Twitter Ban: A Violation Of Right Of Expression And The Press

By James Nwanyanwu

The right to freedom of expression or free speech is an
inalienable right of every human being and undoubtedly one
of the features that distinguish human beings from other
animals.  The right to expression is an important part of
social life, for without expression no one can unravel the inner
recesses of the mind of any man. After the birth of a living child,
the next is to expect him to express himself, this is usually
through a cry. It becomes a source of worry if a child does not cry
after birth. There is a connection between the cry and the life of
the new life.

Expression is important such that no one can be punished for an
intention that has not been given expression, hence the assertion
that “even the devil does not know the intention of a man’s
heart”. This is because a man’s heart wherein his intention
dwells cannot be seen or read on his face. [Akpan v. State (1994) 9
NWLR (Pt. 368) 347; Akinkunmi v. State (1987) 1 NWLR (Pt. 52) 608.]
The only way the thought/intention can be read and known is through
actions which include speech. It is even said that no one is
capable of seeing into another’s mind and of being able to state
with absolute certainty what is his intention until he confesses
what it was he intended.

What is meant by freedom? It is an exemption from
arbitrary control; the expression on the other hand is the
manner or form in which a thought is conveyed in spoken words,
written words, voice, signs, symbols, etc.

The right to expression is the bedrock of democratic society and
liberty. This right is guaranteed in Nigeria’s constitution under
Section 39 and protected in other international treaties and laws
recognized in Nigeria such as in Article 19 of the Universal
Declaration of Human Rights, Article 9 of the African Charter on
Human and Peoples Rights and the various regional Instruments and
Conventions on human rights.

The right to freedom of expression and the Press under Section
39 is provided in the following terms:

“(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.

(2) Without prejudice to the generality of subsection (1) of
this section, every a person shall be entitled to own, establish
and operate any medium for the
dissemination of information, ideas and opinions provided that no
person, other than the government of the federation or a state, or
any other person or body authorised by the president on fulfilment
of a condition laid down by an Act of National Assembly, shall own,
establish or operate a television or wireless broadcasting station
for any purpose whatsoever”.

From the totality of section 39, it is apparent the right to
express one’s mind or opinion by whatever form, medium, or Channel
is what the law seeks to protect. This right of a citizen to
expression and of the Press, entails the Liberty to hold whatever
opinion, manifest the opinions, communicate, distribute or
circulate it freely without having to obtain a license from the
authorities. This freedom incorporates the right to hold and
express dissenting views, contribute, criticize government policies
and actions; the right to comment on matters of public interest
without the fear of proscription or adverse consequences.

Democracy implies the recognition of skepticism as a vital
element and attitude in the lives of free men. In a democratic
setting such as ours, this right must not be muzzled by the
government and must suffer no impediment. The right to free speech
is in the public interest for the growth of civil liberties. Any
law, government policy or order that tends to deny people the right
to express their opinion or such medium or channel would be
regarded as undemocratic and tyrannical. Where there is a right to
express, is the right to be informed. Restriction on the use of a
medium to express or receive information is a violation of the
constitutional right of the citizens to be informed.

With the advancement in technology, the traditional medium of
information communication has shifted to the online media space and
on the social media sites such that the traditional media networks
have also embraced the online version to reach over 2billion people
on social media. Virtually every broadcast house or print media has
an online or social channel running side by side.

Over the weekend, precisely June 5, 2021, the media space was
livid with the announcement of a ban on Twitter in the Nigeria
internet space. It is important to note that Twitter has over a
300million subscribers in the world with over a 40million active
users in Nigeria. Twitter and the rest of the social media
platforms qualify as a “medium” or channel for the dissemination of
information, ideas and opinions, a platform to receive and impart
ideas under section 39(1) (2) of the Constitution.

The right to freedom of expression is not absolute but
qualified, no doubt. Under the Nigerian Constitution which has
guaranteed the right to freedom of expression, also provided
for those circumstances where this right may be restricted or
derogated from under section 39(3).

The right to freedom of expression could be restricted by “any
law” reasonably justifiable in a democratic society, to
prevent the disclosure of information received in confidence or to
maintain the authority and independence of the courts. Also, by
Section 45(1) of the 1999 Constitution, the right to freedom of
expression could be restricted or curtailed by “any
law” that is “reasonably justifiable in a democratic
society”:

(a) In the interest of defence, public safety, public order,
public morality, public

health or,

(b) To protect the rights and freedoms of another person.

It may therefore be subject to certain restrictions, but these
shall only be such as provided by law and are necessary. The
effect, therefore, is that the exercise or enjoyment of the right
to freedom of expression shall be done within the limits of the
law.

The determination of whether a particular act is justifiable in
a democratic Society is a question of fact, solely reserved for the
court to determine. Also, the restrictions to the right to
expression are in the realm of defamation which can be criminal or
civil, for the respect of the rights or reputation of others.

Banning Twitter from the Nigerian internet space is a violation
of the right of the Nigerian citizen to express himself and receive
information via the social media/ internet “medium” in the absence
of a threat to “the interest of defence, public safety, public
order, public morality, public health”. It is further a serious
concern if a social media “medium” is restricted in this age where
so many jobs and works since the Covid19 Pandemic have become
virtual including court sittings and a lot of meetings are now
hosted on the social media space. There have grown several online
media/print outfits whose jobs, source of earning, client or
customer base is on the Twitter/ social media site. Other thriving
businesses that are not into information dissemination on the
Twitter space are equally affected.

It is very authoritative for the government to proscribe their
place of work without an order of a court or any law to that
effect. The platform has played an important role in public
discourse in the country, with hash tags #Bring Back Our Girls
after Boko Haram kidnapped schoolgirls in 2014, and #End SARS
during anti-police brutality protests last year.

It is submitted that the suspension of twitter in the Nigerian
internet space be reviewed as its operation does not offend section
45 of the Constitution. The ban by the Nigerian state violates
the right to Freedom of information which conferred on the citizens
the right to assess and disclose classified information held by
public authorities. Section 2(4) Freedom of Information Act
provides “A public institution shall ensure that information
referred to in this section is widely disseminated and made readily
available to members of the public through various means, including
print, electronic and online sources, and at the
offices of such public institutions (emphasis mine).

Proscribing a “medium”  to seek and receive information and
ideas that are in the public interest, which also protects civil
servants from being prosecuted for disclosing information that has
been classified especially when such information is in the public
interest are defeatist of the idea behind the right to free speech
and information. It also increases the interference of the
government with the flow of information to a journalist or from
journalists to the public and violates Section 22 of the
Constitution.

A democratic country as Nigeria must consider the impact of
restrictions on free speech in the global market and her perception
of the comity of free nations. The danger of Proscribing “medium”
of expressions such as Twitter or broadcast sites or stations is a
gradual return to the dark days of military rule and suspension of
fundamental rights.

While dissenting viewpoints would ask if Twitter is the only
social media medium available on the Nigerian internet space, of
course not.  It is however, important to ask if its
proscription violated any known Nigerian law, the Cybercrimes Act
2015 or derogated from any of the eloquent Provisions of section 45
of the constitution? The answer is no. The manner of banning the
medium of expression Twitter by executive fiat without recourse to
sections 39(3) and 45  of the Constitution which prescribed
that a restriction of the right to expression must be under “any
law” is characteristic of Executive usurpation of legislative
functions and not justifiable in a democratic society. The right to
free speech to comment on matters of public interest on a medium of
his choice, like all other fundamental human rights, are a special
class of rights and no person shall be deprived of the enjoyment of
any such rights except by the proper observance of the due process
of law. -Abdulkareem V. LSG (2016) All FWLR (Pt 850)P.
101@P.1175

Does freedom of expression guaranteed cover in section 39
of the constitution 1999(as amended) cover speeches or expressions
made via computer systems or networks including social media? In
answering this question, a critical look at section 39 helps
resolve the issue particularly Subsection 2 says:

“Without prejudice to the generality of subsection (1) of this
section, every a person shall be entitled to own, establish and
“operate any medium” for the dissemination of information, ideas
and opinions”

In Okogie V. AG Lagos State (1981) 2NCLR P.337,
the supreme court held that the word “medium” Used in section 36 of
the 1979 constitution which is in pari Materia with section 39 of
the 1999 constitution is not limited to the Orthodox mass
communication but could reasonably include schools. It is clear
that the reasoning of the apex Court in arriving at this position
is premised on the fact that school is a
“medium” used in “imparting ideas and
information”. What the court really needed to determine in Okogie’s
case was the “imparting of ideas and information” by the school as
a medium. Therefore, if any or all of
“holding of opinions”, “receiving of ideas and
information” and “imparting of ideas and information”
would take place on any medium including computer systems or
networks like social media, Section 39 of the 1999 constitution
would apply for its protection. It is therefore submitted that
freedom of expression guaranteed under section 39 of the 1999
constitution covers speeches or expressions made via computer
systems or networks including social media. see Solomon Okedara v.
AGF Suit No FHC/L/CS/ 937/2017 unreported judgment.

It is important to stress that since the majority of Nigerian
citizens are still ignorant of their rights and the Nigerian
society is behind in terms of technological advancements, it has
become necessary for the government at all levels to embark on
intensive programmes aimed at enlightening the citizens, not only
on their fundamental rights, which include the right to freedom of
expression and press but also by exposing the populace to
innovations and new opportunities in the internet space and this
will surely grow entertainment of dissenting views. An enlightened
society where people know their rights and respect the rights of
others would certainly be more conducive for social, political and
economic development.

In conclusion the views of Hon. Justice I. N. Buba in Solomon
Okedara V.AGF Suit No FHC/L/CS/ 937/2017 unreported judgment
delivered on 7/12/2017 when he quoted Andy
Levy is adopted to the effect that:

“Criminalizing offensive speech is a far greater and
essential danger to freedom than terrorism is. Anybody who wants to
criminalize speech that they find offensive differs from the
terrorist only in degree, nothing kind”

Written By James Nwanyanwu,
jamesnwanyanwu@gmail.com, Enugu, Nigeria.

By James Nwanyanwu

The right to freedom of expression or free speech is an
inalienable right of every human being and undoubtedly one
of the features that distinguish human beings from other
animals.  The right to expression is an important part of
social life, for without expression no one can unravel the inner
recesses of the mind of any man. After the birth of a living child,
the next is to expect him to express himself, this is usually
through a cry. It becomes a source of worry if a child does not cry
after birth. There is a connection between the cry and the life of
the new life.

Expression is important such that no one can be punished for an
intention that has not been given expression, hence the assertion
that “even the devil does not know the intention of a man’s
heart”. This is because a man’s heart wherein his intention
dwells cannot be seen or read on his face. [Akpan v. State (1994) 9
NWLR (Pt. 368) 347; Akinkunmi v. State (1987) 1 NWLR (Pt. 52) 608.]
The only way the thought/intention can be read and known is through
actions which include speech. It is even said that no one is
capable of seeing into another’s mind and of being able to state
with absolute certainty what is his intention until he confesses
what it was he intended.

What is meant by freedom? It is an exemption from
arbitrary control; the expression on the other hand is the
manner or form in which a thought is conveyed in spoken words,
written words, voice, signs, symbols, etc.

The right to expression is the bedrock of democratic society and
liberty. This right is guaranteed in Nigeria’s constitution under
Section 39 and protected in other international treaties and laws
recognized in Nigeria such as in Article 19 of the Universal
Declaration of Human Rights, Article 9 of the African Charter on
Human and Peoples Rights and the various regional Instruments and
Conventions on human rights.

The right to freedom of expression and the Press under Section
39 is provided in the following terms:

“(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.

(2) Without prejudice to the generality of subsection (1) of
this section, every a person shall be entitled to own, establish
and operate any medium for the
dissemination of information, ideas and opinions provided that no
person, other than the government of the federation or a state, or
any other person or body authorised by the president on fulfilment
of a condition laid down by an Act of National Assembly, shall own,
establish or operate a television or wireless broadcasting station
for any purpose whatsoever”.

From the totality of section 39, it is apparent the right to
express one’s mind or opinion by whatever form, medium, or Channel
is what the law seeks to protect. This right of a citizen to
expression and of the Press, entails the Liberty to hold whatever
opinion, manifest the opinions, communicate, distribute or
circulate it freely without having to obtain a license from the
authorities. This freedom incorporates the right to hold and
express dissenting views, contribute, criticize government policies
and actions; the right to comment on matters of public interest
without the fear of proscription or adverse consequences.

Democracy implies the recognition of skepticism as a vital
element and attitude in the lives of free men. In a democratic
setting such as ours, this right must not be muzzled by the
government and must suffer no impediment. The right to free speech
is in the public interest for the growth of civil liberties. Any
law, government policy or order that tends to deny people the right
to express their opinion or such medium or channel would be
regarded as undemocratic and tyrannical. Where there is a right to
express, is the right to be informed. Restriction on the use of a
medium to express or receive information is a violation of the
constitutional right of the citizens to be informed.

With the advancement in technology, the traditional medium of
information communication has shifted to the online media space and
on the social media sites such that the traditional media networks
have also embraced the online version to reach over 2billion people
on social media. Virtually every broadcast house or print media has
an online or social channel running side by side.

Over the weekend, precisely June 5, 2021, the media space was
livid with the announcement of a ban on Twitter in the Nigeria
internet space. It is important to note that Twitter has over a
300million subscribers in the world with over a 40million active
users in Nigeria. Twitter and the rest of the social media
platforms qualify as a “medium” or channel for the dissemination of
information, ideas and opinions, a platform to receive and impart
ideas under section 39(1) (2) of the Constitution.

The right to freedom of expression is not absolute but
qualified, no doubt. Under the Nigerian Constitution which has
guaranteed the right to freedom of expression, also provided
for those circumstances where this right may be restricted or
derogated from under section 39(3).

The right to freedom of expression could be restricted by “any
law” reasonably justifiable in a democratic society, to
prevent the disclosure of information received in confidence or to
maintain the authority and independence of the courts. Also, by
Section 45(1) of the 1999 Constitution, the right to freedom of
expression could be restricted or curtailed by “any
law” that is “reasonably justifiable in a democratic
society”:

(a) In the interest of defence, public safety, public order,
public morality, public

health or,

(b) To protect the rights and freedoms of another person.

It may therefore be subject to certain restrictions, but these
shall only be such as provided by law and are necessary. The
effect, therefore, is that the exercise or enjoyment of the right
to freedom of expression shall be done within the limits of the
law.

The determination of whether a particular act is justifiable in
a democratic Society is a question of fact, solely reserved for the
court to determine. Also, the restrictions to the right to
expression are in the realm of defamation which can be criminal or
civil, for the respect of the rights or reputation of others.

Banning Twitter from the Nigerian internet space is a violation
of the right of the Nigerian citizen to express himself and receive
information via the social media/ internet “medium” in the absence
of a threat to “the interest of defence, public safety, public
order, public morality, public health”. It is further a serious
concern if a social media “medium” is restricted in this age where
so many jobs and works since the Covid19 Pandemic have become
virtual including court sittings and a lot of meetings are now
hosted on the social media space. There have grown several online
media/print outfits whose jobs, source of earning, client or
customer base is on the Twitter/ social media site. Other thriving
businesses that are not into information dissemination on the
Twitter space are equally affected.

It is very authoritative for the government to proscribe their
place of work without an order of a court or any law to that
effect. The platform has played an important role in public
discourse in the country, with hash tags #Bring Back Our Girls
after Boko Haram kidnapped schoolgirls in 2014, and #End SARS
during anti-police brutality protests last year.

It is submitted that the suspension of twitter in the Nigerian
internet space be reviewed as its operation does not offend section
45 of the Constitution. The ban by the Nigerian state violates
the right to Freedom of information which conferred on the citizens
the right to assess and disclose classified information held by
public authorities. Section 2(4) Freedom of Information Act
provides “A public institution shall ensure that information
referred to in this section is widely disseminated and made readily
available to members of the public through various means, including
print, electronic and online sources, and at the
offices of such public institutions (emphasis mine).

Proscribing a “medium”  to seek and receive information and
ideas that are in the public interest, which also protects civil
servants from being prosecuted for disclosing information that has
been classified especially when such information is in the public
interest are defeatist of the idea behind the right to free speech
and information. It also increases the interference of the
government with the flow of information to a journalist or from
journalists to the public and violates Section 22 of the
Constitution.

A democratic country as Nigeria must consider the impact of
restrictions on free speech in the global market and her perception
of the comity of free nations. The danger of Proscribing “medium”
of expressions such as Twitter or broadcast sites or stations is a
gradual return to the dark days of military rule and suspension of
fundamental rights.

While dissenting viewpoints would ask if Twitter is the only
social media medium available on the Nigerian internet space, of
course not.  It is however, important to ask if its
proscription violated any known Nigerian law, the Cybercrimes Act
2015 or derogated from any of the eloquent Provisions of section 45
of the constitution? The answer is no. The manner of banning the
medium of expression Twitter by executive fiat without recourse to
sections 39(3) and 45  of the Constitution which prescribed
that a restriction of the right to expression must be under “any
law” is characteristic of Executive usurpation of legislative
functions and not justifiable in a democratic society. The right to
free speech to comment on matters of public interest on a medium of
his choice, like all other fundamental human rights, are a special
class of rights and no person shall be deprived of the enjoyment of
any such rights except by the proper observance of the due process
of law. -Abdulkareem V. LSG (2016) All FWLR (Pt 850)P.
101@P.1175

Does freedom of expression guaranteed cover in section 39
of the constitution 1999(as amended) cover speeches or expressions
made via computer systems or networks including social media? In
answering this question, a critical look at section 39 helps
resolve the issue particularly Subsection 2 says:

“Without prejudice to the generality of subsection (1) of this
section, every a person shall be entitled to own, establish and
“operate any medium” for the dissemination of information, ideas
and opinions”

In Okogie V. AG Lagos State (1981) 2NCLR P.337,
the supreme court held that the word “medium” Used in section 36 of
the 1979 constitution which is in pari Materia with section 39 of
the 1999 constitution is not limited to the Orthodox mass
communication but could reasonably include schools. It is clear
that the reasoning of the apex Court in arriving at this position
is premised on the fact that school is a
“medium” used in “imparting ideas and
information”. What the court really needed to determine in Okogie’s
case was the “imparting of ideas and information” by the school as
a medium. Therefore, if any or all of
“holding of opinions”, “receiving of ideas and
information” and “imparting of ideas and information”
would take place on any medium including computer systems or
networks like social media, Section 39 of the 1999 constitution
would apply for its protection. It is therefore submitted that
freedom of expression guaranteed under section 39 of the 1999
constitution covers speeches or expressions made via computer
systems or networks including social media. see Solomon Okedara v.
AGF Suit No FHC/L/CS/ 937/2017 unreported judgment.

It is important to stress that since the majority of Nigerian
citizens are still ignorant of their rights and the Nigerian
society is behind in terms of technological advancements, it has
become necessary for the government at all levels to embark on
intensive programmes aimed at enlightening the citizens, not only
on their fundamental rights, which include the right to freedom of
expression and press but also by exposing the populace to
innovations and new opportunities in the internet space and this
will surely grow entertainment of dissenting views. An enlightened
society where people know their rights and respect the rights of
others would certainly be more conducive for social, political and
economic development.

In conclusion the views of Hon. Justice I. N. Buba in Solomon
Okedara V.AGF Suit No FHC/L/CS/ 937/2017 unreported judgment
delivered on 7/12/2017 when he quoted Andy
Levy is adopted to the effect that:

“Criminalizing offensive speech is a far greater and
essential danger to freedom than terrorism is. Anybody who wants to
criminalize speech that they find offensive differs from the
terrorist only in degree, nothing kind”

Written By James Nwanyanwu,
jamesnwanyanwu@gmail.com, Enugu, Nigeria.