In its judgment, the ECOWAS Court held that “section 24 of Cybercrime Act is inconsistent and incompatible with Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights to which Nigeria is a state party.
The court, therefore, ordered the Federal Government to amend section 24 of the Cybercrime Prohibition Act in accordance with Nigeria obligations under Article 1 of the African Charter on Human and Peoples’ Rights.
SERAP had argued, in the suit, that the federal government of Nigeria and several state governments have used the vaguely worded provisions of the Cybercrime Act to trample on the rights to freedom of expression and information of bloggers, journalists, activists, and social media users.
In its reaction to the verdict, SERAP described the judgment as a victory for many Nigerians who continue to face harassment, intimidation and unfair prosecutions solely for peacefully exercising their human rights online.
The civil society organisation also in an open letter to the government, dated 2 April 2022 and signed by SERAP deputy director Kolawole Oluwadare urged President Muhammadu Buhari to enforce the judgment by deleting the offence of ‘insulting or stalking public officials online’ from the Cybercrime Act.
SERAP also urged President Buhari to urgently send an executive bill to the National Assembly to repeal the unlawful provisions, and reform all laws, which are inconsistent and incompatible with freedom of expression and media freedom.
It further urged him to direct Mr Abubakar Malami, SAN the Attorney General of the Federation and Minister of Justice to withdraw all pending charges of ‘insulting or stalking public officials online’ against activists, critics and journalists, and immediately ensure their release from unlawful detention.
SERAP also demanded that the government must ensure that those who have faced unfair prosecutions under the unlawful provisions receive adequate compensation.
The letter, read in part: “the immediate enforcement and implementation of the judgment by your government will be a victory for the rule of law, the right to freedom of expression and media freedom online. This will improve citizens’ participation in their government, and provide an impetus for the anti-corruption fight.
“By implementing the judgment, your government will be demonstrating Nigeria’s leadership within the ECOWAS sub-region and sending a powerful message to other countries to embrace the rule of law and human rights.
“With the ECOWAS Court judgment, all federal and state authorities must now stop using the provisions of section 24 of the Cybercrime Act to target, harass, intimidate, arbitrarily arrest and detain and unfairly prosecute social media users, activists, and journalists who express views perceived to be critical of governments.
“SERAP notes that Article 15(4) of the ECOWAS Treaty makes the Judgment of the Court binding on the Member States, including Nigeria. Also, Article 19(2) of the 1991 Protocol provides that the decisions of the Court shall be final and immediately enforceable.
“Furthermore, non-compliance with the judgment of the Court can be sanctioned under Article 24 of the Supplementary Protocol of the ECOWAS Court of Justice, and Article 77 of the ECOWAS Treaty.
“SERAP trusts that you will see compliance with this judgment as a central aspect of the rule of law; an essential stepping stone to constructing a basic institutional framework for the legality, constitutionality. We, therefore, look forward to your positive response and action on the judgment.
“The judgment read by Hon. Justice Gberi-De Qattara (Presiding Judge), Hon. Justice Dupe Atoki (Member) and Hon. Justice Keikura Bangura (Member), chronicled details of Nigerian government officials using the Cybercrime Act, particularly its section 24 as a pretext to harass, intimidate, detain, prosecute and imprison activists, journalists, bloggers, and social media users.
“In its judgement, the ECOWAS Court held that ‘The court has the jurisdiction to hear and determine the suit. In a plethora of decisions, the court has upheld that the mere allegation of human rights violations is sufficient to invoke this human rights mandate under Article 9 (4) of the Supplementary Protocol.
“Because this application is premised on human rights violations under Article 9(4) of the supplementary protocol, the court holds that it has jurisdiction to hear and determine the suit.
“According to the ECOWAS Court, ‘The allegation of SERAP before the Court for determination on merit is whether the provision of the Cybercrime Act has violated the right to freedom of expression, information, opinion, and privacy in contravention of Article 9(1) and (2) of the African Charter on Human and Peoples’ Rights and Article 19 of the International Convention on Civil and Political Rights.
“The ECOWAS Court then stated that, ‘Section 24 of the Cybercrime Act is not in conformity with Article 9 of the African Charter and Article 19 of the International Convention on Civil and Political Rights. As for reparation, the Nigerian Government is ordered to amend section 24 of the Cybercrime Act, by the obligations under Article 1 of the African Charter of Human and Peoples’ Rights.
“SERAP also notes that by Article 24(4) of the Protocol A/P.1/7/91 relating to the ECOWAS Community Court of Justice as amended by the Supplementary Protocol A/SP.1/01/05 in January 2005, every member state of the Economic Community of West African States is required to designate a National Authority for the enforcement of the judgments of the Community Court of Justice
“Under the provisions of article 24 of the Protocol of the Community Court, the Federal Government decided in 2014 to designate the office of the Attorney-General of the Federation and Minister of Justice as the Competent National Authority for the enforcement of the decisions of the court in Nigeria,” SERAP stated.
