PremiumTimes SPECIAL REPORT: How A Nigerian Law Is Suppressing Citizens’ Freedom On The Internet

When Emenike Iroegbu set up his news platform three years ago, he saw it as a starting point in the future of quality community newspapering for an audience long deprived of alternative views and balanced reportage.

Mr. Iroegbu, 39, works full-time as the editor of Abia Facts Newspaper, a small-scale platform with a primary focus on Abia State. Although he’s based in Uyo, the capital of neighbouring Akwa Ibom State, Mr. Iroegbu spends his typical workday working the telephone and trawling through the Internet for the most recent happenings in Abia.

Abia Facts’ political reporting is well read amongst middle-aged men and senior citizens; while its entertainment section is popular amongst women, who have long been identified as avid consumers of lurid content.

“I launched Abia Facts as a platform where all factual sides of what is happening in the state would be presented,” Mr. Iroegbu told PREMIUM TIMES in a recent interview. “I felt it was time for someone to start beaming light on the state’s activities, away from the cover-up by state media houses that residents were used to.”

Abia State, whose population hovers around three million, was amongst the 12 states created in 1991, but its media space is still largely dominated by pro-government voices, Mr. Iroegbu said.

This left a void for Mr. Iroegbu to tap into. A few weeks after Abia Facts commenced operation, it broke the news that former Governor Theodore Orji had “anointed” incumbent Okezie Ikpeazu, then a senior aide to the governor, as his successor.

The platform was also the first to report that a former banking executive, Alex Otti, had concluded plans to run as the gubernatorial candidate of the All Progressives Grand Alliance, APGA, even as he was openly averring allegiance to the Peoples Democratic Party.

The two reports, and many others afterwards, turned out accurate, and, for several months, it “looked like the paper’s fortunes were turning up much earlier than we had expected,” Mr. Iroegbu said.

NOT SO FAST

But two years on, something happened that imperilled Mr. Iroegbu’s streak. The event was so pivotal that Mr. Iroegbu not only scaled back his ferocious reporting, he considered closing his news business for a new career.

On September 6, 2016, operatives of the State Security Service swooped on Mr. Iroegbu at his residence in Uyo, taking him away on allegations of criminal defamation and blackmail. He was subsequently driven to the SSS field office in Umuahia, the Abia State capital, where he was interrogated about a story he had published on his platform which detailed alleged diabolical and sharp practices by Mr. Ikpeazu.

Mr. Iroegbu said he learnt at the SSS detention facility in Umuahia that his activities contravened the Cybercrime Act, its Section 24 specifically.

He said he was devastated, but not so much as he was confused.

“It was during interrogation that I first learnt of the repressive nature of the Cybercrime Act,” Mr. Iroegbu recounted to PREMIUM TIMES.

The SSS did not respond to requests for comments, but the Ikpeazu administration said Mr. Iroegbu deserved time behind bars because his claims against the state were reckless and untrue.

Mr. Iroegbu was freed the following day without charges. He said this is because there was no evidence that established his wrongdoing.

“It was like using a double-barrelled gun to kill a mosquito,” Mr. Iroegbu said of his predicament. “It was disproportionate and unnecessary.”

The SSS operatives broke into Mr. Iroegbu’s apartment with his wife and children present.

“Some neighbours even thought I was an armed robber or a kidnapper,” the journalist said. “It was too traumatic for my family to bear.”

A WORRISOME STRING FOLLOWS BIRTH OF CONTROVERSIAL LAW

At a glance, Mr. Iroegbu’s ordeal might seem improbable if not unwarranted: how could someone be arrested in such a disruptive manner over a matter whose nature is so glaringly civil?

Yet, experiences like Mr. Iroegbu’s are becoming increasingly common as jurisdictions across the country have embraced expansive powers of the Cybercrime Act as a tool for curbing potentially critical speech of citizens on the Internet.

Citizens have been held over infractions arising from a Facebook update or WhatsApp group comments.

The Cybercrime (Prohibition & Prevention) Act 2015 provides a comprehensive legal and regulatory framework ‘for the prohibition, prevention, detection, prosecution and punishment of cybercrimes’ in Nigeria.

President Goodluck Jonathan signed the law in the waning days of government to promote cybersecurity as well as protect critical national information infrastructure, computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights.

Security experts have long warned of the perils of an unregulated or monitored cyberspace in the country.

Several attacks were reportedly targeted at hundreds of government websites and servers between 2008 and 2014. During the 2012 protest against the removal of government subsidy on petroleum products, some hackers launched a cyber-rampage against the Nigerian government, defacing several websites and shutting off even more with denial-of-service attacks.

Federal authorities have praised the law for helping them stay ahead of some would-be criminals, especially those plotting nefarious acts over the Internet or via the telephone.

But critics say law enforcement agencies have also used the Cybercrime Act to clamp down on citizens, even when they didn’t necessarily engage in acts that could be considered inimical to the national interest.

‘CYBERSTALKING’

One problematic aspect of the Cybercrime Act that has been deployed by authorities is the Section 24, which proscribed ‘cyberstalking.’

The section prescribes up to three years imprisonment or a fine of N7 million or both for anyone found guilty of “causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another.”

That section is part of the law’s sweeping attempt to curtail freedom of expression of citizens online, making it difficult to issue criticism, cost or organise mass action against government policies, critics say.

Since May 15, 2015, when Mr. Jonathan signed the law, PREMIUM TIMES identified no fewer than 15 cases in which Nigerians have been detained for alleged violation of the Cybercrime Act.

Although a few of the cases are currently pending in the courts, no conviction has been recorded under the Cybercrime Act. Arrests have been made in Lagos, Akwa Ibom, Kaduna, Ogun, Kogi, Abia and the Federal Capital Territory.

Those cases likely represent only a fraction of arrests linked to Cybercrime Act, because few of such matters ever make it to court or become public knowledge.

They nonetheless offer a strong suggestion of the law’s sweeping implications. A PREMIUM TIMES review showed that the police carried out most of the arrests, with SSS carrying out two, one of which involved Mr. Iroegbu.

The other case was the arrest of James Emeh, who runs IgbereTV, on October 14, 2016. The SSS accused him of publishing pro-Biafra materials on his website, with alleged ties to the Indigenous People Of Biafra, which has now been outlawed.

He was released the next day without charges, after being questioned on the basis of violating the Cybercrime Act.

The police were responsible for the arrest of Audu Maikori, CEO of Chocolate City Entertainment, in March. He was charged under the Cybercrime Act for allegedly inciting the public through false information.

Mr. Maikori had propagated a bogus claim that Fulani herdsmen killed some Southern Kaduna students as part of a bloody violence that had simmered there for years.

After learning that the claim was false, Mr. Maikori admitted wrongdoing and apologised, but the matter continues at the Federal High Court after Governor Nasir El-Rufai vowed to ensure a thorough prosecution of the music label executive.

In at least one incident, the Economic and Financial Crimes Commission has arrested a citizen using the Cybercrime Act. The anti-graft agency cited ‘cyberstalking’ for detaining Abubakar Usman in the morning of August 8, 2016. Mr. Usman, a pro-government blogger, was released the next day without charges, after posting stringent bail conditions, his lawyer said.

Some officers who had participated in arrests bordering on cyberstalking said only a few officers have a good grasp of the intricacies of the Cybercrime Act.

In many cases, police prosecutors would see a criminal wrongdoing where a civil redress would suffice, the officers said.

“We don’t know anything about this new law and we have not been trained on how to make a proper use of it,” said a police superintendent who pleaded anonymity because he was not authorised to speak about shortcomings in the force. “That’s why we have so many arrests but no one has been convicted.”

Officers’ struggle with the Cybercrime Act was evident in the retroactive application of the law against Desmond Ike-Chima. Mr. Ike-Chima, an entertainment blogger, was arrested in October 2015. The police arrested him for “publishing malicious claims” against Phillips Oduoza, the MD of UBA, and arraigned him before the Lagos Division of the Federal High Court on November 2, 2015.

Court filings said Mr. Ike-Chima allegedly detailed an amorous affair Mr. Oduoza had with actress Genevieve Nnaji in a March 2015 article published on his blog.

But a cursory check at the timeline of events showed that the piece was first published in August 2014, about nine months before the Cybercrime Act was enacted.

Mr. Ike-Chima was freed on April 15, 2016 after spending more than six months at Ikoyi and Kirikiri correctional facilities, both in Lagos. But details of his release remained spotty and Mr. Ike-Chima said a non-disclosure agreement was entered into as part of conditions for his release.

He also declined PREMIUM TIMES’ request seeking clarification on whether his lawyers argued against potential retroactive implementation of the Cybercrime Act in his case.

To the security agencies, the arrests are one prong of a broader crackdown on voices critical of politicians in high places, said Martin Obono, executive director of Cybercrime and Fraud Awareness Foundation, a public-policy think tank.

“Section 24 criminalises civil offences,” Mr. Obono told PREMIUM TIMES Tuesday. “This is clearly wrong.”

Mr. Obono said his organisation made inputs that helped shape some aspects of the Cybercrime Act, but that lawmakers managed to “smuggle in” some controversial sections to shield themselves, and partly because they were in a haste.

“The current law was not what we laboured for, but because politicians were in a hurry to regulate activities of Nigerians online in order to shield themselves, they came up with a controversial law,” Mr. Obono said.

He argued that lawmakers added Section 24 because they knew the law enforcement agencies could be easily manipulated.

But police spokesperson, Jimoh Moshood, denied that police were being used or ill-equipped to implement the law.

“We were never instigated to arrest anyone under the Cybercrime Act,” Mr. Moshood told PREMIUM TIMES by telephone. “We’ve conducted ourselves in a manner that can be deemed ethical and professional.”

Mr. Moshood could not explain why the police have not been able to record a conviction despite, saying officers’ responsibility ends at taking a case to court for trial.

“It is the duty of judges and magistrates to hand down convictions,” the spokesperson said. “And no one has to instigate us to do our job.”

But that’s not how Mr. Iroegbu and others who have been detained within the last year see the police’s conduct with respect to the Cybercrime Act.

Almost all the arrests made in connection with the law involved either the government or powerful individuals.

The arrest and arraignment of Emmanuel Ojo in Ogun State on September 27, 2015, for example, was in connection to a Facebook post which Governor Ibikunle Amosun’s wife, Olufunso, considered defamatory. The case was later dropped following an apology by Mr. Ojo, who had initially countersued for a fundamental rights enforcement.

Similarly, on August 4, a Chief Magistrate’s Court in Umuahia remanded Daniel Kalu, a 29-year-old blogger, in custody for allegedly contravening Section 24 in a Facebook post.

Court documents seen by PREMIUM TIMES show that Mr. Kalu is being tried for posting “rumours” about the Deputy Governor of Abia State, Ude Oko-Chukwu.

Mr. Kalu allegedly committed the offence in a December 11, 2016, update on his Facebook wall. He’d alleged that Mr. Oko-Chukwu had made little impact on the lives of those in his constituency in Abia State, despite having spent several years occupying different public offices.

Based on the pattern of arrest, “the police have clearly shown that they’re working for powerful authorities individuals,” Mr. Obono said.

But lawmakers say the Cybercrime Act is not to blame for the crackdown.

Mojeed Alabi, vice chairman of House Committee on Human Rights, said the law is necessary to check abuse of cyberspace by Nigerians.

“The essence of the law is to engender good behaviour on the Internet,” Mr. Alabi, APC-Osun State, said. “We have had to deal with several cases in which people put false information on the Internet for the purpose of blackmail or revenge.”

The lawmaker said abuse by authorities is “a Nigerian problem” and not necessarily a manifestation of flaws in the law.

“The Constitution guarantees freedom of expression, so anyone who is illegally detained can get a lawyer to secure their freedom from the courts,” Mr. Akande said. “But we will not allow blackmail to stand.”

While most of the recorded cases, especially those involving public institutions, border on free speech, PREMIUM TIMES learnt of at least one case in which a suspect admitted wrongdoing and apologised.

The matter involved Seun Oloketuyi, publisher of entertainment blog Naija Hottest Gist, and Nnamdi Okonkwo, the CEO of Fidelity Bank.

Mr. Oloketuyi was arrested on August 25, 2015, over a publication that suggested an extra-marital affair which Mr. Okonkwo allegedly had with a female staff of the bank.

Mr. Oloketuyi regained freedom after Mr. Okonkwo withdrew the case from the Lagos Division of the Federal High Court on June 29, 2016. Days preceding the withdrawal, Mr. Oloketuyi had published a retraction and apology to Mr. Okonkwo in two national dailies, including THISDAY.

Mr. Oloketuyi declined to speak on the matter with PREMIUM TIMES, citing a non-disclosure agreement which his lawyers entered on his behalf with Mr. Okonkwo.

Media analysts widely hold that Mr. Oloketuyi’s arrest was the first publicly-known case under the Cybercrime Act.

Yet, rights advocates hold that extremely rare cases of wrongdoing should not be enough ground for authorities to continue implementing the Cybercrime Act on such a broad scale.

“Even if someone is guilty of libel or defamation, even if intentional, there are existing laws that that could be activated,” said Adeboye Adegoke, programme manager at Paradigm Initiative Nigeria, a public policy think-tank.

Mr. Adegoke said the pattern of cases and the manner with which they were discarded show that “the aim was not to get justice but to intimidate and suppress.”

“By its nature, cyberstalking is strictly a matter for the civil courts,” Mr. Adegoke said. “But what we have is people in privileged positions simply telling the security agencies to go after those with whom they disagree.”

Mr. Iroegbu’s ordeal appears to have shaped his subsequent reporting methods.

“I now spend most of my day fine-tuning any story I know could be critical to the government,” Mr. Iroegbu said. “In some cases, I just drop a story altogether for fear of backlash.”

Hours after Mr. Iroegbu’s story about alleged diabolical practices of Mr. Ikpeazu was published on Abia Facts’ website, the page crashed under a deluge of hits. But no story had come close to being as popular as that ever since because he has “toned down so much” that his audience has “started shrinking,” he said.

Mr. Adegoke said even though the Cybercrime Act was enacted using a democratic mechanism, it has been serving a purpose that has not been witnessed in Nigeria since the Protection Against False Accusations Decree.

Also known as Decree 4, the law was promulgated by the military junta led by Muhammadu Buhari in 1984. Several journalists were detained under the law, with many receiving long sentences for their stories.

But while the statutes under the military regimes only forbade works that were critical of the government or public officials, the Cybercrime Act was designed to protect all Nigerians, status notwithstanding.

“We can’t be using military tactics to enforce civil laws in a constitutional democracy,” Mr. Adegoke said.

‘STILL AN IMPERFECT LAW’ — INITIATOR

For Gbenga Kaka, a former senator who sponsored the Cybercrime Bill in 2014, the law was designed to be tested.

“Like every other law, the Cybercrime Act is not perfect and its subject to judicial rigour that will test its conformity with the Constitution,” Mr. Kaka, who represented Ogun East Senatorial District from 2011 to 2015, told PREMIUM TIMES Thursday.

“For the most part, the law addressed a lot of problems in the country, including the protection for every Nigerian from gruesome invasion of privacy, but that is not to say that we can’t amend controversial aspects of it that are prone to abuse,” he added.

EXPLORING A FAIRER LEGISLATION

Spurred by the alarming rates of arrests associated with the Cybercrime Act, the Netrights Coalition, a body of civil liberties advocates led by Paradigm Initiative, has approached the Federal High Court to challenge key sections of the law, especially its Sections 24 and 38.

Section 38 is equally frightening because it empowers security agencies to gain access to citizens’ private data with little checks for excesses, said Gbenga Sesan, a capacity development expert and executive director of Paradigm Initiative.

The coalition is also pushing a Digital Rights and Freedom Bill to address key shortcomings of the Cybercrime Act, urging the Nigerian parliament to expedite passage. The bill is expected to be debated by lawmakers this week.

Amongst the things Paradigm Initiative and its partners hope to achieve at the court is the confirmation of the legal status of Cybercrime Act. They hold that the law has not been gazetted and, as such, should not be used to prosecute citizens.

“We’ve made several efforts to verify if the law was gazetted, but no luck,” Mr. Adegoke said.

A gazette is the publication of a newly-signed law. While some lawyers hold that gazetting a new legislation is required as the final process in lawmaking; others see presidential assent as the final stage and a gazette merely to notify the public, which is why a lack of prior knowledge of a law cannot be admissible as defence.

2019 FEARS

Even though the courts have continued to decline sentencing anyone to jail for ‘cyberstalking,’ there are still fears that security agencies might deploy it against dissenting and critical voices as 2019 election nears.

Some bloggers say they would welcome a regulatory body that will supervise their activities if the government could guarantee fairness.

“We know getting the government to create another bureaucracy won’t be hard, but how do we ensure accountability from such body?” Mr. Iroegbu queried.

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