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Nigeria’s Twitter ban and the regulation of social media by other means

Background

On Friday, 5th June, the Federal Government of Nigeria, through its Minister for Information, Lai Mohammed, announced an indefinite suspension of Twitter’s services in Nigeria in response to what it called, ‘the persistent use of the platform for activities that are capable of undermining Nigeria’s corporate existence.’

This is a disproportionate response to Twitter’s deletion of two tweets from the official account of President Muhammadu Buhari, which referenced the country’s civil war of 1967 – 1970 in emphasising his government’s will to restore security to the South-East region, a tweet that incensed a lot of Nigerian citizens, it is important to note that the social media giant deleted the President’s tweets following heavy reporting of both tweets by Nigerians users, as both tweets violated its guidelines. e more important thing to keep in view however, is that the deletion of the tweets provided information minister, Lai Mohammed, justification to carry out an objective he has pursued since 2015 without any success: social media regulation.

In February 2017, Lai Mohammed started ringing the alarm about Nigeria being under what he called ‘the siege of disinformation and fake news’, and laid the blame squarely on social media for the spread of this disinformation and fake news. is was quickly followed by a recommendation of the National Council on Information (NCI) headed by the minister and made up of federal and state-level policymakers on information. e NCI recommended that a council be set up to regulate the use of social media.

Since then, Mr Mohammed has continued to decry the spread of hate speech and fake news, and called for the regulation of social media, including expressing his support for two bills before the Senate on regulating social media and curbing hate speech. These bills have been heavily criticised by activists, civil society groups and the wider Nigerian public for its vague provisions on what constitutes committing a crime through the spread of hate speech and fake news, and harsh recommendations, including the death penalty for “hate speech”. In all, the criticism stems from the fact that the bills seem more aimed at stifling the freedom of speech online. These bills, if they were to become law, would have granted the government arbitrary powers to shut down the internet and limit access to social media, and make criticising the government punishable with penalties of up to three years in prison.

Although the Information Minister and the sponsor of the bill, which is titled ‘Protections from Internet Falsehood and Manipulations Bill 2019’, Senator Mohammed Sani Musa (Niger East – APC) keep using the term ‘regulation’, the objective seems to be aimed at controlling it. is is because unlike traditional media, social media is a vibrant space for the expression of opinions and debate, and where the views do not always go in the favour of the government.

In addition, while Nigeria’s traditional media houses have had a history of taking sides depending on the alliances of their proprietors or could be, and have often been, intimidated into silence, social media users and blogs are able to be independent and are too numerous to all be compelled to toe the same line. As such, it leaves the only options to be the introduction of laws that are vague enough to be applied to muzzle the freedom of expression online.

Although the bills in the Senate seem to have stalled, the Federal Government never let go of this objective. If anything, the EndSARS protests of October 2020, which were almost entirely organised over social media, might have strengthened their resolve in this direction.

The Legality Of The Twitter Ban

It is important to note that the decision to ban Twitter, as well as to order that all over-the-top (OTT) internet services such as Net ix, Skype, WhatsApp, Zoom, etc., must obtain licenses from the National Broadcasting Commission (NBC) before operating in Nigeria, is not backed by any known law, policy, regulation or administrative directive (which requires the approval of the Federal Executive Council to take effect) or an Executive Order from the President.

The Information Minister’s directive (which formed the basis of the subsequent prosecution notice from the Attorney-General’s Office) was not made subject to any law or policy directive of the Nigerian government and as such, stands on questionable legal grounds.

There is existing legal precedent that essentially invalidates Malami’s position. In the 1961 case of Aoko v. Fagbemi, the court held that a woman could not be convicted for adultery in the southern states of Nigeria because it was not prescribed as an offence in any written law in those states. e 1999 Constitution gives further support to this position in Section 36(12), where it says that a person shall not be convicted of a criminal offence unless that offence is defined and penalty therefore is prescribed in a written law. at subsection further defines a written law as “an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”. In the 2013 Supreme Court ruling in the case of Maideribe vs Federal Government, the then CJN Mahmud Mohammed in his lead judgement also leaned on Section 36(8), which says: “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed”.

Furthermore, the Attorney-General Offence’s notice, which calls for the earnest commencement of “the process of prosecution of violators of the Federal Government deactivation of [the] operations of Twitter in Nigeria” does not specically state who ‘violators’ are: either social media users who bypass the government’s suspension order by using Virtual Private Network or VPN software or the telecommunications operators who have mostly complied with cutting Twitter o their bundles but on whose back customers can still obtain bypass software. It could very well be both parties. e notice is silent on this key distinction.

There is reason to believe that this opacity is deliberate. According to a report by Premium Times, the Attorney-General’s offence refused to state the specific law that is being violated. In the words of one of his officials, “We will invite journalists at the time of prosecution, and they will know which laws are used to prosecute. e point is Twitter has been banned.” When pressed further, spokesperson Umar Gwandu simply said there are unspecified “federal government laws,” raising the possibility that Abuja may resort to obscure, arcane, archaic colonial-era suppression legislation to legally uphold a ban on a 21st Century activity. Having said that, none of the country’s current criminal, data protection or data management legislations explicitly mention the legal penalties in this particular scenario. Another thing which this opacity accomplishes is that it provides yet another tool for the security services to physically harass – at road checkpoints, in airports and in targeted raids among others – the tens of millions of Nigerians who use smartphones to compel compliance.

Additionally, there is the small matter of the massive regulatory overreach (and uncertainty) that both directives seek to engender. Information Minister, Lai Mohammed directed that OTT services such as Twitter, Facebook and WhatsApp be compelled to ‘register’ in Nigeria and be subject to regulation by the Nigeria Broadcasting Commission. OTT services are under the nominal regulatory purview of the Nigerian Communications Commission (NCC), an agency of the Ministry of Communications and Digital Economy which has hitherto refused to fall down on the mostly foreign services with a hammer – a situation which is likely to change. e NBC, on the other hand, is an agency of the Information Ministry and can only regulate broadcasting (radio and television) organisations.

Finally, perhaps the biggest question is one of enforcement. Attorney-General Abubakar Malami has asked the Director of Public Prosecution to work with the Ministry of Communication and Digital Economy, National Communication Communication (NCC) and other relevant government agencies to ensure the speedy prosecution of o enders. About 26%1 of the roughly 28 million social media users2 in Nigeria had a Twitter account at the end of May 2021 according to StatCounter. at amounts to 7.28 million potential o enders. As context, there were 65,2923 persons in Nigeria’s 240 prisons and correctional institutions in the middle of May 2021 according to the World Prison Brief. The official capacity of the country’s correctional institutions, according to the Nigerian Correctional Service, is 50,153. In addition, a national strike by judicial administrative workers demanding for more fiscal autonomy for state courts just entered its ninth week. Finally, the extent of offline and digital surveillance which the Nigerian government will have to invest in to ensure compliance will be so astronomical, intrusive and wide ranging for a nominally democratic (and broke) government to sustain even in the short term.

Put together, the entire prosecutorial, judicial and correctional heft of the Nigerian government is incapable of arresting, processing, prosecuting and incarcerating even a fraction of the potential offenders that this ban is sure to create. Even if the authorities manage to surmount these formidable odds, a legal challenge to the twin directives would lead to their almost certain burial at a Supreme Court which is historically rooted in vigorously defending the fundamental rights of Nigerians. However, because it is itself not immune from the judicial crisis rocking the country, Nigeria’s highest court will have to find a way to hear such a case.

The Economics Of The Twitter Ban

The impact of this ban on Nigeria’s thriving digital economy is likely to be significant. Social media – especially Twitter and Instagram – has become a place where many businesses come to promote their goods and services and take orders. Businesses who have Twitter as their primary medium for getting new customers are likely to see a slow down in business for the duration. at will also mean reduced income for a youth population already having a very bad time economically.

According to a tool by Netblocks that measures the impact of total or partial internet shutdowns for many countries, the cost of this Twitter ban is over $6 million (N2.4 billion) every single day4. With Nigeria struggling under the weight of low growth, high inflation and high unemployment that is a level of economic activity the country simply cannot afford to lose.

There are also the problems it poses for additional investment into the country. Interestingly, we have already seen the first example of this with Twitter deciding to set up shop in Ghana instead of Nigeria. at move generated widespread debate in mid-April of this year when it was announced. In its statement, Twitter stated that Ghana is “a champion for democracy, a supporter of free speech, online freedom, and the Open Internet”.

It is disheartening that the company has been proven right not quite two months later.
As a result, the jobs and investment that would typically follow the establishment of such a presence in Nigeria, has been lost. Moreover, other global tech companies who want to establish or deepen their presence in Africa are now more likely to look to Ghana rather than Nigeria.

There are general concerns with allowing this Twitter ban to stay indefinitely. On a wider scale, it could be a leeway for the government to expand the ban to not just other social media platforms but to shutting down the entire cyber space. is is not an uncommon practice in Africa as countries like Uganda, Cameroon, Ethiopia, Guinea, Algeria, Burundi, Chad, Mali, Sudan, Togo, Tanzania, and Zimbabwe have all implemented full or partial shutdowns between 2007 – 20215.

The economic implications of such a shutdown could be catastrophic for Nigeria. Tech Cabal estimates that a “one day of internet shutdown in Nigeria could cost the economy $134 million (N51.1 billion). A week-long shutdown could cost $939.7 million (N358 billion), which is more than the 2020 budget for the Power (N135 billion) and Agric (N183 billion) sectors combined”.

The ability for the government to simply decree – without reference to any legal process – that a website be taken offline, has costs for startups in Nigeria trying to raise foreign capital as well. It has added another layer of risk for investors. When one government successfully pushes the envelope regarding online censorship, it creates the pretext for a subsequent government to do the same in another area. is kind of political risk is different from the usual overzealous regulation that is so prevalent in Nigeria. In this case, there is little that supports the actions taken by the Information Minister. Neither the Nigerian Communications Commission nor the Federal Ministry of Communication and Digital Economy, who would typically be in charge of implementing such an action should they obtain the legal right to do so, have made any statements on the matter at the time of this report.

International Responses

The ban on Twitter in Nigeria has received growing international commentaries and concerns from journalists, news agencies such as the BBC, Sky News, New York Times, CBS News, CNN and the like. e international coverage of the ban has amplified its visibility and raised international outcry.

In its official statement, Twitter raised concerns around what the ban would mean for the dissemination of information and its implications for Africa’s largest democracy.

On 5 June 2021, a joint statement by the diplomatic missions of Canada, the Republic of Ireland, the United Kingdom, the United States and the European Union delegation to Nigeria was released to address the ban, expressing their disappointment in the Nigerian government’s action and insistence on the registration of social media platforms in the country. e statement reads: “We strongly support the fundamental human right of free expression and access to information as a pillar of democracy in Nigeria as around the world and these rights apply online as well as offline.”

Thee joint statement by the diplomatic missions of some of Nigeria’s key partners is a step in the right direction. For one, it puts pressure on the Federal Government to ensure its actions are within democratic best practice. Additionally, it puts the FG in the spotlight, making it possible for us to see a reversal of the ban.

Following international pressures, the Presidency released a statement explaining the reason for the ban and stating that it was only a temporary measure. is is a significant shift in tone from the previous presser issued by the Minister of Information and Culture, referring to the action as an indefinite ban on Twitter.

Conclusion

In the runup to the 2015 elections, the then opposition APC stood out in their use of social media, especially Twitter, to dominate conversation and put the incumbent PDP on the defensive. With this ban, they have now made a full about-face, deciding that social media is now the enemy. is about-face has its both economic costs, as well as costs for Nigeria’s position in the world.

With Democracy Day just a few days away, Nigeria’s government has decided to mark that day by demonstrating that free speech is optional. at irony should not be lost on anyone.

Disclaimer

The data contained in this report is only up-to-date as of Saturday, 5 June 2021. Some of it is subject to change during the natural course of events. SB Morgen Intelligence cannot accept liability in respect of any errors or omissions that may follow such events that may invalidate data contained herein. Our researchers employed desk research and polling to collate the available data. Our publicly released reports are formatted for easy and quick reading, and may not necessarily contain all the data that SB Morgen gathered during a given survey. Complete datasets can be made available on request.

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