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. [email protected]

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, [email protected], Enugu, Nigeria.