➥ CASE SUMMARY OF:
SERAP & Ors. v Federal Republic of Nigeria (2022) – ECOWAS
by Branham Chima (SAL).
Economic Community of West African States (ECOWAS) – ECW/CCJ/JUD/40/22
➥ JUDGEMENT DELIVERED ON:
14th July, 2022
➥ AREA(S) OF LAW
Freedom of expression;
➥ PRINCIPLES OF LAW
⦿ GRANT OF AMICUS CURIAE BEFORE THE ECOWAS COURT
“60. This Court has severally granted leave for intervention as amicus curiae on the grounds that the said amicus is not a party to the suit and has no proprietary interest in the said claim. The intervention must simply be an objective assistance into the research exercise necessary in the adjudication of the claim/s before the Court. 61. The present applications for leave to intervene as amicus and the submissions by the amici curiae has been considered by this Court and the same is granted.”
⦿ TO CLAIM MONETARY COMPENSATION, APPLICANT MUST SHOW LOSS OR DAMAGES SUFFERED
“99. In this instant where the Applicant has sought monetary compensation for the violation of its rights in the sum of N500,000,000 (Five Hundred Million Naira) for exemplary and aggravated damages the Court will therefore consider whether it is entitled to the relief based on proof. Whilst an act may be declared to be in contravention of guarantees within the ACHPR and therefore a violation of the rights enshrined therein, a claimant must show cause as to how loss or damage resulted from same. 100. Taking cognizance of the facts and evidence, the Court notes the affidavit sworn to by Chief Malcolm Emokiniovo Omirhobo stating that he was denied access to his Twitter account for which he is seeking that the Court orders for damages. However, the Applicant has failed to submit evidence of proof of the actual harm suffered from the ban on Twitter. The Court notes also, that a list of persons was adduced without details as to the actual loss or damage that resulted from the violation of the rights enshrined in Article 9 of the ACHPR. It is on this basis that the Court dismisses the claim for monetary compensation by the Applicant as the same has not been properly established before this Court.”
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Gberi-Be OUATTARA;
Hon. Justice Keikura BANGURA;
Hon. Justice Januaria T. Silva Moreira COSTA.
⦿ FOR THE APPELLANT
Femi FALANA, SAN, et al.
⦿ FOR THE RESPONDENT
Padraig HUGHES, et al.
➥ CASE FACT/HISTORY
The subject-matter of the case borders on the legality and validity of the ban and/or the suspension of the microblogging service, Twitter, by the Respondent and its agents on the 4th June, 2021, which allegedly resulted in the violation of the right to freedom of expression, access to information and media freedom guaranteed by the African Charter on Human and People’ Rights (ACHPR) and other international human rights treaties and conventions to which the Respondent is a State Party.
The Applicant’s claim is premised on the suspension of Twitter, a microblogging app, on the 4th June, 2021 by the Respondent who further directed its agent to commence licensing all Over the Top (OTT) and social media operations in Nigeria. It is submitted that the Respondent’s statement that: “Twitter is undermining of Nigeria’s corporate existence” was the basis given for its suspension. The Applicant claims that the resulting effect of the suspension of Twitter has been adverse to many Nigerians who carry on their daily activities on Twitter, especially impeding the right to freedom of expression of millions of Nigerians.
The Applicant’s contention herein is that the Respondent’s suspension of Twitter was as a result of the flagging by Twitter of a tweet made by President Muhammadu Buhari, which was reported as violating the Twitter community rules. The Applicant added that the suspension of Twitter by the Respondent was not premised on any law or Order of a competent court nor did it state the law that was breached by Twitter.
The Applicant concludes by stating that the Respondent’s aim is to intimidate Nigerians who expose corruption in government, criticize acts of impunity and by extension intimidate other microblogging sites into self-censorship.
Whilst admitting to paragraphs iv, v of the Applicant’s narration of facts, the Respondent limits the said admission to the bare facts and denies the allegations therein on the grounds of sovereignty, threats to destabilize its corporate existence, to force Twitter to comply with extant laws. More so, the Respondent claims that Twitter is being used by a separatist leader who has perpetrated acts of violence against Nigerian soldiers and Policemen, government structures and symbols of sovereignty. That this was evident during the #ENDSARS protest, which is believed to have been sponsored by the founder of Twitter, during which violence was recorded in parts of the country. The Respondent contends that its extant laws are not in any way ambiguous and made to infringe on the rights and freedoms of its citizens but in circumstances when its sovereignty is at stake, it may take measures to preserve its corporate existence. That freedom of expression is not absolute and that despite its commitments to international human rights treaties these rights and freedoms should be exercised within the law.
➥ ISSUE(S) & RESOLUTION(S)
I. THE CASE IS ADMISSIBLE
“52. In determining the admissibility of the application, the Court is guided by the relevant law which is Article 10(d) of the Supplementary Protocol of the Court 2005 to wit: “Individuals on application for relief of violation of their human rights the submission of which shall: Not be anonymous nor ii. Be made while the same matter has been instituted before another international Court for adjudication.” 53. Having considered the Applicant before this Court and finding them to be sufficiently identified and further noting that there are no claims of pending suits of similar nature before other international Courts, the requirement for admissibility is thus satisfied. 54. Furthermore, the Court having noted no record of a challenge on the grounds of admissibility put forward by the Respondent herein, declares the application admissible pursuant to Article 10(d) of the Supplementary Protocol (supra), and the Court so holds.”
[MERIT: SUCCEEDS IN PART]
I. Contravention of Article 9 of the ACHPR and Article 19 of the ICCPR by the regulation of the social Media and the violation of the right to freedom of expression, access to the media and information.
RULING: IN APPLICANTS FAVOUR.
A. RESTRICTION TO THE ENJOYMENT OF TWITTER MUST BE JUSTIFIED BY LAW
“66. The Court notes that the phrases and words used in Article 9 of the ACHPR and Article 19 of the ICCPR create the right to free speech and to hold opinions without interference. In addition to creating the right, it also provided a derivative right to receive and impart information and ideas of all kinds regardless of the means i.e. spoken words or writing or by means of print in the form of artwork or through any media of choice. Article 19 of the ICCPR further qualified the right to free expression to the extent that the freedoms created are not absolute as the enjoyment of such right could be subjected to restrictions. It clearly stipulates that such restrictions shall be as provided by law. 67. It is clear from the analysis of Articles 9 of the ACHPR and 19 of the ICCPR that they did not only guarantee freedom of speech but also provided for a derivative right to access information, which is not a stand-alone right but a complementary right to the enjoyment of the right to freedom of expression. It is therefore considered, a derivative right which cannot be exercised in isolation but jointly with the right to the enjoyment of free speech which it complements, in exercise of such right. This is usually done or effected through several complementary mode and include social media platforms like Twitter, Facebook, and Instagram, to name a few. 68. Therefore, the Court will hold that access to Twitter, being one of the social media of choice to receive, disseminate and impart information, is one such derivative right that is complementary to the enjoyment of the right to freedom of expression pursuant to the provisions of Article 9(1) & (2) of the ACHPR and Article 19 of the ICCPR. Consequently, to derogate from such a right requires lawful justification either by means of an existing law, by Court order, or otherwise in order to justify such derogation failing which the court will find that restricting such access will amount to violation of the rights to access information and the media platform and the Court so holds.”
B. TWITTER IS A MODERN TECHNOLOGY FOR THE ENJOYMENT OF RIGHTS
“71. Consequently, it is the considered opinion of the Court that Twitter has become one of such platforms through which the right to freedom of expression is exercised. In other words, Twitter is one of the vehicles provided by modern technologies by which the enjoyment of the right to free speech has been exercised. Therefore, Twitter is of much relevance the attainment of the intended objectives of Articles 9 of the ACHPR and Article 19 of the ICCPR and in like manner, relevant in the enjoyment of the exercise of the right to freedom of expression. Any act that restricts the rights guaranteed under the provisions of ACHPR and the ICCPR will be deemed to be inconsistent with the provisions of the said Article and the Court so holds.”
II. Legality of the Respondent’s act of suspending the operations of Twitter.
RULING: IN APPLICANTS FAVOUR.
A. NO LAW SUPPORTS THE SUSPENSION OF TWITTER BY THE RESPONDENT
“74. After a careful examination and analysis of the facts, the arguments and submissions by the parties, the Court finds that the Respondent has not established any proof or evidence (either by reference to a specific legislation) or order of a competent Court that authorize the power to enforce the suspension of Twitter. 75. The Court is of the opinion that the failure of the Respondent to prove the existence of any such law or Court order justifying the suspension of the operation of Twitter presupposes that at the time of suspending the operation of Twitter there was no law in existence or order of a competent Court to justify the said act of suspension. 76. Consequently, the Court finds that the Respondent violated the Applicant’s right to the enjoyment of freedom of expression as the suspension of the operation of Twitter was not sanctioned by any law or order of a competent Court, and the Court so holds.”
B. THE RESPONDENT DID NOT RELY ON ANY EXISTING LAW
“85. Whilst the Court the agrees with the Respondent that the enjoyment of the right to freedom of speech is not absolute and that the same is exercised within the ambit of the laws, the Court is of the opinion that any limit to regulate the exercise of this right or to derogate from it must be expressly and specifically provided for by legislation for that purpose and the same must not have a retrospective effect in terms of its application. The Court, however, notes that the Respondent in all its statement of defense, has failed to adduce proof or evidence referencing a particular law or Court order or otherwise justifying the suspension of Twitter. This is because the Respondent only referred to an END SARS protest which they believe will have the potential threat to destabilize the corporate status of Nigeria. 86. In situations, such as the instant case, the only feasible scenario for derogation, in the considered opinion of the Court, is simply that it has to be done in accordance with the law. This means there must be in existence a national legislation granting and authorizing the exercise of such rights and at the same time providing the conditions under which it can be derogated from failing which the exercise of such power would be frowned at by the Court as an act of illegality. The Court, therefore, considers that the onus of proving the existence of such law lies on the shoulder of the Respondent, who is asserting that the suspension of the operation of Twitter was justified and was done in accordance with the law.”
III. Violation of the right to fair hearing by the Respondent prosecuting and punishing without reference to a breach of any existing law pursuant to the provisions of the ACHPR.
RULING: IN RESPONDENT’S FAVOUR.
A. APPLICANT PROVIDED NO PROOF OF PROSECUTION AND PUNISHMENT BY THE RESPONDENT ON NIGERIANS
“93. The right enshrined in Article 7(2) of the ACHPR presupposes that the act or omission must be one that is legally punishable at the time of commission. Therefore, if an act or omission is done without legal basis it cannot impose a punishment. Consequently, in the instant case, where the Respondent seeks to prosecute persons who continue to use Twitter in spite of the suspension the Court must consider the allegation in light of Article 7 of the ACHPR based on its decision above that the suspension was not prescribed by law. 94. Having regard to this, there is a need for the Court to determine the extent of this breach and in doing so it must consider the evidence adduced in support of the relief sought by the Applicant. The Applicant submits Annexure A to E which evidence the suspension of Twitter from various media; Annexure A is titled “Names of Nigerians interested to join suit against the Federal Government over ban of Twitter.” The Court notes that this piece of evidence simply contains a list of persons and nothing more, which prompts the Court to instruct on the application of Article 7 of the ACHPR. 95. When a claimant poses a claim for viciation pursuant to Article 7 of the ACHPR, it is presumed that the following have occurred: i. An act would have occurred; ii. For which a charge would have been proffered; iii. Before a recognized judicial body. 96. It is instructive to state that fair hearing and fair trial are used interchangeably and denote the same meaning herein. In determining whether the Applicant has properly canvassed the claim, the Court will rely on its erudite jurisprudence that requires that where there is a burden of proof it must be discharged by a person making a claim. (See FEMI FALANA & 1 OR. V THE REPUBLIC OF BENIN & 20RS (2012) (supra) at page 15). 97. Therefore, in this instance, where the Applicant has simply listed persons without stating whether the persons so listed were prosecuted for using Twitter, it lends no persuasive value necessary to discharge the burden of proof. Consequently, the Court finds that there has been no breach of Article 7(2) of the ACHPR resulting in a violation as claimed by the Applicant, and the claim is therefore dismissed as unsubstantiated.”
“For the reasons stated above, the Court sitting virtually in public after hearing both parties: (a) As to jurisdiction: Declares that it has jurisdiction.
(b) As to admissibility: Declares the application admissible.
(c) As to the merits of the case: (i) Declares that the act of suspending the operation of Twitter is unlawful and inconsistent with the provisions of Article 9 of the ACHPR and Article 19 of the ICCPR; (ii) Declares that the act of the Respondent in suspending the operations of Twitter violates the Applicant’s rights to the enjoyment of freedom of expression, access to information and the media contrary to the provisions of Article 9 of the ACHPR and Article 19 of the ICCPR the same having been violated. (iii) Declares that the Applicant’s right guaranteed under Article 7 of the ACHPR was not violated.
(d) Orders the Respondent to lift the suspension of Twitter, the same being in contravention of Article 9 of the ACHPR and Article 19 of the ICCPR. Orders the Respondent to take necessary steps to align its policies and other measures to give effect to the rights and freedoms enshrined in the ACHPR and ICCPR.
(e) As to reparation: Dismisses all other claims of the Applicant. The Respondent to guarantee a non-repetition of the unlawful ban of Twitter To undertake and adopt legislative or other measure on the use of Twitter to enable the enjoyment of the right to freedom of expression guaranteed under the African Charter.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Article 9 of the ACHPR;
Article 19 of the ICCPR;
Section 39(1) & (2) of the Constitution of the Federal Republic of Nigeria.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)