On Friday the 4th of June, Nigeria’s Minister of Information, Lai Mohammed, announced that the country’s federal government would be suspending Twitter’s operations within Nigeria. This came after Twitter deleted a tweet by the country’s president where he threatened “civil war” type violence on citizens of the country.
Following this announcement, in the early hours of Saturday, June 5, Nigerian Twitter users found that they could only access the site with the use of a VPN (Virtual Private Network) which allows people to access blocked websites by masking their actual locations.
The loss of access formally took place after the Nigerian Communications Commission (NCC) issued a directive to all telcos and Internet Service Providers (ISPs) instructing them to restrict their users’ access to the social media platform.
While there are ongoing debates around how the ban affects Nigeria’s digital economy and what it means for freedom of speech in the country, one issue that hasn’t been addressed is the legality of this action by the executive arm of the Nigerian government.
In a democracy, various arms of government exist to work together and keep each other in check.
While one arm makes laws, another enforces; but it is unusual for one arm to enforce a law that the other did not make. This is the situation in Nigeria today as the directive barring the use of Twitter is not currently backed by any law passed by the country’s legislature.
In response to the Twitter ban, Malechi Okafor, a lawyer and managing partner at M & O Legal Services said, “It is unprecedented because we never thought we would get to a point where a democratically elected leader would try to take away the voice of the people.”
While he is currently a democratic leader, President Buhari, a retired army general and former military head of state, is not a stranger to muzzling the media as his regime in the 1980s was one wrought with media clampdowns.
In what seems like an encore performance, President Buhari’s 1984 media clampdowns have taken a new form as the Attorney General of the Federation, Abubakar Malami, issued a directive on the 5th of June that citizens found still using Twitter were to be prosecuted.
With this we suddenly have two things to be addressed: was blocking Twitter legal and should people be prosecuted for carrying on tweeting with their VPNs.
The Almighty NCC
In my discussion with Imade Iyamu, a corporate lawyer at Banwo and Ighodalo, she shed some light on what actual powers the Nigerian Communications Commission has when it comes to telcos and ISPS.
“Just like the CBN has a lot of power over banks, the NCC has the power to issue directives,” she said.
But the fact that a directive is issued does not make it entirely legal. This is why the courts exist, to allow citizens or concerned entities to challenge directives or actions performed by the government or its parastatals.
So to reverse the decision, we must head to the courts then?
Well, not exactly. In Nigeria, the courts have been inactive for weeks as the court workers, under the umbrella of the Judiciary Staff Union of Nigeria (JUSUN), have been on strike for weeks now. It has however been reported on Wednesday that the strikes have been suspended and the courts will reopen on Monday the 14th of June.
JUSUN has very clear demands. In 2020, President Buhari signed an executive order mandating that state governors adhere to a provision in the country’s 1999 constitution that gives the judiciary financial autonomy and access to a federal fund. The governors have ignored this.
“The National Assembly has a budget that they manage. The judiciary should have one as well to pay themselves and handle their affairs – to be truly independent,” Okafor tells me during our talk.
A truly independent judiciary would be the recourse of the people at this time but that is not something that is currently available.
Without the courts, the directive by the NCC stands unchallenged and while this is in itself a problem, the bigger problem lies in the directive issued by the country’s attorney general and minister of justice.
Then there’s Malami
“You can’t declare that people should be prosecuted without a written law,” this sentiment expressed by Iyamu during our call is one I have heard from several lawyers both offline and on Twitter.
The directive issued by the attorney general is unlawful. That much is clear.
One of the tenets of a democratic society like ours is the idea that laws are deliberated on and passed by a body of elected officials – the legislature. These laws can then be enforced by the executive branch and interpreted by the judiciary. The attorney general falls into the class of the former but in this regard, he has no law to enforce. Just one he has made himself.
Two days ago, the country’s house of representatives invited the Minister of Information, Lai Mohammed, to ask questions regarding the Twitter ban.
There has been no official statement from the legislature regarding Malami’s declaration that the use of Twitter will be met with prosecution. While VPNs provide momentary succour from the irrational directive of the NCC, Malami’s push for prosecution might be harmful to citizens who continue to use Twitter as is protected by their right to free speech.
So, is the current Twitter ban with the threat of prosecution illegal? You bet it is. But until the courts open on Monday and the people get a chance to exercise their rights, I guess we’ll have to wait.
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