Incorporated Trustees v Nigeria

• Judge: Atoki,Bangura,Costa
• Judgment Date: 10 July 2020
• Court: Court of Justice of the Economic Community of West African States
• Docket Number: (Judgment No ECW/CCJ/JUD/16/20)

In corporated Trustees of Laws and Rights Awareness Initiatives

and

Federal Republic of Nigeria1 1

(Atoki, President; Bangura and Costa, Judges)

(Judgment No ECW/CCJ/JUD/16/20)

Court of Justice of the Economic Community of West African States

Human rights — Freedom of expression — Freedom of the press — Legal restrictions limiting freedom of expression — Penal sanctions in laws which limit freedom of expression — Whether Section 24 of Cybercrimes Act 2015 violating Article 9(2) of African Charter on Human and Peoples' Rights, 1981 and Article 19(3) of International Covenant on Civil and Political Rights, 1966 — Whether Nigeria violating applicant's right to freedom of expression

Relationship of international law and municipal law — Treaties — Human rights treaties — Treaty obligations — Cybercrimes Act 2015 — Compliance of Nigeria's cybercrime law with regional and international treaty obligations — African Charter on Human and Peoples' Rights, 1981, Article 9(2) — International Covenant on Civil and Political Rights, 1966, Article 19(3) — Revised Treaty of the Economic Community of West African States, 1993 — Whether Nigeria violating applicant's right to freedom of expression

International tribunals — Jurisdiction — Community Court of Justice of Economic Community of West African States — Admissibility of application — Whether Court having jurisdiction to examine domestic legislation of ECOWAS Member States — Whether allegation of human rights violation — Whether Court competent to examine the cause

Summary:2The facts: — The Incorporated Trustees of Laws and Rights Awareness Initiatives (“the applicant”), a non-governmental organization, brought an action against the Federal Republic of Nigeria (“the defendant”)

regarding its implementation of Section 24 of the Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (“the Act”).3 The applicant alleged that the provision had been used to intimidate, harass, orchestrate arbitrary arrests, jail and torture its members and associates, in violation of their fundamental right to freedom of expression, as provided in Articles 14 and 9(1) and (2) of the African Charter on Human and Peoples' Rights (“the African Charter”)5 and Article 19 of the International Covenant on Civil and Political Rights, 1966 (“the Covenant”).6 The applicant asserted that the disputed section of the Act contained vague and ambiguous concepts, and did not establish parameters which allowed individuals to regulate their conduct in accordance with the law, enabling the arbitrary application of the provision. The applicant argued that the provision was not established by law and did not pursue a legitimate objective. The applicant also maintained that the sanctions provided by the section were disproportionate and unnecessary, and did not constitute reasonably justified restrictions on the right to freedom of expression.

The defendant asserted that the Act conformed with Articles 1 and 9(2) of the African Charter, as it was passed through legislative measures and approved by a democratically elected President. The defendant also denied engaging in the arbitrary use of the Act in any manner which violated the freedom of expression and press legally guaranteed by the 1999 Constitution of the Federal Republic of Nigeria (as amended), the African Charter and the Revised Treaty of the Economic Community of West African States. The defendant maintained that the contested section dealt with acts considered illegal, as they invaded the rights of others, and emphasized that the Act provided restrictions permitted by law and was adopted with the objective of respecting the rights and reputation of others.

The defendant argued that Nigeria, as a Member State of the Economic Community of West African States (“ECOWAS”), could make laws for public security, public order, or to protect the rights and freedom of others. The defendant questioned the Court's jurisdiction to examine its national legislation, asserting that the applicant's petition was a request for the Court to interfere in the domestic laws of a Member State.

Held: — Section 24 of the Act violated Articles 9(2) of the African Charter and 19(3) of the Covenant. The applicant had not proved that the right of its members, associates and employees to freedom of expression had been violated by the defendant State.

(1) The Court was competent to examine the case.

(a) The case was based on the alleged violation of rights protected by provisions of the African Charter and the Covenant, legal instruments ratified

by ECOWAS Member States, including the defendant, which bound them and imposed on them the duty to respect and protect the rights contained therein. Based on Article 9(4) of the Supplementary Protocol (“the Supplementary Protocol”),7 the Court's jurisdiction could not be called into question when the facts claimed related to human rights (paras. 47–58).

(b) The Court's competence to decide human rights cases implied that, in the exercise of its jurisdiction, it had the power to examine the root cause of violations to establish whether they were contrary to the provisions of international human rights laws on the freedom of expression. The Court was competent to examine the domestic legislation of a Member State under which an allegation of human rights violation fell (paras. 59–68).

(2) The applicant was a non-governmental organization duly constituted in accordance with the national law of a Member State; it could take legal action on behalf of victims regarding human rights violations. In addition, the applicant was litigating in the public interest on the basis of alleged rights violations committed against its members and associates and did not need to demonstrate the existence of a specific mandate by the victims. Pursuant to Article 10(d) of the Supplementary Protocol and the Court's previous jurisprudence, the applicant's action was admissible (paras. 69–85).

(3) (a) Although Article 19 of the Covenant protected all forms of expression and their means of dissemination, nevertheless the right to freedom of expression entailed special duties and responsibilities. Article 19 also set out the specific conditions under which restrictions were to be imposed. Article 9 of the African Charter referred the exercise of the right to the legal system of States Parties by stipulating that the exercise of the right to freedom of expression must occur “in accordance with the law”. The United Nations Human Rights Committee's General Comment No 34 on Article 198 also emphasized that the imposition of restrictions on the freedom of expression by a State was not to undermine the right itself (paras. 86–113).

(b) From this analysis, and Article 27(2) of the African Charter, the right to freedom of opinion and expression was to be exercised within the framework of the law, and with due respect for the rights of others, collective security, morality and common interest. The right to freedom of expression was not absolute, and it was for Member States to define the conditions for exercising it. However, to avoid being in contravention, such a law restricting the freedom was not to be arbitrary; it had to be predictable, reasonable, proportionate and pursue legitimate objectives (paras. 114–20).

(4) The restrictions on freedom of expression contained in Section 24 of the Act were established by law and formed part of the Act governing cybercrime in the defendant State. Laws, however, had to be formulated with

sufficient precision to enable individuals to adapt their conduct and allow those responsible for enforcement to determine the forms of expression legitimately restricted, and those unduly restricted. Any law which did not define the elements of the crime typified could not pass the test of legality and by its nature would be arbitrary.

(a) The expression “gross offense” contained in the impugned provision was vague and subject to varied interpretation, as were some other expressions in the Act. Nevertheless, considering the margin of appreciation enjoyed by a State in the definition and prohibition of certain conduct which it qualified as crimes in its national legislation, and taking into account that the interpretation of the aforementioned provisions occurred within the scope of a current criminal legal system, Section 24 of the Act provided adequate information to enable individuals to adapt their conduct accordingly; it met the requirement stipulated in Article 9(2) of the African Charter (paras. 131–6).

(b) The objectives pursued by the provisions of Section 24 of the Act were legitimate since they fell within the motives provided for in Articles 27(2) of the African Charter and 19(3) of the Covenant. They were aimed at safeguarding due regard to the rights of others, collective security, morality and common interest (paras. 137–41).

(c) The defendant State, while alleging the need to place restrictions on the freedom of expression to protect the rights of others, established punitive measures for conduct it considered offensive, through high penalties of fines and imprisonment. Such provisions were not necessary in a democratic society and violated the right to freedom of expression guaranteed by Articles 9(2) of the African Charter and 19 of the Covenant (paras. 142–65).

(5) The applicant had not provided evidence that the right to freedom of expression of its members, associates and employees had been violated, or proof that the violation was motivated by the interpretation and application of provisions of the impugned law made by agents of the defendant State (paras. 166–84).

(6) The defendant State was to repeal or amend Section 24 of the Act, in accordance with its obligation under Article 1 of the African Charter and the Covenant. The remainder of the applicant's claims were dismissed (paras. 185–7).

The following is the text of the judgment of the Court:

REPRESENTATION OF THE PARTIES

1. On behalf of the Applicant:

Olumide Babalola...