Free Speech: Constitutionality Of The Section 24(1) Of The Cybercrime Act

By Ekojoka Aghedo

Free speech is a delicate matter and it is core to the sustenance of a democratic society. This explains why it is a right protected under the Constitution of the Federal Republic of Nigeria, 1999 as amended (the Constitution). It is so important that this writer in his work styled “INTERPRETING ‘REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY’: A PROTECTIVE STANDARD FOR FREE SPEECH IN NIGERIA” published in volume 12 of the Nigerian Bar Journal in August of 2022 argued that every law that seeks to restrict speech must be strictly scrutinized and that there is no room for judicial abdication or deference when the constitutionality of such laws are questioned.

A clear and workable heightened standard of judicial review on whether a law is “reasonably justifiable in a democratic society” is preferred. However, the Court of Appeal preferred deference rather than proper interrogation of the provisions of section 24(1) of the Cybercrime Act, 2015 (the Act) given its decision in Okedara v. Attorney General of Federation (2019)LCN/12768(CA) when it held the provision to be constitutional. Deference is not what the Constitution demands rather strict judicial scrutiny is what is required.

Though the Court further held that free speech cannot be taken away “except for the purposes of preserving the interest of defense, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons”, it failed to interrogate whether the provisions of the Act were reasonably justifiable in a democratic society.

It is not in doubt that the legislature has the power to enact laws that may restrict speech for the purpose stated under the Constitution but it does not provide unbridled power to the legislature. Section 45 of the Constitution by implication requires courts to judicially engage any of such laws to decide whether such laws are justified.  Any analysis of such laws must consider the expression “reasonably justified in a democratic society”.

This writer has proposed in the work referenced above, that in a determination of whether any law  (section 24 of the Act) is reasonably justified, the court ought to ask:

a.          Is the law within the powers conferred on the government?

b.          Is the interest sought to be achieved by the government compelling?

c.           Is the government’s interest unrelated to the suppression of free speech?

d.          Is the law necessary to achieve that compelling government interest?

e.          Is the law the least restrictive alternative to achieving the compelling interest?

f.           Is the law clear, precise, accessible, foreseeable and not overly broad?

The Okedara decision holds the provisions to be constitutional and not vague. Is the law in question really clear and precise or does it even pass the muster of reasonably justified in a democratic society? Before you answer that, let’s look at the provisions of the Act and our Constitution:

Section 24(1) of the Cybercrime Act, 2015 reads 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 3 years or both.

Section 39 of the Constitution on the other hand provides that: (1) 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 45 of the Constitution provides: (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution, shall invalidate any law that is reasonably justified in a democratic society-

1. In the interest of defense, public safety, public order, public morality or public health; or
2. For the purpose of protecting the rights and freedom of other persons.

It is arguable from the decision of the Court that the interest that the government sought to achieve may be the preservation of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons, but the enquiry does not end there.  In IGP v. ANPP (2007) 18 NWLR (Pt. 1066) 457 CA Adekeye JCA opined that “Even though the Government’s purpose may be legitimate and substantial that purpose cannot be pursued by means that broadly stifle fundamental personal liberties.”

We may as well ask – is the government’s interest in messages that cause annoyance, inconvenience, danger, obstruction, insult, enmity, hatred, ill will or needless anxiety to another compelling? Are there alternatives other than the criminalization of speech? Say for instance we also ask- is the criminalization of messages that cause annoyance, inconvenience, danger, obstruction, insult, injury, enmity, hatred, ill will, or needless anxiety to another the least restrictive alternative to achieve the stated government’s interest? The answer would be quite revealing.

The only question the Court appeared to have directly answered in its decision is (f) but then it was a poor analysis of the vagueness and overbreadth doctrine. The Court opined that the provisions above are “explicit and leave no room for speculations or logical deductions.” One may ask – What is explicit that leaves no room for other logical deductions about messages that are “grossly offensive, pornographic or of an indecent, obscene or menacing character” ? Who defines messages that are grossly offensive, indecent obscene and of menacing character? Is it based on the victim’s subjective interpretation, some religious beliefs, or moral police? Who has the authority to make this determination – the police, the victim, or the prosecutor? Does this law only punish messages that are false or any message that an individual sends and is adjudged insult, or creates annoyance or inconvenience? What are the criteria for determining messages that cause annoyance, inconvenience, danger, obstruction, insult, injury, enmity, hatred, ill will, or needless anxiety to another?

The vagueness doctrine requires a criminal statute to define an offence with sufficient definiteness so that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. A law that a reasonable person cannot tell what speech is prohibited and what is permitted is vague, overbroad, and unconstitutional. Statutes regulating speech require clear and greater precision to give adequate notice as to what speech is prohibited and allowed.

Further, the vagueness doctrine does not allow laws that are overly broad. An overly broad law that suppresses speech is unconstitutional and to that extent void. Section 24 above is a textbook example of a law that is overly broad.

How clear and precise is the meaning of insult, hatred, inconvenience, ill will, or needless anxiety under the Act in question? What constitutes an insult, hatred, annoyance, or inconvenience under this law? Is there a limit to what may be classified under these heads? The meaning of insult can be stretched wide enough to cover what may be largely considered criticism or mere banter.  Assuming a religious group or its leader is criticized for their actions and the group perceives those critical words as an insult or the other person believes the criticism causes annoyance or inconvenience, should such criticism be deemed an insult under this law? These are some of the questions reasonable people would ask. It means the law leaves room for guessing and therefore vague and overly broad.

The more questions are asked about the provisions of this law and what its limits are, it becomes clear that it cannot and should not stand the test of constitutional validity. What the court failed to understand is that the protection of words that may cause inconvenience to the listener or which the listener may find offensive are constitutionally protected speech which we cannot suppress.

Gorge Orwell in his ‘Freedom of the Press New York Times (New York, 8 October 1972) wrote: “Is every opinion, however unpopular— however foolish, even—entitled to a hearing? Put it in that form and nearly any English intellectual will feel that he ought to say ‘Yes’…. If liberty means anything at all, it means the right to tell people what they do not want to hear.”

The Nigerian Supreme Court in Arthur Nwankwo v. State (1985) 6 NCLR 228, 237 upholding free speech held that “The decision of the founding fathers of the present Constitution which guarantees freedom of speech which must include freedom to criticize should be praised and any attempt to derogate from it except as provided by the Constitution must be resisted. Those in public office should not be intolerant of criticism in respect of their office so as to ensure that they are accountable to the people. They should not be made to feel that they live in an ivory tower and therefore belong to a different class. They must develop thick skins and where possible, plug their ears with wool if they feel too sensitive or irascible.”

The U.S. Supreme Court has consistently classified outrageous, insulting and offensive speech are constitutionally protected speeches. For example, it has held that “In public debate, our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment” (Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994)).

Given the above, it is my conclusion that the provisions of the Act are vague, overly broad and cannot be reasonably justified in a democratic society. It is hoped that the court will have an opportunity to revisit this question in a proper context. If that happens, the court is urged to judicially engage this provision and declare it unconstitutional using the standard above because it will be more protective of free speech and it aligns with the commitment to protect free speech as contained in the Constitution. To hold otherwise, will have a chilling effect on free speech even where truth is a defense thereby jeopardizing the objective of the Constitution to protect speech.

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Source:TNL