Nigeria Fails to Guarantee Human Rights for Marginalised Groups

By Babatunde Okunoye and Ashnah Kalemera |

With a population of over 190 million, Nigeria is Africa’s largest telecommunications market, boasting more telephone and internet users than any other country on the continent. Over the past 20 years, the country has transitioned from a military regime to a relative democracy, albeit with human rights challenges,  especially for marginalised populations and increasingly, in the online sphere.

With an internet penetration of 27%, millions of Nigerians have flocked online to communicate and express themselves in ways not possible during the decades of military rule. The internet and social media have become effective vehicles for channelling citizens’ criticism of government, and have also enabled journalists to quickly report and disseminate stories on corruption and poor service delivery.

However, the vigorous online activity of Nigerians has been met with stiff resistance from the political elite. Although sections 38 and 39 of the Nigerian Constitution guarantee freedom of thought and expression, a number of laws restrict free speech. Among them is the 2015 Cybercrime (Prohibition, Prevent) Act. Section 24 of this law which speaks to cyber-stalking is a major instrument for the prosecution of bloggers, journalists and critical voices online.

Similarly, sections 52 and 60 (chap. 7) of the Criminal Code provide that slander, libel and defamation are criminal offences punishable by imprisonment. Accusations of libel are used by state authorities against journalists and bloggers for critical or “negative” reporting. Meanwhile, although the Constitution guarantees the privacy of citizens’ correspondence, Nigeria has no specific legislation that protects data privacy of citizens offline and online.

As a United Nations (UN) member state, Nigeria underwent the third cycle human rights assessment under the Universal Periodic Review (UPR) mechanism during the 31st session of the Human Rights Council in November 2018. In its national report, the Nigeria delegation noted the development of a Cyber Security Strategy with key components on data protection and privacy. It added that the country was in the process of finalising a national action plan on business and human rights “in response to the call by the United Nations to address the negative impact of business on human rights.”

During the session, Nigeria went on to receive a total of 290 recommendations regarding human rights protection at legal and institutional level. Whereas digital rights including the right to privacy and the right to freedom of opinion and expression online were not reflected in the recommendations made to Nigeria, five from Australia, Italy, Canada, Ireland and Chile relating to freedom of association, expression, and privacy are implicitly relevant to the online sphere. Nigeria also received up to 14 recommendations on equality and non-discrimination, with regards to women and sexual minorities, which are relevant to internet freedom.

These recommendations echoed those in previous reviews  that remained largely unimplemented, with the internet freedom landscape characterised by censorship, arbitrary detentions and arrests of journalists, bloggers and citizens for comments made online. Obtaining access to public information also remained a challenge, as did access and affordability to the internet. Read more about UPR and internet Freedom in Nigeria under cycle one and two and recommendations submitted  by the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), Small Media, and Paradigm Initiative

In March 2019, Nigeria went on to accept 240 of the 290 recommendations. It is reported that the Nigerian delegation stated that they did not support recommendations on rights of sexual minorities, on the grounds of being “against national values”. Provisions under section 4 of the Same Sex Marriage Prohibition Act prohibit the “registration of gay clubs, societies and organisations” as well as “the public show of same sex amorous relationship directly or indirectly”. If found guilty, the penalty is 10 years imprisonment.

As internet freedom advocacy in Nigeria continues, including via the push to pass the revised Digital Rights and Freedom Bill, and implementation of the recommendations from the 31st session of the Human Rights Council in preparation for Nigeria’s next UPR in November 2023, it is imperative that efforts emphasise the need for freedom of opinion, expression, association and assembly, online and offline, to be realised for all segments of society – including religious, ethnic and sexual minorities.

#KeepItOn: Nigeria Urged to Ensure Online Communications Remain Accessible During Elections

By Juliet Nanfuka |

The Collaboration on International ICT Policy in East and Southern Africa (CIPESA) has joined the #KeepItOn coalition in urging the Nigerian Authorities to ensure that access to digital communications remains open before, during and after the elections which take place on February 16, 2019.

The call implores the state to reaffirm its commitment to keep the internet during this critical political time. It also notes that a shutdown down could cost the country an estimated $134,251,654 per day in direct economic costs, and impact on the realization of economic, social, and cultural rights broadly.

Disruptions to online communications contribute to economic impacts which persist far beyond the days in which access is disrupted due to systemic effects which harm efficiency throughout the economy. Internet shutdowns, however short-lived, undermine economic growth, and erode business confidence as global and national perceptions on the offending country are also affected.

Framework for Calculating the Economic Impact of Internet Shutdowns in Sub-Sahara Africa

Meanwhile, concerns of a shutdown have remained among citizens, leading to information being shared on how to stay online in the event of a network disruption.

Increasingly, disruptions to communications have occurred around election times and during public protest often related to the political regime.  Among some of the cases  include  Equatorial Guinea which in November 2016 blocked access to the internet and to opposition websites ahead of a nationwide election; Uganda also in 2016, blocked access to social media sites and mobile money transactions on two occasions due to election related events; while that same year, Gabon blocked social media access and also imposed a curfew on internet access following widespread conflicts disputed presidential election results. Last year, Togo interrupted communication following public protests against President Gnassingbe, whose family has ruled the country for over half a century. At the start of this year, DR Congo blocked access to “preserve public order after ‘fictitious results’ started circulating on social media.”  

See the joint letter on keeping the internet open and secure here.

How Nigeria and Uganda are Faring on the Right to Information

By Tomiwa Ilori |
Transparency and accountability in governance are key tenets of participatory democracy. To this end, Sweden was the first country in the world to introduce a right to information (RTI) law back in 1766. Finland followed in 1919, and to-date, over 100 countries across the world have enacted laws that give citizens the right to access information in the hands of government.
In Africa, 21 countries have passed Freedom of Information (FOI) laws, while 16 have proposed laws. Most countries have constitutional provisions for the right to information, pursuant to obligations under various international and regional instruments. These include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights and the Declaration of Principles on Freedom of Expression. A model law on access to information for Africa was prepared by the African Commission to serve as a template and encourage more countries to adopt legislation embodying international, regional, and sub-regional standards.
Meanwhile, there have been regional efforts to ensure citizens’ realisation of the right of access to information. Civil society organisations together with the African Union and African Commission on Human and Peoples’ Rights adopted the African Platform on Access to Information Declaration in 2011. There was also the Midrand Declaration on Press Freedom in Africa in 2013 which recommended that African countries take up open governance culture through access to information laws. However, the reality for most countries is that information requests are routinely refused or ignored, with citizens sometimes turning to the courts in order to access information in the hands of government.
Nigeria passed its freedom of information law in 2011. Under the Act, public institutions and “private companies utilising public funds, providing public services or performing public functions” are mandated to make public records and information freely available, guarantee citizens’ right to be duly informed of facts relevant to them and maintain records of all activities, operations and businesses. Without specifying whether its calendar or working days, the law provides for a response time to information requests of seven days. This may be extended if the request involves a large number of records or consultations have to be made. Proactive disclosure is also provided for under the law. Information exempt from disclosure includes that related to international relations, defence, law enforcement and investigations. Wrongful denial of information is an offence under the Act, punishable with a fine of Nigerian Naira 500, 000 (US$1,400).
The Attorney General of Nigeria is mandated to collate information on implementation of the Act based on information from the various government entities. According to statistics from the official FOI website, the number of requests made by citizens is on the decline. In 2013, 1,183 requests were recorded, of which 48 were denied. The following year, requests dropped by three quarters to 314, 35 of which were denied. Requests further dropped in 2015 to 217, of which 36 were unsuccessful. Figures for subsequent years are unavailable but denial of access to information remains prevalent.
In a May 2018 case, a human rights lawyer was denied information on fuel imports by the Nigerian National Petroleum Corporation (NNPC). The corporation argued that it was established “by law to manage the commercial interests of Nigeria in the oil and gas sector of the economy and conduct trade therein”, and was therefore not a public institution within the meaning of the Freedom of Information Act.
The following month, a Nigerian court denied an access to information request for details of the President Muhammadu Buhari’s medical bills. The request was filed to the Central Bank of Nigeria by the Advocacy for Societal Rights Advancement and Development Initiative (ASRADI).
Some cases of denial have compelled requesters to seek orders for disclosure. For example, the Nigerian Contract Monitoring Coalition initiated a court case and succeeded in compelling the Power Holding Company of Nigeria, the Electricity Distribution Company Plc and the Nigerian National Petroleum Corporation to release information, which had initially been denied.
Courts have also set precedent in proactive disclosure by public institutions. In February 2014, a Federal High Court ordered the National Assembly to make its financial records accessible to members of the public through the provisions of the Freedom of Information Act of 2011. This galvanised the #OpenNASS advocacy campaign. More recently, the Court of Appeal in the Akure Division, Ondo State, ruled that the Act is applicable across federal states. This has put to rest the debate as to whether States in Nigeria need to comply with the provisions of the Act.
The situation in Nigeria mirrors that in Uganda whose access of information law was passed in 2005 but challenges still persist. The law has remained largely unimplemented because many public institutions have a culture of secrecy –they rarely release information pro-actively and routinely ignore citizens’ requests for information. Where government information or data is available, it is often not in reusable formats. Likewise, most citizens are not empowered to make information requests due to ignorance of the law, thus undermining participation in civic engagements and governance processes.
Furthermore, implementation of the access to information law in Uganda is hindered by limitations to the bodies or organs to which information requests can be made – the law excludes private entities and civil society. Like Nigeria, information exempt from access in Uganda includes that related to privacy of an individual, defense, security, international affairs, legal proceedings and law enforcement. The response time for a request is within 21 days of receipt. Wrongful denial of requests is punishable under the Act with a fine of Uganda Shillings 4,800,000 (US$1,300) or imprisonment for three years or both.
User statistics from Uganda’s Ask Your Government portal show that since its launch in June 2014 to-date, 2,647 requests have been made to 106 agencies. Out of these, 231 are indicated as successful and 40 unsuccessful. With over 2,300 requests awaiting responses beyond the 21 days limit, the majority can be regarded as refusals pursuant to section 18 of the Access to Information Act (ATIA), 2005. The section states: “where an information officer fails to give the decision on a request for access to the person concerned within the period contemplated under section 16, the information officer is, for the purposes of this Act, regarded as having refused the request”.
Some Ugandan citizens have also opted to seek redress from the courts for denied requests. In 2009, two Ugandan journalists sued the government over failure by the Solicitor General to grant access to information regarding oil production, prospecting and exploitation agreements. The case was dismissed on the basis that a clause in those agreements provided for confidentiality.
In a landmark case, on February 2015, a Chief Magistrate’s Court in Kampala ruled that the reasons for which information is requested or the belief about how it will be used “are irrelevant considerations” in determining government’s approval or denial of a request. The ruling came after the Hub for Investigative Media was denied access to information related to activities of the National Forestry Authority funded by the World Bank between 2009 and 2011.
Implementation of access to information laws in Nigeria and Uganda shows that there is a lot to be done with respect to giving life to the existing legislation. Some of the ways through which the policy and practice gaps can be overcome is through records digitisation in all public institutions. This will not only help to save time in operations, it will also help with efficient record-keeping, search, retrieval and disclosure. Equally, translating freedom of information laws into local languages will help raise awareness on the rights of citizens and the obligations of duty bearers which will go a long way in realising the objectives of the FOI laws. Implementation of the laws can also be fast-tracked through compliance reporting to parliament by state institutions.
Ultimately, the experiences of Nigeria and Uganda show that courts are proving to be a means of recourse, and if effectively utilised, have the potential to set national and even regional precedent to make it easier for citizens to exercise the right to information.

Open letter to the Nigeria Senate on the “Social Media” Bill

By Civil Society |
An open letter has been delivered to the Nigeria Senate President stressing concerns over the Frivolous Petitions Bill which has provisions which threaten the use of social media in Nigeria.

Distinguished Senators,
We are a coalition of Nigerian, African, and international organisations writing to you about the proposed Frivolous Petitions (Prohibitions, etc) Bill that has provisions for social media regulation. We believe that the bill is a dangerous encroachment upon free expression and we urge you to reject it from further consideration. The use of social media is a mainstay of free expression in the digital age, and criminalising its use under the guise of “frivolous petitions” will adversely impact human rights while violating the principles underpinning Nigeria’s own constitution.
Background and relevant law

The bill, introduced by Senator Bala Ibn Na’Allah, is officially called “An act to prohibit frivolous petitions; and other matters connected therewith,” and has been nicknamed “Social Media Bill” by concerned citizens. The bill requires any person submitting a petition to the government to have an accompanying affidavit. This requirement would harm government transparency, making it more difficult, and costly, to complain about public services or graft. However, the bill goes much further. Section 3(4) states:

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 / or 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 2 years or a fine of N2,000,000 or both such fine and imprisonment.

Nigeria’s constitution provides strong free expression protections (Art. 39). Furthermore, Article 66(2) of the Revised Treaty of the Economic Community of West African States stipulates protections for the press. The African Charter on Human and Peoples’ Rights, which Nigeria has ratified, also guarantees the right to freedom of expression (Art. 9). These protections were reaffirmed in the 2014 judgment in the case Lohé Issa Konaté v. Burkina Faso finding that imposing criminal penalties for defamation fails to comport with Nigeria’s obligations. Internationally, free expression is protected under Article 19 of the International Covenant on Civil and Political Rights, and the United Nations (UN) has specifically stated that the right to free expression applies to the online world — including social media platforms. In 2011, then UN Special Rapporteur on freedom of expression Frank La Rue specifically called for decriminalizing defamation.
The bill violates Nigerian law and international law

The bill’s overbroad language would have a chilling effect upon free speech online. A user cannot be sure how to comply with the law, or know whether their posts are intended to “set the public against” an undefined group or the government. At the same time, the bill is illogically specific, and does not justify its targeting of WhatsApp, a private messaging application, and Twitter, a microblogging platform. In this way, the bill criminalizes defamation against individuals or groups, as well as dissent against the government, with wholly vague and disproportionate restrictions that do not strictly pursue legitimate purposes.
The bill also presents unbalanced and short-sighted policy calculations. This bill cuts against Nigeria’s spirit of openness and support for a vibrant free press and an innovative internet ecosystem. Journalists would be at risk of criminal penalties for reporting on public officials, silencing a crucial tool to combat corruption and encourage accountable governance. Already the continent’s largest economy, Nigeria has 15 million Facebook users, and its technology sector is rapidly expanding. This restrictive law will only harm innovation and deter investment.
We also note that this is not the only legislation that criminalises free expression in this way. The unrelated Cybercrime Act of 2015, now in force, imposes strong penalties (3 years in prison or N7 million) in the name of security under sections 24(a) and 24(b), again violating the right to free expression.RecommendationsWe were encouraged by President Muhammadu Buhari’s indication that he will not support a law that violates free speech, and by the statement credited to the House of Representatives that they will not do anything to close the space for free speech. We also remind you that civil society groups have drafted the Digital Rights and Freedom Bill, a forward-looking proposal that will promote human rights while enabling Nigeria to thrive economically in the digital age.
Specifically, we urge you to:
  • Reject the Frivolous Petitions Prohibition Bill (aka “Social Media Bill”) in its entirety
  • Ensure that, should the Senate choose to continue with the process of considering the bill, the required public hearing before the third reading of the Social Media Bill is announced publicly and enables full civil society input and participation
  • Amend or remove the penalties under Section 24(a) and 24(b) of the Cybercrime Act of 2015
  • Support the Digital Rights and Freedoms Bill, as a guarantor of human rights in the digital age.

We are available to meet with you about this matter at your earliest convenience.
Access Now
Association for Progressive Communications
Centre for Information Technology and Development
Civil Society Legislative Advocacy Centre (CISLAC)
Collaboration on International ICT Policy in East and Southern Africa (CIPESA)
Committee to Protect Journalists
Electronic Frontier Foundation
Enough is Enough Nigeria
Freedom House
International Service for Human Rights
Internet Sans Frontieres
Media Rights Agenda
Paradigm Initiative Nigeria
PEN International
PEN Nigeria
Rudi International
Social Media Exchange (SMEX)
Web Foundation
West African Journalists’ Association
Zimbabwe Human Rights NGO Forum

South Africa Bill Threatens Internet Freedom

By Juliet Nanfuka |
South Africa’s Cybercrimes And Cybersecurity Bill (2014) has been met with apprehension among civil society due to its vague definitions, its limited safeguards for access to information and freedom of expression. In many ways, it resonates with the equally stifling Draft Online Regulation Policy gazetted in March 2015, which contains clauses that have the potential of blocking online content including films, games and certain publications.
Civil society welcomed the invitation by the Department of Justice and Constitutional Development to provide comment to the draft document. However, concerns have been raised across the board including by the Interactive Advertising Bureau South Africa on the grounds that the bill “broadens the definitions of copyright and creates requirements that do not exist in current copyright law.”
The Association for Progressive Communications in their submission stated that the bill does not make sufficient distinction between unlawful intention and a lack of intention by an internet user, such as an inexperienced internet user downloading illegal malware, but being ignorant of this fact. According to APC, given the low levels of digital literacy in South Africa, this is an important concern. it also noted that the Bill lacks a clear perspective on the culpability of minors and the evolving capacity of minor.
The Right2Know campaign in their comments  pointed out that the bill gives the state excessive authority by granting “the power to declare any data, database, device, network, infrastructure – publicly or privately owned – to be a ‘National Critical Information Infrastructure.’”
Many clauses in the South African Bill are similar to clauses present in a spate of bills that have emerged in East Africa.  In Part V of the Kenya Security Laws (Amendment) Act 2014, the surveillance capabilities of the Kenyan intelligence and law enforcement agencies are expanded without sufficient procedural safeguards. A similar stance is present in the Tanzania Cybercrime Act (2015), which was signed into law with limited public review. The Act makes no indication on the rights the users have of their data nor how it is protected once in the hands of the state, putting citizens’ data at risk especially in the absence of a data privacy and protection law.
Meanwhile in Nigeria, the controversial Social Media Bill was met with criticism as it “completely negated important international conventions to which Nigeria was a signatory”. The Partnership for Media and Democracy in Nigeria (PAMED) raised the concern that “the bill constitutes a threat to democracy because it seeks to repress the social media, the conventional media, the civil society and the citizenry as a whole.”
A recurring theme across many of these new legislations is the continued attempt of states to muzzle opinion of the media, independent social commentators (popular bloggers) and various other non-state actors who are involved in the promotion of freedom of expression, accession to information, increased state transparency and accountability.
Further, the contradictory nature of the new and proposed laws with existing legislation compromises the security and privacy of citizens and their data and leaves gaps for the abuse of internet rights as prescribed in the African Declaration of Internet Rights and Freedoms  remain largely ignored.