The Online Publishers Association of Nigeria [OPAN] has dragged the Senate to court over the proposed “Bill for an Act to Prohibit Frivolous Petitions and Other Matters Connected Therewith”.
The bill which has been dubbed ‘Anti-Social Media Bill’ supposedly seeks to impose a two-year jail term for abusive statement or related offence on the social media.
In a suit dated 6th December, 2015, counsel to the plaintiff, Osuagwu Ugochukwu Esq petitioned the Federal High Court situated in Abuja to adopt the following consequential reliefs:
– a declaration that in view of the provisions of section 39(1)&(2) of the 1999 constitution of the federal republic of Nigeria (as amended), the defendant, her officers, members, agents or privies cannot lawfully pass into law a bill for an act to prohibit frivolous petitions and other matters connected therewith as presently constructed and/or drafted.
– a declaration that the passage into law of the proposed bill for an act to prohibit frivolous petitions and other matters connected therewith will amount to the violation freedom of expression of the plaintiff as guaranteed under section 39(1)&(2) 1999 constitution of Nigeria (as amended).
– an order of injunction against the defendant restraining her from further debating and considering proposed bill for an act to prohibit frivolous petitions and other matters connected therewith which violates section 39(1)&(2) 1999 constitution of Nigeria (as amended).
– an order of perpetual injunction against the defendant restraining her from passing into law the proposed bill for an act to prohibit frivolous petitions and other matters connected therewith which violates section 39(1)&(2) 1999 constitution of Nigeria (as amended)
– such further or other orders as this honourable court may deem fit to make in the circumstances.
He also presented before the court an issue for determination viz:
whether the proposed bill for an act to prohibit frivolous petitions and other matters connected therewith as presently constituted violates section 39(1)&(2) 1999 constitution of Nigeria (as amended).
A date is yet to be appointed for the hearing of the suit.
See details of the suit below:
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO: FHC/ABJ/CS/……..
BETWEEN:
REGISTERED TRUSTEES OF
ONLINE PUBLISHERS ASSOCIATION OF NIGERIA ……………………. PLAINTIFF
AND
THE SENATE DEFENDANT
ORIGINATING SUMMONS
BROUGHT UNDER: ORDER 3 RULES 6 AND 7 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2009
LET: THE SENATE WITHIN 30 (THIRTY) DAYS AFTER SERVICE OF THIS SUMMONS ON THEM, INCLUSIVE OF THE DAY OF SUCH SERVICE CAUSE AN APPEARANCE TO BE ENTERED FOR THEM TO THIS SUMMONS WHICH WAS ISSUED UPON THE APPLICATION OF ONLINE PUBLISHERS ASSOCIATION OF NIGERIA OF PLOT 590B LEKAN ANUSI CLOSE, OMOLE PHASE II,ISHERI FOR THE DETERMINATION OF THE FOLLOWING QUESTIONS:
QUESTIONS FOR DETERMINATION:
(1). WHETHER, IN VIEW OF THE PROVISIONS OF SECTIONS 39(1)&(2) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), THE DEFENDANT, THEIR OFFICERS, MEMBERS, COMMITTEES OR PRIVIES CAN LAWFULLY DEBATE ,CONSIDER AND PASS INTO LAW A BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH.
2. WHETHER, IN VIEW OF THE PROVISIONS OF SECTIONS 39(1)&(2) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), THE PROPOSED BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH IS NOT AN ATTEMPT TO CRMINALISE FREE SPEECH AND FREEDOM OF EXPRESSION OF THE PLAINTIFF.
CONSEQUENTIAL RELIEFS
(A). A DECLARATION that in view of the provisions of section 39(1)&(2) of the 1999 constitution of the Federal Republic of Nigeria (as amended), the Defendant, her officers, members, agents or privies cannot lawfully pass into Law A BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH as Presently constructed and/or drafted.
(B). A DECLARATION that the passage into law of the PROPOSED BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH WILL AMOUNT TO THE VIOLATION FREEDOM OF EXPRESSION OF THE PLAINTIFF AS GUARANTEED UNDER SECTION 39(1)&(2) 1999 CONSTITUTION OF NIGERIA(AS AMENDED).
(C). AN ORDER of injunction against the Defendant restraining her from further debating and considering PROPOSED BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH WHICH VIOLATES SECTION 39(1)&(2) 1999 CONSTITUTION OF NIGERIA(AS AMENDED).
(D) AN ORDER of Perpetual injunction against the Defendant restraining her from passing into Law the PROPOSED BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH WHICH VIOLATES SECTION 39(1)&(2) 1999 CONSTITUTION OF NIGERIA(AS AMENDED)
(E.) SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
Dated 6th day of December, 2015
OSUAGWU UGOCHUKWU ESQ (COUNSEL TO THE PLAINTIFF, ST.FRANCIS XAVIER SOLICITORS AND ADVOCATES 38 MAMBOLO STREET, WUSE ZONE 2)
This summons was taken out by OSUAGWU UGOCHUKWU ESQ of 38 MAMBOLO STREET, WUSE ZONE 2, Abuja.
The Defendant may enter appearance personally or by a legal practitioner either by handing in the appropriate form duly completed at the Federal High Court Registry, Abuja or sending them to that office by post.
Note: If the Defendant do not enter appearance within the time and at the place above mentioned, such orders will be made and proceedings may be taken as the Judge may think fit and expedient.
SEALED at the Federal High Court Registry, Abuja.
_______________________
JUDGE
______________________
REGISTRAR
Dated 6th day of December, 2015
OSUAGWU UGOCHUKWU ESQ.
COUNSEL TO THE PLAINTIFF,
ST.FRANCIS XAVIER SOLICITORS AND ADVOCATES
ADDRESS FOR SERVICE:
47 YAOUNDE STREET WUSE ZONE 6 Abuja, 08036108221
FOR SERVICE ON:
DEFENDANT,
National Assembly Complex,
Three Arms Zone,
Abuja.
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO: FHC/ABJ/CS/……..
BETWEEN:
REGISTERED TRUSTEES OF
ONLINE PUBLISHERS ASSOCIATION OF NIGERIA ……………………. PLAINTIFF
AND
THE SENATE DEFENDANT
ORIGINATING SUMMONS
BROUGHT UNDER: ORDER 3 RULES 6 AND 7 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2009
AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
I, Daniel Elombah, male, Christian, Publisher and Nigerian Citizen of Suite 2021, Anbeez Plaza, Plot 2121 Ndola Square, Zone 5, Wuse, Abuja, hereby make Oath and state as follows:
1. That I am a member of Board of the Plaintiff, and by virtue of my position, I am familiar with the facts of this case and where the facts deposed are not within my personal knowledge.
2. That I have the authority of the Plaintiff to depose to this Affidavit.
3. That the Plaintiff is an Association of online and electronic publishers operating within and outside Nigeria and duly registered with the CAC on 14th November 2011.
4. That the Defendant is the upper Chamber of the Nigerian Parliament charged with making Laws and situate in Abuja within the Jurisdiction of this Honourable Court.
5. That the Defendant on December 2 2015 presented a BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH before its members which was read for second time and approved to be considered by its Committee on JUDICIARY,HUMA RIGHTS and LEGAL MATTERS with a view to passing same into Law.
6. That the Bill was sponsored by Senator Bala Ibn Na’Allah, from Kebbi South.
7. That some of the controversial provisions of the Bill provides inter alia:
a. Where any person through text message, tweets, WhatsApp or through any social media post any abusive statement knowing same to be false with intent to set the public against any person and group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction, shall be liable to an imprisonment for two years or a fine of N2,000,000.00 or both fine and imprisonment.(Section 4)
b. Any person who unlawfully uses, publish or cause to be published any petition, complaint not supported by a dully sworn affidavit shall be deemed to have committed an offence and upon conviction, shall be liable to an imprisonment for six months without an option of fine.
c. Any person who acts, uses, or cause to be used any petition or complaints not accompanied by dully sworn affidavit shall be deemed to have committed an offence and upon conviction, shall be liable to an imprisonment for a term of two years or a fine of N200,000.00 or both.
8. Where any person in order to circumvent this law makes any allegation and or publish any statement, petition in any paper, radio, or any medium of whatever description, with malicious intent to discredit or set the public against any person or group of persons, institutions of Government, he shall be guilty of an offence and upon conviction shall be liable to an imprisonment term of two years or a fine of N4 million.(Section 3)
9. That 39.(1) & (2) 1999 Constitution of Nigeria provides inter alia :
(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. (2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:
10. That Sections 24 and 26 CYBERCRIMES(PROHIBITION,PREVENTION,ETC) ACT 2015 which came into force on May 15 2015 seem to have similar provision as the proposed BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH being considered by the Defendant.
11. That it is in the interest of justice for this Honourable court to grant the reliefs sought in this originating Summons.
12. That I depose to this affidavit in good faith while believing its contents as correct and in accordance with the Oaths Act, Cap O1, LFN, 2004.
____________
DEPONENT
Sworn to at the Federal High Court Registry, Abuja
This…………..day of………………….2015
BEFORE ME
………………………………………
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO: FHC/ABJ/CS/……..
BETWEEN:
REGISTERED TRUSTEES OF
ONLINE PUBLISHERS ASSOCIATION OF NIGERIA ……………………. PLAINTIFF
AND
THE SENATE DEFENDANT
ORIGINATING SUMMONS
BROUGHT UNDER: ORDER 3 RULES 6 AND 7 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2009
WRITTEN ADDRESS
1.0 INTRODUCTION
1.1 The plaintiff filed an originating summons seeking the following Determinations and Reliefs against the Defendant:
(1). WHETHER, IN VIEW OF THE PROVISIONS OF SECTIONS 39(1)&(2) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), THE DEFENDANT, THEIR OFFICERS, MEMBERS, COMMITTEES OR PRIVIES CAN LAWFULLY DEBATE ,CONSIDER AND PASS INTO LAW A BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH.
2. WHETHER, IN VIEW OF THE PROVISIONS OF SECTIONS 39(1)&(2) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), THE PROPOSED BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH IS NOT AN ATTEMPT TO CRMINALISE FREE SPEECH AND FREEDOM OF EXPRESSION OF THE PLAINTIFF.
CONSEQUENTIAL RELIEFS
(A). A DECLARATION that in view of the provisions of section 39(1)&(2) of the 1999 constitution of the Federal Republic of Nigeria (as amended), the Defendant, her officers, members, agents or privies cannot lawfully pass into Law A BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH as Presently constructed and/or drafted.
(B). A DECLARATION that the passage into law of the PROPOSED BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH WILL AMOUNT TO THE VIOLATION FREEDOM OF EXPRESSION OF THE PLAINTIFF AS GUARANTEED UNDER SECTION 39(1)&(2) 1999 CONSTITUTION OF NIGERIA(AS AMENDED).
2.0
(C). AN ORDER of injunction against the Defendant restraining her from further debating and considering PROPOSED BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH WHICH VIOLATES SECTION 39(1)&(2) 1999 CONSTITUTION OF NIGERIA(AS AMENDED).
3.0
(D) AN ORDER of Perpetual injunction against the Defendant restraining her from passing into Law the PROPOSED BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH WHICH VIOLATES SECTION 39(1)&(2) 1999 CONSTITUTION OF NIGERIA(AS AMENDED)
4.0
(E.) SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
2.0 ISSUE FOR DETERMINATION
WHETHER THE PROPOSED BILL FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH AS PRESENTLY CONSTITUTED VIOLATES SECTION 39(1)&(2) 1999 CONSTITUTION OF NIGERIA(AS AMENDED)?
3.0 ARGUMENTS
3.1 39.(1) & (2) 1999 Constitution of Nigeria provides inter alia :
(2) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. (2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:
3.2 A critical look at the entire provisions of the Proposed Bill being considered by the Defendant shows it clearly puts a limitation on the Freedom of expression of the Plaintiff and other Nigerians.
3.3 For instance section 4 of the Proposed Bill states that where any person through text message, tweets, WhatsApp or through any social media post any abusive statement knowing same to be false with intent to set the public against any person and group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction, shall be liable to an imprisonment for two years or a fine of N2, 000,000.00 or both fine and imprisonment.
3.4 This section fails to define what abusive statement means. In the absence of what abusive statement means it has the capability of scaring people from making any comment on any issue. Hence for a law to prevent people from making any comment or sending post via social media like facebook, twitter, whatsApp etc the freedom to express oneself is curtailed.
3.4 At best what such section tries to prevent from our own understanding is stopping people from slandering and libeling people with information that are not true. The question is “Are there no Laws regulating Slander and Libel in Nigeria?
3.5 The said Section 4 of the proposed Bill is a clear attempt to criminalize Slander and Libel which are subject matters covered under our Civil laws.
3.6 The proposed Bill also makes it mandatory for a complainant or petitioner to swear an affidavit before he or she can lodge a petition or complaint. The said Bill states: Any person who unlawfully uses, publish or cause to be published any petition, complaint not supported by a dully sworn affidavit shall be deemed to have committed an offence and upon conviction, shall be liable to an imprisonment for six months without an option of fine.
3.7 The danger in this particular provision above is that every petitioner must approach a Law Court to depose to an affidavit before filing a petition. Interestingly Courts in Nigeria only operate from Monday to Friday. What this implies is that a complainant cannot express his views in any petition or complaint on Saturdays and Sundays. In essence Freedom of Expression for any complainant is not allowed on Saturdays and Sundays .This is clearly unconstitutional visa a vis Section 39(1) & (2) 1999 Constitution as amended.
3.8 The constitution of any country is the embodiment of what the people desire to be their guiding light in governance, their supreme law the grundnorm of all their laws. All actions of the government in Nigeria are governed by the Constitution and it is the Constitution as the organic law of a country that declares in a format, emphatic and binding principles the rights, liberties, powers and responsibilities of the people both the governed and the government. See FRN v Ifegwu (2003) 15 NWLR pt 842 113; A-G Abia v A-G Federation (2002) 6 NWLR pt 763 264; Abacha v Fawehinmi (2000) 6 NWLR pt 660 228.
3.9 In the case of A-G Federation v Abubakar (2007) 10 NWLR pt. 1041 1 it was held that one of the basic principles of interpretation of the Constitution and statutes is that the legislature will not be presumed to have given a right in one section of a statute and then take it in another. See Osadebay v A-G Bendel State 1991 1 NWLR pt 169 pg 525.
3.10 The constitutional power given to legislature to make laws cannot be used by way of condition to attain unconstitutional result.
3.11 Finally it has been held that freedom of speech and freedom of assembly are part of democratic rights of every citizen of the Republic; our legislature must guard these rights jealously as they are part of the foundation upon which the government itself rests. The Constitution should be interpreted in such a manner as to satisfy the yearnings of the Nigerian society. The 1999 Constitution is superior to other legislations in the country and any legislation which is inconsistent with the Constitution would be rendered inoperative to the extent of such inconsistency. It is submitted that the provisions of the proposed Bill are inconsistent with the Constitution — they are null and void to the extent of their inconsistency. See Osho v Phillips (1972) 4 SC 259; lfegwu v FRN (2001) 13 NWLR pt 229 103; Ikine v Edjerode (2001) 18 NWLR pt 725 446.
3.12 The right to freedom of expression is also guaranteed under the various international instruments on human rights and fundamental freedoms. Thus, Article 19 of the Universal Declaration on Human Rights provides as follows: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and impart information, and ideas through any media and regardless of frontiers. Similarly, Article 19 of the International Covenant on Civil and Political Rights provides for the right to freedom of expression as follows. 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print in the form of art or through any other medium of his choice. Article 9 of the African Charter on Human and Peoples Rights also provides for the protection of the right to freedom of expression in the following terms: 1. Every individual shall have the right to receive information.2. Every individual shall have the right to express and disseminate his opinion within the law.
3.13 In Nigeria, defamation which is both a tort and a crime has effectively regulated irresponsible speech. Criminal defamation is provided for in the Criminal Code for the Southern Nigeria and the Penal Code27 for Northern Nigeria. Thus section 375 of the Criminal Code criminalizes defamation in the following terms: Subject to the provisions of this chapter, any person who publishes any defamatory matter is guilty of a misdemeanor and is liable to imprisonment for one year and any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years. By section 373 of the Criminal Code, a defamatory matter is one which is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule or likely to damage any person in his profession or trade by an injury to his reputation. Akin to criminal defamation is the offence of sedition. A seditious publication has the intention to bring into hatred or contempt or to excite disaffection against the person of the President or Governor or Government of the Federation; or to excite the citizens or other inhabitants of Nigeria to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Nigeria as by law established; or to raise discontent or disaffection amongst the citizens or other inhabitants of Nigeria; or to promote feelings of ill-will and hostility between different classes of the population of Nigeria34. Under the Criminal Code, sedition is punishable with a sentence of two years or a fine, and three years for a subsequent offence. Under the Penal Code, the sentences are longer.
4.0 CONCLUSION
4.1 It is submitted that the proposed Bill FOR AN ACT TO PROHIBIT FRIVOLOUS PETITIONS AND OTHER MATTERS CONNECTED THEREWITH AS PRESENTLY CONSTITUTED VIOLATES SECTION 39(1)&(2) 1999 CONSTITUTION OF NIGERIA(AS AMENDED).
4.2 Being a Bill or an Act it is inferior to the Nigerian Constitution and once any law is inconsistent with the provisions of the Nigerian constitution such Law shall be void to the extent of its inconsistency. We urge this court to so hold that the said proposed Bill is unconstitutional. See UKPABIO & ANOR. V. NATIONAL FILM AND VIDEO CENSORS BOARD (2008) LPELR-4129(CA)
4.3 There is no doubt in our mind that the proposed Bill is potentially censorial; clearly the Bill is capable of being used to restrict the guaranteed right under Section 39 of the constitution. The Bill is oppressive, overbearing and grossly not compatible with the standard of a society. It constitutes a bulwark against the free expression of opinion, ideas and views whether by individual, journalists or by the press. This is not the dream of our constitutional makers. The dream was for a free speech country where views and opinions are shared openly, freely through any medium whatsoever without threat or sanction, saying that the laws that specifically deprive the limit of these rights of speech are quite hardy to deal with those who abuse the rights.
4.4 Finally everyone has the right to freedom of opinion and expression; this right includes freedom to hold without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Democracy is government by the people. This should require the participation of all. Yet, it would be meaningless without information to inform debate and shape policy. Proper democracy entails an open society. A free press is an essential prerequisite to an open society. The media searches out and circulates information, ideas, comments and opinions It provides the means for a multiplicity of voices to be heard. At national, regional or local level, it is expected to be the public’s watchdog, activist and guardian as well as educator, entertainer and contemporary chronicler.
Dated 6th day of December, 2015
OSUAGWU UGOCHUKWU ESQ.
COUNSEL TO THE PLAINTIFF,
ST.FRANCIS XAVIER SOLICITORS AND ADVOCATES
ADDRESS FOR SERVICE:
47 YAOUNDE STREET WUSE ZONE 6 Abuja, 08036108221
FOR SERVICE ON:
DEFENDANT,
National Assembly Complex,
Three Arms Zone,
Abuja.
