By Olumide Babalola
Introduction
Strategic litigation has been defined as “using legal means aiming to ‘bring about broad societal changes beyond the scope of the individual case at hand” (ECCHR) – this simple definition clearly resonates with the subject of this article.
When in 2015, the Federal Government enacted the Cybercrimes (Prohibition, Prevention etc) Act (the Act), the legislation immediately became a ready-made tool of oppression used by politicians against investigative journalists and other voices of dissent. Consequently, in 2016, three civil societies approached me to challenge its constitutionality in court and that marked the beginning of the long-drawn legal battle spanning eight years across national and regional courts.
The offensive provision
Section 24 of the Act provide(d) that:
“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that –
(a) is grossly offensive, …or causes any such message or matter to be so 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 3 years or to both such fine and imprisonment.”
Our umbrage was against the use of the word “offensive” since it was neither defined nor described under the Act, hence subject to self-centred and inconsistent interpretation by whoever sought to use them.
The Legal battles
On the 23rd day of May 2016, we filed an originating summons at the Federal High Court sitting in Lagos, predominantly seeking a declaration that Section 24 of the Act violates freedom of speech. The suit was heard by Hon. Justice M.B Idris (now JSC), who struck it out on the 20th day of January 2017.
Undeterred in our quest to rid our laws of such an archaic provision, we approached the Court of Appeal but before the appeal was struck out on the 1st day of June 2018, the court perhaps, appreciated our strategic litigation drive when the presiding justice, Justice J.S. Ikyegh (of blessed memory) held that:
“I commend Mr. Babalola, of learned counsel for the appellants, for the industry and research put in the brief for the appeal and, also, for the secondary copies of the foreign decisions and materials learned counsel graciously made available to the Court for the appeal.”
(Reported as Inc. Trustees of Paradigm Initiative and Attorney General of the Federation (2018) LPELR – 46655(CA)
Even though at that time it seemed we lost the appeal, now it is clear we actually won! I will explain this later. Again, we proceeded to the Supreme Court, where we lodged another appeal and filed our brief since 2019 but up until this moment, no date has been fixed for the appeal due to the unimaginable workload of the apex court. I hope the judiciary finds a way out of this unpleasant reality soon!.
Our strategic (litigation) move
The Community Court of Justice (ECOWAS) court presents another avenue for litigants to ventilate their issues where they cannot get justice before the national courts. Unlike the African Commission, the ECOWAS court does not have a procedural rule that requires the exhaustion of local remedies before approaching the court.
So, in 2018, we represented another civil society before the ECOWAS court, where the same provisions were challenged and thankfully, on the 10th day of July 2020, the court delivered judgment in our favor, thus:
“The Defendant State (Nigeria), by adopting the provisions of Section 24 of the Cybercrime (Prohibition, Prevention, etc.) Act 2015, violated Articles 9(2) of the African Charter on Human and Peoples Rights and 19(3) of the International Covenant on Civil and Political Rights.”
The court then consequently ordered Nigeria to repeal or amend Section 24 of the Cybercrime Act 2015 in accordance with her obligations under the African Charter and International Covenant on Civil and Political Rights (ICCPR). (See Inc. Trustees of Laws and Rights Awareness Initiative v Federal Republic of Nigeria (ECW/CCJ/JUD/16/20).
Like many other ECOWAS court decisions, the judgment was not obeyed by the Nigerian government; hence, we wrote letters to the Attorney General of the Federation and we even filed other strategic suits for the interpretation of relevant sections of the Constitution, including questions on whether or not the Attorney General is duty-bound to advise the government to comply with judgments of the ECOWAS court; the appeal is still pending.
The Results after eight years of litigation
Finally, on the 28th day of February 2024, the Federal Government signed into law the Cybercrimes (Prohibition, Prevention, etc.) Amendment Act, giving effect to the judgment of the ECOWAS Court.
The nebulous and problematic part of Section 24 (reproduced above) has now been repealed and replaced to read:
“Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that –
(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 3 years or to both such fine and imprisonment.” (Emphasis mine)
This new-look Section 24 even though not Eldorado, is a better version which aligns more with democratic dictates and expectations.
Other low-hanging fruits for privacy and data protection
At the Court of Appeal, before striking out the appeal, Hon. Justice B.A. Georgewill, JCA significantly held that:
“I only wish to state that the provision of Section 38 of the Cybercrime (Prohibition, Prevention, etc.) Act 2015, though neither unconstitutional nor null and void, needs a further look at by the National Assembly of the Federal Republic of Nigeria with a view to, in my respectful opinion, amending it to subject the exercise of powers or right to request for the release of any information required to be kept by service providers to the order of a Court of competent jurisdiction to be obtained upon an exparte application on due particulars showing prima facie reason why such information or data should be released by the service provider to the ‘Relevant Authority’. In my humble opinion, to leave the provisions of Subsections 2(b) and 3 of Section 38 of the Cybercrime Act, 2015, as they are, would clearly and indeed amount to an invitation and encouragement of unbridled interference with the rights of the citizen to the privacy of their communications at the whims and caprices of the relevant authority and/or law enforcement agencies. There should be some form of legal check on the wide discretion given to the relevant authority and law enforcement agencies in the operation of the Cybercrime Act 2015, more particularly in a developing democracy such as ours where abuse and or arbitrary use of powers are unlikely to occur. The provisions of Sections 37 and 39 of the Constitution of Nigeria 1999 (as amended), though not absolute, is sacrosanct and must not be made nonsense of by provisions of any law capable of exposing these rights to jeopardy without any legal check.”
As a remote or proximate reaction to the court’s admonition above, Section 38 of the Act has also been amended to read:
“(1) A service provider shall keep and protect specific traffic data and subscriber information in accordance with the provisions of the Nigeria Data Protection Act and, as may be prescribed by the relevant authority for the time being, be responsible for the regulation of communication services in Nigeria for a period of two years.”
This amendment is also commendable since it recognises the NDPA as the principal Act regulating access to personal data (including traffic data).
Conclusively, strategic litigation does not always have to end in court victories, focus should be on its effect on policy change and societal consciousness. It is comforting to see the much-abused section 24 of the Act amended into a better-looking provision. Kudos to the civil societies that championed this cause.
Source:@thenigerialawyer
