Incorporated Trustees of Laws and Rights Awareness Initiatives v Nigeria (2020)
Introduction
This is one of a pair of posts looking at two recent decisions of the Court of Justice of the Economic Community of West African States (the ECOWAS court), both relating to alleged violations of the right to freedom of expression in the online environment. This post looks at the decision in Incorporated Trustees of Laws and Rights Awareness Initiatives v Nigeria, issued on 10 July 2020, in which the ECOWAS court held that section 24 of the Nigerian Cybercrime Act, 2015, violated the right to freedom of expression. (For the other post, which looks at the case of Amnesty International Togo and Others v Togo, see here).
While the decision of the ECOWAS court in Incorporated Trustees of Laws and Rights Awareness Initiatives v Nigeria is welcome, in this post I want to examine the ECOWAS court’s decision and what it might mean for those seeking to challenge similar provisions in the criminal laws of other countries on the continent. Unfortunately, the decision has not been published yet, but I shall update this post once it has been.
What did the law say?
The Cybercrime (Prohibition, Prevention, Etc.) Act, 2015 is, as the name suggests, a piece of legislation designed to combat cybercrime in Nigeria. While much of the law is procedural in nature, it also created a large number of criminal offences. Two such offences, both designated as offences of “cyberstalking”, were set out in section 24. The full text of the provision can be found in the decision itself, or in an online copy of the law here. From a drafting perspective, the provisions are clumsy, complicated and wordy. They cover an extremely broad range of types of online communications, but I have tried to summarise them as best I can:
Section 24(1) created a criminal offence of knowingly or intentionally sending a message or other matter by means of computer system or network that (a) is grossly offensive, pornographic or of an indecent, obscene or menacing character, or (b) is false and sent for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another. Upon conviction, a person would be liable to imprisonment for up to three years, a fine of up to N7,000,000, or both.
Section 24(2) created a criminal offence of knowingly or intentionally transmitting a communication through a computer system or network (a) to bully, threaten or harass another person and where the person is placed in fear of death, violence or bodily harm, (b) containing any threat to kidnap or harm any person, any demand or request for a ransom for the release of any kidnapped person, or to extort from any person, firm, association or corporation, any money or other things of value, or (c) containing any threat to harm the property or reputation of the addressee, the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime in order to extort from them money or other things of value. Upon conviction for an offence under sections 24(2)(a) or (b), a person would be liable to imprisonment for up to ten years, a fine of up to N25,000,000, or both. For an offence under section 24(2)(c), they would be liable to imprisonment for up to five years, a fine of up to N15,000,000, or both.
While the applicants also argued that section 24 had been used on various occasions to arrest and detain them in violation of their right to freedom of expression, the ECOWAS court found that insufficient evidence for this had been put forward, and so dismissed this argument. As such, the important part of the decision is that which examines the law in abstracto.
What did the ECOWAS court decide?
The ECOWAS court first set out relevant precedent on how to approach cases alleging a violation of the right to freedom of expression. Under the African Charter on Human and People’s Rights, that right is protected under Article 9(2) which provides that “every individual shall have the right to express and disseminate his opinions within the law”. Importantly, (and unlike in Amnesty International Togo and Others v Togo), the court noted that the African Court on Human and People’s Rights has held that the term “within the law” must be interpreted in reference to “international norms which can provide grounds of limitations on freedom of expression” (Lohé Issa Konaté v Burkina Faso (2014)). Referring to relevant international standards, not least Article 19(3) of the International Covenant on Civil and Political Rights (and its interpretation by the Human Rights Committee in its General Comment №34), the court concluded that assessment of whether section 24 was “law” for the purposes of Article 9(2) of the ACHPR required an assessment of (i) whether it was clear and predictable, (ii) pursued legitimate objectives, and (iii) was necessary and proportionate to achieve those objectives.
On the first question, whether the law was clear and predictable, the ECOWAS court held that it was, although I find its reasoning here unimpressive. Section 24 contains a large number of terms which are not defined, and certainly open to subjective interpretation: “grossly offensive”, “obscene”, “enmity”, “ill will” and “needless anxiety” being just some examples.
The court stated that since the provisions relate to criminal conduct, they “must be legally well written and [their] elements clearly defined to avoid any ambiguity in [their] meanings”. Unfortunately, the court then failed to undertake any meaningful analysis of the many terms cited by the applicants as failing this test. The closes that the court got was when it accepted that the term “gross offense” (sic), on its own, “may effectively be subject to varied interpretation”.
The court then took an entirely different approach, ignoring the requirements it had just set out, and stated that, “considering the margin of appreciation enjoyed by the State in the definition and prohibition of certain conduct, which it qualifies as crimes in its national legislation, and also taking into account that the interpretation of the aforementioned provisions occurs within the scope of the current criminal legal system, the court considers that the provisions in question provide adequate information to individuals to adapt their conduct accordingly”.
This conclusion makes no sense to me. First, the margin of appreciation, as I understand it, is not relevant when it comes to the question of whether a particular legal provision is sufficiently clear and precise. That question is an objective one, namely whether a person in Nigeria could reasonably know whether their conduct is prohibited or not. That states define criminal conduct differently is not relevant to the question of whether the definitions in the Nigerian legislation meet that test. Second, the court says nothing about what elements of the “current criminal legal system” in Nigeria would make those terms any clearer. Anyway, let’s move on.
On the second question, the court quickly concluded that the provision pursued a number of legitimate objectives, and were aimed at safeguarding due regard to the rights of others, collective security, morality and common interest (using the wording of Article 27(2) of the ACHPR which states that the rights in the Charter “be exercised” with due regard to those interests). I would question the extent to which section 24 protects “collective security”, but, again, let’s move on.
In examining the final question of necessity and proportionality, the court referenced a number of relevant documents (such as the Declaration of Principles of Freedom of Expression and Access to Information in Africa) and precedents from different jurisdictions. It did not, however, spend much time extracting the relevant principles from these documents and precedents and then applying them to section 24. The closest it got was to note that there was strong precedent in Europe and the Americas for the proposition that criminal laws restricting freedom of expression should only be used as a last resort, and that restrictions based in civil law were generally preferable. The court noted that, here, there were high penalties for the prohibited conduct (namely high fines and long maximum prison sentenced), and then immediately concluded that this meant that the provisions were not necessary and were disproportionate. As such, the court held that section 24 violated the right to freedom of expression under both Article 9(2) of the ACHPR and Article 19(3) of the ICCPR, and ordered Nigeria to repeal or amend the provision.
What does the decision mean?
I reach a similar conclusion to that in my post on Amnesty International Togo and Others v Togo, namely that the decision is good, but the reasoning is worrisome, and leaves many questions unanswered. It’s obviously a good result in that section 24 was found to violate the right to freedom of expression, but the journey by which the court reached that decision is filled with potholes and involves some unclear leaps. These fall into two main categories.
First, the court essentially held that a number of terms which it itself accepted were unclear and terms did not fall foul of the requirement that restrictions on freedom of expression be clear and precise. That is quite the stretch in legal reasoning and the two justifications for reaching that conclusion — that states have a “margin of appreciation” in defining terms, and that the provisions were part of the “current criminal legal system” — are, to my mind, unsatisfactory. The decision condones states using unclear and ambiguous terms in their criminal laws and suggests that this won’t prove fatal for the purposes of Article 9 of the ACHPR. In my mind, the court should have held that those parts of section 24 which prohibited conduct in terms which were unclear violated Article 9 at this point, and saved itself some time.
Second, the court undertook only a cursory analysis of whether the provisions were necessary and proportionate. Many questions remain. Will any criminalisation of this type of conduct be disproportionate, or only when the potential sanctions are high? The court doesn’t make clear whether both elements are needed, or whether only the former is sufficient to render restrictions disproportionate. If it’s only the former, then what is the threshold before which using the criminal law is no longer disproportionate? Some of the forms of conduct prohibited by section 24, if taken in isolation, such as threatening another person and thereby putting them in fear of death or violence, seem to be exactly the kind of things that should be prohibited by the criminal law (not least in order to protect people’s right to security). So what factors should states take into account when determining whether particular forms of expression should be restricted through the criminal law?
As with Amnesty International Togo and Others v Togo, the facts of this case presented a perfect opportunity for the ECOWAS court to set clear rules and expectations in relation to an issue which is common across the region (in that case, internet shutdowns; in this case, broad restrictions on speech through cybercrime laws). Instead, we have a decision which provides the right outcome, but through deeply unsatisfactory reasoning, and which may ultimate create problems if and when the judgment is referenced in other courts.
