BEING A PRESENTATION BY GLORIA MABEIAM BALLASON ESQ AT THE MEDIA DEFENCE SUB-SAHARAN AFRICA LITIGATORS CONVENING, JOHANNESBURG, SOUTH-AFRICA, AUGUST, 2023.
Freedom of speech has been recognized in international, regional and national laws as fundamental to individuals and democracy.
Where freedom of speech and free press are not upheld, lies and misinformation contend with truth.The rights are relevant even in the Military where the norm is obedience before complaint because usurping the right to free speech can be lethal to both the violator and the violated. If humans are to be precluded from offering their sentiments on a matter – which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and, dumb and silent we may be led, like sheep, to the slaughter.
A world without freedom of speech is a world of slavery and tyranny.
Some proponents have argued that freedom of speech is freedom to learn as all education is continuous dialogue of questions and answers. The Nigerian Court for instance, upheld this argument in 1981 in the Archbishop Olubunmi Okogie V. Lagos State case where the Plaintiff, whose school was confiscated by the Lagos state government, argued that his right to expression through the impartation of learning and the exchange of ideas were violated when the state confiscated his schools. The Court upheld his arguments and entered judgment in favour of the Plaintiff.
ARE GOVERNMENTS AND CITIZENS AT CROSS PURPOSES ON THE RIGHTS TO FREE SPEECH & FREE DIGITAL EXPRESSION?
Let us examine some pivotal international, regional and national laws on free speech and expression.
Article 19 of the Universal Declaration of Human Rights (UDHR) enshrines the right to freedom of expression.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right to hold opinions without interference (i.e freedom of opinion), right to seek and receive information (i.e Access to Information) and freedom of expression in any art or form.
Article 10 of the Human Rights Act protects freedom of expression.
These rights are not absolute and can be limited by the state on certain grounds such as national security, public order, public health and public morals. The limitations must however be necessary and proportionate to the legitimate aim pursued. The State by law is also compelled to justify the limitation and show that it does not violate other human rights.
African Regional Laws:
Article 9 of the African Charter guarantees the right to receive information as well as the right to express and disseminate information. Furthermore, the Declaration of Principle of Freedom of Expression and Access to information in Africa which was adopted in 2019 establishes and affirms the principles for anchoring the right to freedom of expression and access to information in conformance with Article 9 of the African Charter.
Article 33, 34 & 35 of the 2010 Constitution of Kenya protects the rights to freedom of expression, the media and protects access to information. The Kenyan Constitution is one of the most elaborate when it comes to protections and disaggregates for the sake of clarity and unambiguity the protections and freedoms guaranteed including artistic creativity, academic freedom and scientific research.
Article 31 of the 2018 Constitution of Burundi guarantees freedom of expression. The right is subsumed with rights to freedom of religion, thought, conscience and opinion.
Article 29 of the 1995 Constitution of the Federal Democratic Republic of Ethiopia guarantees the right of thought, opinion and expression.
Section 39 of the 1999 Constitution of the Federal Republic of Nigeria guarantees the right to freedom of expression and the Press.
Indeed almost all countries in the African Continent and the world recognize the importance of the right to freedom of expression.
Please note that international and regional laws are ratified or assented to by heads of governments while national laws are made by parliamentary arms of government. In other words, governments lead in the law making processes of human and fundamental rights. If that is the case – as we have found it is, why are governments often the violators of the rights to freedom of expression offline and online? I am glad you asked.
FREEDOM OF OFFLINE & ONLINE EXPRESSIONS: THE GOVERNMENT HERRINGBONE.
It would appear that everybody : Government and citizens, are in favour of free speech. Nonetheless, some ‘powerful people’ and government’s idea of it is that they are free to say what they like but others cannot. This is where the aberration lies and where impunity takes its root. With the advent of the internet, the right to free speech is now both visual and virtual. However, the primacy to which freedom of visual speech is given appears to differ from virtual speech. There is still an ongoing debate on whether internet right should be recognized as human right, fundamental right or no right at all.
The proponents of declaring internet access as a right (also known as the right to broadband or freedom to connect) hold the view that in the 21st century all people must be able to access the internet in order to fully exercise and enjoy their rights to freedom of expression and opinion and other fundamental human rights. In practise, an American during President Donald Trump’s, tenure could argue along this line as President Trump was famous for expressing and engaging on national policies via Twitter.
Those who argue against making digital rights a human or fundamental right curate in favour of their argument, that internet is a right enabler not a right. They hold to the reasoning that the meaningful exercise of the right to freedom of speech and expression over the media or internet is dependent invariably and inextricably upon the access to the availability of infrastructure and that infrastructure depends upon social and economic factors such as the distribution of resources, the policies of the state and its intervention in the nature of provision of the resources. In other words, they argue that the right is non-justiciable.
It may perhaps help to put the question on the tarmac in more literal and clearer perspective:
(i) Is there a difference when an expression is verbal from when it is digital?
(ii) Can the right to freedom of speech and expression be same online as offline?
(iii) Is there a parity in responsibility where the violation of right to freedom of expression leads to the violation of human rights offline as distinct from online ?
Put in other words, the debate is now between the proponents of Data is Life Vs. Data is Connection. Where does the law and the balance hang? Let’s explore it.
DATA IS LIFE Vs. DATA IS CONNECTION.
There are instances where the expression : ‘data is life’ is literal and at other times data is just ‘mere’ connection. To illustrate how data can be life, I will cite two examples from two jurisdictions: India and Nigeria.
- Case 1* Bhasin v. Union of India case, No 103, 2019, In this case, the Supreme Court of India declared that access to the internet is a fundamental right under Article 19(1)(a) of the Indian Constitution and that the right to be able to access the internet has been read into the fundamental right to life and liberty as well as privacy under Article 21 of the Indian Constitution- adding in the same breath that internet constitutes an essential part of infrastructure. The brief facts of the Bhasin case are as follows: Jammu and Kashmir is an Indian territory bordering Pakistan and has been the subject of decades-long dispute between the two countries. Under Article 370 of the Indian Constitution, the territory enjoyed special status, had its own Constitution and Indian citizens from other states were not allowed to purchase land or property there. On August 5, 2019, the Indian Government issued Constitution (Application to Jammu and Kashmir) Order, 2019, which stripped Jammu and Kashmir of its special status that it had enjoyed since 1954 and made it fully subservient to all provisions of the Constitution of India.
In the days leading up to this Constitutional Order, the Indian government began imposing restrictions on online communications and freedom of movement. On August 2, the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advised tourists and Amarnath Yatra pilgrims to leave the Jammu and Kashmir area in India. Subsequently, schools and offices were ordered to remain close until further notice. On August 4, 2019, mobile phone networks, internet services, landline connectivity were all shutdown in the region. The District Magistrates imposed additional restrictions on freedoms of movement and public assembly citing authority to do so under Section 144 of the Criminal Penal Code.
The internet shutdown and movement restrictions (hereafter “restrictions”) limited the ability of journalists to travel and to publish and accordingly were challenged in court for their violations of Article 19 of India’s Constitution which guarantees the right to freedom of expression.
Delivering its judgment, the Court of India did not lift the internet restrictions but acknowledged fully the rights that were violated and directed the government to review the shutdown orders against the tests outlined in its judgment and lift those that were not necessary or did not have a temporal limit. The Court reiterated that freedom of expression online enjoyed Constitutional protection but could be restricted in the name of national security. The Court further held that though the Government was empowered to impose a complete internet shutdown, any order(s) imposing such restrictions had to be made public and was subject to judicial review.
Case 2: Gloria Mabeiam Ballason v. Governor of Kaduna State & 5 Others FHC/ABJ/C5/1554/2021
On September, 29, 2021, the Governor of Kaduna state in Nigeria, Mallam Nasir Ahmad Elrufai, shut down phone and internet telecommunications connections for two months. The Government’s argument was that they needed to combat terrorism, kidnapping and insecurity. Security, internet and telephone are under the exclusive legislative list of Nigeria’s Constitution which means the Federal Government is directly responsible as against the state government. There was also no national or state parliamentary resolution, a state of emergency was not declared and during the period, an unprecedented case of a train terrorist attack which had over 200 people in the train and another sets of killings of over 200 people in the state occurred. Furthermore people lost means of livelihood and earnings and the ban was counterproductive as people could not report terrorist attacks nor could security agents connect to scenes of crime.
Ballason filed at the Federal High Court of Nigeria alleging that the action taken by the government of Kaduna state was not backed by law and that the government did not satisfy the constitutional exception of any law reasonably justifiable in a democratic society in the interest of defence, public safety and public order as more lives who could not call for help from security agents perished while businesses and means of livelihood of citizens suffered astronomic loses without a commensurate improvement in the security situation in Kaduna State.’ Judgment has now been reserved for 11 October, 2023.
The two cases of India and Nigeria illustrate how the facts of the case can determine whether the right to internet access can be non-justiciable or justiciable. Typically, none justiciable rights can be justiciable where they intersect. In Nigeria for instance, although the rights in Chapter 2 of the 1999 Constitution are non-justiciable, they can be justiciable where they impact and infringe on the rights in Chapter 4 which are the fundamental human rights.
Let us at this point examine a few international, regional and national cases as determined by the Courts.
Some International & Regional Decisions on the Rights to Freedom of Expression & Internet.
Nagla versus Latvia (16 July 2013)
The case concerned the search by the police of a well-known broadcast journalist’s home, and their seizure of data storage devices. Her home was searched following a broadcast she had aired in February 2010 informing the public of an information leak from the State Revenue Service database.The Court found a violation of Article 10 (Freedom of expression) emphasizing that the right of journalists not to disclose their sources could not be considered a privilege, dependent on the lawfulness or unlawfulness of their sources, but rather as an intrinsic part of the right to information.
Sunday Times Vs. United Kingdom (no. 1) (26 April 1979)
The case concerned the injunction served on the Sunday Times restraining publication of news about the pending civil proceedings brought by parents of children born with severe deformities through the taking of thalidomide by women during pregnancy.
The Court found a violation of Article 10 (freedom of expression).
SERAP & 176 ORS V. Federal Government of Nigeria ECW/CCJ/APP/23/2 The Plaintiffs approached the ECOWAS Court to declare as unlawful the Twitter ban by President Muhammadu Buhari who banned the social media platform after Twitter deleted his tweet for violating its rules.
ECOWAS Court declared Nigeria’s government’s Twitter ban unlawful and ordered Nigeria to put in place a legal framework that is consistent with international human rights standards. The Court further ordered Nigeria not to block the social media platform again.
ii. Amnesty International Togo & 6 Others Vs. Togolese Republic
In this case the plaintiffs filed before the ECOWAS Court claiming the right to seek and receive information and disseminate opinion under Article 1 and 2 of the African Charter on Human and Peoples Rights, the Court entered judgment in favour of the Plaintiffs.
It can therefore be seen that there is a positive movement towards the recognition of rights offline as same online – and for obvious reasons, as global statistics would prove: The 2022 Global Development Report showed that 35 countries restricted internet services 187 times in 2022 with India, Iran and Myanmar repeatedly enforcing blackouts. India was the biggest offender with 84 out of the 187 internet blackouts in the region of Jammu Kashmir, Russia accounted for 22 internet blackouts against Ukraine when it launched offensives of missile strikes and cyber attacks; Ethiopia shut down phone and mobile internet against Tigray while Iran turned off internet due to anti-regime protests. Armed with these grim statistics, the signs in the sky are not too good.
NAVIGATING THE GOVERNMENT HERRINGBONE AGAINST FREEDOM OF EXPRESSION ONLINE & OFFLINE.
Across the world, trust in political governments and satisfaction with democracy is at a historic low. The discontent has inspired an authoritarian populism that challenges democracy. There is therefore the need for a coherent ethical and ideological framework for judicial intervention that keeps the fundamental question of justice, democratic legitimacy and balance for the demands and protection of rights to expression online and offline.To these and more, this presentation makes the following recommendations:
- Litigation strategy for the protection of rights to expression must reimagine not just the recognition of expression rights but a reinforcement of democratic values as a way of organizing states and regions towards a wider project of realizing universal rights and values.
- It is important to note that although government is powerful, what is politically achievable is not predetermined but relies on what people believe in and what lawyers, activists and citizens are willing to demand for by advocacy and in the pleadings lawyers file. A slavish adherence to precedence will therefore be inimical. Our pleadings should be progressive Arts not static Science.
- Our litigation should be embedded with advocacy that highlight the truism that government officials and the people have equal claim to a fully adequate scheme of equal basic rights, liberties and responsibilities.
- Our filings should be framed to demand respect for the rule of law which requires governments to act in accordance with laws and respect equality before the law in a regular, impartial and consistent manner ; this should inspire justice that is not just personal to plaintiffs but is institutional, intergenerational and sustainable.
- Pleadings in Freedom of speech and expression cases should be curated in a manner that demonstrates the role of the state as not just to enforce rights contracts but includes the maintenance of the conditions that are the basis for freedom and equality of citizens of the state. In any case, government is a revolving door; those in power today will be ‘ordinary citizens’ tomorrow. The law should therefore speak the same language at all times.
- Democracy is about the contestation of ideas and the triumph of superior ideas. If democracy thrives, everyone benefits. The African Union is now dealing with the Niger military take over jitters and we must be concerned about what this means to the region and to fundamental human rights. There is for instance, a straight line that runs from Military rule to the suspension of the right to freedom of speech and expression online and offline. Therefore, there must be a commitment to move beyond platitudes to a precise interpretation of what freedoms deserve special protection and the nature of their obligations. The facts of the case should reflect the impact on individuals and African states as against statistics in court dockets.
- The office of the Attorney General needs to be invited through legal filings to define whether he is counsel to the client or government and must be persuaded to lead in the respect of rights including but not limited to the enforcement of judgments.
Countries which have ratified international and regional treaties and government officials who swear to uphold the rights and constitution of their countries should be estopped from violating the rights. They cannot go to the international and regional communities and commit to uphold the rights and return to violate them. The styles in which we craft our pleadings and our litigation strategy must ensure governments are made to lead in the respect of fundamental human rights and International Laws and Conventions, including,but not limited to the right to freedom of expression and the imperative to not wilfully deny citizens access to the internet through draconian regulations and arbitrary use of power.
- Litigation filings need to demonstrate how respect for freedom of expression is mutually beneficial for both citizens and the governments and should highlight the hope it holds for democracy. It is important that we move from litigation that is merely academic to arguments that are humanely persuasive, forcefully egalitarian and sustainably propagating in judicial ideology.
Finally, our litigation strategy must ensure that the Court of Law is always the Court of Justice. Some lawyers across the African continent tend to be skeptical about how the Court dispenses justice and the independence of the judiciary, without discounting some of the realities, it must also be re- emphasized that the Court is not ‘Santa Clause ‘ and so cannot give what is not asked. Filings must therefore be robust, arguments succinct and the need for three-way justice: justice for the victim, the accused and all of society should be the goal of our litigation. The court, the litigants and counsel must all connect at that human intersection and craving for democratic ideals if we are all to be the better for it.
It is a gracious thing to be thankful and so thank you Media Defence for this opportunity to engage on this topical topic and I thank you dear learned colleagues for your kind engagement and attention.