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Illegality of Malami’s order to prosecute Twitter offenders

By Adeola Oyinlade

I have read the statement credited to the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN where he was reported to have directed the Director of Public Prosecution to begin immediate prosecution of those who violate the Federal Government’s order suspending Twitter operations in Nigeria. 

I want to state in clear terms that such directive is illegal and unconstitutional. The executive order banning the operation of Twitter in Nigeria cannot override the 1999 Constitution of the Federal Republic of Nigeria as amended. 

In plethora of cases decided in Nigeria, the Supreme Court has held that before a crime can be committed, it has to be defined by the law validly enacted by the National Assembly or States House of Assembly with punishment described. By the Supreme Court decision in the case of Aoko v Fagbemi, the court held, inter alia, that nobody could be punished for an offence that was not part of our written laws at the time it was committed. The implication of the court decision in the aforementioned case is that a man may be punished for a breach of the law, but he cannot be punished for nothing else. In other words, powers can only be exercised in accordance with written law made by the lawmakers. The use of the Virtual Private Networks (VPN) by many Nigerians cannot amount to crime as of today in Nigeria.

Arrest and prosecution of Nigerian citizens for using twitter contravenes the grundnom which is the constitution of the Federal Republic of Nigeria. I humbly remind the office of the Attorney General of the Federation that mere directive from the government cannot take a place of law. 

The purported order if not quickly reversed, will lead to arrest of citizens who cannot be arraigned within the timeframe stipulated by the constitution in breach of their fundamental human rights at a time our courts are still under locks and keys due to the on-going strike embarked upon by judicial workers across the country.  

 The constitution is so supreme to the extent that any other law that contravenes its provisions shall be declared null and void to the extent of its inconsistency. However, in this case, we are talking of an executive order.   

I will like to add that the right to freedom of expression is one of those rights seen as very essential and fundamental to the development of a civilized society. It is the foundation for the enforcement of other rights, encroachment of which is made known by expression. A major determinant of nations respect for the rights of its people today is the extent to which they can express themselves.

*Oyinlade is a Nigerian human rights lawyer

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