The Attorney-General of the Federation and Minister of Justice, Abubakar Malami, senior advocate of Nigeria, SAN, has just ordered the Director of Public Prosecution of the Federation to immediately prosecute offenders contravening the Federal Government’s ban on twitter operations in Nigeria. Indeed, he wants the DPP to liaise with the Ministry of Communications and Digital Economy, the National Communications Commission, (NCC) and other relevant government agencies to ensure “speedy prosecution of offenders without further delay”. How I wish that Malami’s APC government had displayed such alacrity and sense of urgency on the grave insecurity challenges of the country; the parlous economy, and the mounting corruption ravaging our land.
Malami did this with Lai Mohammed apparently being aware that many knowledgeable Nigerians had started to use different Virtual Private Networks (VPN) to clearly bypass the blockage. This government must be ready to build thousands of prisons across all the nooks and crannies of Nigeria so as to accommodate the deluge of ‘erring’ Nigerians.“Malami did this with Lai Mohammed apparently being aware that many knowledgeable Nigerians had started to use different Virtual Private Networks (VPN) to clearly bypass the blockage. This government must be ready to build thousands of… Click To Tweet
THE DANGERS INHERENT IN GOVERNMENT’S ILLEGAL ACTION
This government does not appear to have weighed carefully the serious implications of its actions and the likely ricocheting effects. Many Nigerians run global businesses with links and business partners across the world. They carry on business using the social media of twitter. Secondly, many Nigerians, especially the jobless youth who have been rendered destitute by this anti-masses government. They rely heavily on legitimate income realised from the platform through advertisement of their products and services, and act on behalf of their not so ICT-compliant clients who desire to reach out to the world. Banning Twitter is akin to what this government did in a kneel-jerk action on coming to power when it thoughtlessly banned Nigerians from operating their domiciliary foreign accounts .The naira has never recovered from this shock treatment.
Perhaps, more important is that the ban out rightly denies citizens of their individual and collective right to freedom of speech, and right to freedom of expression and the press, contrary to section 39 of the Constitution. The cumulative effect of these negative acts is a serious blight on Nigeria’s image both at home and abroad.“Banning Twitter is akin to what this government did in a kneel-jerk action on coming to power when it thoughtlessly banned Nigerians from operating their domiciliary foreign accounts .The naira has never recovered from this shock… Click To Tweet
THE CURIOUS JUSUN STRIKE ANGLE
From day one, I had whole-heartedly supported the JUSUN strike by judicial workers. I had believed (and still believe) that judicial autonomy must never be compromised. I dripped oceans of ink and made tons of television appearances (permit the hyperbole; it is to emphasise the frequency), arguing that the strike was well-intentioned because it was meant to save the judiciary from itself, give it autonomy from the strangulating grip of state governors; and allow it unfettered access to its constitutionally granted funds without genuflecting before “almighty” state governors.
Then twitter suspended Buhari’s account and pulled down his offensive threats against his own electors and citizens he governs. Then, Lai Mohammed reacted by saying the FG has banned twitter operations in Nigeria. And, now, Malami has directed the DPP to prosecute any Nigerian who flouts this ban by using VPN to bypass it.“The NASS has not enacted any law banning the use of the social media, including Twitter. Mere verbal pronouncement, declaration, directives or threats by the Attorney-General, do not amount to a Law validly passed by the NASS”. Click To Tweet
NO ACCESS TO COURT
In all these, the agitated citizens are eager to go to court (section 6 of the Constitution), to challenge these outrageous infractions of their rights. Then, they suddenly realize that the doors to the courts are firmly shut, and put under lock and key by JUSUN workers. So, they lick their oozing wounds. Meanwhile, the same courts being protected, are busy every day, delivering judgments (physical and virtual), on matters already pending before the JUSUN strike commenced.
So, who are these workers that prepare the files, take them to Judges, and create the enabling environment for such sittings, including fixing the zoom meetings? How and where do they gain access to the courts’ strong rooms, filing cabinets and court processes, to aid the Judges? Just how? I cannot understand. Or, can you?
PLAUSIBLE CONSPIRACY THEORY
Meanwhile, the Governors and the presidency appear not only comfortable with the existing impasse (which has literally suspended the third arm of Government, as during vile military juntas), they are quite happy with it. Their unyielding stance is encouraging the strike. These got me thinking. I therefore decided to give a second look at the unfolding scenario. It points to one fact: Nigeria appears to have been scammed by some smart elite alecs working in collaboration and tandem with probably the unsuspecting JUSUN leadership. My response to this new development? JUSUN, CALL OFF THE ONGOING STRIKE IMMEDIATELY.
MY NEW STANCE
I have now changed my views and stance. My new stance is now occasioned by the frequency of series of curious events (some quite frightening), emanating from the government and its operatives in the last two weeks. First, the Attorney-General, Malami, condemned Southern governors’ ban on open grazing by cattle. He curiously likened the murderous acts of non-tax paying nomadic cattle rearers to innocent shop-owning, spare-parts-selling Igbos who carry out their businesses legitimately and peacefully in their rented premises, paying their tax, tenement rate, water and waste disposal bills. Freedom of movement by human beings in section 41 of the Constitution was now being mistaken for freedom of movement for cows, sheep and goats.
The life of a cow was being elevated, valued and priced beyond that of slaughtered and raped human beings. Second, there sprang out an alleged secret memo attributed to the Attorney-General (but which he has firmly denied and denounced), in which he purportedly advised President Buhari to declare a state of emergency and suspend provisions of the 1999 Constitution that deal with the people’s fundamental rights. I believed his denial because that would have been unthinkable, having regard to his sacred position and duties as espoused in sections 150 and 174 of the Constitution.
GOVERNMENT’S APPARENT GAME PLAN
Let us not continue to be used by fifth columnists as pawns in a game of musical chairs. This government will very shortly likely crack down on the opposition, rights activists, dissenters, plural voices and perceived enemies. There will be no courts to run to with a view to obtaining any remedy. They are all firmly locked. Many of the Justices and Judges that we are strenuously defending, denying lawyers (especially junior lawyers, the challenged, and widows) food and money in their pockets, are enjoying, receiving their salaries and emoluments. We now appear to be crying more than the bereaved.
The iron is rusting while the gold is shining. The JUSUN strike has therefore outlived its usefulness and purpose. JUSUN, CALL OFF THE STRIKE NOW AND SAVE THE JUDICIARY FROM ITSELF, FROM SELF-IMMOLATION AND SELF-DESTRUCT. IMMEDIATELY. AS URGENT AS YESTERDAY.“The last time I checked, we are not in the Hobesian state of nature where life was solitary, nasty, short and brutish; operating a military Junta, or Musolini and Hitler’s despotism and absolutism! Nigeria is not a banana republic”. Click To Tweet
THE LAW: NO NIGERIAN CAN BE PROSECUTED FOR A NON-EXISTENT OFFENCE
The Court of Appeal was emphatic in ONWUGHALU v. FRN (2019) LPELR-47313(CA), that no citizen of Nigeria can be tried or punished for an alleged offence not created by law. It said:
“Truly, our Constitution guarantees that no citizen of this country should be put through a criminal trial, convicted and punished over an alleged offence not created by any law and thus unknown to the laws of the land. See the causa celebre of AOKO V FAGBEMI (1961) 1 ALL NLR 400, which till date represents the locus classicus on this matter.
In GEORGE v. FRN (2013) LPELR-21895(SC), the apex Court held thus:
“Any conduct that must be sanctioned must be expressly stated in a written law to wit: an Act by the National Assembly. That is what Section 36(12) of the 1999 Constitution provides. Such conduct should not be left to conjecture. As well, it cannot be inferred by the Court”.
Also, in SELE v. STATE (1993) LPELR-3030(SC), the apex court held:
“It is a cardinal principle of our concept of criminality, and which is protected by our Constitution, that a person can only be charged with and convicted for an offence recognised by the law and in existence at the time the act alleged was committed – See S.33(8) of the Constitution 1979. This is the hallowed and sacred principle of legality. It is because of its importance and high public policy that the legislative jurisdiction of the legislature is also excluded from having retrospective effect in relation to any criminal offence whatsoever.” Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC (Pp 18 – 18 Paras A – C
Similarly, the Supreme Court in TAFIDA v. FRN (2013) LPELR-21859(SC), made it clear that:
“The interpretation of a penal legislation or any statute for that matter should not be left to the whims and caprices of the Judge called upon to interpret the legislation. Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to conjecture or inference by the Court.” Per KUMAI BAYANG AKA’AHS, JSC (Pp 15 – 16 Paras C – D)
Finally, on the legal position, the Court of Appeal in OMATSEYE v. FRN (2017) LPELR-42719, (CA) incisively held that:
“It is trite and settled by the 1999 Constitution (as altered) particularly Section 36(8) which states thus: “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 an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.” There is no question therefore on the need to have a statutory provision clearly creating an offence before any person can be convicted for the said offence. The punishment too must be specifically named in a legislation.
The apex court emphatically stated that it is rudimentary and elementary for anybody or persons having something to do with dispensation of justice in this country to know that no citizen can be made to face any criminal trial for an act which is not qualified as an offence not defined or stated (codified) in any law and the punishment thereof prescribed. All courts, so named, cannot claim ignorance of these facts. See the following cases: GEORGE V FRN (2014) ALL FWLR (PT.718) 879; ABIDOYE V FRN (2014) ALL FWLR (PT.722) 1646; ALIYU V FRN (2014) ALL FWLR (PT.720) 1272.” Per YARGATA BYENCHIT NIMPAR, JCA (Pp 7 – 8 Paras A – A)
All the above judicial authorities are crystal clear that neither Malami, the DPP, nor this government, can prosecute any twitter user. Using twitter is not a known crime or written offence. The NASS has not enacted any law banning the use of the social media, including Twitter. Mere verbal pronouncement, declaration, directives or threats by the Attorney-General, do not amount to a Law validly passed by the NASS.
SOME RESPITE: A LIGHT AT THE END OF THE TUNNEL
All hope is not lost, even with the JUSUN strike. There is some respite here.
Any Nigerian arrested or detained should immediately proceed to the sub-regional West African Court situate in Abuja. The African charter on Human and People’s Rights is there to protect the rights of citizens of Nigeria. The Court that operates it (the West African Court) is there right now, fully operational. The last time I checked, we are not in the Hobesian state of nature where life was solitary, nasty, short and brutish; operating a military Junta, or Musolini and Hitler’s despotism and absolutism! Nigeria is not a banana republic. Never in the past; not yesterday, not today; not tomorrow; not ever. We operate a Constitutional democracy where things are done according to the Rule of Law and within our constitutional organogram. We do not operate rule of the thumb or rule of men. It is always better to build strong institutions rather than strong men. My one kobo piece of advice to this clueless government that spreads pains, agony, pangs, and blood like manure on plants.
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Ozekhome, PhD, is a senior advocate of Nigeria, SAN
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