doctors and hospital managements to sections 1 and 2a of the ‘Compulsory Treatment and Care of Victims of Gunshots and Accident Law Act 2018 which she said made it mandatory for hospitals not to reject victims but to first treat victims without initial monetary deposit and  Police report.

The Act also made it mandatory and punishable for doctors and hospital that fails to file report with the Police after treating the gunshot victim.

She condemned in strong terms the recently reported cases of rejection by hospitals of some gunshot victims for treatment which has led to the death of many persons in the country.

The group, particularly, referred to the case of a gospel music producer popularly known as Ebenezer Ayeni,  who was shot on Thursday  June 10, 2021 at his Ibadan, Oyo State residence by armed robbers few days to his wedding.

He was said to have been rushed to the University College Hospital (UCH), Ibadan and later a private hospital but reportedly rejected by hospital staff who insisted on having a police report before they could treat his gunshot injury.  The victim later died hours later from the gunshot injury.

The Foundation also recalled that a 32-year-old Odiri Onosigho; an accountant was similarly shot by armed robbers who were trying to collect his phone at First Gate Bus Stop, FESTAC in Amuwo Odofin Local Government Area of Lagos on April 15, 2021.

The accountant allegedly lost his life after being rejected by hospitals due to failure to present police report.

Worried by the increasing number of gunshot victims who had died after being rejected by hospitals due to non-presentation of police report before treatment, Mrs Egbuji wondered why the hospitals should be acting contrary to the extant law of the land with respect to the treatment of gunshot and accident victims.

The foundation recalled that the issue of accepting gunshot victims for treatment had drawn so much attention for many years until the National Assembly came up with a law known as the Compulsory Treatment and Care of Victims of Gunshots and Accident Law in 2018.

“It is on record that CRIVIFON was in the fore front of agitation for the acceptance of Gunshots Victims for treatment by hospitals across the federation without subjecting them to getting police report before their lives are saved.

“The Foundation’s advocacy on the right of gunshot victims to receive unhindered access to medical services began sometime in 1998 and its Executive Director never relented until the emergence of an Act in 2018″, she said.

She noted that since the Act came into existence in 2018, the police authorities had directed hospitals to comply with the provisions of the law by accepting to treat gunshot and accident victims without subjecting them to the provision of police report before they commence  treatment.

Mrs Egbuji explained that  the Act makes provision for the Compulsory treatment and care of the victims of gunshot and other matters.

She said such victims are to be given unrestricted access to medical services as well as strengthen legal provisions and guarantee people’s fundamental rights to life and dignity of their persons.

The Act she said also makes mandatory for the hospitals to report such cases to the police while treating the victims for security reasons.

The Crime Victims Foundation of Nigeria  therefore pleaded with  the law enforcement agents to  seriously take a stand on the disobedience of hospitals to the existing law on treatment of gunshot and accidents victims stressing that ignorance is not an excuse under the law as erring hospitals and doctors can be arrested by the police and punished under the law.

“That is why it is important for police to start punishing the hospitals for not treating gunshot victims,” she said.

By taking the plea bargain system – complete with prosecutors, defence counsel, judges, and civil society organisations – to the historic Maximum Security Custodial Centre in Apapa last Thursday, Lagos not only scored a first in justice administration, it also took a step closer to decongesting prisons, writes ROBERT EGBE.

Opeyemi Adejuyigbe must not have seen it coming. Six years after his arrest in 2015 on Ijegun Road in Lagos for alleged unlawful possession of a locally-made pistol, he was still in detention at the Maximum Security Custodial Centre, in Ikoyi, Lagos.

His trial, which began the same year at a high court in Lagos, had yet to conclude following episodes of delay caused by, among others, the Covid-19-inspired lockdown and the Judiciary Staff Union of Nigeria (JUSUN) strike.

So, he languished among awaiting trial inmates at the facility, infamous for overcrowding.

Last Thursday, however, Adejuyigbe breathed the air of freedom once again.

He and 26 others in similar circumstances – 16 males and 11 females – became beneficiaries of a first-of-its-kind plea bargaining session at correctional centres initiated by the Lagos State Ministry of Justice.

It was part of the state’s efforts to decongest correctional facilities in collaboration with the Lagos State Command of the National Correctional Centre, the state’s Judiciary and the Lagos State Police Command.

The government team was led by Lagos State Attorney-General (A-G), Mr, Moyosore Onigbanjo (SAN), and included Permanent Secretary and Solicitor-General Ms Titilayo Shitta-Bey; Director, Directorate of Public Prosecutions (DPP) Mrs. Olayinka Adeyemi; and Director, Office of the Public Defender (OPD), Dr. Jide Martins, among others.

Adejuyigbe, heeding advice from his lawyer, Nelson Onyejaka, participated in the plea bargain session held at the Kirikiri Maximum Security Custodial Centre.

He entered a plea bargain agreement with the Lagos State Government which involved him pleading guilty to a lesser charge of attempt to commit a felony and a seven-year sentence.

Three judges of the Lagos State High Court were waiting in their chambers in the court’s criminal division to preside over the virtual trial.

The defendant was re-arraigned, took his plea before Justice Sedotan Ogunsanya on the new charge and awaited the judge’s decision.

“I urge the court to enter the plea bargain agreement as the judgment of the court,” Mr Onigbanjo who prosecuted the defendant, said after summarising the facts of the case.

Following confirmation by Adejuyigbe’s counsel that the agreement was wilful and in order, Justice Sedotan upheld the deal and found the defendant guilty.

Noting that he had not wasted the time of the court, the judge held: “The defendant is hereby sentenced to seven years imprisonment,” adding that the judgment took effect from 2015 when he was taken into custody, meaning Adejuyigbe was a free man.

The 26 others also took advantage of the same session to regain their freedom.

Adejuyigbe may not have known it, but he was one of the 6,800 inmates (out of a total of over 8,000) awaiting trial in the five correctional facilities in the state at Ikoyi, Kirikiri (Female), Kirikiri (Medium), Kirikiri (Maximum) and Badagry.

The Kirikiri Centre has a capacity for 1,076 inmates but currently houses 1,830 inmates, 283 of whom have been convicted, 1,075 are awaiting trial and 88 are serving life terms.

Three hundred and seventy-two of them are on death row while 12 inmates are lodgers (inmates in transit).

Onigbanjo explained that the process was aimed at decongesting correctional facilities and reducing the population of inmates awaiting trials in Lagos State in line with Governor Babajide Sanwo-Olu’s reform initiative in  the administration of the criminal justice system in the state.

He said: “It was up to various defence counsel to write applications to the Attorney-General for us to consider plea bargain for their clients. But we have decided not to wait for those applications because the numbers were too small. We decided to come directly to the inmates and talk to them, to make that offer to them, of course, guided by independent legal advice.”

The A-G said 530 inmates in Correctional Centres in Lagos State had taken advantage of the plea bargain protocol since it was introduced in the state in 2017.

“530 does not look like a very large number, but there has been lethargy among inmates and lawyers to take up this opportunity,” Onigbanjo said, adding that this was why the sensitisation session was important.

Ms Shitta-Bey, who spoke earlier, explained that the Plea Bargain process was in compliance with the Lagos State Administration of Criminal Justice Law 2015, noting that plea bargain is “not for the rich alone. It is for everyone whether they are literate or illiterate, rich or poor.”

The Controller of Lagos State Command, Nigeria Correctional Centre, Adewale Adebisi described the plea bargain sensitisation as “the first of its kind that we have witnessed in correctional centres all over the federation”.

He noted that some of the inmates in Kirikiri Maximum and Medium Correctional Centres had been in custody for 10 to 12 years without trial or conviction and urged inmates who had been standing trial for a long time to consider the plea bargain option.

In what seems a re-evaluation of its suspension of Twitter, the Nigerian Government has set conditions that the microblogging platform and related outfits must meet to continue their operations in the country. In this report by ERIC IKHILAE, law experts argue that most of the conditions may be difficult to meet. 

The Federal government on June 4, announced the indefinite suspension of the operations of microblogging platform – Twitter. The suspension, made public by Minister of Information and Culture, Lai Mohammed, came two days after Twitter took down President Muhammadu Buhari’s tweet, claiming it violated its rules by referring to the last civil war in the country.

In explaining the rationale for the suspension, Mohammed brushed aside claims that it was retaliation for Twitter taking down Buhari’s tweet. He accused Twitter of working with enemies to undermine the country.

Reason for suspension

The government explained that Twitter was suspended because it yielded its platform to elements that were bent on threatening the country’s existence.

“I want to repeat that it is because Twitter has consistently made its platform available to those who are threatening Nigeria’s corporate existence; that is the reason for suspending their operations in Nigeria,” Mohammed said.

He accused Twitter of bias, adding that it refused to censor tweets inimical to the nation’s interests, citing those by the leader of the proscribed Indigenous People of Biafra (IPOB), Nnamdi Kanu, who, according to him, consistently incited violence against law enforcement agencies from abroad.

Mohammed added: “We have found out that Twitter is actually the platform of choice for a particular separatist leader, who resides outside the country and issues directives to its members to attack symbols of government authority, such as the police, the military, the electoral commission offices, correctional centres, etc. And this is being done wilfully and consistently without any consequences from Twitter.

“No country worth its name will tolerate that, and no company, no matter its self-importance, will force any nation to accept this.”

He further accused Twitter’s CEO, Jack Dorsey, of funding October’s #EndSARS protests.

“I said Twitter funded the #EndSARS protests in Nigeria last year and people have challenged it. Twitter played a prominent role in helping to raise funds for the #EndSARS protesters. Whether they paid directly, helped to pay or helped to raise funds, it’s a matter of semantics.

“So, whether donating money himself or helping to raise money, the Twitter owner is one of those who helped to fund the #EndSARS protests that were later hijacked leading to loss of lives and massive destruction of property.”

Conditions for lifting suspension

Days after the suspension and, perhaps, because of the avalanche of criticism it attracted, the government changed its mind from an indefinite suspension to a conditional one, insisting that Twitter must meet certain conditions to re-enter the country. The conditions include registration as a business entity and payment of taxes.

According to Mohammed most of the Over The Top (OTT) and social media platforms, operating in the country do not have any offices here and do not pay taxes to the government from “the billions” they earn here.

“That is not the best practice globally, and that is why we are insisting that for you to operate in Nigeria you must first be a Nigerian company and be licensed by the broadcasting commission. Therefore, any OTT or social media platform operating in Nigeria must do so legally,” he said.

He stated that the National Broadcasting Commission (NBC) had, accordingly, been directed to immediately commence the process of licensing all OTT and social media platforms operating in the country, adding that the first step was for them to register with the Corporate Affairs Commission (CAC) and thereafter be licensed by the NBC and then adhere to the conditions stipulated in their licences.

“We have already advertised the notice to the companies concerned to apply for registration of licence. The cardinal thing is that Twitter must be registered in Nigeria. Twitter must be licensed in Nigeria and Twitter must stop using its platform for activities that are inimical to the growth of Nigeria and its corporate existence.”

Mohammed said should the various social media platforms be registered and licensed, their operations would be regulated within the terms of their registrations, noting that “Singapore regulates social media, Australia has done so. Even the European Union that does not have any particular laws on social media has made recommendations in a white paper. The EU says if social media platforms publish contents that are harmful to the security of a nation, such contents should be removed.”

Criticisms

The government’s decision has continued to attract varied reactions with many faulting the suspension and the request for registration as a condition for re-entering the country. From rights advocacy groups to law experts, the argument is that the ban amounted to an extension of the government’s growing intolerance of opposing views. They described it as an attempt to trample on the constitutionally guaranteed rights to freedom of speech, expression and to hold opinions.

The United States (US), the United Kingdom (UK), the European Union (EU) and other countries have also voiced their objection to the suspension, while local groups, including the Nigerian Bar Association (NBA), have also spoken in similar vein and demanded a reversal of the decision.

In his reaction to the suspension, NBA President Olumide Akpata argued that the government lacked constitutional authority to back its decision, noting that if the suspension was not reversed, the NBA would consider instituting a legal action to protect the nation’s democracy.

Senior Advocates of Nigeria (SANs) Mike Ozekhome, Louis Alozie and Ebun-Olu Adegboruwa, and other lawyers like Daniel Makolo and Tunde Falola spoke in similar vein and called for a reversal of the suspension.

Ozekhome urged Nigerians to resist the government’s decision, using all available legal and judicial means, adding: “We are not in a military dictatorship. We are supposed to be practising constitutional democracy, where government’s actions are circumscribed by and subjected to the rule of law, and not to sheer might and arbitrary, whimsical and capricious rule of the thumb.”

Alozie, who argued that the suspension was in bad faith, noted Twitter had been operating in Nigeria for some time now to the knowledge of everybody, including the President and his ministers, including the Attorney-General of the Federation, who claimed to have directed the prosecution of users of Twitter after government’s suspension.

“They have indeed been patronising Twitter without questions as to the legality of its operations.  To have just remembered that its operations are illegal only after Twitter deleted a hate speech and threat of genocide against a major ethnic group in Nigeria, calls to question the motive for such request for registration.  It is vindictive and an attempt to gag the media outfit.

“To that extent, it is wrong and in utter bad faith.  The harassment of Twitter or stopping them from their online publication in Nigeria is an infringement of the rights, not only of Twitter, but the Nigerian public, to freedom of information.

“Citizens and residents in Nigeria, including non-citizens, are entitled to fundamental rights to freedom of information, that is, the right to receive and impart ideas and information. To stop the operation of Twitter is an infringement of that right which is actionable,” Alozie said.

Adegboruwa, while faulting the suspension, noted that such a decision placed the country in the category of nations like China, North Korea and other totalitarian regimes that have the infamous record of banning, suspending or hindering social media.

He expressed concern that, by its body language in recent times, the government could extend such punitive measures to other platforms like the Facebook, Linkedin, Instagram, WhatsApp, Google, Yahoo or even the entire World Wide Web and could even graduate dangerously to the print and electronic media, ultimately.

Adegboruwa argued that, before now, the government had always been very uncomfortable with the freedom enjoyed by the press, noting that earlier this year, the Minister of Information spoke about the resolve of the government to regulate social media, with the attendant threats of sanctions for defaulters.

“He (the Minister) revealed that the President had approved the recommendations of a five-man review committee, set up to examine the existing National Broadcasting Code, which came up with several far-reaching recommendations, including suspension or withdrawal of broadcasting licence, outrageous sums to be imposed as fines, and criminal prosecution, etc.

“My take on all these is that both parties should have exercised some restraint in the actions that they have taken. Twitter being a private organisation that the President willingly subscribed to, he is bound by the rules set up by the owners of the business and should not deploy his official position in aid of a personal grievance,” Adegboruwa said.

On their part, Abuja-based lawyers – Makolo and Falola – were outright in arguing that the suspension violated some of the rights granted Nigerian citizens under the Constitution.

Makolo noted that the effect of the suspension “is on Nigerian citizens’ right to freedom of expression. The federal government cannot remove the citizens’ rights to freedom of expression without justification. In this case, the federal government is on the wrong side of the law against her citizens, more than Twitter as government’s propagandists want us to believe.”

Falola argued that government’s decision to impose restrictions on the activities of Twitter in Nigeria, under the guise of registration and regulation, was a clear attempt to interfere with citizens right to freedom of expression and to hold opinions as guaranteed by 39 (1) of the Constitution.

He added that although every right is not absolute, the only exception is as guaranteed by Section 45 of the same Constitution only to extent that a law can be made to curtail such rights in interest of public safety and protection of other peoples’ rights. The question therefore is, is there any law in Nigeria as of today that forbids the use of Twitter? The answer is no.

“If the Government feels strongly that some elements are using the platform to create tension, manipulate or propagate a false and misleading story, the opinions open to is to activate the provisions of other existing laws in bringing the culprits to book rather than interfering with citizens’ right to freedom of speech as guaranteed by the nation Constitution in the name of registration

Falola noted that the court, in the case of Din V African Newspaper of Nigeria Ltd. (1999) LPELR 947 SC, held that the freedom guaranteed under Section 39 of the Constitution, includes the freedom to hold an opinion and pass information without interference and that this freedom presupposes free flow of opinion and ideas essential to sustain the collective life of the citizenry.

He added: “Even though the court emphasised that the exception to this right, to the extent that, no law that is reasonably made for the purpose of public peace and protection of other rights will be invalidated for the purpose of this Section, the circumstances of the Twitter ban by the government and its insistence on compulsory registration, are not justified and do not fall under this exception.

“If the federal government feels threatened by activities of unscrupulous elements using Twitter as a platform, part of the existing laws it can invoke is Section 24 (1) of the Cyber Crime Act 2015 which prohibits and provides punishment for spreading false information, which tends to injure or for the purposes of causing annoyance, insult or inconvenience and danger by means of computer systems rather than banning or restricting free flow of information in the name of asking Twitter to register.”

Court actions

While the NBA and the Chairman of its Section of Public Interest and Development Law, Dr Monday Ubani have threatened to sue and assured of the readiness to defend anyone charged with using Twitter after the suspension, some groups led by the Socio-Economic Rights and Accountability Project (SERAP) and a lawyer, Malcom Omirhobo have since sued at the ECOWAS Court.

In the suit, marked: ECW/CCJ/APP/23/21 by SERAP and 176 concerned Nigerians, the plaintiffs frowned at what they described as “the unlawful suspension of Twitter in Nigeria, criminalisation of Nigerians and other people using Twitter, and the escalating repression of human rights, particularly the rights to freedom of expression, access to information, and media freedom in the country.”

They are seeking, among others, an order declaring the suspension as unlawful and a violation of citizens’ rights. In the interim, they want the court to issue an order of interim injunction restraining the federal government from implementing its suspension of Twitter in Nigeria, and subjecting anyone including media houses, broadcast stations using Twitter in Nigeria, to harass, intimidate, arrest and prosecute, pending the hearing and determination of the substantive suit.

Their lawyer, Femi Falana (SAN) argued that if this application for interim injunction was not urgently granted, the government would “continue to arbitrarily suspend Twitter and threaten to impose criminal and other sanctions on Nigerians, telecommunication companies, media houses, broadcast stations and other people using Twitter in Nigeria, and the perpetual order sought in this suit might be rendered nugatory.”

In his suit, Omirhobo is contending among others, that by the suspension order, the Federal Government had denied him access to his Twitter account and has thus, violated his “rights to freedom of association, speech and expression.”

Government’s counter argument

The government has since hit back at critics, arguing that its action was justified, in that it was intended to protect that nation’s security. It denied violating citizens’ rights as claimed. Minister of Information and Culture particularly came down hard on foreign nations and institutions, calling them hypocrites, arguing that their views were actuated purely by economic reasons and not because they love Nigeria.

Mohammed, who wondered why Nigeria was being accused of stifling free speech, noted that both the EU and the UK were already working on social media regulations. He urged Nigerians to distinguish between countries that are trying to protect their economic and commercial interests from those countries that genuinely love the country and talking about freedom of speech.

“Don’t forget for one minute that it is because there is a country called Nigeria that there is freedom of speech… Many of the commentators have said suspending the operation of Twitter is like stifling freedom of expression. And I said no.

“Twitter is just one of the many platforms through which Nigerians can express themselves. There is Facebook, there is Instagram, there’s WhatsApp. There’s Google Hangout and others. They have not been suspended,” he said.

Why conditions may be unfeasible

While Ozekhome, Alozie Sani, Makolo and Falola were not averse to government’s insistence on the payment of taxes, they argued that Twitter and related platforms do not qualify as organisations that could be compelled to register in Nigeria before doing business.

Ozekhome was of the view that “there is nothing wrong with telling Twitter to pay tax as a going business concern. But telling it to register with the Corporate Affairs Commission (CAC) is a step away from total regulation and control of social media, a pet project of this clueless anti-people government.”

Alozie noted that under the nation’s law, no foreign company could lawfully do business in Nigeria without being registered under the Companies and Allied Matters Act (CAMA). He added that such a company, when registered bears “Nigeria Limited,” as if it is a Nigerian company.

“It is then liable to the laws of Nigeria, including taxation. However, it is doubtful if this social media outfits operating online publications are subject to such laws. Where a company is registered, it would have a registered office, directors or trustees with known addresses.”

Sani argued that no law exists in the country that can compel the registration of Twitter and the likes, which do not operate their broadcast equipment from anywhere in Nigeria. He noted that, unlike what obtains in the US, where the Code of Federal Regulations, Title 47, Part 97 defines “broadcasting” as “transmissions intended for reception by the general public, either direct or relayed,’ the Nigerian laws, particularly the NBC Act, is completely silent on what “broadcasting” means.

He added: “No doubt, this would have served as a guide on the scope of the NBC Act and whether it avails the government in its demand that the platforms register with the commission. Needless to say, the NBC Broadcasting Code, (amended in 2020) cannot make much of a difference, as it cannot be stronger than the principal statute.

“Even leaving aside the arguments about freedom of expression under the Constitution (which, at any rate, is not absolute, given the provisions of Section 45 of the same Constitution), it is hard to see how the government can legitimately rely on the NBC Act to control Messrs. Twitter & Co.- without amending it, that is, the Act.”

Makolo also contended that there is no extant law in country’s statute books that supports the government’s position that makes it mandatory for Twitter and the likes to register their business in Nigeria.

He added: “The Twitter business is such that takes place in the sky, using the airwaves. You cannot regulate them in the real sense of it. Telling or forcing your citizens not to patronise Twitter is your business. It does not affect Twitter’s businesses worldwide as it continues to do her businesses, earn its derivatives and smiling to the bank.

“Twitter is at liberty to register its business in Nigeria or not to do so. After all, Twitter has been doing business in Nigeria, like in many other countries, without any registration or office space and has been doing very well. The government’s control mechanism cannot affect Twitter, except with Twitter’s submission.”

Falola noted that under the company’s registration procedures as laid down by Nigerian laws, before an entity could be regarded as a company properly so called and before it can qualify for registration and carry out business in the country, such entity must meet certain distinct conditions – have a business object, have a business or registered address, and possesses proposed directors, Memorandum and Article of Association, among others.

He added: “The question is, does Twitter operate any business in Nigeria for the purpose of mandating it to come and register under the Nigerian laws, the answer, in my opinion, is no, for the following reasons:

“Twitter is just a mere platform of expression in Nigeria in accordance with the provisions of Section 39 of the 1999 Constitution, even though some Nigerians – corporate and individuals – may be in the habit of using the platform to advertise their products. This alone does not suggest the media platform is carrying out business activities.

“Twitter does not advertise any product other than allowing people, who so wish, to download the application and use it as a means of expression, free flow of options and ideas. It is Nigerians, and like any other citizens all over the world, that download the Twitter application. So, it is a free-will and the citizens have the right to either download or ignore the platform

“Twitter has no specific business object unlike the regular companies, upon which it has to register as required by the government. The government’s insistence on its registration is akin to all governments of the various countries of the world asking Twitter to come and register.

“Although the application, by its very nature, may be a company; its activities in Nigeria do not make it a foreign company practising or carrying out business in Nigeria for the purpose of registration. And, also, even though Twitter, by itself is a company  under the law of the United States, its operations in Nigeria do not suggest it is carrying on business for the purpose of mandating it to come and register,” Falola argued.

The way out

As a way of resolving the crisis ignited by the suspension, Adegboruwa urged the President to direct the reinstatement of Twitter in Nigeria whilst Twitter should take a second look at its policies and rules to give room for engagement when perceived violations occur.

“On the other hand, Twitter should learn to give room for first offenders, by creating the template for warnings and such other sanctions that would not lead to outright punishment. It is the first time that the President has had this challenge and he should have been given an opportunity to remedy the alleged breach of the rules of engagement.

“Indeed, there have been very positive sides to social media, especially in aiding criminal investigations, in gathering intelligence and in tracking criminals and their sponsors. If we proceed on account of individual biases to block the channels that these platforms provide, we may end up cutting our nose to spite our face. Suspending Twitter on this occasion is definitely overkill,” Adegboruwa said.