Democracy, Free Speech And Lai Mohammed, By Emmanuel Onwubiko

To say that Nigeria's democracy is at a crossroad is no gainsaying.

As a citizen of the Federal Republic of Nigeria and as an observer, all that you need to do to validate the opening statement of this piece is to look around your environment to behold the huge burdens of food insecurity, mass poverty, Insecurity of lives, and property, collapsing infrastructures and the clear absence of the political will on the part of the civil and political authorities and even the law enforcement authorities to comply with the global best practices on the critical issues of obeying the precepts and tenets of constitutional democracy and adherence strictly to the supremacy of the constitution.

The above negative indices pale into insignificance when looked side by side with all the invidious, overt, and covert attempts by the minister of information Mr. Lai Mohammed to subvert and undermine the will of the people and to defecate on the constitution of the Federal Republic of Nigeria.

The latest move by the Minister of Information to shut out the plurality of voices from the broadcasting industry with a view to enthroning fascism and tyranny through the illegal imposition of obnoxious fines against broadcast stations over the use on the broadcast media of what he calls hate speech is one move that must not stand the test of time because this minister who is a member of the executive cabinet, has no legal  right to make laws which is the exclusive preserve of the law-making chambers of the National and State Assemblies captured by Section 4 of the Constitution of the Federal Republic of Nigeria as follows:

1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.

(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the

Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative

List shall save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.

(4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say-

(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and

(b) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.

(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.

(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say-

(a) Any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;

(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto, and

(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

(8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly’s hail be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

(9) Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect."

Aside the fact that it is a total illegality to fine a citizen over a so-called hate speech offence that is not even an offence in Nigeria, the country is not operating in a state of void and lawlessness.

Nigeria is replete with a plethora of laws on the operations of the Nigerian media industry and the cyberspace and these laws have been tested severally in the courts of competent jurisdiction supported by section 6 of the Nigeria Constitution thus:

(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.

(3) The courts to which this section relates, established by this Constitution for the Federation and for the States. specified in subsection (5) (a) to (i) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.

(4) Nothing in the foregoing provisions of this section shall be construed as precluding-

(a) The National Assembly or any House of Assembly from establishing courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court;

(b) The National Assembly or any House of Assembly, which does not require it, from abolishing any court which it has power to establish or which it has brought into being.

(5) This section relates to-

(a) The Supreme Court of Nigeria;

(b) The Court of Appeal;

(c) The Federal High Court;

(d) The High Court of the Federal Capital Territory, Abuja;

(e) A High Court of a State;

(f) The Sharia Court of Appeal of the Federal Capital Territory, Abuja;

(g) A Sharia Court of Appeal of a State;

(h) The Customary Court of Appeal of the Federal Capital Territory, Abuja;

(i) A Customary Court of Appeal of a State;

(j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and

(k) Such other courts as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.

(6) The judicial powers vested in accordance with the foregoing provisions of this section-

(a) Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;

(b) Shall extend to all matters between persons. Or between government and authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;

(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; and

(d) Shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15 January 1966 for determining any issue or question as to the competence of any authority or person to make any such law."

Some scholars have even gone as far as providing an exposition on the anti-cyber crimes Act of 2015 of Nigeria and going through what they called ten things to know about Nigeria Cybercrimes Act 2015, it is clear that Nigeria and Nigerians are already legally safeguarded against the use of ethnic and religious negative stereotypes that can spark off conflicts in Nigeria. 

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These scholars stated that: "This is a high-level overview of what the Cybercrime Act 2015 provides, and things we should be aware of as follows, *The Nigerian Cybercrime Act 2015 gives the President the power to designate certain computer systems, networks and information infrastructure vital to the national security of Nigeria or the economic and social well-being of its citizens, as constituting Critical National Information Infrastructure, and to implement procedures, guidelines, and conduct audits in furtherance of that. Examples of systems, which could be designated as such, include transport, communication, banking etc. To find out more about what such a plan should look like, you can check the USA’s National Infrastructure Protection Plan here, or the European Union’s here;

*The Nigerian Cybercrime Act 2015 prescribes the death penalty for an offence committed against a system or network that has been designated critical national infrastructure of Nigeria that results in the death of an individual (amongst other punishments for lesser crimes);

*Under the Cybercrime Act 2015 in Nigeria, hackers, if found guilty, of unlawfully accessing a computer system or network, are liable to a fine of up to N10 million or a term of imprisonment of 5 years (depending on the purpose of the hack). The same punishment is also meted out to Internet fraudsters who perpetuate their acts either by sending electronic messages, or accessing and using data stored on computer systems;

*The Cybercrime Act 2015 Makes provision for identity theft, with the punishment of imprisonment for a term of not less than 3 years or a fine of not less than N7 million or to both fine and imprisonment. An example of identity fraud would be the individual, who impersonated Chief Bola Tinubu on Facebook and was apprehended recently by the police;

*Specifically creates child pornography offences, with punishments of imprisonment for a term of 10 years or a fine of not less than N20 million or to both fine and imprisonment, depending on the nature of the offence and the act carried out by the accused persons. Offences include, amongst others: producing, procuring, distributing, and possession of child pornography;

*Outlaws Cyber-stalking and Cyber-bullying and prescribes punishment ranging from a fine of not less than N2 million or imprisonment for a term of not less than 1 year or to both fine and imprisonment, up to a term of not less than 10 years or a fine of not less than N25 million or to both fine and imprisonment; depending on the severity of the offence;

*The Nigerian Cybercrime Act 2015 prohibits cybersquatting, which is registering or using an Internet domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else, or to profit by selling to its rightful owner. Individuals who engage in this are liable on conviction to imprisonment for a term of not less than 2 years or a fine of not less than N5 million or to both fine and imprisonment;

*Forbids the distribution of racist and xenophobic material to the public through a computer system or network (e.g. Facebook and Twitter), it also prohibits the use of threats of violence and insulting statements to persons based on race, religion, colour, descent or national or ethnic origin. Persons found guilty of this are liable on conviction to imprisonment for a term of not less than 5 years or to a fine of not less thanN10million or to both fine and imprisonment;

*The Cybercrime Act 2015 mandates that service providers shall keep all traffic data and subscriber information having due regards to the individual’s constitutional Right to privacy, and shall take appropriate measures to safeguard the confidentiality of the data retained, processed or retrieved; and 

*Allows for the interception of electronic communication, by way of a court order by a Judge, where there are reasonable grounds to suspect that the content of any electronic communication is reasonably required for the purposes of a criminal investigation or proceedings ([email protected]). 

And then, Nigeria being a democracy, being one of the democracies also with clear provisions of the constitution that specifies responsibility, rights and freedoms of citizens and these are all enshrined in chapter four.

Besides, Nigeria which borrowed her democracy, that is the presidential system of government from the united states of America should be seen opening up public spaces for plural opinions to thrive rather than take Nigeria back to the periods of Medieval fascism. 

If we may ask, what stops the National Assembly from adopting the First Amendment Rights of the United States of America?

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition.  It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices.  It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely.  It also guarantees the right of citizens to assemble peaceably and to petition their government.

Amendment I of the first amendment rights states that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

President Muhammadu Buhari and the National Assembly should quickly call the minister of Information to order and throw away the so called amended NBC code to the dustbin where it rightly belongs and convoke proper stakeholders consultations to articulate a better code that will be in line with the provisions of the constitutional provisions because no government authority should be the prosecutor, the judge and the arbiter in his own case. The minister of Information must not be allowed to mess up with the Constitutional rights of Nigerians. 

Onwubiko is the Head of the Human Rights Writers Association of Nigeria.