Media Rights Agenda (MRA) and two partner organizations, Paradigm Initiative and Enough is Enough Nigeria (EIE), have taken their legal battle to the Supreme Court in an ongoing effort to strike down some sections of the Cybercrime Act as unconstitutional.
The three organizations filed an appeal at the Supreme Court in Abuja on July 30, 2018, asking it to set aside the June 2018 judgement of the Court of Appeal in Lagos upholding the constitutionality of the Cybercrime Act and to strike out Sections 24 and 38 of the Act as being unconstitutional, null and void.
Named as respondents in the appeal are the Attorney-General of the Federation, the National Assembly and the Inspector-General of Police.
The suit leading to the appeal was originally filed at the Federal High Court in Lagos in May 2016 on behalf of the three organizations by their lawyer, Mr. Olumide Babalola. The suit was then assigned to Justice Mohammed Idiris, who delivered his verdict on January 20, 2017, ruling that the provisions of the Cybercrime Act which the three organizations complained about were not unconstitutional.
The organizations then lodged an appeal at the Court of Appeal in Lagos against the decision of the Federal High Court in August 2017. However, the Court of Appeal dismissed the appeal in its judgment delivered on June 1, 2018, leading to the appeal to the Supreme Court.
In a 16-ground Notice of Appeal also filed by Mr. Babalola on behalf of the three organizations, they expressed their dissatisfied with the decision contained in the judgment of the Court of Appeal, rendered by Justice Joseph Shagbaor Ikyegh, Justice Biobele Abraham Georgewill and Justice Jamilu Yammama Tukur
The organizations are contending that the Court of Appeal erred in law when it held that the offence created by section 24 of the Act defines the offence and the prescribed punishment and thus complies with section 36(12) of the Constitution.
According to them, Section 24 of the Cybercrime Act contains undefined words which make the offence nebulous, ambiguous, vague and over-broad in scope. They also claimed that Section 24 of the Act does not contain any explanation for the offence it seeks to deter and/or punish.
The organizations are also complaining that the Court of Appeal erred in law when it held that the international protocols and conventions relied upon by the organizations were not shown to be domesticated by an enactment of the National Assembly and could not have binding force in Nigeria.
They said they relied on the African Charter on Human and People’s Rights in their brief of argument, which has been domesticated via the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990, contrary to what the Court of Appeal held and that the court did not avert its mind to this extant legislation which it ought to take judicial notice of by virtue of Section 122(2) of the Evidence Act, 2011.
The organizations insisted that the court ought to have applied the international protocols which they relied upon in the circumstances of their case and that if it had applied the protocols, it would have come to a different conclusion.
They contended that the Court of Appeal erred when it held that Section 24 of the Cybercrime Act is designed to enhance public welfare/wellbeing.
According to them, Section 24 of the Act frowns at grossly offensive messages sent by computer to a person and contrary to the Court of Appeal’s holding, public welfare/wellbeing is not fixed to the feeling on an individual as opposed to the prevalent mood of the public.
They said the Court of Appeal failed to appreciate that section 24, subjects the test to the feelings of the receiver as opposed to that of the mood of public such that once the receiver finds a message grossly offensive, then an offence has been committed even where the public would not find it offensive.
In their view, contrary to the Court of Appeal’s holding, the provision of section 24 of the Act protects individuals from messages which they find grossly offensive as opposed to what the public in general finds offensive.
The organizations are also claiming that the Court of Appeal erred in law when it held in respect of section 38 of the Cybercrime Act that: “it merely accentuates what is universally accepted that a member of the society must partner with law enforces for the enforcement of criminal legislations”
They noted that the Court of Appeal failed to appreciate the negative effect of the draftsman’s failure to define “Law enforcement agencies” in section 38 as opposed to what is universally acceptable about valid laws.
According to them, the absence of a definition of “law enforcement agencies” would expose citizens’ data to wanton violation of their constitutional right to privacy guaranteed under section 37 of the constitution by any government and/or other authorities that can ascribe the title of “law enforcement agency” to itself.
They said the Court of Appeal failed to consider the likelihood of violation of right to privacy by any agency that holds itself out as a law enforcer and that the absence of definition of “law enforcement agency” under section 38 of the Cybercrime Act would likely violate their right to private and family life under section 37 of the 1999 Constitution.
The organizations contended that the Court of Appeal erred in law and displayed inconsistency when it refused to apply universally accepted principle to section 24 but seemingly cited universally acceptable position for law enforcers under section 38 of the Cybercrime Act.
They stressed that it “is trite that a court of law must be consistent in its judgment/ decision and it would not be allowed to approbate and reprobate in its decision of a party’s case.”
They noted that the Court of Appeal on pages 24 and 29 of its judgment held that international protocols are not binding and that there was no compellable reason to resort to foreign jurisprudence while ruling on section 24 but on page 37 of same judgment, it held that section 38 of the Cybercrime Act accentuates what is universally accepted.
They insisted that if the Court of Appeal was consistent in its appraisal of the provisions of the Cybercrime Act vis-a-vis international standards, it would have come to a different conclusion as to its validity and constitutionality.
The organizations are complaining that the Court of Appeal erred in law when it completely ignored their submission that the sections 24 and 38 of the Cybercrime Act would only be consistent with the Constitution if they are reasonably justifiable in a democratic society.
According to them, a court of law has a duty to consider every material aspect of a party’s case validly made and make a pronouncement on it as otherwise the right of fair hearing would be breached.
But they said although they submitted and gave examples of democratic societies where such enactments have been nullified by the courts, the Court of Appeal, looked away.
They referred to several paragraphs in their brief of argument showing examples of democracies where such enactments have been nullified which the Court of Appeal did not consider even when there are no equivalent decisions in Nigeria and expressed surprise that the court held that “there is no compelling reason to resort to foreign jurisprudence but did not furnish related Nigerian authorities in this regard.”
No date has been fixed for the hearing.