Freedom of expression and the policing of social media -By Kaine Agary

Filed under: National Issues |

Kaine Agary

 

In the course of my stay in the United Kingdom, I have been kept in daily touch with events at home. Nigerians are robust and lively in discussing their affairs, but I was distressed to notice that some of the comments, especially in the social media have crossed our national red lines by daring to question our collective existence as a nation. This is a step too far.” – President Muhammadu Buhari in his 21st August 2017 address to the nation.

It does not seem like something that should be happening in a democracy, but more and more, there are attempts at muzzling citizens and curtailing their fundamental freedom of expression. Granted, our fundamental rights are not absolute, but, the current posture of government looks like an attempt to deprive citizens of even the basic right to expression. The choice of words in the President’s address and the recent public statement by the Nigerian Army that it monitors social media activity for anti-government and anti-military information recall a darker period in our history. But this is supposedly a democratic government.

There is a twitter handle @DefenseMonitor, purportedly the “Official Twitter Monitoring Account of the Nigerian Armed Forces. Nigeria Military.” In today’s world of terrorism and cybercrime, many nations have enacted internet monitoring laws for public safety reasons. However, given our history, we have plenty to fear. This dragnet is not only designed to protect the public, it is looking more like an attempt to curtail our freedom of expression and shield the government from its duty to account to the citizens for its actions.

Nigerians are unhappy with the current instability – economic and political – that plagues us, and social media has given every citizen with internet access and a smartphone a voice to express themselves and hold government officials accountable to the citizens they serve.

Section 39(1) of the Constitution of Nigeria provides that, “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” Section 39(2) goes further to grant every person the right to own, establish and operate any medium for the dissemination of information, ideas and opinions subject to laws enacted by the National Assembly (for instance, no person can own, establish or operate a television of wireless broadcasting station without the authorisation of the government).

Limitation on our right to freedom of expression is not new. Section 39(3) of the Constitution limits the right, permitting laws that are reasonably justifiable in a democratic society such as laws regulating telephony and wireless broadcasting. Section 45 of the Constitution defines such justifiable laws as those in the interest of defence, public safety, public order, public morality or public health; or to protect the rights and freedom of other persons. The laws in effect curtailing our freedom of expression can be found in the Penal Code, the Criminal Code and the recently enacted CyberCrimes (Prohibition, Prevention, etc) Act of 2015.

Section 59(1) of the Criminal Code provides that, “Any person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that such statement, rumour or report is false shall be guilty of a misdemeanour and liable, on conviction, to imprisonment for three years.” Any person accused of such publication will have a defence if they can show that they took reasonable steps to verify the accuracy of the statement, rumour or report prior to publication.

In Nigeria, defamation is a crime rather than a civil wrong. Criminal defamation is provided for in Chapter 33 (Sections 373 – 381) of the Criminal Code. Defamation can be against the living or the dead and is defined in Section 373 as a “… matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation.” Defamatory acts can be words expressed in spoken or written words, audible sounds, or sign, and may be expressed either directly or by insinuation or irony. Punishment for publishing a defamatory matter (exhibiting it in public or causing it to be heard, read or seen by another, person) ranges from one to seven years imprisonment (one year imprisonment for just publishing; two years for publishing with knowledge of falsity; and seven years for publishing or threatening to publish with the intent to extort). There is no offence if the matter published is fair comment made for the public benefit, and the matter so published is true.

In the Penal Code, which applies to Northern States, criminal defamation is provided for in Chapter 23 (Sections 391 – 395). Section 391(1) provides that, “[w]hoever by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, save in the cases… excepted, to defame that person.” Similar to the provisions of the Criminal Code, the Penal Code does not criminalise acts that impute the truth about a person done for the public good. The punishment for defamation under the Penal Code is a term of imprisonment up to two years, or a fine, or both.

Section 24 of the Cybercrimes (Prohibition, Prevention, etc) Act of 2015 goes beyond defamation and criminalises the bullying, harassment and threats of harm to a person, their property or reputation. The penalties under the Cybercrimes Act are stiff, with imprisonment terms up to 10 years and fines up to N25m.

Some of the advantages of self-expression/publication via social media – speed of information dissemination; global reach, etc. – are also its dangers when the information being publicised is false or hateful. Words are powerful, they can empower and they can destroy. Not all expressions on social media add value to our social dialogue, in fact, some are harmful to our society. Nevertheless, we cannot discount the importance of the freedom of expression and the need for every citizen under a democracy to have a say in the affairs of the nation, whether we agree with their position or not. A democratic government elected by the people for the people cannot shut its ears to the voice of the people. The expressions of thoughts and opinions on social media are part of that voice.

These national red lines referred to in the President’s address could be anything, but the statutory offences listed above should guide those who exercise their freedom of expression via social media.

 

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