Introduction
Freedom of expression is a fundamental human right and a cornerstone of any democratic society. In the 21st century, social media platforms like Twitter, Facebook, and Instagram have become the new public squares, providing citizens with unprecedented opportunities to voice opinions, share information, and hold power to account. In Nigeria, Africa's most populous nation, social media is a particularly vibrant space for political and social discourse. However, the freedom enjoyed in this digital space is not absolute. This essay will examine the extent to which a person is free to express themselves on social media under Nigerian law. It will argue that while Nigeria’s Constitution provides a strong guarantee for freedom of expression, this right is significantly limited in practice by restrictive legislation, most notably the Cybercrimes Act 2015, and by suppressive actions taken by the state. Consequently, the freedom of expression for social media users in Nigeria is often more theoretical than real.
The Constitutional Guarantee of Freedom of Expression
The primary legal basis for freedom of expression in Nigeria is found in the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 39(1) of the Constitution states that "Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference." This right is essential for a functioning democracy, allowing for public debate and criticism of government policy. Section 39(2) further expands this right to include the freedom to "own, establish and operate any medium for the dissemination of information, ideas and opinions." While drafted in an era before the widespread use of social media, the principles clearly apply to modern forms of communication, including online platforms.
The Nigerian judiciary has, at times, robustly defended this constitutional right. A significant case is Arthur Nwankwo v The State (1985), where the Court of Appeal declared the offence of sedition, which criminalises bringing the government into hatred or contempt, to be unconstitutional in the context of a democratic nation. The court held that criticising the government is a legitimate and necessary part of democracy and does not constitute sedition unless there is an incitement to violence. This judgment was a landmark victory for free speech, establishing that citizens have the right to scrutinise and criticise their leaders without fear of being prosecuted for sedition. In principle, this protection should extend to criticism voiced on social media. However, as the following section will show, other laws and state practices have created a contradictory and more restrictive environment.
Statutory and Governmental Restrictions on Social Media
Despite the constitutional protection, several pieces of legislation are used to police and limit expression on social media in Nigeria. The most prominent and controversial of these is the Cybercrimes (Prohibition, Prevention, etc.) Act 2015. Section 24 of this Act has been widely criticised by domestic and international human rights organisations for its chilling effect on free speech. The section makes it an offence to send a message via a computer system or network that is "grossly offensive, pornographic or of an indecent, obscene or menacing character" or which one "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".
The language used in Section 24 is overly broad and vague. Terms like "annoyance," "inconvenience," and "insult" are subjective and can be interpreted widely by law enforcement agencies to target critics of the government or other powerful individuals (Amnesty International, 2022). This has led to the arrest and prosecution of journalists, bloggers, and ordinary citizens for posts made on social media. For example, the journalist Agba Jalingo was arrested and charged with treason and terrorism for an article and social media posts questioning the Cross River state governor about the alleged diversion of public funds (Akinwotu, 2019). Although he was eventually released, his case highlights how laws can be used to intimidate and silence dissent.
Furthermore, colonial-era laws such as criminal defamation, found in the Criminal Code Act and Penal Code Act, continue to be applied to online expression. While defamation can also be a civil matter between individuals, the existence of a criminal offence, punishable by imprisonment, gives the state a powerful tool to suppress critical speech. The threat of a criminal charge can be enough to cause individuals to self-censor, thereby stifling legitimate public debate (Human Rights Watch, 2017).
A stark example of the government's willingness to directly curtail online freedom was the 2021 ban of Twitter. The government suspended Twitter's operations in Nigeria after the platform deleted a tweet by President Muhammadu Buhari which was deemed to violate its rules against abusive behaviour. The government justified the ban on grounds of national security and the platform's alleged use for spreading misinformation and undermining Nigeria’s corporate existence (Garba, 2021). This act effectively denied millions of Nigerians access to a vital platform for information and expression, a move that was widely condemned.
The Role of the Courts in a Contested Space
The judiciary has been a key battleground for the protection of digital rights. In a significant development, the Economic Community of West African States (ECOWAS) Court of Justice has provided important rulings on the issue. In the case of SERAP v Federal Republic of Nigeria (2022), the ECOWAS court ruled that the government's 2021 suspension of Twitter was unlawful and a violation of the right to freedom of expression. This ruling was a major victory for digital rights advocates.
Even more directly, in Laws and Rights Awareness Initiative v Nigeria (2022), the same ECOWAS court declared Section 24 of the Cybercrimes Act to be a violation of the right to freedom of expression as guaranteed by the African Charter on Human and Peoples' Rights and the International Covenant on Civil and Political Rights. The court found its provisions to be overly broad and not "necessary in a democratic society." Although judgments from the ECOWAS court are binding on member states like Nigeria, enforcement has been a persistent issue, and the Nigerian government has not yet amended or repealed the controversial section (Premium Times, 2022). This demonstrates a gap between judicial pronouncements and executive compliance, leaving social media users in a state of legal uncertainty.
Conclusion
In conclusion, the extent to which a person is free on social media under Nigerian law is severely constrained. While the 1999 Constitution provides a clear right to freedom of expression, this right is undermined by a legal framework that allows for its restriction on broad and subjective grounds. The Cybercrimes Act 2015, particularly Section 24, stands out as a significant threat, creating a "chilling effect" that discourages open criticism and dissent for fear of prosecution. This, combined with the continued use of outdated criminal defamation and sedition laws, paints a picture of a repressive environment.
The actions of the state, such as the ban on Twitter, further demonstrate that the government is willing to take direct and drastic measures to control the digital space. While regional courts like the ECOWAS Court of Justice have pushed back against these restrictions, a lack of political will to implement these judgments means that the practical reality for Nigerian social media users remains precarious. Therefore, while social media continues to be an important avenue for expression, users must navigate a legal landscape where their freedom is fragile and constantly under threat from the very state that is constitutionally mandated to protect it.
References
Akinwotu, E. (2019) 'Nigerian journalist charged with treason for 'trying to topple governor'', The Guardian, 30 September. Available at: <https://www.theguardian.com/world/2019/sep/30/nigerian-journalist-charged-with-treason-for-trying-to-topple-governor> (Accessed: 15 May 2024).
Amnesty International (2022) Nigeria: Endangered Voices: Attack on freedom of expression in Nigeria. Available at: <https://www.amnesty.org/en/documents/afr44/5141/2022/en/> (Accessed: 15 May 2024).
Constitution of the Federal Republic of Nigeria 1999.
Cybercrimes (Prohibition, Prevention, etc.) Act 2015.
Garba, S. (2021) ‘Twitter Suspension: FG’s Position’, Federal Ministry of Information and Culture. Available at: <https://fmic.gov.ng/twitter-suspension-fgs-position/> (Accessed: 15 May 2024).
Human Rights Watch (2017) “You Can’t Censor the Internet”: The Use of Criminal Defamation and “False News” Laws to Jail Online Critics in Nigeria. Available at: <https://www.hrw.org/report/2017/10/24/you-cant-censor-internet/use-criminal-defamation-and-false-news-laws-jail-online> (Accessed: 15 May 2024).
Arthur Nwankwo v The State (1985) 6 NCLR 228.
Laws and Rights Awareness Initiative & Ors v. Federal Republic of Nigeria (2022) ECW/CCJ/JUD/11/22.
Premium Times (2022) 'ECOWAS Court declares Nigeria’s Cybercrime Act provision illegal', Premium Times, 29 March. Available at: <https://www.premiumtimesng.com/news/top-news/520790-ecowas-court-declares-nigerias-cybercrime-act-provision-illegal.html> (Accessed: 15 May 2024).
SERAP v. Federal Republic of Nigeria (2022) ECW/CCJ/JUD/23/22.
