Lawyer Sues Meta Over Unlawful Facebook Account Suspension

 

A legal practitioner Timothy Tion, Esq., has instituted a fundamental rights enforcement suit against Meta Platforms Inc. (owners of Facebook) at the Federal High Court, Makurdi Division, challenging the suspension of his Facebook account on allegations of “fraud and deception.”

Case Background

On January 11, 2025, Mr. Tion after posting the word "Rubbish" in response to a Facebook post, received an automated email from Facebook stating that his account had been suspended for allegedly violating Meta’s Community Standards on fraud and deception. The email further informed him that he had 180 days to appeal the decision, failing which the account would be permanently disabled.

However, Mr. Tion argues that:

a. No specific allegations or evidence were provided;

b.He had no meaningful opportunity or reasonable channels to appeal the decision;

c. The vague nature of the communication deprived him of due process.

He asserts that the suspension—based solely on an opaque algorithmic assessment—has disrupted his professional engagements, particularly within legal discourse networks such as the Lawyers in Nigeria Facebook group.

Constitutional Violations Alleged

The suit alleges that Meta’s actions breached the following rights under the 1999 Constitution (as amended):

1. Section 36 – Right to Fair Hearing

2. Section 39 – Freedom of Expression

3. Section 40 – Freedom of Association

4. Section 42 – Protection from Discrimination

Mr. Tion contends that Meta provides direct support to business accounts in Nigeria, while non-commercial users like himself are left without effective channels for redress—an unequal treatment that amounts to discriminatory practice.

Reliefs Sought

Mr Tion, seeks the following court orders:

1. A declaration that the suspension was unlawful, discriminatory, and unconstitutional.

2. An order for the immediate reinstatement of the account.

3. A public apology from Meta Platforms Inc.

4. Damages totaling ₦300 million broken down as follows:

a) ₦100 million for emotional distress, reputational injury, and loss of professional connections.

b) ₦200 million in exemplary damages.

Statements

“Meta’s automated systems should not override constitutional rights. I’m pursuing this case not just for myself, but for millions of Nigerians who rely on social media for professional and social connection.”

— Timothy Tion, Esq., Applicant

“Global tech platforms must be accountable when operating in Nigeria. This lawsuit challenges the unchecked power of digital corporations over users’ rights.”

— Matthias Ikyav, Esq., Counsel for the Applicant

The case is expected to test the bounds of digital rights enforcement and corporate accountability in our legal system. Hearing is scheduled for June 4th 2025

Senator Ned Nwoko’s Data Protection Bill: A Wolf in Sheep’s Clothing?

 The proposed Bill to Amend the Data Protection Act (SB 650, 2025), sponsored by Senator Ned Nwoko, has ignited fierce debate. While framed as a solution to tax evasion, unemployment, and digital accountability, critics argue the bill risks becoming a weaponized tool to stifle dissent and shield powerful elites—including its sponsor—from public scrutiny.

A History of Abusing Laws to Silence Critics

Nigeria already has a troubling track record of weaponizing laws like the Cybercrimes Act 2015 and Criminal Defamation statutes to target journalists, activists, and ordinary citizens. Recent examples include:

1 The activist and lawyer Dele Farotimi, was charged under the Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (As Amended) for alleged bullying and harassment and disseminating false information for the purpose of causing breakdown of law and order, through his online expressions .

2. Agba Jalingo’s Detention: The Cross River-based journalist was charged with “cyberstalking” and treason after reporting on alleged corruption involving a state governor. International outcry forced his release after months in detention.

3.    Abubakar Idris: The blogger, known as Dadiyata, vanished August 2, 2019 after criticizing Kaduna State politicians on social media. His whereabouts remain unknown.

4. #EndSARSCrackdown (2020): Authorities targeted protesters and supporters online, freezing bank accounts and threatening social media users under “cyberbullying” charges.

5.   In September 2023, Chioma Okoli, a Lagos-based entrepreneur, criticized Nagiko Tomato Mix on Facebook, calling it overly sweet and suggesting it could be harmful. Her post garnered significant attention, leading Erisco Foods to file a petition accusing her of defamation and cyberbullying. ​

Subsequently, Okoli was arrested by plainclothes police officers while attending church. She was detained overnight in a cell with poor conditions before being transferred to Abuja for further questioning.

The manufacturer, Erisco Foods, accused her of defamation and cyberbullying. She was arrested during church, detained overnight, and transferred to Abuja under Nigeria’s Cybercrime Prohibition Act, facing up to three years in prison. The case sparked public outrage, with Amnesty International condemning it as a threat to free speech. While Erisco defended its actions, critics saw it as corporate overreach and misuse of cybercrime laws to silence consumer opinions. Okoli’s ordeal highlights the growing suppression of digital expression in Nigeria.

These cases reveal how existing laws are abused to punish criticism, not combat crime. Adding mandatory blogger registration and physical office requirements risks amplifying this repression. As Amnesty International noted in 2024, “Nigerian authorities increasingly conflate dissent with ‘fake news’ to justify censorship.”

The Hypocrisy of “Taxation” and “Accountability”

Senator Nwoko’s bill claims to target “big tech tax evasion,” yet glaring contradictions undermine its credibility. The alleged “$10 billion loss” cited by Nwoko lacks verifiable data.

Major technology companies such as Google, Meta (formerly Facebook), and others have been contributing to Nigeria's tax revenues. According to a report by The Punch, these companies paid approximately ₦3.85 trillion in taxes to the Federal Government during the first nine months of 2024. This amount includes both Company Income Tax (CIT) and Value Added Tax (VAT), reflecting a 68.12% increase from the ₦2.29 trillion collected during the same period in 2023.

Similarly, the National Information Technology Development Agency (NITDA) reported that foreign digital companies, including interactive computer service platforms and internet intermediaries, contributed over ₦2.55 trillion (approximately $1.5 billion) in taxes in the first half of 2024.

These figures indicate a significant increase in tax compliance and revenue from big tech companies operating in Nigeria.

Forcing companies to open offices ignores modern remote-work trends. Instead, Nigeria could adopt global models like the OECD’s Digital Tax Framework, which ensures fair taxation without physical presence mandates.

Meanwhile, the bill’s focus on bloggers—a loose term encompassing millions of Nigerians—appears politically motivated. Requiring bloggers to “register with a union” or maintain “verifiable addresses” creates bureaucratic barriers that disproportionately affect small-scale creators and government critics.

Ned Nwoko’s Personal Baggage and Motives

Critics allege Senator Nwoko’s bill is a retaliatory move to silence online scrutiny of his lifestyle. The senator, married to actress Regina Daniels (30 years his junior), has faced viral gossip about alleged affairs with younger women, including actress Chika Ike. In 2025, blogs like Instablog9ja amplified rumors linking him to Ike, sparking social media mockery.

Nwoko’s response? A fiery speech condemning “fake news” and “reckless bloggers.” Weeks later, SB 650 was tabled. When lawmakers rush to regulate speech after personal scandals, it reeks of vendetta, not public interest.

Better Solutions Exist

The misinformation crisis in Nigeria is real, but SB 650 is a dangerous remedy. Alternatives include:

1.    Public Education Campaigns: Partner with the National Orientation Agency and civil society to teach digital literacy, critical thinking, and fact-checking.

2. Strengthen Existing Laws: Enforce penalties for proven defamation or incitement without criminalizing free speech.

3.   Incentivize Big Tech Collaboration: Offer tax breaks for tech companies to establish local hubs voluntarily, fostering jobs and cooperation on content moderation.

4. Protect Whistleblowers: By protecting and  safeguarding citizens who expose corruption, the need for anonymous criticism would reduce.

Conclusion: A Democratic Backslide in Disguise?

Senator Nwoko’s bill risks entrenching authoritarianism under the guise of “economic patriotism.” By conflating legitimate taxation goals with oppressive registration schemes, it echoes tactics used by dictatorships to mute opposition.

The digital space is the last frontier of free expression in Nigeria. Once regulated by political interests, democracy itself is bound to collapse. For a nation already ranked 112th/180 on the Press Freedom Index, SB 650 could be the final nail in the coffin.

The Need to Narrow the Scope of Cybercrime Laws: Lessons from Dele Farotimi's Case

 

1.0    Introduction

Cybercrime laws have become essential tools for combating crimes in the digital age, addressing issues such as hacking, identity theft, and the spread of malicious software. However, when these laws are broadened to include offenses that merely involve ICTs (information and communication technologies) as a medium rather than a direct target, they risk becoming instruments of overreach, censorship, and abuse. The recent case of Nigerian activist and lawyer Dele Farotimi, charged under the Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (As Amended) for alleged bullying and harassment and disseminating false information for the purpose of causing breakdown of law and order, through his online expressions, underscores why these laws should be restricted to core cybercrimes.

This article examines the distinction between core cybercrimes and cyber-enabled offenses, the risks posed by overbroad cybercrime laws, and the implications of Farotimi's case for the future of digital rights and governance.

2.0   Understanding Core Cybercrimes

Core cybercrimes are offenses that inherently require ICT systems as both targets and tools. Without these technologies, these crimes would not exist. Examples of such crimes include spreading computer viruses, hacking a bank's servers to steal funds, or launching denial-of-service (DoS) attacks to disable websites are quintessential core cybercrimes. These activities are explicitly technological and could not occur without ICT systems. Without these technologies, these crimes would not exist. The Budapest Convention on Cybercrime, an international treaty regarded as the gold standard for defining cybercrimes, identifies five primary categories:

i. i.   Illegal Access: Gaining unauthorized access to computer systems or networks.

ii.  Illegal Interception: Eavesdropping on communications without permission.

iii. Data Interference: Altering, deleting, or damaging data without authorization.

iv.   System Interference: Disrupting the functionality of computer systems or networks.

v. Misuse of Devices: Creating or distributing tools (like malware) intended for committing cybercrimes.

3.0   Cyber-Enabled Offenses: A Different Domain

In contrast, cyber-enabled offenses are traditional crimes carried out using ICTs as a medium. Crimes like fraud, harassment, defamation, and even terrorism can occur both online and offline. For example, using social media to harass someone is a digital extension of harassment that does not require specialized cybercrime laws to address. Similarly, spreading misinformation online is akin to traditional defamation.

By conflating these offenses with core cybercrimes, many nations have crafted overly broad cybercrime laws, making it easier for authorities to exploit them for political or oppressive purposes. For example, in Turkey, provisions of its cybercrime legislation have been used to suppress online dissent and silence critics of the government under the guise of combating cyber-related threats.

4.0   Dele Farotimi: A Case in Point

Dele Farotimi faces multiple counts charge under the Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (As Amended), for statements made during YouTube interviews and press conferences about his book "Nigeria and its Criminal Justice System." The charges stem from his criticisms of alleged corruption in the judiciary and his commentary on specific legal cases. Notably, these charges primarily invoke Section 24(a) and 24(1)(b) of the Cybercrimes Act, which deal with cyberstalking and false information dissemination. The charges appear to target his online statements rather than any activity that constitutes a core cybercrime.

Farotimi's case demonstrates the dangers of conflating core cybercrimes with cyber enabled crimes and the problematic expansion of cybercrime laws beyond their legitimate scope:

i.       Nature of the Activity: Farotimi's actions - expressing opinions about the judiciary and sharing his experiences - are traditional forms of speech that happen to use digital platforms. They don't constitute inherently technological offenses.

ii.         Platform vs. Crime: The only "cyber" element in these charges is the use of YouTube as a communication medium. The underlying activities (criticism, commentary, allegations of corruption) are traditional forms of expression that predate the internet.

5.0    Legal Discrepancy in Dele Farotimi's Cybercrime Charges

5.1.   The Charges as Filed

5.1.1 Section 24(a) - Bullying and Harassing

Several charges allege that Farotimi's statements were made "with the intention of bullying and harassing" named persons. These statements include: (i) comments about legal proceedings, (ii) observations about judicial conduct in specific cases, (iii) criticisms of alleged corruption in the justice system and (iv) expressions of opinion about systemic issues in the legal or justice system.

5.1.2 Section 24(1)(b) - False Information

Other charges claim his statements "contained false information for the purpose of causing breakdown of law and order." The contested statements include: (i) claims about corruption in the judiciary, (ii) discussions of specific court cases and their handling, (iii) commentary on his personal experiences within the legal system and (iv) analysis presented in his book "Nigeria and its Criminal Justice System".

5.2. The Actual Law

Section 24(1): A person who knowingly or intentionally sends a message or other matter by means of Computer Systems or Network that-

(a) is pornographic; or

(b) he knows to be false, for the purpose of causing breakdown of law and order, posing a threat to life or causing such message to be sent: commits an offence under this Act and is liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or both.

(2) A Person who knowingly or Intentionally Transmits or causes the Transmission of any communication through a Computer System or Network-

(a) to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm to another person;

(b) containing any threat to kidnap any person or any threat to harm the person of another, any demand or request for a ransom for the release of any kidnapped person, to extort from any person, firm, association or corporation, any money or other thing of value, or

(c) containing any threat to harm the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, to extort from any person, firm, association, or corporation, any money or other thing of value, commits an offence under this Act and is liable on conviction-

(i) in the case of paragraphs (a) and (6) of this sub-section, to imprisonment for a term of 10 years or a minimum fine of N25.000,000.00 and

(ii) in the case of paragraph (c) of this subsection, to imprisonment for a term of 5 years or a minimum fine of N15,000,000.00.

5.3. Misapplication of Section 24(2)(a)

The charges cite "Section 24(a)" for harassment whereas under the Act, there is no Section 24(a). The actual Section 24(1)(a) deals with pornography. The relevant harassment provision is in Section 24(2)(a).

While there was indeed a technical error in citing "Section 24(a)" instead of the correct Section 24(2)(a) for harassment, this error does not invalidate the charge or warrant setting aside the conviction if Dele is convicted. This is because established case law holds that when an offense known to law is properly disclosed, the penalty is prescribed in existing law, and neither the accused nor counsel were misled by the incorrect citation, the conviction should stand absent any miscarriage of justice. See the case of ADONIKE v. STATE(2015) LPELR-24281(SC) Per John Inyang Okoro, JSC at Pp 20 - 21 Paras B – E.

Furthermore, Section 220 of the Administration of Criminal Justice Act, 2015 explicitly provides that such errors in stating particulars are not material unless the defendant was actually misled by the error.

Therefore, unless it can be demonstrated that the Dele Farotimi was materially misled by the incorrect section citation or suffered prejudice as a result, the technical error in citing the wrong section number should not affect the validity of the proceedings or the ultimate conviction.

6. The Risks of Overbroad Cybercrime Laws

Farotimi's case raises serious concerns about the intent and application of cybercrime laws. By prosecuting Farotimi for his expressions, the Nigeria Police Force has blurred the lines between protecting against cyber threats and stifling dissent. This misuse of cybercrime laws sets a dangerous precedent, suggesting that such laws can be weaponized against political opponents, activists, and ordinary citizens.

The overreach of cybercrime laws has far-reaching consequences, both for individuals and for society at large.

6.1. Suppression of Free Speech

Cybercrime laws with vague language can easily be used to target individuals exercising their right to free expression. Farotimi's case is just one example of how online speech can be criminalized under the guise of combating cybercrime. This trend threatens to silence dissenting voices and erode democratic principles.

6.2. Overburdening Legal Systems

Overly broad cybercrime laws place significant pressure on already strained legal and enforcement systems. When cybercrime laws expand to include offenses that are not inherently technological—such as online defamation, harassment, or even activism—it can lead to several systemic challenges: 

6.2.1. Diverted Focus from Genuine Threats

Expanding the scope of cybercrime laws forces law enforcement agencies to handle a wide range of cases, many of which do not require specialized cyber expertise. For example, prosecuting an online comment as cyber harassment requires investigative resources that could have been better directed toward identifying and mitigating core cybercrimes like hacking, unauthorized debits from customer bank accounts or ransomware attacks. This misallocation weakens the overall effectiveness of cybersecurity measures. 

6.2.2. Complexity of Digital Investigations

Investigating cyber-related offenses requires significant expertise, advanced tools, and collaboration with international entities. When law enforcement is forced to deal with a high volume of cases, many of which may involve non-criminal online behaviour, they risk becoming bogged down in cases that do not contribute to cybersecurity. This inefficiency not only overburdens legal systems but also reduces public trust in their ability to address critical digital threats. 

6.2.3. Erosion of Trust Between Law Enforcement and the Public

When the Nigeria Police Force uses the Cybercrime Act to prosecute individuals for online speech or activism, it creates an impression of the Police being complicit in political suppression or subjugation. This perceived misuse of resources can undermine public trust in the justice system and foster resentment against the Police. 

Here are some recent examples of cybercrime incidents in Nigeria that underscore the importance of focusing cybercrime laws on core offenses:

Nigerian banks reported a series of fraud-related cybercrimes over the years, with billions lost to hacking and phishing schemes. For instance, a 2022 report detailed how N523 million was stolen from a single account through a coordinated cyber-attack that funnelled money across hundreds of bank accounts.

In 2024, Hope Payment Service Bank reported a massive cyberattack resulting in a loss of over ₦10 billion. The funds were transferred across multiple accounts, prompting an investigation and court orders to freeze over 800 implicated accounts. This highlights the need for law enforcement to prioritize complex cyber fraud cases over less critical cyber-enabled offenses.

Similarly, Guaranty Trust Bank (GTBank) faced a significant security breach in August 2024, where its website was compromised by hackers. This incident raised fears of customer data theft and caused major disruptions in online banking operations.

In another case, a syndicate hacked into a bank's server to create fictitious credits worth N1.87 billion. This demonstrates the advanced techniques used by cybercriminals and the necessity of robust cybersecurity measures.

These examples show the increasing sophistication of core cybercrimes in Nigeria, and why the Nigeria Police Force should focus its resources and expertise towards preventing, detecting, investigating and prosecuting such crimes using the Cybercrimes Act instead of prosecuting online criticism or defamation using the Cybercrimes Act.

6.3. Chilling Effect on Digital Activity 

The "chilling effect" refers to the discouragement of legitimate online behaviour due to fear of legal repercussions. When cybercrime laws are overly broad or ambiguously defined, they create uncertainty about what constitutes criminal behaviour, leading to self-censorship and reduced participation in digital spaces. 

6.3.1. Impact on Free Expression

People may refrain from posting opinions, criticisms, or controversial content online, fearing that their statements might be interpreted as cyber harassment, defamation, or other offenses. In environments where authorities use cybercrime laws to target dissent, individuals are less likely to engage in public debates, reducing the vibrancy and diversity of digital discourse. 

6.3.2. Stifling Activism and Advocacy

Activists and advocates who rely on digital platforms to organize campaigns, raise awareness, or criticize policies are particularly vulnerable to chilling effects. If they perceive a risk of prosecution under cybercrime laws, they may avoid using these platforms, weakening their impact and ability to mobilize support. 

6.3.3. Hindering Journalism

Journalists such as Fisayo Soyombo, often use digital tools to investigate and publish stories on issues of public interest. However, the threat of cybercrime charges for reporting on sensitive topics can lead to self-censorship. For example, journalists may avoid exposing corruption or misconduct if they fear being accused of spreading false information or defaming individuals under Cybercrimes Act. 

6.3.4. Economic Consequences

The chilling effect can also impact businesses and entrepreneurs. Startups and companies that depend on open digital communication may face challenges if their employees or users are hesitant to engage freely online. This hesitation can stifle growth, collaboration, and the sharing of ideas, ultimately hindering economic progress in the digital space. 

The combined effect of overburdening legal systems and creating a chilling effect on digital activity is a weakened digital ecosystem. Legal systems are less effective in addressing real cyber threats, while individuals and organizations become less willing to engage in online activities that drive progress, innovation, and civic engagement. 

Therefore, restricting cybercrime laws to core offenses ensures that law enforcement can focus on genuine cyber threats, while the public can participate freely in digital spaces without fear of unwarranted prosecution. By refining these laws, governments can strike a balance between maintaining cybersecurity and protecting fundamental rights, preserving the integrity of the legal system and the vibrancy of the digital age.

7. International Perspectives on Cybercrime Laws

The global debate over cybercrime laws highlights the importance of specificity and restraint. The draft UN Cybercrime Convention has been criticized for its overly broad scope. Advocacy groups like the Electronic Frontier Foundation (EFF) and CIVICUS, a global alliance dedicated to strengthening civil society, argue that the convention risks criminalizing acts that are not inherently harmful, such as security research or whistleblowing.

In their critique, the organizations emphasize that cybercrime laws should focus exclusively on core cybercrimes. Core cybercrimes comprise offenses in which ICTs are the direct objects as well as instruments of the crimes; these crimes could not exist at all without the ICT systems. A useful reference for the types of crimes that are inherently ICT crimes can be found in Articles 2-6 of the Budapest Convention: illegal access to computing systems, illegal interception of communications, data interference, system interference, and misuse of devices. For example, spreading a computer virus in the wild; using a password logger to steal someone else's password and access their email or photos; breaking into the computer system of a bank to steal money; using malicious software to delete all the data of a former employer's systems.

8. Lessons for Nigeria and Beyond

Farotimi's case offers a crucial lesson for policymakers in Nigeria and other nations: the need to align cybercrime laws with international best practices and democratic values. This includes:

8.1. Restricting Cybercrime Laws to Core Offenses

Cybercrime laws should address crimes that directly target ICT systems, such as hacking, malware distribution, and data breaches. Cyber-enabled offenses should be handled under existing laws for fraud, harassment, or defamation.

8.2. Safeguarding Free Expression

Cybercrime laws should explicitly protect freedom of expression. Activists, journalists, and ordinary citizens should not face legal repercussions for sharing opinions or engaging in peaceful dissent online.

8.3. Building Capacity to Address Genuine Threats

Law enforcement agencies should focus on developing expertise to combat core cybercrimes effectively. This includes training, resources, and partnerships with international organizations.

9. Conclusion

The case against Dele Farotimi is a stark reminder of the dangers posed by overly broad cybercrime laws. It highlights the need for policymakers to draw a clear line between core cybercrimes and cyber-enabled offenses, focusing on crimes that inherently involve ICT systems.

By refining cybercrime laws to be specific, narrow, and proportional, nations can uphold justice, protect freedoms, and create a safer digital environment. Farotimi's case should serve as a wake-up call, prompting governments worldwide to reconsider the scope and application of their cybercrime frameworks. In doing so, they can strike a balance between security and liberty, ensuring that the digital age remains a space for innovation, expression, and democratic engagement and  cybercrime laws serve their intended purpose, i.e. enhancing cybersecurity, without compromising fundamental rights..

WHY THE HATE SPEECH BILL MAY BE UNCONSTITUTIONAL

This write up is an expansion on the tweeter thread by Dr Omole (Analysing the Proposed HateSpeech Bill) and also partly in  response to Umar Sa’ad Hassan who wanted a “good or right reason” for the rejection of the National Commission for the Prohibition of Hate Speech Bill (Hate Speech Bill). According to Mr Umar:

“Over the last couple of days, I have seen people I would have never expected to, hop blindly on the bandwagon and say the social media and hate speech bills are unconstitutional. As a matter of fact, nothing could be farther from the truth. Section 39 of the constitution guarantees freedom of speech but it doesn’t guarantee the dissemination of falsehood and the making of offensive statements capable of inciting trouble. Both proposed legislation are clear as to intent and it is preposterous for anyone to out rightly tag them an anti-free speech.”

It is a truism that the freedom of expression guaranteed by the 1999 Constitution of the Federal Republic of Nigeria (as amended) (CFRN) is not absolute. See sections 39(3) and 45(1) of the CFRN.

The Hate Speech Bill is unconstitutional because the provisions creating the offences are overly broad, vague and are not reasonably justified in a democracy. Section 36(12) of the CFRN requires that before any person may be punished for a crime, the offence and penalty should be defined in a written law. By that section a penal provision in law especially a criminal law, ought to state or define with clarity the conduct it is proscribing so that citizens can know what exactly constitutes an offence. This is to allow citizens to be able to arrange or conduct their affairs within the limits of the law. This is also to avoid arbitrary enforcement and abuse of the law by law enforcements. However, an examination of the sections creating offences under the bill reveals that the bill has failed to state with sufficient clarity what for e.g. is an “offensive environment” or “hate speech”. So if a citizen does not know what is offensive environment or hate speech how is supposed to keep the law? No one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it.

In TAFIDI v. FRN(2013) LPELR-21B59(SC) Akaahs, JSC JSC held that: “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."

In the 17th century Bacon proclaimed the essential link between justice and legal certainty:

“For if the trumpet gives an uncertain sound, who shall prepare himself to the battle? So if the law gives an uncertain sound, who shall prepare to obey it? It ought therefore to warn before it strikes … Let there be no authority to shed blood; nor let sentence be pronounced in any court upon cases, except according to a known and certain law … Nor should a man be deprived of his life, who did not first know that he was risking it.' (Quoted in Coquillette, Francis Bacon pp 244 and 248, from Aphorism 8 and Aphorism 39- A Treatise on Universal Justice).

In the American case of Ex Parte Bradshaw, 501 S.W.3d 665, 673 (2016) it was observed that:

“A statute is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning and differ about its application. All criminal laws must give fair notice about what activity is made criminal. However, a statute need not be mathematically precise; it must only provide fair warning in light of common understanding and practices.”

Common persons in Nigeria would necessarily have to guess at what is meant as offensive environment or hate speech as provided under the bill. Due to its many vague provisions the bill fails to provide guidance to prevent arbitrary and discriminatory enforcement.

Section 4 of the Hate Speech Bill provides that any person who uses, publishes, presents, produces, plays, provides, distributes and/or directs the performance of any material, written and or visual which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria. According to the bill, any person who commits this offence shall be liable to life imprisonment and where the act causes any loss of life, the person shall be punished with death by hanging.

It is a cardinal principle of criminal law that before a person can be found culpable for committing a crime the prosecution must prove that there was mens rea and actus reus for the offence. In ABBAH v. FRN(2017) LPELR-43373(CA) Onyemenam, J.C.A. at Pp. 19-20, Paras. B-D) held:

"The latin word mens rea is the state of mind the prosecution must prove, that the accused person had when committing a crime in other to secure his conviction. It is the specific mental state; guilty mind; criminal intent; required: in conjunction with the actual criminal act (actus reus); for an accused person to be convicted of a crime other than strict liability offences.”

There are exceptions where there needs to be no guilty mind and such offences are called strict liability offences. Strict liability offences do not require a person to intend to do something wrong or morally blameworthy. However, strict liability is usually reserved for offences that are not grievous or carry a heavy penalty. Section 4 of the bill creates a strict liability offence which carries life imprisonment or death penalty, penalties which are no doubt very heavy. It is strict liability in that it provides that “…commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria.” So even where a person did not by his words or acts or behavior intend to to stir up ethnic hatred, but having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria the person would have committed a crime. This is a strict liability offence simpliciter because it does not require the person to have any guilty mind.

In view of the foregoing Section 24 of the Cybercrimes Act, 2015 which many commentators have cited as taking care of the offences created by Hate speech bill is debatable although its constitutionality has been upheld by the Federal High Court in OKEDARA v. ATTORNEY GENERAL OF THE FEDERATlON and by Court of Appeal in the INCORPORATED TRUSTEES OF PARADIGM INITIATIVE & 2 ORS v. A.G. FEDERATION & 2 ORS (Unreported decision of the Court of Appeal (Lagos Division) delivered on 1“ June, 2818 in APPEAL NO. CA/L/556/2017).  Appeal has been filed in the Supreme Court by the Incorporated Trustees of Paradigm Initiative & 2 Ors. Section 24 contains some vague terms like “grossly offensive” “manacing character” etc.

In 2009 it was reported that the office of the Attorney General of Mississippi was reluctant to file charges of cyberstalking under the state’s law because of “the number and difficulty of the elements that must be proven… for the example the Attorney General counted seven separate elements that must be proven for conviction under section (1)(c) of Miss. Code 97-45-15. He said the need to show knowledge and intent were the most difficult aspects of the law.”

In the Indian case of SHREYA SINGHAL & ORS. v.UNION OF INDIA, the Supreme Court of India was called upon to decide on the constitutionality of section 66A of the amended Information Technology Act of 2000 (which is similar to some extent with portions of section 24 of the Cybercrimes Act). Section 66A defined the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. The section specifically provided that:

Any person who sends, by means of a computer resource or a communication device,—(a) any   information   that   is   grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance,   inconvenience,   danger, obstruction,   insult,   injury,   criminal intimidation,   enmity,   hatred   or   ill   will, persistently   by   making   use   of   such computer resource or a communication device; or

(c) any electronic mail or electronic mail message   for   the   purpose   of   causing annoyance   or   inconvenience   or   to deceive or to mislead the addressee or recipient   about   the   origin   of   such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

In the case under reference two women were arrested by the Mumbai police in 2012 for comments they posted on Facebook. The arrested women were released later and the criminal cases against them dropped yet their arrests attracted widespread public condemnation. It was felt that the police had misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression. The Supreme Court of India in declaring section 66A unconstitutional held that that the terms:

“…annoying, offensive, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will" used in the section were vague and indefinite… the learned Additional Solicitor General argued before us that expressions that are used in Section 66A may be incapable of any precise definition but for that reason they are not constitutionally   vulnerable.     He   cited   a large number of judgments in support of this submission…In fact; two   English   judgments   cited   by   the   learned Additional Solicitor General would demonstrate how vague the words   used   in   Section   66A   are.     In Director of Public Prosecutions v. Collins, (2006)   1   WLR   2223, the  very expression “grossly offensive” is contained in Section 127(1) (1) of the U.K. Communications Act, 2003.   A 61 year old man made a number of telephone calls over two years to the office of   a   Member   of   Parliament.  In   these   telephone   calls   and recorded messages  Mr  Collins   who   held   strong   views   on immigration   made   a   reference   to   “Wogs”,   “Pakis”,   “Black bastards” and “Niggers”.  Mr. Collins was charged with sending messages which were grossly offensive.  

The Leicestershire Justices dismissed the case against Mr. Collins on the ground that   the   telephone   calls   were   offensive   but   not   grossly offensive.  A reasonable person would not so find the calls to be grossly offensive.   The Queen’s Bench agreed and dismissed the appeal filed by the Director of Public Prosecutions.   The House of Lords reversed the Queen’s Bench stating:

“The   parties   agreed   with   the   rulings   of   the Divisional   Court   that   it   is   for   the   Justices   to determine as a question of fact whether a message is   grossly   offensive,   that   in   making   this determination the Justices must apply the standards of an open and just multi-racial society, and that the words   must   be   judged   taking   account   of   their context   and   all   relevant   circumstances.   I   would agree also. Usages and sensitivities may change over   time.   Language   otherwise   insulting   may   be used in an unpejorative, even affectionate, way, or may   be   adopted   as   a   badge   of   honour   (“Old Contemptibles”). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably   enlightened,   but   not   perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates. In   contrast   with   section   127(2) (a)   and   its predecessor subsections, which require proof of an unlawful   purpose   and   a   degree   of   knowledge, section 127(1) (a) provides no explicit guidance on the state of mind which must be proved against a defendant   to   establish   an   offence   against   the subsection.”

Similarly   in Chambers v. Director of Public Prosecutions, [2013] 1 W.L.R. 1833, the Queen’s Bench was faced with the following facts:

“Following an alert on the Internet social network, Twitter, the defendant became aware that, due to adverse weather conditions, an airport from which he was due to travel nine days later was closed.  He responded by posting several “tweets” on Twitter in his own name, including the following: “Crap1 Robin Hood Airport is closed.  You’ve got a week and a bit to get your shit together otherwise I am blowing the airport   sky   high1”   None   of   the   defendant’s “followers” who read the posting was alarmed by it at the time.   Some five days after its posting the defendant’s tweet was read by the duty manager responsible for security at the airport on a general Internet   search   for   tweets   relating   to   the   airport. Though   not   believed   to   be   a   credible   threat   the matter was reported to the police.  In interview the defendant asserted that the tweet was a joke and not intended to be menacing.   The defendant was charged   with   sending   by   a   public   electronic communications network a message of a menacing character   contrary   to   section   127(1)(a)   of   the Communications Act 2003.  He was convicted in a magistrates’ court and, on appeal, the Crown Court upheld   the   conviction,   being   satisfied   that   the message   was   “menacing   per se”   and   that   the defendant was, at the very least, aware that his message was of a menacing character.”

The   Crown   Court   was   satisfied   that   the   message   in question was “menacing” stating that an ordinary person seeing the   tweet   would   be   alarmed   and,   therefore,   such   message would be “menacing”.   The Queen’s Bench Division reversed the Crown Court stating:

“Before concluding that a message is criminal on the basis that it represents a menace, its precise terms,   and   any   inferences   to   be   drawn   from   its precise terms, need to be examined in the context in and the means by which the message was sent. The   Crown   Court was   understandably concerned that this message was sent at a time when, as we all   know,   there   is   public   concern   about   acts   of terrorism and the continuing threat to the security of the country from possible further terrorist attacks. That is plainly relevant to context, but the offence is not   directed   to   the   inconvenience   which   may   be caused by the message.   In any event, the more one reflects on it, the clearer it becomes that this message   did   not   represent   a   terrorist   threat,   or indeed any other form of threat.  It was posted on “Twitter”   for   widespread   reading,   a   conversation piece   for   the   defendant’s   followers,   drawing attention   to   himself   and   his   predicament.     Much more significantly, although it purports to address “you”, meaning those responsible for the airport, it was not sent to anyone at the airport or anyone responsible for airport security, or indeed any form of public security.  The grievance addressed by the message is that the airport is closed when the writer wants it to be open.  The language and punctuation are inconsistent with the writer intending it to be or it to be taken as a serious warning. Moreover, as Mr. Armson noted, it is unusual for a threat of a terrorist nature to invite the person making it to be readily identified, as this message did.  Finally, although we are accustomed to very brief messages by terrorists to   indicate   that   a   bomb   or   explosive   device   has been put in place and will   detonate shortly, it is difficult to imagine a serious threat in which warning of it is given to a large number of tweet “followers” in ample   time   for   the   threat   to   be   reported   and extinguished.”

These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”.  In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him.  Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or   “menacing”   are   so   vague   that   there   is   no   manageable standard by which a person can be said to have committed an offence or not to have committed an offence.  Quite obviously, a prospective offender of Section 66A and the authorities who are to   enforce   Section   66A   have   absolutely   no   manageable standard   by   which   to   book   a   person   for   an   offence   under Section 66A. This being the case, having regard also to the two English   precedents   cited   by   the   learned Additional   Solicitor General, it is clear that Section 66A is unconstitutionally vague.”

The court further held that:

“Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered...We, therefore, hold that the section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over-breadth.”

CONCLUSION

For the reasons adduced above it is submitted that the Hate Speech Bill is unconstitutional. Under international human rights standards, the right to freedom of expression is not absolute just like under the CFRN, and may exceptionally be subject to restrictions provided that those meet a strict three-part test, according to Article 19 (3) of the ICCPR, a convention which Nigeria has ratified. Hence, all state action targeting ‘hate speech’ must:

1.           Be provided by law; any law or regulation must be formulated with sufficient precision to enable individuals to regulate their conduct accordingly, i.e. the law must be concrete, clear and unambiguous, such that it can be understood and applied by everyone. The law must provide sufficient guidance to those charged with its execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not;

2.           Pursue a legitimate aim, exclusively: respect of the rights or reputations of others; or the protection of national security or of public order, or of public health or morals. Principle XIII(2) of the Declaration of Principles on Freedom of Expression in  Africa  provides  that  freedom  of  expression  should  not  be  restricted  on public order or national security grounds “unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression”.

3.           Be necessary in a democratic society, requiring the State to demonstrate in a specific and individualized manner the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.