A BRIEF REVIEW OF THE PROTECTION OF INTERNET FALSEHOODS AND MANIPULATION AND OTHER RELATED MATTERS BILL (A.K.A. SOCIAL MEDIA BILL) PROPOSED BY SENATOR MUHAMMED SANI MUSA
By Savn Daniel
Below is a brief review of the Protection Of Internet Falsehoods And Manipulation and Other Related Matters Bill (otherwise styled, the Social Media Bill and herein after referred to as The Bill) proposed by Senator Muhammed Sani Musa, who is a representative of the Niger East Senatorial District.
This document (sic) is largely not on the National Assembly Official Website. However, I was able to access it on Premium Times Website two days ago. Without much ado, here is my very humble brief take on the Bill that seeks to ‘regulate’ the media.
1. The Bill is copied directly with very little or no alteration from the Singaporean Law [regulating the Social Media in that clime, and passed this year] with very scanty margin notes serving as a guide. The Bill is also a reflection of one of the Recommendations of CONFAB Report of 2014 – that there should be a regulation of the social media. This aspect, like others, the Nigerian citizens condemned in the strongest of terms.
2. There is no need to have a social media Bill when we have the News Agency of Nigeria, Broadcasting Organisations of Nigeria, The Federal Ministry of Communications and Digital Economy, the Criminal Code, Penal Code, Laws of Torts in various States of the Federation, the Cyber Crimes Act, just to mention but a few.
The aforementioned statutes, laws and Federal Agencies all address substantially, matters relating to falsehoods published whether on social media or the print: see Sections 484 to 489, Sections 233B, 233c, 233D, 50, 56, 57, 58, 59 and 60 of the Criminal Code, given flesh in the cases of STATE v. MUKORO-MOWOE (1973) N.S.C.C; AFRICAN NEWSPAPERS LTD. & ORS v. FED. REPUBLIC OF NIGERIA N.S.C.C 405; A.G. WESTERN NIGERIA v. THE AFRICAN PRESS & ANOR N.S.C.C 1; OGIDI v. COMMISSIONER OF POLICE (1960) N.S.C.C. 171; and the DIRECTOR OF PUBLIC PROSECUTION v. OBO (1961) N.S.C.C. 104. Happily, in all the aforementioned authorities cited above (both statutory and judicial), the issue of Falsehood have been given due attention by the statutes and the Courts.
3. Flowing from (2) above it is not in the place of the Senate to legislate on matters that are not within their Legislative capacity. Almost all the states in Nigeria already have laws that prohibit false publication.
Hence, The Bill is needless and dead on arrival. This, in no way diminishes the Legislative capacity of the Legislature as stated in Section 4 of the 1999 Constitution: see BOLONWU v. GOV. ANAMBRA STATE (2009) 18 (PT. 1172) 13. The law is settled that where the constitution has defined or excluded the National Assembly from doing a thing, it cannot extend their legislative jurisdiction beyond what is provided for by law: ATTORNEY GENERAL OF OGUN STATE v. ATTORNEY GENERAL OF THE FEDERATION [1982] 2 NCLR, 166, 180-181.
It is also pertinent to state that where the National Assembly goes beyond the limits of its power, it is only the Courts that can reverse it: See Section 4(8) of the 1999 Constitution and the decision of the Court in ATTORNEY GENERAL OF ABIA STATE v. ATTORNEY GENERAL OF THE FEDERATION (2002) 9 NSCLR 670, 785, 788. It is therefore submitted in this connection that, the Senate does not have jurisdiction to legislate on proposed Bill before the House.
4. The Document is a 35 pages document with no side notes.
5. PART 1 ONE OF THE BILL
The part 1 of the Bill is titled; the Aims and Objectives of the Bill. It is misleading and raises too many doubts. There is nowhere in the entire document that categorically defines what the Bill sets out to do in plane terms; what is close to it can be seen in section 1(3) (c) of the Bill. Accordingly, the Bill sets out to infringe the rights and constitutional safeguards, especially that set out in Section 39 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and upheld by the Courts in a plethora of cases, including the case of N.U.E.E. v. B.P.E. [2010] ALL FWLR (PT. 525 (201).
Part 2 of the Bill
6. Part two of the Bill commences from Sections 3 – 4 with all its paragraphs. The problem with this part of the Bill is that there are no standard of critiquing or criticism expressly spelt out in any Nigerian law – whether judicially or statutorily. Whatever may be its manifesto, Chapter II of the 1999 Constitution expressly provides for the Blueprint of the Government (in power) by virtue of Section 19(d) of the 1999 Constitution.
7. Section 22 of the 1999 Constitution provides that the Press…mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and UPHOLD the RESPONSIBILITY and ACCOUNTABILITY of the Government to the people. The essence of any critiquing and/or criticism is to keep the Government (of the day) alive to its Responsibilities and accountable to the People. Sections 14(2) when read together with the Preamble of the Constitution provides to the effect that Power belongs to the people. WHATEVER policies the Government intends to formulate, it must at all-time be in the best interest of the people as upheld in DINGYADI v. INEC (2011) ALL FWLR (PT.581) 1426.
PART III
8. Part 3 of the Bill commences from sections 6 to 9, and does recognise the Police as the Agency saddled with the Responsibility of enforcing this provision, by empowering it to make Regulations for the purpose of curbing fake news. This section blatantly violates section 39(1) of the 1999 Constitution and should not be allowed to stay. The Court ruled in a plethora of cases that the right to Freedom of Expression is an integral part of Human Rights in AKPABIO v. N.E.V.C.R. [2009] 9 NWLR (PT. 1092) 219 and UKEGBU v. N.B.C [ 2007). Authorities in this regard are in abundance.
It is instructive to note that the Nigeria Police has wide powers by virtue of Section 4 of the Nigeria Police Act. Of recent, the Supreme Court of Nigeria has ruled that Regulations by Federal Government Agencies will now have the force of law. This will lead to abuse of power by the agency concerned in this connection.
9. The entire provision of the Bill (see Sections 10, 11, 13, 14, 15, 16, 17, 18, 19 and 35 (4) – general interpretation section seeks to uphold national security over and above the rule of law) also offends Human Rights as adopted and enforced in Nigeria.
10. Article 19 of the United Nations Charter of 1946 which Nigeria is a signatory to, stipulates that Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. This is further provided for in Articles 19 and 20 of the International Covenant on Civil and Political Rights, Article 3 of CEDAW and Article 9 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. All these international Instruments protect and preserve Freedom of Expression even so on social Media. This has been articulated by the Nigerian Courts in a plethora of cases, including the case of FAWEHINMI V. ABACHA.
11. Of recent [in 2018], the American Supreme Court held in PACKINGHAM v. NORTH CAOROLINA, that “social media platforms are the new public square and access to them is protected by the First Amendment, which guarantees FREE SPEECH ON SOCIAL MEDIA.”
Nigeria should follow the progressive trend and approach of the international community, as practised in progressive states where the social media is without any form of regulation. This is why despite the seemingly damaging untrue things written on social media against President Donald Trump of the United States of America, the media has not been gagged. The same was reiterated by the Arizona Supreme Court in the case of ARIZONA FREE ENTERPRISE CLUB’S FREEDOM CLUB PAC V. BENNETT.
11. The world is moving progressively and Nigerians should not tow a retrogressive path. The frontiers of human rights are expanding daily, and it has included the access and use of social media.
12. Again, The Bill arrogates so much power to the State through the Law Enforcement Agency to determine what constitute ‘offensive’, publication that are deemed ‘falsehood’ (according to the Bill). What the Bill fails to recognise is that there is no universally accepted mode of criticism and/or critiquing. That the Government does not agree with a thing, does not mean that it is ‘fake news’.
CONCLUSION
13. In conclusion, it is safe to say that the Bill is not only dead on arrival, it offends section 39(1) of the 1999 Constitution, all International Instruments which Nigeria is signatory to, prominent decided cases in Nigeria and other legal industries of the world. It defeats everything that [modern] democracy represents.
RECOMMENDATIONS
The following recommendations are hereby proffered to wit:
i. The existing laws on Falsehood should be allowed to exist and curb defamatory menace – on social media.
ii. Because the Bill offends the 1999 Constitution and other international Instruments, every attempt to pass it into law should be stopped forthwith.
iii. Since the matter is not within the legislative capacity of the Senate, it should let go of the Bill and listen to the voice of Nigerians, who are vehemently opposing the passage of the Bill into law.
