The reincarnation of Decree 4 of 1984? 

 Sonny Aragba-Akpore argues that the federal government may be taking Nigeria to the inglorious military era 

Decree 4 of 1984 was clear about what it wanted to achieve. Publishing truth that hurts a government official in every material particular is liable to an offense. It also prescribed punishment for publishing falsehoods against government officials. The law which was retroactive punished two journalists, who were believed to be some of our pathfinders in that generation. A change of government in 1985 abrogated that law which was described as obnoxious. 37 yearsyears afte, the National Information Technology Development Agency (NITDA) comes out with a reincarnation of Decree 4, in form of a code of practice. And we watch helplessly as some victims emerge. 

Only last week, some fierce-looking security men visited the offices of Peoples Gazette with arrest and wanted to pick its editors. By the last count, five officials were picked up ostensibly for a publication on the raid carried out by officials of the Independent Corrupt Practices Commission (ICPC) on the home of a man believed to be linked to a retired military officer. The Online Publishers Association of Nigeria (OPAN) has strongly condemned the raid of Peoples Gazette’s office in Abuja and the subsequent arrest of journalists by armed policemen. 

If an aggrieved victim of a report that is believed to be true decides to deploy security agencies to harass and intimidate journalists carrying out lawful responsibilities simply because the alleged victim is privileged, then we are gradually returning to the era of Decree 4 of 1984. “If retired General Buratai feels he was defamed by the report, the lawful and correct approach would be to sue the news outfit for libel in a court of law. The days of using state security agencies to harass and intimidate the press and journalists are over. This desecration of people’s rights cannot be tolerated in a democracy any longer,” OPAN further warned.


 

These arrests are coming despite the yet-to flag of NITDA code for which the Guild of Corporate Online Publishers (GOCOP) has raised a red flag describing it as another attempt by the Government to gag the media and suppress press freedom in Nigeria. “The largely christened NITDA Code lists its objectives to include inter alia: “set out measures to combat online harms such as disinformation and misinformation.” It also seeks to “Adopt and apply a co-regulatory approach towards implementation and compliance.” 

Toxic as the content of the new code is, it has embedded aspects of the failed government move in the past to enact anti-free press laws including The Protection from Internet Falsehoods and Manipulation and Other Related Matters Bill, 2019, commonly known as social media Bill. When he launched the sixth national broadcasting code in Lagos, on August 4, 2020, despite industry-wide opposition during the launch, Information & Culture Minister, Lai Mohammed said the code was “signed, sealed and delivered” perhaps to actualize censorship in the highest order. 

That code was seen as an agenda-driven document as industry players were not carried along because the government concluded as it deemed fit. Strangely too, the National Broadcasting Corporation (NBC) the agency saddled with its implementation was said not to be privy to the final document. To further fuel the flames of censorship in the country, the Minister and the government suspended Twitter operations and lifted the suspension with conditions. 

Not done with that, a code to regulate computer interactions and others was introduced by the National Information Technology Development Agency (NITDA) which seems to override the Lawful interception of communications regulations of 2019. Despite the manifest outcry over censorship of the media that was seen in the attempt to review the Nigeria Press Council laws, the government is going ahead to regulate social media presence and prying dangerously into individual and corporate privacies by the NITDA code. 

Communications & Digital Economy Minister, Dr. Isa Pantami and his colleague, Mohammed seem to be very willing allies in this regard. Media stakeholders and Civil Society Organizations (CSOs) have resisted amendments to the NBC code by the Muhammadu Buhari administration, describing such amendments that seek to give NBC the power to regulate content on social and online media in Nigeria, including licensing them as anathema. The NITDA code clearly speaks volumes as Mohammed had boasted in October 2020, that if social media is not regulated, it will destroy the country. Perhaps there is something they know that we are not privy to except for the stiff controls of how we see or think about government, and it is doing to improve our lives. 

The NITDA code describes disinformation and misinformation as multidimensional growing problems that do not have a single root cause or solution. Hence NITDA, NCC, and the NBC are conscious of the fact that optimal responses to disinformation and misinformation “need to be multivariate, requiring Platforms to work collectively with stakeholders to combat disinformation and misinformation.” That is why the code states that “a platform shall not continue to keep prohibited materials or make them available for access when they are informed of such materials. Prohibited material is that which is objectionable on the grounds of public interest, morality, order, security, peace, or is otherwise prohibited by applicable Nigerian laws. 

In all instances when a Platform has been informed of the existence of prohibited material, the Platform is under obligation to remove the content within 24 hours. So, what remains of the power of the Lawful interception of communications regulations of 2019? In exercise of the powers conferred by section 70 of the Nigerian Communications Act, 2003 the regulations seek to provide a legal and regulatory framework for lawful interception of Communications, collection, and disclosure of intercepted communications in Nigeria. 

These shall provide a legal and regulatory framework for the lawful interception of communications in Nigeria and give effect to the provisions of sections 146 and 147 of the Act; specify the nature and types of communications that can be intercepted; prescribe penalties for non-compliance with the Act and these Regulations; provide a notification procedure to the Commission of all warrants issued, amended, renewed or cancelled under these Regulations; and ensure that the privacy of subscribers’ communication as provided for in the Constitution of the Federal Republic of Nigeria is preserved.  

But the NITDA code contradicts the NCC’s lawful interception of communications regulations. The NCC regulations state clearly that: “It shall be lawful for any Authorised Agency listed in regulation 12(1) of these Regulations to intercept any Communication or pursuant to any legislation in force, where the interception relates to the use of a Communications service provided by a Licensee to persons in Nigeria; or the interception relates to the use of a Communications Service provided by a Licensee to a person outside Nigeria, provided that the Licensee shall not be liable in any civil or criminal proceedings for damages, including punitive damages, loss, cost or expenditure suffered”.

 

The regulations subject intercepted communications to the law courts, where a piece of intercepted communication is admitted in evidence by a court of competent jurisdiction, and all other copies of that intercepted Communication shall be destroyed by the authorised agency in whose custody such information resides. The code is a breach of Article 19 of the Universal Declaration of Human Rights (UDHR) and Nigeria’s treaty obligations under the International Covenant on Civil and Political Rights (ICCPR), which give everyone the right to freedom of expression, including the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers…”

 

The code may be a reincarnation of Decree 4 of 1984.