Cyber Security / Cyber Crime
Disini v. The Secretary of Justice
On Appeal Contracts Expression
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The Court of Appeal in Lagos, Nigeria, dismissed an appeal in the challenge to the constitutionality and legality of Sections 24 and 38 of the Cybercrimes Act, 2015 for lacking in merit. It affirmed the judgment of Idris J. of the Federal High Court who, sitting as a court of first instance, had earlier struck out the application of the Appellants who had asked the court to declare Sections 24 and 38 of the Cybercrimes Act, 2015 unconstitutional and illegal. The Appellants had expressly argued before the lower court that Section 24 of the Cybercrimes Act was illegal, unconstitutional and violated their fundamental rights to freedom of expression and the press guaranteed by Section 39 of the 1999 Constitution and Article 9 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. The Appellants had argued before the lower court that Section 38 of the Cybercrimes Act was unconstitutional, illegal and a violation of their fundamental rights to privacy, correspondence, telephone conversations and telegraphic communications as guaranteed under Section 37 of the Constitution of the Federal Republic of Nigeria 1999. The Court of Appeal in arriving at its decision reasoned that while Section 24 of the Cybercrimes Act is a piece of criminal legislation enacted pursuant to Sections 4 and 45 (i) (a) of the 1999 Constitution to enhance public welfare/wellbeing, Section 38 of the Cybercrimes Act is a legislative tool that assists in the detection and investigation of crime for the public good.
The Appellants, Paradigm Initiative for Information Technology Development, The EIE Project Ltd/Gte and the Media Rights Agenda, are all not-for-profit Non-Governmental Organizations. These organizations had brought the lawsuit against the Attorney General of the Federation, National Assembly and the Inspector General of Police challenging the constitutionality of Sections 24 and 38 of the Cybercrimes Act, 2015 for infringement and likelihood of further infringements of their right to freedom of expression and right to privacy as guaranteed in Section 39 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Article 9 of the African Charter on Human and People’s Rights and Section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) respectively.
Section 24 of the Cybercrimes Act 2015 provides as follows:
“Any person who, knowingly or intentionally sends a message or other matter by means of computer systems or network that
(a) Is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or
(b) 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 shall be 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 to both such fine and imprisonment”
2.Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network:
While section 38 of the Cybercrimes Act provides that:
(1) A service provider shall keep all traffic data and subscriber information as may be prescribed by the relevant authority for the time being, responsible for the regulation of communication services in Nigeria, for a period of 2 years.
(2) A service provider shall, at the request of the relevant authority referred to in subsection (1) of this section or any law enforcement agency –
(a) preserve, hold or retain any traffic data, subscriber information, non-‐content information, and content data; or
(b) release any information required to be kept under subsection (1) of this section.
(3) A law enforcement agency may, through its authorized officer, request for the release of any information in respect of subsection (2) (b) of this section and it shall be the duty of the service provider to comply.
(4) Any data retained, processed or retrieved by the service provider at the request of any law enforcement agency under this Act shall not be utilized except for legitimate purposes as may be provided for under this Act, any other legislation, regulation or by an order of a court of competent jurisdiction.
(5) Anyone exercising any function under this section shall have due regard to the individual’s right to privacy under the Constitution of the Federal Republic of Nigeria, 1999 and shall take appropriate measures to safeguard the confidentiality of the data retained, processed or retrieved for the purpose of law enforcement.
(6) Subject to the provisions of this Act, any person who contravenes any of the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term of not more than 3 years or a fine of not more than N7,000,000.00 or to both fine and imprisonment. [Pg.30-31]
The Appellants requested five reliefs with the primary being:
The Federal High Court per Idris J. in striking out the Appellants’ application at the lower court reasoned in respect of section 24 of the Cybercrimes Act that the section seeks to protect society at large “regardless of fundamental rights of the citizens” while the Appellants only sought to put the right of the individual over that of the “larger society”. In respect of section 38 of the Cybercrimes Act, the learned judge emphasized that the essence of the section is to provide for “circumstances where information may be released at the request of a law enforcement agency.” The trial court therefore concluded that the action was baseless and without merit and consequently struck out the suit.
Dissatisfied with the judgment of the Federal High Court, the Appellants appealed to the Court of Appeal by a Notice of Appeal dated April 11, 2017 and filed their Appellants’ Brief on August 10, 2017 (although it was not deemed properly filed until February 15, 2018). The First and Second Respondents were served the Appellants’ Brief but refused to file a Respondent’s Brief. The Third Respondent refused to accept service of the Appellants’ Brief. All the Respondents were served Hearing Notices but did not make any representation before the Court of Appeal.
Joseph Shagbaor Ikyegh (JCA) delivered the unanimous judgment of the panel, the other members being Biobele Abraham Georgewill, and Jamilu Yammama Tukur (JJCA). The Court noted that the Respondents did not file any briefs so the appeal was decided solely on the brief filed by the Appellants.
In setting the tone for its decisions, the first issue the Court of Appeal considered was whether the court below misapplied the cases of Badejo V Minister of Education (1996) 9-10 SCNJ 51 and Medical & Dental Practitioners’ Disciplinary Tribunal V Emewule & Anor (2001) 3SCNJ in arriving at its decision. In responding to this issue, the Court of Appeal held that the lower court rightly applied the decisions in the cases of Badejo and Medical & Dental Practitioners’ Disciplinary Tribunal which established the overriding interest of the public above any fundamental right. Justice Joseph Shagbaor Ikyegh held that the lower court applied the two decisions to establish the restriction placed on fundamental rights by section 45 of the 1999 Constitution in the interest of defence, public safety, public order, public morality or public health and the protection of rights and freedom of other persons. The Court held that the court below did not err in this regard.
The Appellate Court went further to assert that there is a presumption of regularity in favour of any Act by the legislature and when a party asserts to the contrary, like in this case, the onus lies on such party to prove the alleged irregularity. The Court cited the decision of the Supreme Court in Osawe and Ors V Registrar Of Trade Unions (1985) 1 NWLR Pt.4 755 at 770 to hold that it was the duty of the Appellants in this case who have alleged that the provisions of Sections 24 and 38 of the Cybercrimes Act are not reasonably justifiable in a democratic society to establish the same and not the duty of the Respondents to establish the contrary. The Court accordingly held that the “contention of the Appellants that it is for the Respondents to establish that the Act is reasonably justifiable in a democratic society, is accordingly, untenable and is hereby rejected.” [pg.18]
The Court of Appeal then went on to reiterate the provision of section 45 of the Constitution which empowers the legislature to make laws to limit fundamental rights including rights to privacy and freedom of expression entrenched in sections 37 and 39 of the 1999 Constitution respectively. The Court further noted that fundamental rights are not absolute but qualified and limited by the provisions of section 45 of the 1999 Constitution and that making the provisions of section 45 follow these rights in the arrangement of the Constitution shows the limiting powers with which the drafters of the Constitution endowed Section 45. The Appellate Court therefore opined that the National Assembly of the Federal Republic of Nigeria is empowered to pass an Act that will limit the rights to privacy and freedom of expression just as provisions of Sections 24 and 38 of the Cybercrimes Act have done to provisions of Section 39 and 37 of the 1999 Constitution.
The Court of Appeal then stated that it was clear that the Appellants did not deny the constitutional powers of the Second Respondent to make laws to limit fundamental rights like sections 24 and 38 of the Cybercrimes Act but the Appellants’ main question before the lower court, which the Court of Appeal believed was not “adequately” answered, was “whether Sections 24 and 38 of the Cybercrimes Act indeed meets the requirements of criminal legislation, and in essence, that of constitutionality?” In resolving this question, the Court of Appeal noted with admiration the efforts of the Appellants in citing foreign judicial authorities, constitutions and conventions in their brief. For example, they referred to Shreya Singal v Union of India where the Supreme Court of India invalidated Section 66A of the Information Technology Act of 2000 in its entirety holding that the prohibition against the dissemination of information by means of a computer resource or a communication device intended to cause annoyance, inconvenience or insult did not fall within any reasonable exceptions to the exercise of the right to freedom of expression. Likewise in Andare v Attorney General, Kenya the High Court of Kenya found a provision criminalizing “grossly offensive” statements, and false statements that are annoying, inconvenient or causing needless anxiety, to be unconstitutional because it was vague and unjustifiably limited freedom of expression. The Appellants argued that the failure to define words such as annoying, inconvenient and grossly offensive render them liable to subjective interpretation and therefore they offend against the rule requiring certainty in legislation that creates criminal offences as laid down in Sunday Times v United Kingdom (No. 1) Application No. 6538/74 para. 49. The Appellants also referenced Madanhire v Attorney General, Zimbabwe where the Constitutional Court of Zimbabwe declared the offense of criminal defamation as unconstitutional and inconsistent with the protection of freedom of expression under the country’s former Constitution. The Court of Appeal in Lagos however reiterated the position of judicial precedent that foreign authorities are not binding but only persuasive. It said that it is only when there are no indigenous materials and the foreign authorities are on all fours with the case at hand that the Court will apply the foreign authorities. In support, the Court cited the cases of Osafile V Odi 3NWLR (Pt.137) 130 and Sifax Nigeria Limited and Ors. V Migfo Nigeria Limited and Anor. (Unreported, Appeal No SC 417/2015 delivered on 16-02-18).
The Court noted the provision of Section 36 (12) of the 1999 Constitution where it is provided 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. 23-24]
The Court observed that the materials cited from the foreign jurisdictions do not contain the same words as Section 36(12) and said that the absence of equivalent provisions in the constitutions of those jurisdictions gave rise to the trinity requirements. The Court further observed that the international protocols and conventions relied on by the Appellants had yet to be domesticated by an enactment in Nigeria and therefore did not have any force of law in Nigeria. With regard to the Appellants’ argument as to vagueness of the words used in Section 24 of the Cybercrimes Act the Court stated that in the absence of definition in the statute the words will bear their ordinary, natural and literal meaning assigned to them in the English Dictionary. The Court noted that the courts as impartial arbiter are also guided by canons of interpretation and will not stand by and allow the law enforcement institutions to abuse the provision of the law. Besides, the Court acknowledges civil remedies for abuse of the law either by way of arbitrary arrest or unlawful prosecution initiated under Section 24 of the Cybercrimes Act.
The Court in analyzing the ambit of proportionality, noted that the Appellants argued that the penalty of three to ten years’ imprisonment and N7 million to 10 million fine were not proportional. The Appellants argued specifically that custodial penalties were not proportional. This Court noted that this argument was also premised on foreign cases. In resolving this, the Court reiterated the position of the Supreme Court in Amoshima V State (2011) 14 NWLR (Pt.1268) 530 at 551and 555 where the apex Court held that the argument against death sentence as cruel and degrading, which is premised on what has been held in other countries, is not tenable. The Supreme Court emphasized the fact that Nigeria is a sovereign nation with its own constitution and laws, practices in other nations therefore shall not be foisted on Nigeria when there are statutory penalties for such offences. The Court believes that when confronted with matters under Section 24 of the Cybercrimes Act, judges will exercise their discretion judiciously and judicially.
On the last ambit of the trinity requirements which focus on clear objectives of the criminal legislation, the Court held that Section 24 of the Cybercrimes Act was enacted in pursuance of public welfare by fostering good conduct among the citizens. The Court therefore concluded that there was no reason to resort to foreign jurisprudence in resolving the issues in this case given rich indigenous case law in Nigeria. The Court therefore held that contrary to the argument of the Appellants, Section 24 of the Cybercrimes Act is a valid piece of legislation and it is not unconstitutional.
In respect of Section 38 of the Cybercrimes Act, the Court adopted its position and holding as made out on constitutionality or otherwise of Section 24 of the Cybercrimes Act. The Court further reiterated that Section 37 of the Constitution that provides for privacy is not absolute but limited by Section 45 (i) of the 1999 Constitution. The Court held that Section 38 of the Cybercrimes Act is a “veritable tool of assisting the detection and investigation of crime for the common good” and that internet service providers are stakeholders in the administration of criminal justice in this regards. The Court cited the case of Fawehinmi V Akilu and Anor. (1987) 4 NWLR (Pt.67) 797 at 825-826 to establish that all persons in the society have a duty to assist in the process of arrest, prosecution and bringing a criminal to justice. The Court found that the provision of Section 38 of the Cybercrimes Act is consistent with the provision of Section of 44(i)(k) of the 1999 Constitution which authorizes law enforcement agencies to take temporary possession of property for the purpose of investigation or enquiry. Consequently, the Court held that Section 38 of the Cybercrimes Act is not unconstitutional, null and void. 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 Idris J. of the Federal High Court.
In his concurring judgment, Justice Biobele Abraham Georgewill while noting that Sections 24 and 38 of the Cybercrimes Act are neither unconstitutional nor illegal, remarkably noted that there is, however, a need for an amendment of section 38 of the Cybercrimes Act to include a requirement of an ex parte order of a court of competent jurisdiction before access could be had to personal information under the Cybercrimes Act. His lordship’s reason for this opinion is that without such check or safeguard “citizens would be left at the whims and caprices of the “relevant authority” and or “law enforcement agency” and which undoubtedly would lead to impunity in derogation of these right as guaranteed by the constitution to the citizenry of this great Nation of ours which is not and cannot be the intention of the framers of the Constitution” [p. 1 of Concurring Judgment]
The Appellants have consequently appealed this judgment which is now pending before the Supreme Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court of Appeal contracts rights to freedom of expression and privacy guaranteed under sections 39 and 37 of the Constitution of the Federal Republic of Nigeria 1999 respectively, when it dismissed the appellants’ appeal and upheld the judgment of January 20, 2017 delivered by the Federal High Court that earlier found that sections 24 and 38 of the Cybercrimes Act are not unconstitutional and illegal.
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