Cyber Security / Cyber Crime
Disini v. The Secretary of Justice
Closed Contracts Expression
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The Court of Appeal in Lagos dismissed a challenge to the constitutionality of Section 24(1) of the Cybercrime Act, 2015 on the ground that it lacked merit. Affirming the judgment of Buba J. of the Federal High Court, the Court disagreed with the Appellant that the provision was vague, overbroad and ambiguous and threatened his rights to freedom of expression under Section 39 of the Constitution and was not within the permissible restrictions pursuant to Section 45 of the Constitution. Instead the Court of Appeal found Section 24(1) of the Cybercrime Act to be clear and explicit and not in conflict with the provisions of Sections 36(12), 39 and 45 of the 1999 Constitution.
In 2015 the Cybercrime (Prohibition, Prevention, etc) Act came into effect in Nigeria. Section 24(1) of the Act made it an offense to send a message via a computer system which was “grossly offensive, pornographic or of an indecent, obscene or menacing character” or to send a message or cause any such message or matter to be so sent; or to send a message, knowing it to be false for the purpose of “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another” or to cause such a message to be sent. The sentence on conviction for such an offense is a fine of up to N7,000,000 (approximately USD20,000) or imprisonment for up to three years or both.
Solomon Okedara, a legal practitioner in Nigeria, filed an application before the Federal High Court in Lagos challenging the constitutionality of section 24(1) of the Act. Okedara submitted that the provision lacked a clear definition of the offense as it was vague and overbroad and that it threatened his right to freedom of expression (protected by section 39 of the Constitution) and a fair hearing (protected by section 36(12) of the Constitution).
The Federal High Court per Buba J in dismissing the Appellant’s application reasoned that Section 24 (1) of the Cybercrime Act was not vague and that “cybercrime is incapable of direct definition”. The learned judge further held that the restriction on freedom of speech as contained in Section 24 (1) of the Cybercrime Act was necessary in a democratic society as it relates to the interests of defense, public safety, public order, public morality or public health pursuant to section 45 of the Constitution.
Dissatisfied with the judgment of the Federal High Court, the Appellant appealed to the Court of Appeal by a Notice of Appeal dated February 8, 2018 and filed his Appellant’s Brief on March 6, 2018. In response, the Respondent filed his Respondent’s Brief on October 4, 2018, while the Appellant filed his Reply Brief on October 16, 2018.
In his Brief of Argument, the Appellant formulated seven issues for the determination of the Court viz:
“1. Whether the trial judge was right when he held that the offence as contained in section 24(1) of the Cybercrime Act is quite clear and defined
2. Whether the learned trial judge was right when he held that section 24(1) of the Cybercrime Act does not in any way conflict with section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria.
3. Whether the learned trial judge was right when he held that cybercrime is incapable of direct definition and dwelt on same to determine the Appellant’s case.
4. Whether the learned trial judge was right when he did not make a finding on the Appellant’s issue raised as to vagueness, ambiguity and over-breadth of section 24(1) of the Cybercrime Act but rather on issues not submitted for determination.
5. Whether the vague and overbroad wording of section 24(1) of the Cybercrime Act, 2015 constitutes an interference to section 39 of the 1999 constitution (as amended) and is inconsistent thereto.
6.Whether the learned trial judge was right when he held that the section 24(1) of the Cybercrime Act is in the best interest of the generality of the public.
7.Whether the learned trial judge was right when he failed to rule on the issue as to whether provisions of section 24(1) of the Cybercrime Act are within the permissible restrictions stipulated in section 45 of the 1999 Constitution or whether section 45 of the 1999 Constitution can save section 24(1) of the Cybercrime Act, 2015.” (p.3)
Counsel for the Respondent in response submitted three issues for determination and they are as follows:
“1. Whether the lower court considered, and also made a finding on the vagueness and ambiguity of the provisions of section 24(1) of the Cybercrimes (Prohibition, Prevention Etc) Act, 2015?
2. Whether the provisions of section 24(1) of the Cybercrimes (Prohibition, Prevention Etc.) Act, 2015 are in conflict with the provisions of section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, as to warrant their being declared null and void as contemplated by section 1(1) of the Constitution?
3. Whether the provisions of section 24(1) of the Cybercrimes (Prohibition, Prevention Etc.) Act, 2015 would interfere with the constitutional rights to freedom of expression of the Appellant as envisaged by section 39 of the Constitution of the Federal Republic of Nigeria, 1999 as amended?” (p.4)
Tijjani Abubakar (JCA) delivered the unanimous judgment of the three-man panel. The panel comprised Tijjani Abubakar, Abimbola O. Obaseki-Adejumo, and Jamilu Yammama Tukur (JJCA).
The Court began by reviewing the seven issues put forward by the Appellant and the three submitted by the Respondent to conclude that the main issue for determination was whether section 24(1) of the Cybercrime Act, 2015 was unconstitutional or not.
In cases where legislation is contested for being in conflict with provisions of the Constitution, the Court relied on U.S. v. Butler et al (1936) 297 U.S 1 (and Marwa & Ors v. Nyako & Ors (1980) LPELR-2936 (SC)) and determined that in these cases the courts have only one duty: “to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former… this court neither approves nor condemns any legislative policy.”
The Court then set out the laws to the issues as follows:
Section 24(1) of the Cybercrime Act, 2015 reads:
A person who knowingly or intentionally sends a message or other matter by means of computer systems or network that is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be sent, or he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a 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 not more than 3 years or both. (p.22)
Section 36(12) of the Constitution provides 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 therefore 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.” (p.22)
Section 39 of the Constitution on the other hand provides that:
“(1) every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
Citing Din v. African Newspapers of Nig Ltd (1990) LPELR-947 (SC) in support, the Court declared that under the Constitution it was clear that liberty of thought and freedom of expression were paramount. It noted that the freedom guaranteed under section 39 of the Constitution includes the freedom to hold an opinion and pass information without interference; and that this freedom presupposes free flow of opinion and ideas essential to sustain the collective life of the citizenry. [p. 24] The Court however, stressed that the right provided under section 39 is not an open-ended or absolute right, the right is qualified, and therefore subject to some restrictions by the provisions of section 45 of the Constitution.
Section 45 of the Constitution provides:
“(1) nothing in sections 37, 38, 39, 40 and 41 of this Constitution, shall invalidate any law that is reasonably justified in a democratic society-
The Court reasoned from the above constitutional provision that the legislature has the power to enact laws that are reasonably justifiable in a democratic society and that such laws shall not be declared invalid merely because they appear to be in conflict with the rights and freedom extended to citizens under the Constitution. However the Court noted, for example in the case at hand, that the right of freedom of speech guaranteed under section 39 cannot be taken away “except for the purposes of preserving the interest of defense, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons.” [ p. 25]
On the Appellant’s contentions that section 24(1) of the Cybercrime Act, 2015 conflicts with section 39 of the Constitution; and that words such as ‘grossly offensive’, ‘indecent’, ‘obscene’ or ‘menacing character’ were not given clear definition in the Act, the Court cited and relied on the case of Marwa & Ors v. Nyako & Ors (supra) as well as section 1 of the Cybercrime Act, 2015 and section 45 of the Constitution to hold that both the provisions of the Cybercrime Act and section 45 of the Constitution set out to protect the privacy rights of citizens. The Court therefore concluded that the intention of the legislature in enacting the Cybercrime Act 2015 was in accord with the provisions of section 45 of the Constitution.
The Court equally rejected the Appellant’s argument that section 24 of the Act does not satisfy the requirements of section 36(12) of the Constitution holding that in its view the words in section 24(1) of the Act are “explicit and leave no room for speculation or logical deductions.” [p. 27] The Court held that the offence in the relevant section of the Act is clearly defined and the punishment is also clearly stated. It therefore concluded that the provisions of section 24(1) of the Cybercrime Act, 2015 are not in conflict with the provisions of sections 36(12) and 39 of the Constitution. The Court unanimously held that the Appellant’s appeal was devoid of merit and deserved to be dismissed. It accordingly dismissed the appeal and affirmed the judgment of the lower court delivered by Buba J. of Federal High Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court of Appeal sitting in Lagos contracted the right to freedom of expression guaranteed under section 39 of the Constitution of the Federal Republic of Nigeria by affirming that the right was not an open-ended or absolute right but qualified by Section 45 of the Constitution which allows for laws in the “interest of defense, public safety, public order, public morality or public health: or for the purpose of protecting the rights and freedoms of other persons”.
The Court further refused to consider the potentially overly broad scope of the act which penalizes knowingly false messages that “cause annoyance,” “insult,” or even “needless anxiety.” [p. 21]
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