ECOWAS Court Defers Judgment in Twitter Ban Case to January 2022 

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Hon. Justice Edward Amoako Asante
President of ECOWAS Community Court of Justice

The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) has fixed judgment for  January 20, 2022 in the four consolidated cases brought by Media Rights Agenda (MRA) as well as other organizations and individuals,  against the Government of Nigeria over the indefinite suspension of Twitter in the country.

The cases filed by the Socio-Economic Rights and Accountability Project (SERAP) and 196 others, and Media Rights Agenda (MRA) and eight others, marked ECW/CCJ/APP/23/21, ECW/CCJ/APP/29/21, ECW/CCJ/APP/24/21, and ECW/CCJ/APP/26/21 were consolidated on July 9 to enable all parties prepare for trial.

At the July 9 hearing, the ECOWAS Community Court renewed its interim order barring the Government of Nigeria from imposing sanctions on any media house or harassing, intimidating, arresting or prosecuting Nigerians for using Twitter and extended the injunction to all the four suits filed against the Government over the June 4 indefinite suspension of Twitter in Nigeria.

The Court restated the order and extended it to cover all cases before it arising from the Twitter ban after granting the Government’s request to consolidate the four suits contesting the indefinite suspension Twitter.

The four applicants who filed suits against the Nigerian Government were by Media Rights Agenda (MRA) and three other non-governmental organizations, Paradigm Initiative (PIN), Premium Times Centre for Investigative Journalism (PTCIJ), the International Press Centre (IPC), and Tap Initiative for Citizens Development (TICD) as well as four journalists, Mr. David Hundeyin, Mr. Samuel Ogundipe, Ms Blessing Oladunjoye, and Mr. Nwakamri Zakari Apollo; Socio-Economic Rights and Accountability Project (SERAP), a Lagos-based NGO, and 176 Nigerians; Mr. Patrick Elohor, President of the NGO, One Love Foundation; and Chief Malcolm Omirhobo, a Lagos-based human rights lawyer.

At the hearing, the Court disclosed that it received an application from the Nigerian Government asking for extension time and that the court was disposed to hearing from the lawyer that introduced the application before the Court.

Responding, Mr. Abubakar moved the application brought pursuant to Article 87 of the Rules of the Ecowas Court and under the inherent jurisdiction of the court. He prayed the court to grant the following prayers:  

  1. An order of the court for the Nigerian Government to adopt its statement of defence filed in ECW/CCJ/APP/23/21 as the its consolidated statement of defence to the entire suit;
  2.  an order extending time within which the Nigerian Government can reply to the consolidated pleadings on facts and law to the Amici Curiae’ briefs; and
  3.  an order deeming the consolidated statement of defence as properly filed and served on the parties. He urged the court to grant the application as prayed before it.

Reacting to the application moved by the counsel to the Nigerian Government, Femi Falana, who is lead counsel to SERAP noted that he will not be opposing the application, Amara Obiagu, counsel to Chief Malcolm Omirhobo said she will be opposing the application on the ground that she did not receive the application that was moved, she noted further that although the suit has been consolidated, and the applicants are relying on the same subject matter, the reliefs sought in her application are different from those of other applicants. She stated that it will be unfair to her case if the statement of defence filed by the Nigerian Government in response to SERAP case is used as a response to her case.

The Court informed the applicants’ counsels that for the easy dispensation of justices, there is a need for the counsels to agree if they would want to oppose the application or not due to the fact the suit has been consolidated. The Court asked if the counsels would agree to the consolidation of the suit as it is or that everyone continues to defend their application before the court. Femi Falana drew the Court’s attention to the fact  that the consolidated defence filed by the Nigerian Government had just been served on the parties and perhaps, that is why the other parties were opposing the application because they did not have enough time to study the said process.

He stated further that the suit has been consolidated and as such the suit becomes a singular action before the court, he however, noted that they are at liberty to add any submission to the arguments on the matter.  He said Amara Obiagu, could not be opposing the application based on the fact that their reliefs before the court is different from others but rather the applicants are all challenging the illegal banning of Twitter by the Nigerian Government. He submitted that the Amici Curiae (Friends of the Court) have filed their briefs and on this ground the suit is ripe for hearing. Mojirayo Ogunlana-Nkanga, counsel to Media Rights Agenda and eight others, aliened herself with the submission of Femi Falana and noted that if the parties are going to have individual submission, it should be in respect to their respective application filed before the court before the consolidation of the suit, she agrees that parties should highlight the issues in their application according to the time allotted by the court and they can have a joint response to the consolidated statement of defence filed by the Nigerian Government.

Amara Obiagu later withdrew her objection to the application based on the suggestion of Femi Falana and she asked that the matter should proceed if the court will be deposed to allowing parties to adumbrate on their respective applications.

The Court granted the Nigerian Government’s application as prayed but it informed the parties that the hearing of the substantive suit cannot take place and that the Court will give parties the opportunity to react to the consolidated statement of defence filed by the Nigerian Government, while, parties will be given time to organize themselves in such a way that at the next adjournment date, all parties would be ready for the hearing.

The court adjourned the matter to December 2, 2021 for hearing but Femi Falana opposed the adjournment on the ground that having regard to the application it had just granted, the Nigerian Government has been permitted to defend the cases jointly. He said having gone through the defence filed by the Nigerian Government, there is nothing new in the Nigerian Government defence and on that ground, there was no basis for adjournment.

He urged the court to allow the parties to adopt their respective applications before it and adjourn the case for judgment. Ms Obiagu agreed with the submission of Femi Falana reminding the court that at the last time the suit came up before the court and it was consolidated, the court had ordered that the suit be granted accelerated hearing due to the sensitivity of the suit.

Mojirayo Ogunlana-Nkanga and other counsels in the suit also stated that they were ready to adopt their submissions and that they will do an oral adumbration on the statement of defence filed by the Nigeria Government. She brought it to the notice of the court that the Nigerian Government filed the application it moved the day before, pointing that it amounts to prejudice, but added that the applicants were unshaken by that and were willing to respond orally to the adopted process.

Femi Falana brought to the notice of the court the announcement on September 27 that the Nigerian Government will be lifting the suspension any moment from now, saying he was surprised that the counsel for the Nigerian Government took forever to file the application that was moved before the court. He said if the government is lifting the Twitter suspension, then they should be willing to proceed with the hearing of the suit.

Responding to Abdullahi Abubakar’s claim that that it is unethical for legal practitioners to go back on the court’s decision to adjourn a matter, Femi Falana said the court had not made an order of adjournment but rather suggested that the matter be adjourned based on the development which was caused by the failure of the Nigerian Government to file its defence as at when due.

Counsels for the friends of the Court, pleaded with court to give them few minutes to adumbrate on the statement of defence filed by the Nigerian Government, a plea the court granted. The court informed the parties that if the applicant will agree that one of the counsels should speak on their behalf, the court will grant the applicants’ representative 15 minutes, the Nigerian Government 15 minutes and 10 minutes will be awarded to the Amici, however, if each Applicant will like to adumbrate the court will grant the Applicants 30minutes, while the 15 minutes will be giving to the Nigerian Government and 10 minutes will be given to the friends of the court.

Adopting his document, Femi Falana on behalf of SERAP, argued that the suspension of Twitter by the Nigerian Government cannot be justified on the ground that Section 39 of the Constitution of Nigeria, 1999 guarantees Freedom of expression as well as Article 9 of the African Charter on Human and People’s Rights which also guarantees access to information, and Article 19 (1&2) of the International Covenant on Civil and Political Rights which Nigerian has ratified and is binding on Nigeria.

He stated that in view of the violations of the provisions of the local and international laws, he humbly submited that the action of the Nigerian Government cannot be justified, he cited the decisions of the court on freedom of expression in the case of Federation African Journalist Vs The Republic of Gambia, Jacob Trustees Awareness Vs The Federal Republic of Nigeria, where the court has annulled section 24 of the Cybercrime Act of Nigeria because it violated the rights freedom of expression and the Nigerian Government was ordered to amend that particular provision, but, the order of the court is yet to be complied with by the Nigerian Government as usual.

He argued further that just as in this particular case, the court in the case of Amnesty International Vs the Republic of Togo has decided that access to internet by community citizens cannot be willfully violated, suspended and abolished by the member states of the ECOWAS. He said it is unfortunate that in justifying the suspension of Twitter, the Nigerian Government has embarrassed the people of Nigeria by relying on the provision of the Penal Code that has to do with Sedition, reiterating that in 1983 the law on Sedition was abolished in Nigeria and he cited the case of The State Vs Aurthur Nwankwo, where the Court of Appeal held that any official of government who feels offended by any publication in the media should go and sue for libel. He said in this instant case the populace was informed that Twitter insulted the President of Nigeria and that there is no provision for such penalty any longer.

He informed the court that the Nigerian Government informed its citizens that it is in the National Security that Twitter should be suspended, and that under the Companies and Allied Matters Act Twitter has not been incorporated in Nigeria, he said Twitter is not based in Nigeria but those outside and in Nigeria are accessing information through Twitter. He therefore submitted that the Nigerian Government’s defence is not substantial, he went further to mention that the case of Femi Falana Vs The Republic of Nigeria cited by the Nigerian Government was decided by the court when it had not expanded its mandate to accommodate human rights violation done after three years. He noted that the Nigerian Government surprisingly has cited the case of Andare Vs The Republic of Gambia which was decided on based on the new law. He prayed the court to grant the reliefs sought by the applicants, to wit:  restraining the Nigerian Government from further suspending Twitter, and violating the rights of Nigerians to freedom of expression.

Mrs. Ogunlana-Nkanga agreed with the submission made by Femi Falana and argued that although the Nigerian Government has come up with spurious defence to back the illegal suspension of Twitter in Nigeria, she noted that the defence must pass the three-part culminative test which must be met before the right to freedom of expression can be restricted. She said the Nigerian Government must be able to tell that the restriction is provided for by a law, that the law is accessible to the public, and the law is formulated with sufficient recission that enable an individual to regulate his or her conduct accordingly and must be able to show and provide adequate safeguard against unfettered decision for the expression of their right to freedom of expression.

She pointed out that in this instant case, the Nigerian Government has exercised its own discretion unfettered without going through any judicial, public or transparent oversight. She urged the court to apply the three-part test unsparingly and to hold that the action of the Nigerian Government was illegal and not backed by any law.  She argued further that by Article 27 (2) of the African Charter, restriction and limitation to the right of freedom of expression can only be justified when the restriction is exercised with due regard to the right of others including collective security, morality, and common interest. She reiterated that the Nigerian Government is relying on national security, or a threat to collective security, but had not in any way shown how legitimate its defence is in this circumstance, why Twitter will be suspended when a lot of Nigerian Citizens carry on their businesses on Twitter and now they could not operate their business since the suspension of Twitter. She informed the court that Samuel Ogundipe, one of the applicants she is representing carries out his business on Twitter and that business is his only source of livelihood, she urged the court to critically determine if the suspension is needed in a democratic society and if it is proportionate to the interest it is said to protect. She urged the court to grant the reliefs sought before it and hold that the suspension of Twitter is a continuous violation of the Applicants right under the Nigerian Constitution and international law that are ratified by Nigeria.

Amara aligned her submission with the previous counsels that adumbrated on their submissions, she brought to the notice of the court that the Nigerian Government is a signatory to several international treaties on fundamental rights, and as a signatory to these international treaties has promised to uphold and promote fundamental rights. She argued that the Nigerian Government therefore has a duty to uphold fundamental rights. She noted that, the Nigerian Government however went ahead to violate its citizen’s right to freedom of expression by suspending Twitter in Nigeria. She said it was high time that the Nigerian Government is held responsible or liable for the violation of the fundamental rights of its citizens.

She stated further that the Nigerian Government had the habit of violating its citizens fundamental rights, and the applicant she represents has stated that Twitter is a medium, he uses in communicating and exercising his right to freedom of association and expression but that that since Twitter was suspended, he has had no access to it. She urged the court to grant the reliefs sought by the applicant and grant him the sum of N500,000,000:00 (Five Hundred Million Naira) damages against the Nigerian Government as contained in paragraph 52 of his process.

Ihensikehin Samuel, counsel to Patrick Elohor, adopted all the argument canvassed by the Counsels to respective applicants reiterating that the right of access to information, technology and communication is a human right that cannot be derogated except by limitations that has been imposed by a written law, and the domestic laws of the Nigerian Government do not allow it to derogate from the constitutional right of expression in this regard. He went further to cite section 36 (12) of the Constitution of the federal Republic of Nigeria which provides the conditions under which a person can be held to have committed a crime adding that the position has been postulated by Mrs. Mojoirayo Ogunlana, he said there is no law that has enable the action of the Nigerian Government as in this instant case.

He said sedition relied on by the Nigerian Government has been abolished in 1983 in the case of Arthur v Nwankwo as cited by Femi Falana SAN and it was further deprecated in the case of Chike Obi Vs State, he urged the court to grant the reliefs sought by the applicants and award damages against the Nigerian Government in favour of all the applicants.

Deji Ajare, representing the friends of the court, informed the court that the briefs submitted by the friends of the court was intended to do three things: set out the wider jurisprudential context of state internet and social media disruptions, the response of United Nations and the African Commission on Human and People’s Rights as well other jurisdiction like the European Union and American Union, the second is to lay out the principle that are now generally favoured by this court and other international courts and urged this court to adopt those principles that has been formulated, and thirdly, to outline remedies  if any which the court should provide in the case.

He informed the court that The UN in its response to Internet shutdown generally and specific social media disruptions such as Twitter  has provided the framework to analyze the human rights implications of such shutdowns and has described the use of internet as a key means by which individuals can exercise their right to freedom of opinion and expression as guaranteed under the various international human rights instruments  particularly, the international covenant on civil and political rights. He stated that in this regard, United Nation Special Rapporteur to the promotion of the freedom of expression and opinion has stated that the internet itself is an enabler of other rights, and what this means is that if the right to internet is taking away it actually takes away other rights, the special rapporteur also provided the three-part test, which has been argued by some of the Applicants counsels earlier.

He also referred to the 2011 joint declaration on internet issued by the United Nations and regional experts in the field of freedom of expression which reconfirmed that blocking of access to the internet generally or partially such as Twitter for all population can never be justified even on grounds of national security, because the context of national security is so wide and prone to abuse and as such cannot be accepted as a basis for restricting such rights. He drew the attention of the court to the briefs and for the court to pay special attention to the comments 34 of the United Nations Human Rights Committee, which has clarified that Article 19 of the ICCPR protects all forms of expression and the means of their dissemination including internet vote of expression. He stated further that the court should award damages against the Nigerian government if the Court finds that the Nigerian Government is liable.

For Robert f. Kennedy, Ikechukuwu Uzoma adopted the brief filed and he stated that international laws recognize anonymity and encryption as a component of the right to freedom of expression online, Article 19 of ICCPR protects encryption and anonymity as a means of exercising freedom of expression without interference. He referred to the 2021 report of the UN special rapporteur on the right to freedom of expression, and peaceful assembly and association, he drew the attention of the court to the recent internet shut downs and attacks on encryption and anonymity by ECOWAS Member states and he referred to the court decision in Amnesty International Vs the Republic of Togo, where the court made a clear declaration that internet access is critical to the fulfillment and protection of the right to freedom of expression. He therefore urged the court to hold that the suspension of Twitter is a violation of the right to freedom of expression and the target of the Nigerian government is overbroad.

Abubakar counsel for the government, adopted his statement of defence and asked the court to dismiss the applicant’s application, he argued that the Nigerian Government did not block any account of any individual in Nigeria but only suspended Twitter on the reason that Twitter is not incorporated in Nigeria and cannot be bound by Nigerian Law. As a way of reply to the argument of the applicant and the amici curiae, he said the cases cited were decided on the issue of internet shutdown, he opined that Nigeria did not block internet but rather Twitter on the reason giving in their written address. He urged the Lordship to dismiss the claims of the Applicant and the Amici curiae.

Having listened to all the counsels, the Court adjourned the matter to January 20, 2022 for judgment.