Abdul Mahmud: Killing Digital Freedom with the hammer: the folly of social media regulation in Nigeria

This is the text of the paper presented at the Global Conference on Social Media, held 7- 8 April 2022 at the University of Michigan, Detroit, USA.

EXECUTIVE SUMMARY

In spite of the freedom that the internet offers this generation, there have been increasing attempts at narrowing the virtual space and reducing the powers of citizens as sovereigns. Abuja’s assaults on digital rights have evolved from physical assaults on citizens’ freedoms to repression of organized citizens movements. But, while the repressive approaches appear as something taken out of the playbook of military dictators of the eras which precede the current civil rulership of Nigeria, asymmetric attacks, disinformation, and anti-digital rights legislations have become part of the larger repressive game. The danger in all of this is the increasing threats new legislations, the repressive institutions of the state, and the attitudes of personages of power pose to citizens’ freedoms and to democracy in Nigeria.

This paper outlines the current state of digital freedoms in Nigeria- emergent and emerging threats and the dangers that state legislations and repressive state instruments pose to citizens’ freedom generally. It exposes the folly of social media regulation in Nigeria and argues for greater citizens’ expression of power in the virtual space, with the increasing attempt by the government in Abuja to weaken state institutions and undermine democratic freedoms, while insisting that freedoms lie at the very core of survival of democracy in Nigeria.

INTRODUCTION

Digital freedoms are here. They have been here with the internet for a while as a gift of the genius of the invention which continues to disrupt the holds of tyrants. Think about the freedoms it gifts humanity to connect to the “internet of things”, while shrinking geographical boundaries and revolutionalizing human relationships.

But, desirable as the internet is, the way it presents itself as a medium of expression makes it a fascination. That is, we consider the way it gives effect to freedom of expression, for instance, we will appreciate how information, ideas and opinions are expressed, disseminated and received.

We all have to imagine the power of freedom to make sense of the nightmares of tyrants everywhere.

However, there are downsides. The power of freedom of the internet which can be mobilized by malevolent forces to influence, distort elections and disrupt democratic societies, can also be exercised by fraudsters, con-artists, money launderers, paedophiles and prostitutes, to unleash nightmares of unimaginable proportion on society. Today, scarlet ladies post their photos on social media, with the message: “This is why your man keeps late at work”. A new kind of thirst trap. Welcome to the age of internet freedom. Despite the downsides, the internet still serves as a point of convergence for those fighting tyranny, disrupting authoritarian realities, raising the banner of resistance, and pushing the democratic frontiers for the enjoyment of freedom of expression, including the freedom to use the internet to advance democratic causes. The internet remains the virtual railroad that the train of freedom rides on. Like the historic Freedom Train which journeyed from Philadephia in 1947, crisscrossing and celebrating the American heritage, the cross-world train of the internet crisscrosses the globe, carrying dreams and hopes, disembarking at country stations that welcome the power of freedom, waving from its carriages.

That power was manifest in the Arab Spring, which began in Tunis, following the self-immolation of Mohammed Bouazizi, and spread like wildfire through the social media, heralding the internet “as the driving force behind the swift spread of revolution throughout the world, as new protests appear in response to success stories shared from those taking place in other countries”. The result was the fall of President Ben Ali. To dodge the rising power of the streets, Arab theocracies and emirates embarked on cosmetic governance reforms.
The power was also manifest on the streets of Nigeria in January 2012 and October 2020. In the first month of the year 2012, Nigerians resisted the removal of petroleum subsidies and occupied the country for two weeks. The attempt to replicate the feat of 2012 was brutally put down by the current regime in Abuja. Today there is still controversy over the number of Nigerians killed at the Lekki tollgate, in the highbrow area of Lagos. The incontestable fact is that there was a brutal putdown of peaceful protesters that October night in Lagos. As a lawyer who represented victims of police brutality at judicial panels set up to investigate extrajudicial killings, I can say with certainty that protesters were killed across major towns in southern Nigeria where the protests were fiercest.

THE FOLLY OF REGULATION

Tyrants abhor the power and freedom of expression. They fear citizens’ will to act, so they do all in their power to deny citizens the freedom of will. Regulation of social media is the folly of tyrants. In sub-Saharan Africa, new legislations are being introduced to restrict citizens to the internet. In some countries, access to the internet has been commercialized, while in many others with dubious human rights records, the search for the harm and offence in hate and offensive speeches proceeds from the old philosophical approaches of the iron-curtain era that undermine the ramparts of constitutional democracy. In constitutional democracies, the constitution serves as the basic law that regulates the conduct of the state and citizens and preserves the rights of the state and citizens against injurious practices. National laws, made pursuant to the provisions of the constitution, must not go outside the constitution to create new rules of legal practices that abridge the freedoms of citizens or empower the state in a manner that it exercises powers that the constitution has not donated to it. Here lies the beauty of constitutional democracy: the state and the citizens know the boundaries of the freedoms protected by the constitution, and the constitution shackles the state and the citizens within the boundaries of their freedoms that neither the state nor the citizens can go outside the constitution to exercise powers they do not have. Where there are rights, there are duties. The constitutional order is founded on the principle of responsibility, so it is the duty of the state and the citizens to stay within the bounds of the law, and judge the harm in a hate speech. We know citizens cannot all be responsible to judge hate in harm, so too, it becomes the responsibility of the state to protect the generality of society by calling on existing laws where there are cases of infractions of the law.

The state steps in to protect the society where particular infractions undermine the state itself and leave the citizens in precarious situations. But, in protecting society and itself, States’ attempts at regulating social media overstretches the responsibility that the constitution imposes on them. Here lies the folly: in an attempt to address the abuse of the social media space, States create insidious practices that either narrow the enjoyment of such freedoms like free speech or effectively kill off those digital freedoms we have come to associate with the social media. Regulating the internet is simply an attempt to subvert the time-tested constitutional principle that underlines free speech.

Experiences have shown that regulation comes as the weapon in the hand of the assassin. The state is already too powerful enough, and given the power to regulate the internet, including the power to shut down the micro-blogging sites, as experienced in Nigeria recently with the shutting down of Twitter, regulation becomes the naked instrument of censorship – the gun in the hand of the assassin. Governments ought to err on the side of freedom. But, no, they don’t, as we have seen in many countries in sub-Saharan Africa that continue to issue threats of shut down, and there have been actual shutdowns, of the internet. Here is the sad reality: “In 2016, eleven of the fifty-six global internet shutdowns happened in Africa. In 2017, there were instances of internet disruptions in nine different countries in the region, while at least eight countries were affected by service disruptions in 2018. The shutdowns have become increasingly sophisticated, with governments targeting specific regions and communities”, according to the report issued by the respected South Africa-based network, Association of Progressive Communications (APC).

The government in Abuja has been clever in the way it regulates the activities of online media outfits that are critical of its policies. A year ago, four telecommunications companies effectively blocked the access to the internet of the online newspaper, the Peoples Gazette, in what was seen by many as an attempt by the government to muzzle digital press freedom.

THE NIGERIAN FOLLY

Doubtless, regulation has become the shorthand of repression.

In the rule book of the tyrant, regulation serves two purposes. First, it strengthens the tyrant’s grip on institutions already captured and personalized by him. Since the captured institutions are expected to take on his personal character, while under his exclusive control, abjuring their allegiance to the people becomes second nature. Max Weber was right about the public official “entrusted with specialized tasks” but who ends up being controlled “only from the very top”. Second, it promotes the culture of fear and silence and guides the repressive instrument that renders citizens powerless and citizenship meaningless.

Both constitute Nigerian folly.

As is increasingly the case, threats posed to the social media space exist at two levels. Firstly, attempts by the national and subnational legislative houses to muzzle citizens’ rights and freedoms through the enactments of new legislations and amendments to existing legislations invariably narrow the spheres of influence of social media. In 2019, for instance, an attempt was made by the Senate of the National Assembly to pass the bill, “Protection from Internet Falsehoods and Manipulations and Other Related Matters Bill 2019”, into law. This bill had root in another bill – The Frivolous Petitions (Prohibition) Bill 2015, which the August body tried to pass into a law but for the stiff resistance of the Nigerian civil society. The intriguing aspects of both bills are that they seek to deal with subjects already criminalized by extant legislation. While the bills are superfluous, the real purport is to cower citizens. There are other bills like the Hate Speech (Prohibition) Bill 2019 and the National Commission for the Prohibition of Hate Speeches ( Establishment, ETC) Bill 2019 awaiting passage in the legislative house.

Subnational legislatures have also taken a cue from the national legislature. Last year, David Umahi who is the Governor of Ebonyi state, the south-east region of Nigeria, signed the State Cybercrime (Prohibition) Bill into law. This nasty piece of legislative instrument is now being used against critics of the governor. Late last year, Godfrey Chikwere was arrested and detained following a petition written against him by the state government. Another victim of this legislation is Chika Nwoba, who was seized and beaten by political thugs acting for the governor before he was handed over to the police that charged him to a court that has no jurisdiction to entertain the charges brought against him.

Secondly, as noted earlier, the executive branch also shows its hands in the way it tries to change established rules of media regulation. In 2021, Nigeria’s Minister of Information announced that the government had accepted “the review of fines to be paid by erring broadcasting stations from N500, 000, 00 to N5m for breaches of the National Broadcasting Code”. While press freedom is protected by Sections 22 and 39 of the Constitution, the so-called review coming from a government, notorious for hounding the opposition media, highlights the penchant for unconstitutional. The power to impose fines is a judicial power preserved by Section 6(1) and 6 (6) (a) of the Constitution. If the review is sinister, the ‘Protection from Internet Falsehood and Manipulations Bill 2019’ is more sinister, going by the statement credited to the sponsor of the bill, Senator Musa: “if today, you can disseminate information of your president, taking a picture of the President and putting it in an invitation card, giving false information of your President… it is something we cannot see it as anyhow information”.

Ignorance is weakness.

That the Senator isn’t aware that “giving false information” is already covered by the Cybercrimes Act, 2015 is troubling.

While Nigerians have woken up to the reality that their rights and freedoms are being threatened in a constitutional democracy, another reality that is dawning on them is the penchant of the power to literally buy off the police. Here, the police have become an instrument that money can buy. Recently, an internet entrepreneur of aphrodisiacs, Hauwa Muhammed, AKA Jaruma, was arrested by the police, arraigned before a court, and remanded in prison custody. Her offence? The police claimed in its charge sheet that she defamed the wife of the billionaire Nigerian businessman, Ned Nwoko, with whom she had endless fights on Instagram. There is also the case of Omoyele Sowore, publisher of the popular online Nigerian newspaper, SaharaReporters, who is presently standing trial for criminal defamation of the same billionaire businessman. While Mr Sowore was on administrative bail, his lawyer, Marshal Abubakar, who had proceeded to court to enforce the fundamental rights of Mr Sowore was arrested by the police, arraigned and remanded in prison. Ostensibly, for defending his client.

The folly of repression spreads everywhere.

In Katsina, northwest region of Nigeria, Danjuma Umar was arrested and detained for a Facebook post, which alleged that a Nigerian politician, Mr Mansur Mashi, was allowed to run for a national election when he was facing corruption charges. Rather than clear his name, Mr Mashi, simply procured the police to do his accuser in.
Also, six months ago, the Attorney General of Katsina state ordered the arrest of Zaharadeen Umar for comments critical of the government that was posted on social media.

The follies of those who govern the Nigerian state are growing.

THREAT TO SOCIAL MEDIA INFLUENCING AND INFLUENCERS

The power of citizens to actualize what constitutes the very essence of freedom is best expressed in Nigeria on social media. Here, like in many places around the world, power has become the verb for doing, acting and expressing freedom in all its facets on the virtual space. What this means is that freedom is struggle, performance, and speech acts. One factor accounts for the continuing performance of freedom on the virtual space: with the narrowing of the physical spaces, citizens have come to see the virtual space as the space of safety and anonymity for confronting power through the hashtags’ movements. Though it is conceded that many citizens use the social media space for other endeavours, such as commercial and business marketing, relationships development, and kith and kin mobilization for community work.
But, we are concerned here with the threat legislative law-making and extra-governmental instruments pose to individuals whose voices help to mobilize public support for social causes – whether it is crowd-funding for fellow citizens who are gravely ill or for raising awareness on rape, maternal and infant mortality, police brutality – and political actions against repressive policies of the state.

In effect, in Nigeria, social media influencers have themselves become thought leaders whose opinions help shape popular support for or rejection of public policies. The engagement levels of those we consider as political social media influencers have fallen since the unfortunate incident of late October 2020 when peaceful protesters waving the Nigerian flags were shot at and killed in the affluent suburb of the commercial city of Lagos. The repressive reactions of the state to the #ENDSARS protests, which ranged from actual killings, arrests and trials, to the freezing of bank accounts of social media influencers, have significantly affected political – and social influencing in Nigeria. The long period in which Twitter was shut down in Nigeria in 2021 and the freezing of bank accounts of activists and social media influencers also account for this. Following the Twitter shutdown, many social influencers either moved on with their lives or simply returned to engage subjects, far removed from the spheres of politics and public policy, abjuring their interest in public advocacy.

The toxicity of the social media space has also forced many political social media influencers to rethink of their roles as shapers of public opinions on virtual spaces that continue to reproduce all the ethnic, religious and ideological fault lines that have made Nigeria a deeply divided country.

SOCIAL MEDIA INFLUENCERS FOR A FEE

The so-called liberating power of the social media space, with the strengths of the hashtags’ movements spawned by it, isn’t as liberating in the Nigerian case as many think. Our view here is that it is the power of liberation that social media influencers donate to the space that makes the space liberating. When social media influencers become defenders of corrupt governance systems or victims of the culture of self-censorship, the social media space invariably lacks the power of liberation.

For us, in Nigeria, two essential movements of social media influencers have emerged: (1) The ethical social media influencers’ movement that holds government and personages of power to account and; (2) The Hire-for-a-fee-movement that is not only tied to the apron strings of power but sees “social media influence peddling” as means to everyday survival. The biggest threats here are not legislative law-making and extra-governmental instruments that underline censorship but the upheavals in Nigeria’s economy which interrogate and shape social media influencers’ perceptions of issues. With the national unemployment rate at 35% per cent and the youth unemployment rate at almost 18%, it is easy for power to weaponize poverty and turn social influencing work into some sort of portmanteau commercial business. Even insidious foreign interests cash in on this sad menace of de-legitimizing voices of power, liberation and influence. This is what the reputable Nigerian online newspaper, Premiumtimes, reported last year, “Twitter on Monday suspended the accounts of some popular Nigerian influencers for promoting a campaign in favour of detained Venezuelan diplomat, Alex Saab… They were alleged to have collected over $2,000 each to coordinate a campaign to obstruct Mr Saab’s extradition to the United States… A report published by Financial Times said Pro-Saab traffic had increased since the new year and the primary movers of the surge were Nigerian social media influencers”. A commentator and researcher at the Digital Africa Research Lab, Rosemary Ajayi, captures the problem of hiring social media influencers for a fee more succinctly: “The influence industry has quickly become a hotbed of fraud and discourse manipulation. Whether you are looking to promote a new album or a church event or settle the score with an adversary, many PR firms operating within the Nigerian influencer system will recruit influencers to deliver this for a fee, no questions asked”.

Though it is arguable that the corruption of a section of the social influencing space and of social media influencers began in December 2015 when the First Lady of Nigeria hosted social media influencers to a lavish end of year dinner at the Presidential Palace. But, for many observers of presidential operations in Nigeria, the lavish end of year party signalled the commercialization of critical voices and the birth of the culture of power hosting social media influencers with public funds. It is this culture that robs social media influencers of their voices that the junior Minister of Labour, Festus Keyamo, appeared to have disdained when he said, “I am angry that some smart alecs have commercialized their opinions on social media and the so-called ‘struggle’. I only just pity thousands of gullible ones who still believe that these characters are on some altruistic mission to provide the moral compass for this country”.

While he is right about the unethical practices of social influencing, he is wrong in his blanket characterization of social media influencers.

CONCLUSION

As we have seen in the foregoing, attempts by States to create new rules and laws to regulate social media are largely driven by the DNA that abhors citizens’ participation in the public affairs of their country. These rules and laws aren’t meant to protect the health of the State and its institutions but to confer some level of protection on public servants who feel they are above those who elected them to serve the Republic and the citizens.

There is no doubt that the virtual space has its dark sides where dark elements such as terrorists, paedophiles, rapists and hate-mongers promote practices that are injurious to society. Our view here is that these dark elements can be dealt with, and they have been dealt with by extant criminal laws, without necessarily enacting new rules and laws that wash away the rights and freedoms of citizens. Resorting to wholesome legislative law-making and extra-executive instruments, which take away freedoms, is to wash the baby away with the bathwater. Legislations impose responsibility, the view here is that where laws exist to regulate social conduct, they must also be enforced in a manner that imposes responsibility on internet providers and owners of micro-blogging sites to maintain strict gate-keeping rules that regulate the conduct of users of virtual spaces.

Finally, social influencing work, spawned by the internet, has an influence on society, outside the virtual space. Social media influencers, as shapers of society’s values and virtues, must strive to promote ethical engagements that impact society. The commercialization of social influencing not only has negative impacts on voices that society desires to listen to; but also negatively impacts youngsters who look up to social media influencers and want to become like them. With the explosive youth population in Nigeria, social media influencers have their work cut out – to do what is ethical and to help develop generations that will become politically aware. It is a mission they must discover and fulfil, not betray, to paraphrase Frantz Fanon.

Aminu Mahmud, Nigerian human rights lawyer and Senior Counsel at Ephesis Lex ( www.ephesislex.com ), a human rights law firm based in Abuja, Nigeria. He can be contacted via his email obemata@yahoo.com and on his Twitter handle @Abdulmahmud01 )