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If the current threat on the freedom of expression of Nigerians is anything to go by, Nigerians’ hunger for change at any cost at the last general election may have led them to Shylock lawmakers. With its Frivolous Petitions (Prohibition, etc.) Bill 2015, the Nigerian Senate insists on cutting off a pound of flesh from Nigerian’s body of constitutional rights and freedoms. That pound of flesh is the freedom of expression, one of Nigeria’s most valued fundamental rights.
Nigerians widely reject the ‘Anti-social Media Bill’.
The Frivolous Petitions (Prohibition, etc.) Bill 2015, also known as the Anti-Social Media Bill by those who don’t support it, has been understandably getting the public attention it deserves. The unpopular bill was sponsored by APC’s Senator Bala Na’Allah from Kebbi South Senatorial District. Titled ‘A bill for an Act to prohibit frivolous petitions and other matters connected therewith, 2015’, the bill zoomed pass second reading in the Senate on Wednesday 2 December 2015. It was subsequently passed to the relevant committee to consider it and report to the House within 3 weeks.
As stated in the explanatory memorandum of the bill, the bill “seeks to prohibit frivolous petitions intended to report the conduct of any person of an investigation, inquiry, or inquest without a duly signed affidavit.” In other words, the Bill is meant to prohibit petitions that are made in bad faith, knowing the petition to be false. The Bill requires any petitioner to now depose to an affidavit in court to support the petition. If it is discovered that the petition is frivolous, mischievous, or false, it amounts to perjury which is punishable under the law.
The Senate says it will go ahead with the legislative process amidst protests against the Bill.
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The Senate has expressed its determination to go ahead with the bill, saying that Nigerians will have the opportunity to “shape its final outcome as there is an elaborate process which the bill must undergo before it becomes a law”.
But the Nigerian Guild of Editors (NGE) has asked the Senate to unconditionally suspend all proceedings with respect to the proposed bill
. According to NGE, “the broad objective of this curiously accelerated Bill is to outlaw the freedom of expression of all Nigerian citizens and freedom of speech of all media organizations operating in print, electronic and on-line platforms in Nigeria and beyond. Appallingly, the Bill has also included as its target very personal and private means of communication such as SMS or text messages and WhatsApp, among others. The freedom of speech and expression is guaranteed in section 22 and 39
the 1999 Nigerian constitution respectively.”
What does the Frivolous Petitions (Prohibition, etc.) Bill provide for?
I have closely examined the ambitious Bill. The Bill is meant to protect the rights and freedom of a person
against abuse as a result of any petition or statement submitted against that person without a duly sworn affidavit supporting the petition or statement. Though the word person
is used in the bill, the bill is clearly meant to protect public officers from frivolous petitions. According to the Senate President, as reported in Daily Post
3 December 2015, Senator Na’Allah’s bill seeks to criminalize the act of individuals sponsoring frivolous petitions to tarnish or blackmail public servants or political office holders
for selfish purposes.
Section 1 of the Bill makes petitions against the conduct of any person for the purpose of an investigation, inquiry and/or inquest without a duly sworn affidavit in the High Court of a State or Federal High Court unlawful. Section 2 prohibits any government institution, body, or agency from using petitions that do not meet the requirement in section 1. Section 3(1) penalizes anybody who uses, publishes, or causes to be published any petition or complaint not supported by a duly sworn affidavit. Upon conviction, the penalty is 6-months imprisonment without an option of fine. For any person who acts, uses, or causes unsupported petitions to be used, section 3(2) provides a 2-year jail term or N200,000 fine or both.
Section 3(3) prohibits any person from maliciously making allegations or publishing petitions with in both print and electronic media with intent to discredit or set the petitioned person against any person, group of persons, or government institution. The punishment for doing so is a 2-year imprisonment or N4,000,000 fine.
Does the Bill encroach on freedom of expression?
The question now is in what ways does the Bill contravene the right to freedom of expression which the 1999 Constitution of the Federal Republic of Nigeria (as amended) guarantees?
Section 39(1) of the 1999 Constitution of the Federal Republic of Nigeria guarantees that every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. Subsection (2) provides that every person shall be entitled to own, establish, and operate any medium [including social media] for the dissemination of information, ideas, and opinions.
Section 39(3) provides that nothing in section 39 shall invalidate any law that is reasonably justifiable in a democratic society. This means the National Assembly can justifiably make any law that will reasonably restrict the freedom of expression guaranteed under the section 39. But the National Assembly’s power to do so is not unrestricted. In the words of the Constitution, the National Assembly’s power to invalidate the freedom of expression granted in section 39 is limited to the following:
(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts, or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.
Therefore, under section 39 of the Constitution, the National Assembly has no power to restrict the freedom of expression of any person.
But section 45(1) of the Constitution greatly restricts freedom of expression and some other freedoms guaranteed under sections 37, 38, 39, 40, and 41 of the Constitution. It provides that these provisions shall not invalidate any law that is reasonably justifiable in a democratic society if the law is:
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.
I do not think the Senate can justify the invalidation of section 39 of the Constitution with the undemocratic provisions above by arguing that the bill is in accordance with section 45(2) of the Constitution. This is because by seeking to protect the interest of public servants or public office holders, the bill is itself encroaching on the rights and freedom of other persons. If fundamental rights and freedom guaranteed by the Constitution is invalidated in finitum because other persons’ rights need to be protected, there will be no rights left for anyone to live for.
The Bill will hurt public accountability, transparency, and the rule of Law in a democratic society.
By requiring that a petitioner must swear to an affidavit supporting his or her petition, the bill greatly discourages an innocent petitioner or a person who has written a petition in good faith with the threat of perjury.
In a growing democracy like ours where citizens are yet to imbibe the culture of petitioning their leaders because their safety under our weak laws is often put in great danger, the Frivolous Petitions (Prohibition, etc.) Bill is counter-productive. It discourages accountability, transparency, and good governance. The rule of law is also bent towards public office holders.
The political angle to the bill makes it look bad- very bad.
From a political angle, the bill appears to be self-serving. It is a public bill seeking to protect political interests.
At a time when even the Senate President, Senator Bukola Saraki, is facing his trial after a petition to that effect, does this Bill not raise a question of timing? Is this Bill really for the protection of public officers’ individual rights and freedom or just another self-serving law meant to protect sacred cows? Is this Bill meant to punish those who may with good faith have written a petition or made allegations in print and electronic media based on information found to be false (or unverified) by investigating agencies controlled by the State?
Nigerians cannot afford to lose their freedom of expression for the protection of persons or group of persons who already have the right to sue or institute a criminal action against mischievous petitioners under our existing laws.
The threat on freedom of speech on social media is even worse and most unacceptable.
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Another dimension to the Frivolous Petitions (Prohibition, etc) Bill 2015 is its potential threat to freedom of expression on social media.
Though the Senate has tried to explain that the bill is not meant to throw people who criticise the government on social media behind bars but protect a person’s right against frivolous petitions, I think the 9th Assembly of the Senate is either being dishonest or out rightly ignorant about the bill before it.
Section 3(4) of the Bill clearly restricts social-media user’s freedom of expression when it provided that:
“Where any person through text message, tweets, WhatsApp or through any social media[,] post any abusive statement knowing same to be false with intent to set the public against any person and/or group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction shall be liable to an imprisonment for two years or a fine of N2,000,000.00 or both such [sic] fine and imprisonment.”
If one describes the provision above as absolutely undemocratic, unconstitutional, and totalitarian, this would be an understatement.
Section 3(4) of the Bill is an attempt to smuggle an anti-social media restriction which has nothing to do with frivolous petitions into the bill. The section restricts free speech on social media and other electronic media by prohibiting what the drafter terms ‘any abusive statement knowing same to be false with intent to set the public against any person…”. ‘Abusive statement’ is a dangerously wide term. What amounts to an abusive statement? Does it include criticisms? Who determines what is abusive?
Petitions and affidavits are not the same with messages and posts on social media platforms. Tweets, text messages, Facebook updates, Instagram photos, or LinkedIn posts, and WhatsApp messages and status have nothing to do with frivolous petitions.
The Bill potentially threatens Nigerian’s access to and use of information under the Freedom of Information Act.
Another issue is how the Bill, if passed into law, will operate side by side with the Freedom of Information Act.
According to Senator Na’Allah, “…the question to ask is, [sic] whether having passed the Freedom of information Act which gives unfettered access by [sic] the public[,] information from government offices[,] they [sic] would be right for this government to continue to waste valuable time and resources in investigating frivolous petitions from the same public and I am sure you would find no difficulty in saying no to the ugly situation.” The lead debate is available on the Vanguard
If Senator Bala Na’Allah’s lead debate supporting the Bill is anything to go by, the Bill may affect citizens’ right to access and use information from public bodies under the Freedom of Information Act.
The Frivolous Petitions (Prohibition, etc.) Bill violates constitutional rights and freedom and it is not in the interest of the public.
In my opinion, neither section 39 nor section 45 of the Constitution permits the encroaching provisions of this anti-democratic bill. The bill is a big threat to individual freedom and democracy.
Our existing laws already provide adequate protection to those who genuinely feel that their rights have been abused or encroached upon by means of false, frivolous, malicious, mischievous, and vexatious petitions.
Section 51 of the Criminal Code already punishes sedition while section 375 punishes publication of defamatory statements. Defamation is the tort of publishing false statements in print or electronic forms known as libel or in spoken words known as slander. Any person who alleges that his or her reputation has been harmed can institute an action for redress.
Social-media activists, Online Publishers Association (OPA), Nigerian Guild of Editors (NGE), SERAP, and others prepare for a showdown.
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Social-media activists conducted a rally tagged #NoToSocialMediaBill at the National Assembly, Abuja, on Tuesday 8 December. The message was clear-Do not go ahead the Anti-Social Media Bill. OPA has also released a public statement condemning the bill, just as NGE is determined to also sustain the pressure on the Senate to suspend the bill process indefinitely.
Socio-Economic Rights Accountability Project (SERAP) has appealed to the United Nations Special Rapporteur on the promotion and protection of the right to freedom and of opinion and expression over Senate’s Frivolous Petitions (Prohibition, etc.) Bill.
Nigerians and the world are watching how the Senate will respond to the growing protest against the potential violation of freedom of expression and the press.
Free Advice to Senator Bala Ibn Na’Allah and friends
I would advise Senator Bala Ibn Na’Allah and friends to please seek redress through civil suits or criminal action if they genuinely believe any person has encroached on or is about to encroach on their individual rights and freedom. Our special Fundamental Rights Enforcement Procédure Rules 2009 also presents a fine option.
The National Assembly must stop stretching our laws to meet selfish interests while public interest suffers. Using legislative powers to make laws that shield anyone or protect any political interests inconsistent with public interest is an abuse of power. Our courts are there to listen to the grievances of any legislator who seek protection under our laws
If our lawmakers are sincere about sanitizing online publishing and social-media use, they should be more imaginative. Attempting to unduly restrict Nigerians’ freedom of expression is daring to cut off a pound of flesh from the body of our constitutional rights and freedom.
Senator Iyere Ihenyen is an Associate at Assizes Lawfirm and The Write House, Lagos.