Source: Tomiwa Ilori
Online expression is not free in Nigeria. In fact, laws that ought to protect online expression in Nigeria are currently being used to violate it.
In particular, the Nigerian government has routinely used the Nigerian Communications Act of 2003 (NCA) to justify the violation of online expression. Oftentimes, the government orders Internet Service Providers (ISPs) through the Nigerian Communications Commission (NCC) to block websites or social media platforms, and the ISPs (internet service providers) also roll over and carry out the government’s bidding without any pushback. As a result, the government continues to carry out unwarranted attacks against online expression.
In 2017, the NCC ordered ISPs to restrict access to certain websites belonging to Biafran separatists agitating for self-governance in the southeastern region of Nigeria based on section 146 of the act, and ISPs complied with the order. While there could be grounds for restricting the separatists’ websites, there are no clear indications that the provisions of the NCA were complied with before giving such an order. In a letter dated January 21, 2021, the NCC ordered MTN, an ISP operating in Nigeria, to restrict access to the website of an online news outlet, Peoples’ Gazette based on section 146 of the NCA. In the past, Peoples’ Gazette had been critical of the Nigerian government and its policies by exposing state-enabled corruption and human rights violations.
Another telco 9mobile blocked our website as ordered by the Buhari regime. MTN offered a similar explanation recently.— Peoples Gazette (@GazetteNGR) December 16, 2021
The government should address endemic corruption and injustice being exposed by our reporters rather than denying citizens their rights to useful information. pic.twitter.com/NSc71Us052
In June 2021, the Nigerian government also ordered ISPs to restrict Nigerians’ access to Twitter, a social media platform. The order was based on the claim that the platform is being used for “activities capable of undermining Nigeria’s corporate existence,” and the ISPs complied. Amnesty International has described the order as “clear violations of the right to freedom of expression, access to information and freedom of the press.”
How the NCA is used to violate online expression in Nigeria
As provided for under section 1, the NCA seeks to provide regulatory oversight for Nigeria’s telecommunications sector, while section 3 establishes the NCC to carry out day-to-day regulatory functions with respect to the telecommunications sector. However, some provisions of the act are being weaponized by the Nigerian government to clamp down on online expression in Nigeria.
For example, section 146(2) of the act provides that, upon a written request by the NCC, an ISP must assist in the prevention of an offense in Nigeria. Section 148(1) of the act then provides for instances where the NCC may act in the interest of public safety to suspend the license of an ISP, withdraw the services or network facilities of an ISP, order that a specified communication should not be communicated from or to an ISP, or order taking over an ISP’s equipment.
In addition to these provisions, section 53(2) of the act requires that, before the NCC issues a direction in writing to ISPs for compliance or non-compliance with the act, a person against whom such direction is issued must be provided with a notice to defend their actions. In the examples highlighted above, there was no evidence that the NCC complied with section 53(2).
Legal obligations to protect online expression
Section 39 of the 1999 Constitution of Nigeria guarantees the protection of the right to freedom of expression, opinion, and access to information. The right is not absolute and can be limited in some instances. However, such instances must be clear, and they are provided for under section 45 of the Constitution. It states that limitations of the right must be reasonably justifiable in a democratic society to protect the public interest and the rights of others.
In addition to these provisions, the Nigerian government also has obligations to protect the right under international human rights standards such as the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (African Charter). Article 19(1) and (2) of the ICCPR say that everyone has the right to their opinion and expression. Article 19(3) has also been interpreted to mean that, for the right to freedom of expression to be limited, it must be provided for by law, it must be based on a legitimate reason, the measure used to restrict such right must be proportional, and the restriction must be necessary.
Article 9 of the African Charter also guarantees the right to freedom of expression. In addition, in 2019, the African Commission on Human and Peoples’ Rights, fulfilling its mandate to protect the rights provided for under the African Charter, recently revised the Declaration of Principles on Freedom of Expression and Access to Information. Principle 38 of the revised declaration holds that states shall not interfere with individuals’ right to receive and impart information online by blocking content, except when such interference is in line with international human rights standards.
While the provisions of section 146 of the NCA highlighted above provide for legitimate instances such as public safety or public emergencies to block online content, the outright blocking of websites without considering other least intrusive measures like limiting specific content does not comply with Nigeria’s Constitution and internationally set standards. In addition to this, the Nigerian government has not shown any verifiable connection between this content and the harm it supposedly causes. It appears that the Nigerian government weaponizes the term “national security” to clamp down on online expression without providing any specific examples to justify its use or show that its actions are reasonably justifiable in a democratic society.
As a way forward, policymakers, the private sector, and civil society need to note that laws like the NCA are being weaponized against online expression in Nigeria. The National Assembly should ensure a digital rights approach to its laws, and laws like the NCA must be brought in line with constitutional and international human rights standards. This includes amending the provisions of the NCA and ensuring that, at least, laws that ought to protect digital rights like online expression are not used to violate it.
Civil society also has a crucial role to play in monitoring the reforms and implementation of laws that impact online expression in Nigeria. This can be done by strategic advocacy that knows when to name abuse of state powers, when to shame it, and when to collaborate for meaningful policy reforms. This advocacy can also train strategic stakeholders like legislators, government agencies, law enforcement, and other state actors on the importance of free online expression.
Lastly, ISPs will need to stop rolling over and maximize their economic power to demand the protection of online expression in Nigeria. It is not in the best interest of anyone that human rights protection is allowed to be sacrificed on the altar of business.