Twitter Ban: The Criminality Of Freedom Of Expression

By Babayemi O. Olaniyan Esq

INTRODUCTION

Recently, the Federal Government of Nigeria placed a ban on a
microblogging application named Twitter. The App is popular for
connecting people around the world as well as a means of conducting
business. The App has served as an intricate and fast means of
passing information to a wide audience. It is very popular among
Generations x-z who are the younger generation. It is also
important to note that various government institutions use this
medium to circulate information.

The ban came as a result of a tweet by the President of the
Federal Republic of Nigeria which was deleted by the company. The
company deleted the President’s post on the ground that it found
the tweet to be offensive. The next swift action by the government
of Nigeria was to ban the app from Nigeria and from the midnight of
5/6/2021, the app ceased to work on most devices of Nigerians whose
location on the app was Nigeria. This was done with the help of the
telecommunication companies in Nigeria.

This move was resisted by Nigerians who complained bitterly
about how unfair the ban was especially considering the fact that
many of them carried on business using the App. However, Nigerians
immediately found an alternative which was the use of Virtual
Private Network (VPN). This network has a feature that allows users
to continue using the app while tweeting from Nigeria. Following
the ban and seeing this new development a statement was issued by
the Attorney General of the Federation (AGF) where he stated in
clear terms that whoever continued to use Twitter will be arrested
and prosecuted.

This statement caused an uproar among Nigerians and various
legal enthusiasts on the legality or otherwise of the statement of
the AGF.  This work seeks to look at the relevant laws in
Nigeria and whether usage of Twitter despite the ban constitutes an
offence and punishable under Nigerian law viz a viz
freedom of expression.

ANALYSIS

Nigeria is made of people from different backgrounds and
ideologies and seeing that the ideologies might not always align
and some persons might interfere with the rights of others, a
system of redress has to be implemented to caution or check
defaulting persons if peace and order is to be maintained in the
society. Indeed, the need to checkmate the excesses of individuals
formed the basis of the idea of criminal law.

1 The proper starting point, in any case, is
the relevant legislative provision. In Nigeria, there are two major
codes that govern human interaction in criminal matters they
include: the Penal Code which is applicable in the Northern States
and the Criminal Code applicable in the Southern States.

The history of Nigeria’s criminal law dates back as far as the
existence of people in the space currently called Nigeria even
before the arrival of the British Colonialists. Customary/native
laws existed in various communities and they formed the basis upon
which individuals were punished if they contravened any of the
laws. Criminal law simply states that if a law is broken,
punishment is to be prescribed and the punishment must exist at the
time of prescription of punishment.

With time came the need to formalize laws. Largely a lot of the
native/customary laws were unwritten and as a result caused
hardship to the common man.

It is a trite criminal law principle that where a law is broken,
the penalty thereto must be prescribed by a written law and the
same must exist at the time of prescription of punishment.

Section 33(12) of the 1979 Constitution of the Federal Republic
of Nigeria provides as follows:

‘’Subject as otherwise provided by this constitution, a
person shall not be convicted of a criminal offence unless that
offence is defined and the penalty thereof is prescribed in a
written law; and in this subsection, a written law refers to an Act
of the National Assembly or law of a state, any subsidiary
legislation or instrument under the provisions of a law’’

The above provision is mutandi muntadis with section
36(12) of the extant Constitution^[1]

Section 36 (8) of the Constitution^[2] provides as follows:

‘’no person shall be held to be guilty of a criminal offence
on account of any act or omission that did not, at the time it took
place, constitute such as offence, and no penalty shall be imposed
for any criminal offence heavier than the penalty in force at the
time the offence was committed.’’

The above section speaks against a retro-active punishment for
an offence or omission. It states the position that a person can
only be punished based on an existing law that is expressly
prescribed.

At this juncture, it is very apposite to define the term
Crime/Offence in order to have a proper understanding. A couple of
definitions are hereunder reproduced. It should be noted that crime
and offence are most times interchanged.

Okonkwo and Naish in their book^[3][4] defined
crime as follows:

“Crimes are those breaches of the law resulting in special
accusatorial procedure controlled by the state and liable to
sanction over and above compensations and costs.” 

In the case of R. v. Tyler⁴, crime
was defined as:

“an act committed or omitted in violation of public law
either forbidding or commanding it. “ The Criminal Code^[5] defines offence as:

“Acts or omissions which render the person doing the act or
making the omission liable to punishment under this code or under
any Act, or Law, is called an offence.”

The Blacks law dictionary^[6] defines
crime as:

“An act that the law makes punishable; the breach of a legal
duty treated as the subject matter of a criminal
proceeding…”

Blacks law dictionary also defined an offense as

“A violation of the law; a crime often a minor
one…”

Wikipedia defines crime as follows- ‘a crime is an unlawful act
punishable by a state or other authority’^[7]

It is clear that there is no universal definition of crime,
however, what is clear from the above definitions are that crime
is:

1. An act or omission
2. Proscribed by the state or law; 3. Attracts sanctions.

In Nigeria our laws are written and this is in tandem with
S.36(12) (supra) where it is clearly stated. Today, Nigeria does
not have any unwritten criminal law. It is important to further
state that the three conditions above must coexist for any act or
omission to be defined as a crime in Nigeria.

From the above definition, it is crystal clear that if a
particular act or omission has not been defined by our criminal
laws, such act or omission cannot be regarded as an offence in the
eye of the law nor can punishment of any sort be meted out.

In the celebrated case of Aoko v.
Fagbemi^[8] the Court of
Appeal quashed an appeal where a woman was convicted at the lower
Court for the offence of adultery on the ground that there was no
written statute that makes adultery a crime in Nigeria.

Section 203 of the Criminal Code^[9]
spells out disobedience to lawful orders and the punishment
thereto. Same is reproduced herein as follows:

‘’Any person who, without lawful excuse, the proof of which
lies on him, disobeys any lawful order issued by any person
authorised by any order, Act, law, or statute, to make the order,
is guilty of a misdemeanor, unless some mode of proceeding against
him for such disobedience is expressly provided by order, Act, law,
or statute, and is intended to be exclusive of all other
punishment.  

The offender is liable to imprisonment for one
year.’’

Relying on this provision alone, persons who still use Twitter
may be guilty of an offence and punishment meted out to whoever is
caught using Twitter after the ban. However, it will appear that
the Supreme Court recently in the case of Aliyu v
FRN^[10] has held that
the provision of section 203 of the criminal code is inconsistent
with the provisions of the constitution.

It is proper to give a brief background of the facts in Aliyu v
FRN as it forms a focal point in this paper.

Brief facts

The Appellant was accused & charged alongside other directors of
the board of the Nigerian Ports Authority of intention to defraud.
They had guidelines for their operations which formed the basis on
the award of contracts. Sometime after the contracts for the year
were awarded, a new guideline was introduced by a representative of
the Ministry of Transport. This document bore the stamp of the
Ministry of water resources and generally had some inconsistencies.
Based on this the board of directors continued to use the existing
guidelines. The Supreme court in overturning two concurrent
judgements of the lower courts held as follows:

“None of the offences of abuse of splitting contracts,
disobedience to lawful orders and conspiracy to disobey lawful
orders were

proved by evidence some of the offences charged were never
defined by any law codifying same and no where can one trace where
the punishment thereof were prescribed. The said
disobedience, if any of a ministerial
directive in exhibit P3, is not and cannot be an
offence contained in a written and or codified in a written law for
which punishment is prescribedin the same written law as enjoined
by section 36 (12) of the 1999 Constitution of the Federal Republic
of Nigeria as amended. I think when the provision of section 203
and of the Criminal Code is juxtaposed it would be clear that it is
a direct affront of the provisions of section 36 of the 1999
Constitution.

Consequently, there is no where disobedience to
exhibit P3(new guidelines) is penalised or codified in a written
law. The so-called offence of
disobedience to lawful order is therefore non-existence and
assuming, without conceding, that it exists, no punishment was
prescribed against the offenders. The conviction and sentence of
two years imprisonment dished out against the appellant are
nullities.”

Having therefore considered all the issues formulated by
both counsel I resolve all the issues so distilled against the
respondent. The trial court, I emphasise, lacked
jurisdiction to try the case abinitio, therefore trial itself, I
agree was a nullity. Both section 203 and 104 of the Criminal Code
were inconsistent with the provisions of the 1999 Constitution that
makes both sections unconstitutional.’’ (Emphasis
supplied)

A careful analysis of this judgement of the apex court in
Nigeria in Aliyu v FRN(Supra) alongside the
decision in Aoko v Fagbemi(supra) & Section 36(12)
CFRN will reveal one clear and irresistible fact, which is that the
ban on Twitter is not an offence which is capable of being punished
under Nigerian law. The Primary and secondary sources of law cited
in this work reveal that for an act to be an offence and be
punishable, the same must be codified in law and punishment
prescribed therein.

CONCLUSION

It is submitted that unless and until there is a law stating
clearly and prescribing a punishment thereof on the use of a social
media application, the ban remains unconstitutional and null and
void.

Notwithstanding the above submissions, it will be interesting to
view the Court’s opinion on the issue of Twitter ban and whether
the Federal Government can put a gag on the usage of social media
especially bearing in mind the right to freedom of expression
guaranteed by the constitution and Article 19 of the Universal
Declaration on Human rights.^[11]

Written By Babayemi O. Olaniyan Esq ACIArb(UK),
Acis, Yemi.olaniyan@lehiattorneys.org

[1] Constititution of the Federal Republic of
Nigeria (1999) as amended (CFRN)

[2] Ibid

2

[3] Okonkwo and Naish ‘Criminal Law in Nigeria’
second edition (spectrum books limited 2009) p 20

[4] QB 594

[5] S.2 Criminal code Act

[6] Bryan Garner ‘Blacks law dictionary
11^th edition’

[7] https://en.wikipedia.org/wiki/Crime^[1] (^[2]accessed on 9/6/2021)
3

[8] (1961) 1 All NLR 400

[9] Ibid 5

[10] (2014) 5 NWLR Pt. 1399 p 102

[11] Article 19

Everyone has the right to freedom of opinion and expression;
this right includes freedom to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.

By Babayemi O. Olaniyan Esq

INTRODUCTION

Recently, the Federal Government of Nigeria placed a ban on a
microblogging application named Twitter. The App is popular for
connecting people around the world as well as a means of conducting
business. The App has served as an intricate and fast means of
passing information to a wide audience. It is very popular among
Generations x-z who are the younger generation. It is also
important to note that various government institutions use this
medium to circulate information.

The ban came as a result of a tweet by the President of the
Federal Republic of Nigeria which was deleted by the company. The
company deleted the President’s post on the ground that it found
the tweet to be offensive. The next swift action by the government
of Nigeria was to ban the app from Nigeria and from the midnight of
5/6/2021, the app ceased to work on most devices of Nigerians whose
location on the app was Nigeria. This was done with the help of the
telecommunication companies in Nigeria.

This move was resisted by Nigerians who complained bitterly
about how unfair the ban was especially considering the fact that
many of them carried on business using the App. However, Nigerians
immediately found an alternative which was the use of Virtual
Private Network (VPN). This network has a feature that allows users
to continue using the app while tweeting from Nigeria. Following
the ban and seeing this new development a statement was issued by
the Attorney General of the Federation (AGF) where he stated in
clear terms that whoever continued to use Twitter will be arrested
and prosecuted.

This statement caused an uproar among Nigerians and various
legal enthusiasts on the legality or otherwise of the statement of
the AGF.  This work seeks to look at the relevant laws in
Nigeria and whether usage of Twitter despite the ban constitutes an
offence and punishable under Nigerian law viz a viz
freedom of expression.

ANALYSIS

Nigeria is made of people from different backgrounds and
ideologies and seeing that the ideologies might not always align
and some persons might interfere with the rights of others, a
system of redress has to be implemented to caution or check
defaulting persons if peace and order is to be maintained in the
society. Indeed, the need to checkmate the excesses of individuals
formed the basis of the idea of criminal law.

1 The proper starting point, in any case, is
the relevant legislative provision. In Nigeria, there are two major
codes that govern human interaction in criminal matters they
include: the Penal Code which is applicable in the Northern States
and the Criminal Code applicable in the Southern States.

The history of Nigeria’s criminal law dates back as far as the
existence of people in the space currently called Nigeria even
before the arrival of the British Colonialists. Customary/native
laws existed in various communities and they formed the basis upon
which individuals were punished if they contravened any of the
laws. Criminal law simply states that if a law is broken,
punishment is to be prescribed and the punishment must exist at the
time of prescription of punishment.

With time came the need to formalize laws. Largely a lot of the
native/customary laws were unwritten and as a result caused
hardship to the common man.

It is a trite criminal law principle that where a law is broken,
the penalty thereto must be prescribed by a written law and the
same must exist at the time of prescription of punishment.

Section 33(12) of the 1979 Constitution of the Federal Republic
of Nigeria provides as follows:

‘’Subject as otherwise provided by this constitution, a
person shall not be convicted of a criminal offence unless that
offence is defined and the penalty thereof is prescribed in a
written law; and in this subsection, a written law refers to an Act
of the National Assembly or law of a state, any subsidiary
legislation or instrument under the provisions of a law’’

The above provision is mutandi muntadis with section
36(12) of the extant Constitution^[1]

Section 36 (8) of the Constitution^[2] provides as follows:

‘’no person shall be held to be guilty of a criminal offence
on account of any act or omission that did not, at the time it took
place, constitute such as offence, and no penalty shall be imposed
for any criminal offence heavier than the penalty in force at the
time the offence was committed.’’

The above section speaks against a retro-active punishment for
an offence or omission. It states the position that a person can
only be punished based on an existing law that is expressly
prescribed.

At this juncture, it is very apposite to define the term
Crime/Offence in order to have a proper understanding. A couple of
definitions are hereunder reproduced. It should be noted that crime
and offence are most times interchanged.

Okonkwo and Naish in their book^[3][4] defined
crime as follows:

“Crimes are those breaches of the law resulting in special
accusatorial procedure controlled by the state and liable to
sanction over and above compensations and costs.” 

In the case of R. v. Tyler⁴, crime
was defined as:

“an act committed or omitted in violation of public law
either forbidding or commanding it. “ The Criminal Code^[5] defines offence as:

“Acts or omissions which render the person doing the act or
making the omission liable to punishment under this code or under
any Act, or Law, is called an offence.”

The Blacks law dictionary^[6] defines
crime as:

“An act that the law makes punishable; the breach of a legal
duty treated as the subject matter of a criminal
proceeding…”

Blacks law dictionary also defined an offense as

“A violation of the law; a crime often a minor
one…”

Wikipedia defines crime as follows- ‘a crime is an unlawful act
punishable by a state or other authority’^[7]

It is clear that there is no universal definition of crime,
however, what is clear from the above definitions are that crime
is:

1. An act or omission
2. Proscribed by the state or law; 3. Attracts sanctions.

In Nigeria our laws are written and this is in tandem with
S.36(12) (supra) where it is clearly stated. Today, Nigeria does
not have any unwritten criminal law. It is important to further
state that the three conditions above must coexist for any act or
omission to be defined as a crime in Nigeria.

From the above definition, it is crystal clear that if a
particular act or omission has not been defined by our criminal
laws, such act or omission cannot be regarded as an offence in the
eye of the law nor can punishment of any sort be meted out.

In the celebrated case of Aoko v.
Fagbemi^[8] the Court of Appeal
quashed an appeal where a woman was convicted at the lower Court
for the offence of adultery on the ground that there was no written
statute that makes adultery a crime in Nigeria.

Section 203 of the Criminal Code^[9]
spells out disobedience to lawful orders and the punishment
thereto. Same is reproduced herein as follows:

‘’Any person who, without lawful excuse, the proof of which
lies on him, disobeys any lawful order issued by any person
authorised by any order, Act, law, or statute, to make the order,
is guilty of a misdemeanor, unless some mode of proceeding against
him for such disobedience is expressly provided by order, Act, law,
or statute, and is intended to be exclusive of all other
punishment.  

The offender is liable to imprisonment for one
year.’’

Relying on this provision alone, persons who still use Twitter
may be guilty of an offence and punishment meted out to whoever is
caught using Twitter after the ban. However, it will appear that
the Supreme Court recently in the case of Aliyu v
FRN^[10] has held that the
provision of section 203 of the criminal code is inconsistent with
the provisions of the constitution.

It is proper to give a brief background of the facts in Aliyu v
FRN as it forms a focal point in this paper.

Brief facts

The Appellant was accused & charged alongside other directors of
the board of the Nigerian Ports Authority of intention to defraud.
They had guidelines for their operations which formed the basis on
the award of contracts. Sometime after the contracts for the year
were awarded, a new guideline was introduced by a representative of
the Ministry of Transport. This document bore the stamp of the
Ministry of water resources and generally had some inconsistencies.
Based on this the board of directors continued to use the existing
guidelines. The Supreme court in overturning two concurrent
judgements of the lower courts held as follows:

“None of the offences of abuse of splitting contracts,
disobedience to lawful orders and conspiracy to disobey lawful
orders were

proved by evidence some of the offences charged were never
defined by any law codifying same and no where can one trace where
the punishment thereof were prescribed. The said
disobedience, if any of a ministerial
directive in exhibit P3, is not and cannot be an
offence contained in a written and or codified in a written law for
which punishment is prescribedin the same written law as enjoined
by section 36 (12) of the 1999 Constitution of the Federal Republic
of Nigeria as amended. I think when the provision of section 203
and of the Criminal Code is juxtaposed it would be clear that it is
a direct affront of the provisions of section 36 of the 1999
Constitution.

Consequently, there is no where disobedience to
exhibit P3(new guidelines) is penalised or codified in a written
law. The so-called offence of
disobedience to lawful order is therefore non-existence and
assuming, without conceding, that it exists, no punishment was
prescribed against the offenders. The conviction and sentence of
two years imprisonment dished out against the appellant are
nullities.”

Having therefore considered all the issues formulated by
both counsel I resolve all the issues so distilled against the
respondent. The trial court, I emphasise, lacked
jurisdiction to try the case abinitio, therefore trial itself, I
agree was a nullity. Both section 203 and 104 of the Criminal Code
were inconsistent with the provisions of the 1999 Constitution that
makes both sections unconstitutional.’’ (Emphasis
supplied)

A careful analysis of this judgement of the apex court in
Nigeria in Aliyu v FRN(Supra) alongside the
decision in Aoko v Fagbemi(supra) & Section 36(12)
CFRN will reveal one clear and irresistible fact, which is that the
ban on Twitter is not an offence which is capable of being punished
under Nigerian law. The Primary and secondary sources of law cited
in this work reveal that for an act to be an offence and be
punishable, the same must be codified in law and punishment
prescribed therein.

CONCLUSION

It is submitted that unless and until there is a law stating
clearly and prescribing a punishment thereof on the use of a social
media application, the ban remains unconstitutional and null and
void.

Notwithstanding the above submissions, it will be interesting to
view the Court’s opinion on the issue of Twitter ban and whether
the Federal Government can put a gag on the usage of social media
especially bearing in mind the right to freedom of expression
guaranteed by the constitution and Article 19 of the Universal
Declaration on Human rights.^[11]

Written By Babayemi O. Olaniyan Esq ACIArb(UK),
Acis, Yemi.olaniyan@lehiattorneys.org

[1] Constititution of the Federal Republic of
Nigeria (1999) as amended (CFRN)

[2] Ibid

2

[3] Okonkwo and Naish ‘Criminal Law in Nigeria’
second edition (spectrum books limited 2009) p 20

[4] QB 594

[5] S.2 Criminal code Act

[6] Bryan Garner ‘Blacks law dictionary
11^th edition’

[7] https://en.wikipedia.org/wiki/Crime^[1] (^[2]accessed on 9/6/2021)
3

[8] (1961) 1 All NLR 400

[9] Ibid 5

[10] (2014) 5 NWLR Pt. 1399 p 102

[11] Article 19

Everyone has the right to freedom of opinion and expression;
this right includes freedom to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.