Cybercrime Act 2015 is being used to harass journalists, says Ojedokun

Professor Olu Ojedokun is a lecturer at the Faculty of Law, Lead City University, Ibadan. In this interview with ROTIMI AGBOLUAJE, the don said the Cybercrime Act 2015 had been used as a cover to harass Nigerian journalists. He maintained that the law against defamation is sufficient for government officials who want redress.

There are concerns that the government wants to regulate the social media space. Do you think it is necessary?
Free speech is an essential requirement of a free and democratic society, but there are also limits placed on this. I must say that doing so would be contrary to Section 39 of the 1999 Constitution which guarantees the right to freedom of expression. We can’t fall back into the era of Decree 4 of 1984, which was the Public Officers (Protection Against False Accusation) Decree. The Decree made it a criminal offence to publish any article that brought the government or any public official into disrepute. Tunde Thompson and Nduka Iraboh of The Guardian Newspapers were unfortunate enough to fall foul of Decree 4 and were imprisoned. I am of the view that the laws of defamation and slander should suffice when government officials feel maligned or inaccurately portrayed. I remain unconvinced about the regulation.

Recently, there has been a plethora of arrests and detention of journalists under the Cyber Crimes Act. Some have argued that Section 24 (1) (b) of the Act conflicts with constitutional guarantees of freedom of expression. What is your view on this?
The section clearly criminalises cyberstalking as it relates to the following acts: Knowingly or intentionally sending a message that is offensive or obscene or menacing character or causing any such message or matter to be so sent. But it appears that the police have also used it as a cover to harass and unleash fear on the populace. It has been used to clamp down on investigative reporting in some instances and at other times to arrest people where the law of defamation and slander might have sufficed.

Let it be clear that you can’t defame people and yet be left without consequences. But at the same time, these are best left as civil liability rather than criminal. At this rate, there might be no space to place offenders if the spate of arrests and prosecutions continues at this pace.

Will the law of defamation be enough to take care of new developments in the social media space?
It should be sufficient for it. The law offers general, special, and punitive damages to those found to have been culpable. It’s a better and more effective way of dealing with these infractions.

It does appear like the Cyber Crime Act targets journalists, especially bloggers and online writers. What do you think?
The recent evidence indicates that this is the case, and one must ask what the government is afraid of. William Wallace holds that we owe a duty of constructive and open criticism: “to speak truth to power, not to hide our knowledge in obscurely erudite terminology, nor lose ourselves in scholastic word games, nor speak truth in secret only to each other.” The danger of the Act and the way it’s enforced is that it drives legitimate and constructive criticism into the secret places.

Notwithstanding that it was used in a draconian manner in the past, don’t you think that the wild and wide ways of using social media can cause some menace in society?
The recent arrest of the reputed journalist, who was in the process of investigating and fact-checking a claim of misappropriation of funds is evidence that the law tends to corrupt and will corrupt absolutely, to draw from the quotation of Lord Acton about power.

Do you support the idea of further amending the Cyber Crime Act? If yes, which areas do you think need such an amendment?
Yes, it should be amended to remove its attempt to regulate the media space but should concentrate on Internet fraud and so on. To check social media activities, it should be self-regulatory. In a free society, the government has a limited role in this. Some suggest that in the absence of adequate checks and balances in the system, there are bound to be abuses. I believe that’s what’s happening here.

Although increasing the emoluments of judges is important in checking graft, critics said if judiciary staff are not considered in the increment, it will hinder the effort. What do you think?
The judiciary staff are very important to the smooth and effective running of the judiciary. We must also note that the judiciary is a function of society. It emanates from the larger society. The appointing process of judges is even as important as the emoluments. The right people must be appointed. Becoming a judge doesn’t bestow a toga of honesty suddenly.

Stakeholders are unhappy with the system of appointing relatives of principal judicial officers like the CJN and President of the Court of Appeal, to the bench amid complaints of poor welfare of judges. What does this portend?
Well, the system needs to be reformed to be better, which will ensure more power is granted to an independent body in terms of appointing judicial officers. We need a system that is and appears to be more credible. We need innovation, which will see more in academia and those in corporate practice being appointed to the bench.

Remember, Prof Teslim Elias was Dean of the Faculty of Law, University of Lagos and Attorney-General, when he was appointed the Chief Justice of Nigeria. In the past, flexibility allowed the appointment of giants like Dr. Augustine Nnamani, Akinola Aguda, Professor Owoade, and so on.

What form of reform do you want to see in the judiciary?
The Supreme Court is burdened with so many unnecessary cases. Only constitutional disputes should go before the apex court.

Does a federation like Nigeria need the National Judicial Council (NJC)?
We certainly need an NJC with a little tinkering, such as removing the CJN as the chairman.

So far, what is your assessment of the EFCC under Ola Olukoyede?
They have been proactive and courageous but need to do less talking to the press. I’m not impressed with the targeting of ‘spraying of naira notes.’ This is a habit I abhor, but I am very much aware it is rooted in our culture. The priority of the EFCC must be political corruption and not petty-scale corruption.

So, what is the best way the anti-graft agency can deploy to enforce the relevant sections of the CBN Act 2007 regarding spraying of Naira?
It goes against our culture. While it’s insane and obscene to be spraying in this economic climate, I dare say if it’s done privately, it should not be criminalised.

The way the EFCC handled the Yahaya Bello arrest drama has come with a mixed bag of reactions. What is your take on the whole drama?
The agency misfired and allowed the ex-governor to control the narrative. It was sloppy in not appealing decisions timeously. It needs to beef up its legal team, and Nigerians deserve better than we are currently getting. I am sure it has been learnt from this experience.

How can the country curb the incessant jailbreaks?
This appears to be a function of compromises within the system and overcapacity in our correctional facilities. Investments in training, infrastructure, and review of the pay of correctional officers will also help. I was once appointed a prison officer in England with an equivalent salary of £30,000 as an entry point. I did not take up the role, but imagine what would happen if we found ways of incentivising ours here?

Some have made a case for the review of Nigeria’s law curricular. Which area do you think is expedient for a review?
I think we need to be more innovative in the classrooms, bringing in more clinical legal education. Recently, at the Lead City University, my colleague, Mrs. Ebun Aina and I simulated a company’s yearly General Meeting with our class to teach them Company Law. In Administrative Law, I take them onto the campus roads with a car and use the speed breakers to teach them that our power is restrained and restricted in societies where you have the rule of law.

In the law of Insurance, to demonstrate the uttermost good faith, I experimented with sending them to fetch ‘Arodan’ (the endless errand for the troublesome) so that they understand the concept better. My university’s Pro-Chancellor, Prof Jide Owoeye, is my greatest cheerleader in my attempts to bring creativity and innovation into the classroom.

So, the entire university curriculum must be filtered through clinically. Interestingly, I’ve written, at least, one textbook on this subject matter and published a few academic articles.