Like Digital Rights, like FOI: Where President Buhari got it wrong
By Ridwan Adigun SULAIMON
Who is the Nigerian government actually working for? Anyone who has followed the campaign for the passage into law of the Digital Rights and Freedoms (DRF) Bill, 2016, and also followed the campaign that led to the enactment of the Freedom of Information (FOI) Act, 2011, will be prompted to question the disposition of the Nigerian government towards public interests.
When the DRF Bill was introduced to the National Assembly in April 2016, as civil society, we knew we were in for a long journey considering the fact that the Bill is one of public interest and the ruling elite is not known to show much enthusiasm about such. As anticipated, the Bill spent almost two years in the House of Representatives, Nigeria’s lower legislative chamber, before it was passed in December 2017.
However, the upper chamber, the Nigerian Senate, albeit surprisingly, also passed the Bill three months later in March 2018. According to a media report, supporters of the Bill had at that point assumed that the Bill’s legislative journey had ended and perhaps Nigeria was about to have a law that protects human rights online.
Unfortunately, the bill spent another eight months in the National Assembly. The legal unit of the National Assembly had spotted a problem in one of the clauses and the bill had to go through another round of legislative process to correct it before it was again (hopefully finally) passed by both Houses in November and December 2018. And two months later, it was transmitted to the President for assent, on February 4, 2019.
Having passed through this rigorous journey with heightened and sustained public and civil society interest, supposing government is working in the interest of the common people, it is only expected that such bill should receive prompt attention from the President who is elected by the people knowing that the people are not only interested but that the bill ensures the protection of their human rights online.
Sadly, the President of Nigeria said the Bill “covers too many technical subjects and fails to address any of them extensively”, listing such areas to include surveillance and digital protection, lawful interception of communication, digital protection and retention, etcetera, which he said “are currently the subject of various bills pending at National Assembly”, and as a result, he did not sign the Bill. Mr President even speculated that the Bill poses a “challenge of duplication and legislative conflict in the future.” I will return to respond to this in the later part of this piece.
Anyone who is familiar with the history of public interest bills in Nigeria especially those that protect human rights will know that President Buhari’s excuse for refusing to sign the Bill is nothing but what it is, an excuse, similitude of what former President Olusegun Obasanjo said to the FOI Bill when it was transmitted to him in March 2007.
According to Media Rights Agenda, when former President Obasanjo met with civil society leaders on April 27, 2007, he said he would not sign the FOI Bill for a number of reasons, the first being the fact that it was titled: “Freedom of Information Bill” rather than “Right to Information Bill,” claiming that the idea of “freedom of information” was imported “from somewhere”.
He claimed, among other excuses, that he was completely opposed to Section 13(2) of the Bill, which provided that: “However, in the interest of the public the court may override the refusal by the head of the government or public institution to disclose the information applied for.” The former President argued that this means that he can be compelled by a court to disclose any information which another head of state might have told him in confidence, (apparently, public interests matters less to someone who is elected by the public).
So, President Obasanjo threw away the baby with the bath water. And the FOI Bill having spent about eight years in the National Assembly already spent another four years going through the legislative process again before it was signed into law by former President Goodluck Jonathan in 2011. So, President Buhari’s reaction to the DRF Bill is nothing new.
Like FOI Bill, Like DRF Bill. If public interest bills will continue to suffer setbacks in the hands of presidents, then one should ask who exactly the government is working for. Late Professor Abubakar Momoh of blessed memory seems so right when he said “laws and policies are designed to suit the whims and caprices of the ruling class.” Is it because the DRF Bill is designed in the interest of the common man that is suffering in the hands of the ruling class?
As Sodiq Alabi noted, “The last few years have seen tens of millions of people connected to the internet in the country. These people conduct business, have a social life, learn and teach via this important tool. They even campaign for political candidates via the internet. However, despite the deployment of the internet across the country, Nigeria, unfortunately, lacks a comprehensive legal framework that protects human rights online, a situation that makes Nigerians online vulnerable to rights abuse.”
Rather, what Nigerians currently have is the Cybercrimes (Prohibition, Prevention, Etc) Act, 2015 which has mostly been used to arbitrarily arrest people and gag freedom of expression online rather than prevent or prohibit cybercrimes.
But the DRF Bill assembles conventional rights aimed at making online spaces rights-inclusive and therefore balances the friction between security and human rights in the digital age. The Bill carefully addresses and prohibits hate speech while also protecting freedom of expression online.
The DRF Bill guarantees that human rights which apply offline should also be obtainable online. Importantly, it ensures data privacy and safeguards sensitive citizens’ data held by various institutions and equips the judiciary with the necessary framework to protect human rights online. It is a people’s Bill but the people’s president has failed to sign it.
To respond to the reasons provided by the President’s for his refusal to sign the Bill, the position of Media Rights Agenda on the matter is especially instructive.
In a statement, Media Rights Agenda said: “The purpose of the Bill was never to address technical subjects in the area of digital rights and Internet freedom in any detailed or extensive manner, but to propose and affirm a human rights-based approach in dealing with these issues and to ensure that future laws and policies as well as administrative actions are consistent with this approach.
“Given that no laws have been passed to guide the actions and activities of Government and other actors in these areas and in the light of the fact that there is no certainty about when such laws are likely to be passed, it makes no sense to refuse to assent to the Bill on the ground that it may duplicate or conflict with laws that are not yet in existence.
“A more logical approach for a government that is genuinely desirous of upholding and protecting the digital rights and freedoms of its citizens would be to ensure that the spirit behind the proposed legislation and the principles recognized in it are consistent with the government’s policy stance and then ensuring that the provisions of future laws touching on the issues addressed in the Bill are properly aligned with its policy approach, even where such laws seek to address technical issues in a more detailed and extensive manner.
“The Federal Government had ample opportunities during the legislative process to express its views on the provisions of the Bill and to ensure that the Administration’s concerns were adequately addressed by the lawmakers in the course of making the Law. Several agencies of the Federal Government with specialized and technical competence and mandates in the areas covered by the Bill were involved in the legislative process and did not raise any objection to the passage of the Bill. Indeed, they signed off on the provisions of the Bill, which was why the National Assembly was comfortable enough to pass the Bill speedily.”
For the President to have waited till this moment to eventually veto the Bill is not only a waste of the time and resources invested by the National Assembly and other stakeholders during the three years of the Bill’s legislative journey but also an indication of the President’s insensitivity to public interests and human rights of Nigerians.
Considering that the 8th National Assembly has almost concluded its term, if the current Digital Rights and Freedoms Bill, 2016, eventually suffers the same fate as the Freedom of Information Bill which had to repeat the entire legislative process following the President’s failure to assent to it, then it presents a clear indication that government in Nigeria, regardless of who or which party is in power, works only for the selfish interest of the ruling elite.
Ridwan Adigun SULAIMON, a Freedom of information, freedom of expression and digital rights and freedoms campaigner, educator, youth and leadership tutor, writer and social researcher, writes from Lagos. Email: [email protected]; Twitter: @SulaimonRidwan; Tel: +2347031042977