Prosecution of Twitter Ban Violation in Nigeria – Constitutional Anomaly II
On Tuesday, 1st June, 2021, Nigeria’s President Buhari posted a very insensitive tweet via his official, verified handle on the social media platform, Twitter. The offensive tweet generated global outrage and commensurate complaints leading to its deletion by Twitter. In response, the federal government announced an impetuous ban of Twitter usage in Nigeria and her federal Attorney-General directed that all violators of the ban should be prosecuted!
Article 7(2) of the African Charter on Human and Peoples' Rights (ACHPR) stipulates as follows: No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
A cursory reading of the Constitution of the Federal Republic of Nigeria 1999 (as amended) brings to the fore the fallibility and absurdity of the justice minister’s directive. A proper starting point is the supremacy of the Constitution stipulated in Section 1(3) as follows: If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall, to the extent of the inconsistency, be void.
Perhaps, it is necessary to keep in mind at this juncture that the Attorney-General of the Federation (AGF) is sworn to defend and discharge his duties faithfully in accordance with the Constitution! Also, and for the avoidance of any doubt, keep in mind that there is no portion of the oath of office that binds the minister to the president or stipulates any allegiance to the office.
Sections 39, 37 and 36 of the Constitution are of particular relevance and for ease of reference, salient portions of the provisions would be reproduced verbatim herein. Section 39(1) provides, “Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impart ideas and information without interferenceâ€. See also Article 9 of the ACHPR. Section 37 stipulates that, “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.â€
Section 36(8) provides, “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.†Section 36(12) further stipulates that, “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 therefor is prescribed in a written law and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.â€
Judicial interpretation is readily available for the above principle of law. In the case of Aoko v. Fagbemi (1963) 1 ANLR 400, the court set aside the conviction of a defendant for an offence that did not exist in the Criminal Code. Similarly, the Supreme Court in the case of AGF v. Dr. Clement Isong (1986) 1 QLRN 86 held that a defendant cannot be convicted for an offence for which no penalty is prescribed.
The collective implication of the foregoing is that either the federal Attorney-General has not averted his mind to the spirit and letter of the law or it is a case of extreme executive recklessness. In any event, the directive of the AGF that violators of the federal government’s Twitter ban be prosecuted is lacking any merit or legal weight and amounts to a constitutional anomaly.
Follow the author, AA Ibironke, Esq. on Twitter @SirMcAwesome247
