Legal Analysis of Government’s Plot to Disrupt Telecommunication Services in Nigeria
There is this 2-day old rumor trending in Nigeria that the government has concluded arrangements with telcos to shut down Blackberry and Internet services in order to prevent people from protesting against an unpopular policy on fuel subsidy removal. I got wind of this development early yesterday and I have taken my time to verify the claims. Lots of people have asked me about the implications that could derive from such an action. I shall be looking at some of the issues that come into play in this scenario.
True or False?
First, the news seems to be lacking any authoritative source. The only media endorsement I got was from Sahara Reporters. The fact that Sahara Reporters have a history of antagonizing the Federal Government and promoting untruth and falsehood about the government or the ruling party made me take the news with a pinch of salt. In fact, it was a certain Ogundamisi that first tweeted this “allegation”. And from there on, it spread like wild fire and is making waves now.
There are a few implications to this development, if it is true. From a constitutional perspective, such a move will be tantamount to an abrogation and deprivation of our freedom of expression. This fundamental freedom is sacred and cannot be tampered with. It is an inalienable right. The legal framework of this right is as provided for in our constitution, Section 39. The section provides that
39.(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
But what we should note here is that the duty imposed on government is to ensure that you are free as an individual to express yourself. They have no duty to restrict, or provide, a means of expression. In fact, subsection 2 provides that if you are not satisfied by the available means of expression and you want to own a broadcast station, once you comply with government regulations, you have such right.
This is where this whole story becomes relevant. There is a powerful exception in subsection 3, as it relates to telecommunication companies. It provides that
(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society –
(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(b) ….. (emphasis added)
Thus, where a breach of your freedom of expression will result by a government action that purports to “regulate telephony or wireless broadcasting”, as is the case under review, what government is simply saying is you should use alternative modes of expression as they are immunized from liability. You may shout your lungs out, they will not disturb you. You may even print pamphlets and distribute fliers as you desire, so long as nobody is defamed and you are not propagating slander.
Alternative Means of Communication
As I stated earlier, the government has not by this action restricted expression totally. It has only told its citizens to seek alternative means of expression. The radio and television services are untouched, and peaceful protests can still be carried out. In fact, I posted a Police Protest video on my Facebook wall courtesy of “Revolution Nigeria” showing over 300 policemen also protesting against the policy (although their actions can also be constitutionally restricted unquestionably by an executive fiat). See below
Where does government derive the authority to derogate from freedom of expression? Section 45 of the same constitution, provides that
45.(1) Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.
Note that freedom of expression is provided for under Section 39. Thus, government can safely hide under the guise that it was necessary to prevent spread of communication through a certain means in the interest of defence (which may mean anything from self defence to defence of property, and perhaps defence of policy?), public safety and public order (which does not necessarily exclusively mean war times), public morality (the morality of those who support the subsidy removal policy) and so on. In fact, these protests are infringing the rights and freedom of others who support the policy.
This important exception allows government to restrict your right to speak at all, as it is not tied to regulations of telcos.
So I ask, “Do we have a right to express ourselves in Nigeria under our (un)democratic constitution?” I answer, “No!”.
It has been argued that such an action is babaric and uncivilized. In fact, Egypt comes first to mind, every time such a government directive is contemplated. In the interest of general consumption, it was the Mubarak government that most infamously in January 2011 totally shut down all communications system in Egypt during the popular uprising that eventually ousted him out of power. But is this behaviour really undemocratic? Better put, does it happen in a civilized society?
Our model of civilization, or democracy, is the United States. In the August 13 2011 post of PCMAG, a similar action was reported to have happened in San Francisco. People had the intention to protest a police brutality at the subway and the authority gallantly “turned off cellular service”. They bragged about it subsequently.
Can the telcos stand on the side of the people and refuse to carry out such an order? It seems like it would amount to a breach of contract.
Although I do not have it on any authority (I know this of a fact that in Egypt), the MoU signed by Telecommunication Companies when they expand into new territories usually includes a clause that gives government authority to direct them to cease service delivery. This would be in line with the constitutional provisions as elucidated above. And I assume it is standard practice.
Does the government have the ability to carry out this directive by itself? I would think so. The NCC “is supposed” to have a “root” or directory where all connections in Nigeria are controlled from. Thus, it “should” be possible for the government through the NCC to pull the switch on telecommunications.
However, I doubt the technical ability of the Nigerian Communications Commission to maintain such a directory, and thus I strongly doubt if they can pull the plug on telecommunications in Nigeria themselves. Even in Egypt, the government was unable to force Noor to shut down its services, and throughout the shutdown period, Noor was still providing telecommunications services to Egyptians, although they serve a negligible minority of users.
Will it Work?
I do not pretend to know the answer to this question. The rate of Internet penetration and reliance of Nigerians on cyberspace for communications is alarmingly high. The bulk of the elites and literates who vigorously oppose this policy are Netizens. The most popular mode of disseminating awareness about the situation and mobilization for mass protest has been through cyber gadgets, made possible by most popularly by blackberry broadcast messages (very annoying spim), Facebook and Twitter. The number of Nigerian pressure groups formed on Facebook alone is large and they have a large followership. Our president is perhaps one of the top 3 most popular Facebook presidents and he receives consistent barrage of insults on his page from citizens who either distrust his policies, are not convinced or impressed by his leadership style or are incited by political differences. Surely, if Facebook is taken out of the way, a lot of people will find communications difficult.
How Nigerians connect to the Internet is another thing to consider. Over 80% of Nigerians connect through their cell phones. Thus, a denial of service by telcos will efficiently shut Nigerians out of the Internet.
Whether it will effectively stop the protests is another question entirely. It surely will not stop people from mobilizing, although it will make communications more difficult. It may also successfully restrict the protests to a few areas like Lagos where elites reside and opposition to the central government is rife, thereby preventing multiple protests which could have happened if protesters get the chance to communicate their success and progress to other parts of the nation.
On a number count, however, it may sound stupid but clever. The total population of Nigerians connected to the Internet is not up to a third of the total population of the people in the country. Thus, it is stupid in that it will not restrict a significant number of people. But considering that the people who are leading and are actively interested in the protests rely heavily on infotech, it will effectively affect a number of significant people. Depending on which you decide is more profitable, it is either here or there.
Will Government do it?
I leave the political implication and the will of government to take such an action to political analysts. But from my understanding of this present regime, I doubt if this plan is being considered by government in the first place for several reasons. One, government agents also use these telecommunication services to spread the government part of the story. So, they will be doing themselves a disservice to consider this step.
Two, this will be a drastic legitimacy move for a government that is far from popular. It would not want to invoke the wrath of the youth, which is already nearing a boiling point.
Three, the inability of government to take firm and decisive decisions in recent times has made everyone to term this government as weak. I doubt if this will be the kind of show of strength the government would be considering.
Finally, everyone knows our President is a lover of telecommunications. He is the first President to create the Ministry of Information Technology. Such an action will be contrary to everything he believes in.
Effect on Government
Let us not forget that it is still a mere speculation. However, while this alleged plan of the government is condemnable, it is excused by the Constitution. The government will not be subject to liability, no doubt, but will loose its democratic face and legitimacy.
Right or Wrong?
I have attempted to avoid this question severally. Any deprivation of free speech cannot be right, even if legal. The fact that there is such a loophole in our constitution says a lot about what kind of democratic system we operate. Much have been said about that “document” and I will not over flog the issue here or beat a dead horse. However, this is another aspect I implore the legislature to look into when subsequently amending (or altering) the constitution.