When constitution bows to cybersecurity act

…Is the tail now wagging the dog?

…Freedom of expression in peril?

Of late, many well-meaning individuals and groups have raised their voices against the enforcement of the Cybercrimes (Prohibition, Prevention, etc.) Act 2015, which the government, its agencies and influential people in society are now using to punish their perceived enemies.

While, the Cybercrimes Act, enacted in 2015, was designed to combat cyber threats and enhance national security, its provisions like Section 24(1) have been criticised for their vague language, which criminalises the transmission of messages deemed “grossly offensive,” “indecent,” or causing “annoyance” via computer systems.

Meanwhile, the Act was amended in 2024 with the removal of the obnoxious section.
But, despite the 2024 amendments, the Act continues to undermine journalists’ ability to hold the powerful accountable, shrinking Nigeria’s democratic space.

In recent times, there has been a rise in the cases of journalists being harassed, arrested, and prosecuted under the Cybercrimes Act.

A notable case is Daniel Ojukwu, a reporter for the Foundation for Investigative Journalism, who was abducted by the police on May 1, 2024, in Lagos.

His arrest followed a petition filed against him for exposing how Adejoke Orelope-Adefulire, the then senior special assistant on sustainable development goals (SSAP-SDGs) to the president, who paid N147.1 million to an account traced to Enseno Global Ventures (Enseno GV), an Abuja-based restaurant, for the construction of a classroom. He was detained for over a week under the Cybercrimes Act before being released on bail.

In March 2024, the police stormed the residence of Segun Olatunji, former editor of FirstNews, arrested and detained him for weeks.

During nationwide protests in August 2024, several journalists were arrested, harassed, or detained while covering the events.

The misuse of the Cybercrimes Act has led to a climate of fear among journalists and commentators. The threat of arrest and prosecution has resulted in self-censorship, undermining the media’s role as a watchdog in a democratic society. This environment is particularly disheartening given Nigeria’s history of civil rights activism.

Also, the 2024 World Press Freedom Index by Reporters Without Borders ranked Nigeria 112th out of 180 countries, highlighting the challenges faced by journalists, including monitoring, attacks, and arbitrary arrests.

Recently, the Media Rights Agenda (MRA), a non-governmental organisation, revealed that security agencies are the worst enemies of the Nigerian journalists, noting that 45 out of the 69 attacks against journalists recorded between January and October 2024 were perpetrated by the state actors.

Human rights advocates, civil society organisations, and professional bodies have called for a reevaluation of the Cybercrimes Act to ensure it does not infringe upon constitutional rights. They argue that while cybersecurity is essential, it should not come at the expense of fundamental freedoms.

In June 2024, the Nigerian Guild of Editors condemned the continuous use of the Cybersecurity Act by security agencies to harass journalists, stating that the law is not for persecution.

Recently, Socio-Economic Rights and Accountability Project (SERAP) filed a lawsuit at the ECOWAS court against President Bola Tinubu and Nigeria’s 36 governors over “the repressive use of the Cybercrimes (Amendment) Act 2024 to criminalise legitimate expression and violate the human rights of Nigerians, including activists, journalists, bloggers and social media users.”

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The group noted that the ECOWAS court in 2022 ordered “Nigerian authorities to stop using section 24 of the Cybercrime Act 2015 to prosecute anyone on the grounds of insulting or stalking public officials online.”

According to SERAP, “Since the amendment of the Cybercrime Act in 2024, Nigerian authorities at all levels have consistently used the provisions of the Cybercrime Act to harass, intimidate, arbitrarily arrest and detain and unfairly prosecute users of social media, activists, journalists, and bloggers solely for the peaceful exercise of their rights.

“Stories published online have been deemed ‘offensive’, ‘obstructive’, ‘insulting’ or ‘annoying’ with actionable consequences under provisions of section 24 of the Cybercrime (Amendment) Act 2024 even when the stories are true and factual.”

The continued use of the Cybercrimes Act to target journalists and suppress freedom of expression poses a threat to Nigeria’s democracy. It is imperative for the government to reconcile its cybersecurity efforts with its constitutional commitments to uphold press freedom and protect civic space.

Rising against the development, concerned bodies are also worried that such is happening in a democratic era, which ordinarily should uphold freedom of speech and that if not checked, the situation would be worse than restrictions in millitary regime.

Peter Ogaga, a Niger Delta human right activist, is more worried that such negative development is coming during Bola Tinubu’s administration, who, according to him, is a born civil right activist.
“His huge impact as a NADECO member contributed to the ousting of the military in power. He has been consistent with his activism even during Olusegun Obasanjo’s administration, Musa Yar’Adua and Goodluck Jonathan. In fact, it was activism that the APC used in winning election in 2015. So, why will President Tinubu allow authorities to squeeze people with new laws and deny them freedom of expression. A good president needs criticism from the citizens in order to adjust and do well, else, he will be autocratic,” Ogaga noted.

Speaking on the develop, Moyosore Kukoyi, founder/CEO, Forward Edge Consulting Ltd, insisted that there is no contradiction between the Nigerian Constitution and the Cybercrime Act.
“While the Nigerian Constitution guarantees freedom of expression in Section 39, the Cybercrime Act 2015 criminalizes cyberbullying, cyber stalking, and online defamation,” he explained.

Explaining further on why there is a constant debate over these regulations, he said: “Section 39 does not expressly spell out the definition and boundaries of the freedom to expression and the Cybercrime Act does not provide clear guidelines on what constitutes cyberbullying, online defamation, and cyber stalking even while we have the right to freedom of speech,” he said.

According to him, the ambiguity above can lead to subjective interpretation and potential abuse of the law as powerful individuals or authorities might be exploiting the vagueness to silence critics or opposition voices, claiming that their speech constitutes cyberbullying, defamation, or other prohibited acts.

While there may be ambiguities, Chijioke Umelahi, an Abuja-based lawyer, noted that the Nigerian Constitution is clear on freedom of expression and that the Cybercrime Act 2015 did not contravene that freedom, rather is a boost.

“Cybercrime is a new area in the law and we still need to keep amending the law until we finetune it better.

But we are in a country where many don’t believe in the judiciary, where security agencies are often deployed by the government against presumed opposition, the EFCC has been a tool in the hands of past presidents for dirty fights, so cybercrime could be another tool. But the reality is that the use of cybersecurity by the government, its agencies and influential people in society to punish their perceived enemies will continue because the government doesn’t want criticism and is ready to suppress opposition. Where is NLC today, NANS, statesmen that used to speak out before? There seems to be a quiet silencing of voices and the cybersecurity law is offering an easy way to do that,” he said.

However, to prevent the abuse of the Act by powerful individuals and political elites, Kukoyi suggested the strengthening judicial oversight, which will ensure that courts carefully scrutinize cases brought under the Act to prevent abuse and encouraging transparency in the application of the Act and holding those who abuse it accountable.

Other solutions, according to him, include: pushing for amendments to the Act to clarify its provisions and prevent potential infringement on freedom of expression, and raising awareness about the Act, its provisions, and the importance of protecting freedom of expression.

“By addressing these concerns, Nigeria can promote a safer online environment while protecting the fundamental right to freedom of expression,” Kukoyi, who runs offices in Nigeria and Canada, concluded.

But Umelahi thinks that the government, judiciary and security agencies should create more awareness on cybersecurity, addressing contentious areas as the law is relatively new and subject to different interpretations and usage.