Access to Public Information, Content Regulation / Censorship, Internet Shutdowns, National Security
Amnesty International Togo and Ors v. The Togolese Republic
Closed Expands Expression
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The Community Court of Justice of the Economic Community of West African States (ECOWAS) held that the Nigerian government violated the Applicant’s right to freedom of expression, access to information and the media by suspending the operation of Twitter on June 4, 2021. The Nigerian authorities claimed the action was necessary to protect its sovereignty on the grounds that the platform was being used by a separatist leader to sow discord. The Applicants, however, claimed the suspension was in retaliation for a flagged Tweet by Nigerian President Muhammadu Buhari, for violating its rules. The Court found that access to Twitter is a “derivative right” that is “complementary to the enjoyment of the right to freedom of expression.” The Court concluded that the law did not suspend the operations of Twitter, and the Nigerian government had violated Article 9 of the African Charter on Human and People’s Rights (ACHPR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The Court subsequently ordered the Respondent to lift the suspension of Twitter and guarantee non-repetition of the unlawful ban of Twitter.
On June 4, 2021, the Respondent suspended the micro-blogging App Twitter across Nigeria, stating that Twitter’s operations constituted threats to the stability of Nigeria and that “Twitter is undermining Nigeria’s corporate existence” [p.8]. The Applicants are Non-Governmental Organizations and individuals who had, in different suits, approached the Court to challenge the suspension of operations of Twitter by the Respondent. The Applicants are Socio-Economic Rights and Accountability Project (SERAP), Media Rights Agenda, Paradigm Initiative for Information Technology Development, Premium Times Centre for Investigative Journalism, International Press Centre, Tap Initiative for Citizens Development, Patrick Eholor, Chief Malcolm Omokiniovo Omirhobo, David Hudeyin, Samuel Ogundipe, Blessing Oladunjoye, Nwakamri Zakari Appollo.
The Applicants initiated a case at the Community Court of Justice of the Economic Community of West African States, arguing violations of Article 9 of the African Charter on Human and People’s Rights (ACHPR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
Four main issues before the Court for determination were (i) Whether the Court had jurisdiction to adjudicate upon this matter, (ii) Whether there was a contravention of Article 9 of ACHPR and Article 19 of the ICCPR by regulation of social media and the violation of the right to freedom of expression, access to media and information, (iii) Whether the Respondent’s act of suspension of Twitter’s operations was legal (iv) Whether there was a violation of the Right to Fair Hearing by the Respondent prosecuting and punishing without reference to a breach of any existing law under the provisions of the ACHPR [p. 20].
By a Motion dated July 5, 2021, the Federal Republic of Nigeria as the Respondent in all the suits, asked the Court to consolidate application ECW/CCJ/APP/24/21 and ECW/CCJ/APP/26/21. However, all four Applicants consented to the consolidation of all the applications in the case. The Court consequently ordered the consolidation of all four applications on July 22, 2021. By virtue of the consolidation order of July 22, 2021 therefore, all references to the “Applicant” in this case were henceforth singular, nonetheless, each of the four Applicants presented their cases through their respective counsel. There were also three applications to intervene “amicus curiae” by Robert F. Kennedy Center for Justice and Human Rights, Access Now (and Electronic Frontier Foundation and Open Net Association) and Amnesty International.
The Applicants maintained that the suspension of operations of Twitter was the Respondent’s reaction to the flagging of its President (President Muhammadu Buhari)’s tweet, violating their rights to freedom of expression and that of many Nigerians. The Applicants claimed that no law or court order sanctioned the said suspension. The Applicants contended that the suspension restricted the right to freedom of expression and information of many Nigerians. The Applicants further claimed that the Respondent has a sub-regional, regional and international commitment to human rights and that its suspension of the operation of Twitter was tantamount to failure of its obligations to applicable human rights treaties and conventions, and the failure “has left millions of Nigerians at home and abroad unable to participate in issues of public interest, especially on ideas and views on the performance of the respondent concerning its constitutional and international human rights obligations” [p.9].
The Applicants claimed that the Respondent further directed its agent to immediately commence licensing of all OTT and social media services in the country, which according to the Applicants, is unknown to the Nigerian law and constitutes a fundamental breach of the Applicants’ right to freedom of expression, access to information and media freedom as protected under the relevant national laws and international human rights instruments including the ACHPR and ICCPR.
Respondent, in its defence, stated that the suspension of Twitter was not aimed at violating freedom of expression nor intimidating Nigerians but to ensure that Twitter “complies with extant laws” [p.14]. The Respondent emphasized that the suspension of operations of Twitter was essential to protect Nigeria’s sovereignty and prevent Nigeria’s corporate existence from destabilizing. The Respondent specifically claimed that Twitter as a platform was being used by a separatist leader who had perpetrated acts of violence against Nigerian soldiers and Police Officers. The Respondent further contended that the ENDSARS protest, which reportedly led to violence in many parts of Nigeria, was sponsored by the founder of Twitter. The Respondent also submitted that the right to freedom of expression is not absolute and relied on its extant laws in justifying the suspension of the operation of Twitter.
Hon. Justice Gberi-Be Ouattara presided over the three-judge panel of the Community Court of Justice of the Economic Community of West African States, including Hon. Justice Keikura Bangura and Hon. Justice Januaria T. Silva Moreira Costa.
Issue 1: Jurisdiction
The Respondent contended the jurisdiction of the Court to hear and determine the application by its Preliminary Objection dated June 21, 2021, seeking a striking out or dismissal of the application. After hearing the parties, the Court decided it was competent to hear the suit and dismissed the Preliminary Objection filed by the Respondent. The Court further held that the suit be heard expeditiously and ordered the Respondent to desist from imposing the ban, sanctions on media houses or arresting, harassing, intimidating and prosecuting the Applicants and concerned Nigerians for the use of Twitter and other social media platforms pending the hearing and determination of the substantive suit.
Issue 2: Contravention of Article 9 of ACHPR and Article 19 of ICCPR by regulating social media and violating the Right to Freedom of Expression, Access to Media and Information.
The Court noted that Article 9 of the ACHPR and Article 19 of the ICCPR provide for the right to freedom of expression without interference. The Court also noted that Article 19 of ICCPR created a derivative right that allows a person to enjoy the right using whatever medium of choice. The Court then stated that the right to freedom of expression guaranteed by Article 19 of the ICCPR could be enjoyed through several media, including social media platforms like Twitter, Facebook, and Instagram. The Court, in particular, stated that “the court will hold that access to Twitter being one of the social media of choice to receive, disseminate and impart information is one such derivative right that is complimentary to the enjoyment of the right to freedom of expression according to the provisions of Article 9(1) & (2) of the ACHPR and Article 19 of the ICCPR” [p.23].
The Court held that derogation from that right, including access to Twitter, must be a lawful justification which can be by an extant law or an order of the Court, and any other act of restricting such access will amount to a violation of the right to access information and media platform.
Issue 3: Legality of Suspension of Twitter
The Court noted that while Article 9(2) of ACHPR created the right to express and disseminate opinions within the law, Article 9 (1) created the ancillary right to receive information. The Court expressly noted the following as media for expressing or disseminating opinions.
The Court underscored how modern technology, mainly social media platforms, has enabled the exchanges of ideas, views and opinions, furthering Article 9 of ACHPR. “Twitter is of much relevance in the attainment of the intended objectives of Articles 9 of the ACHPR and 19 of the ICCPR and in like manner, relevant in the enjoyment of the exercise of the right to freedom of expression” [p.24].
In balancing its analysis, the Court considered the Respondent’s defence in respect of the legality of the suspension of Twitter. It shifted the obligation to show that the suspension was lawful on the Respondent; the Applicants had contended that the suspension was not under any law or an order of the Court. In an attempt to discharge this burden, the Court noted that the Respondent cited the ENDSARS protest, which the Respondent claimed was sponsored by Twitter’s founder and led to violence across Nigeria. The Respondent went further to argue that freedom of expression is not absolute. While the Court agreed with the Respondent that freedom of expression is not absolute, it emphasized the need for derogation from it by law. The Court noted that the Respondent, throughout its defence, failed to adduce evidence of the existence of legal justification for the suspension. It is the opinion of the Court that mere reference or allusion to the ENDSARS protest and its believed potential to destabilize Nigeria cannot constitute legal justification for the suspension of operations of Twitter. Citing the case of FEMI FALANA & 1 OR V THE REPUBLIC OF BENIN & 2ORS (2012) CCJELR, the Court held that “it is clear that the Respondent had not shown either by way of reference to any specific law or by means of other proof or otherwise the existence of any such law” [p.29]. The Court, therefore, held that in the absence of any extant law or a court’s order, the suspension of Twitter by the Respondent was unlawful, and the same was in clear contravention of Article 9 of the ACHPR and Article 19 of ICCPR.
Issue 4: Violation of Right to Fair Hearing by Prosecuting and Punishing without reference to a breach of an extant law
The Court noted that the Applicants claimed that the acts of the Respondent frequently threaten the Applicants and other Nigerians that use Twitter/and other social media micro-blogging applications with criminal prosecution. The act of suspending Twitter operations in Nigeria violates the principle that there is no punishment without law. The right to a fair hearing, guaranteed under the ACHPR and ICCPR null and void without express reference to Article 7 of the ACHPR.
The Court considered whether the respondents violated the right to a fair hearing of the Applicants. In applying the provision of Article 7(2) of ACHPR to prosecute those who continued to use Twitter after it has been suspended. The Court noted that for a person to be able to claim Article 7 of the ACHPR, three conditions must be present, and they are:
In finding out whether the Applicants are entitled to a claim under Article 7 of the ACHPR, the Court examined the Annexures to the Applicants’ application to see if there was proof to such claim and Annexure A, which is titled “Names of Nigerians interested in joining the suit against the Federal Government over the ban of Twitter” only contains a list of persons without stating whether the persons were prosecuted for continued use of Twitter after the suspension of its operations. The Court remarkably noted that the list “lends no persuasive value necessary to discharge the burden of proof”. The Court, therefore, found that there was no infringement of Article 7 of ACHPR by the Respondent as such was not substantiated by the Applicants.
On the Applicant’s monetary compensation of N500,000,000 (about USD 1,160,000), the Court noted that while contravention of the Applicants’ right had been established, the Applicant had a duty to show that loss or damage resulted from that infringement. The Applicants failed to prove the actual harm they suffered from the said contravention. The Court consequently dismissed the claim for monetary compensation.
In conclusion, the Ecowas Court declared the suspension of Twitter by the Respondents unlawful and a violation of the Applicants’ right to freedom of expression under Article 9 of the ACHPR and Article 19 of the ICCPR. The Court ordered the Respondent to lift the suspension. The Court further directed the Respondent to take necessary steps to align its policies and other measures to give effects to rights and freedom contained in ACHPR and ICCPR. On reparation, the Court ordered the Respondent to guarantee a non-repetition of the unlawful ban of Twitter and to undertake and adopt legislative and other measures to enable the enjoyment right to freedom of expression guaranteed under the ACHPR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by recognizing that access to Twitter is a derivative right complementary to enjoying the right to freedom of expression. The Court held that the suspension of operations of Twitter which was not sanctioned by extant legislation or order of a court of competent jurisdiction, violated the Applicants’ right to freedom of expression. The decision also clearly established that the burden of proof to show that the suspension was lawful rests on the Respondent to prove that the suspension was sanctioned by national law or an order of a court. Finally, the expansive interpretation given to the African Charter on Human and People’s Rights (ACHPR) protects the use of Twitter for free expression and access to information since it is a platform through which the right to freedom of expression is exercised is commendable. The Court’s decision also relies on the ICCPR, strengthens the authority of the international human rights instruments in the regional Court’s jurisdiction and enriches the jurisprudence of the Court.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 1(1)& (2), 36(12), 39 (1) & (2), 45 (1) (a) & (b)
Sections 78(1), (2), 79, 80(1)
Sections 2 1(a), (c), (d), (f), (g), (h), (i), (l), (m), (n), (p)
Section 419, 420 (1), (2) and 421
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