#TwitterBan in Nigeria: Can you be prosecuted?

A lot has happened in Nigeria over the past few days, and they can all be traced to the #TwitterBan imposed by the Federal Government on Friday June 4th. The cited reasons for this ban include that Twitter undermines the corporate existence of the country, and that it contributes to misinformation and fake news. However, some also conjecture that the underlying reasons for the ban include the fact that the platform deleted the President’s tweet threatening the Indigeous People of Biafra, a group in Southeastern Nigeria, and the fact that the platform was a main tool used in organising and raising funds for the #EndSARS protests.

Following the Twitter ban, Nigerians quickly started using VPNs to access Twitter, and in response the Attorney-General of the Federation, Abubakar Malami, ordered that those violating the ban should be procesuted.

On whether the ban itself is legal, see this article from Zikoko.

But on whether a person can lawfully be prosecuted as a result of the ban, I firmly disagree. This is based on two grounds: section 36(12) of the 1999 Constitution of Nigeria, and the case of Aoko v Fagbemi (1961) 1 All NLR 400.

Section 36(12) of the Constitution states:

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 therefor 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.

This section makes it clear that a person can only be prosecuted for a crime that is stated in a written law, and a written law is defined as:

  • an Act passed by the National Assembly;
  • a Law passed by a State House of Assembly; or
  • a subsidiary legislation made under the provisions of a law.

As far as I know, a mere statement issued by the executive does not fall under any of the categories listed above. Malami’s order that people should be prosecuted for using Twitter is therefore illegal and unconstitutional.

The case of Aoko v Fagbemi provides further credence to this position. In that case, the applicant was convicted for adultery by a customary court in Ijebu-Ilesha. However, the High Court quashed her conviction because there was no written law stating adultery as an offence. Since there is equally no written law (as defined in section 36(12) of the Constitution) stating the use of Twitter as an offence, I strongly doubt that any prosecution can be made on this basis.

Having said that, I do recognise that lawful processes are not always followed in this country, so this ban might just be another avenue for the law enforcement agents to abuse their powers. Therefore, while in theory you cannot be prosecuted for using Twitter, I cannot say what will actually happen in pratice. Although so far I haven’t heard of any case where criminal proceedings have been brought against a person for using Twitter, my advice to you would be to tread with caution. But I, for one, will continue tweeting agressively, if for nothing else, to show my defiance to the completely ridiculous Twitter ban.

For what it’s worth, my advice to the Nigerian government is that they should focus on the real issues in the country, such as corruption, poverty, inflation, and insecurity, rather than trivial issues like banning Twitter and changing the name of the country to United African Republic! (I don’t even have the will or energy to talk about the whole UAR saga.)

DISCLAIMER: This blog post is aimed at explaining the position of the law in Nigeria concerning criminal offences. It is for educational purposes only, and is not intended to constitute professional legal advice. If you or anyone you know is in need of legal advice concerning any of the issues in this post, please engage the services of a lawyer.

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