The ECOWAS Court on Friday has further extended an interim order against the Federal Government of Nigeria from imposing sanctions on any media organisation or individuals from exercising their fundamental human rights via the microblogging platform Twitter.
The Court restated the order and extended it to cover all cases before it arising from the Twitter ban after granting the Government’s request to consolidate the four suits contesting the indefinite suspension Twitter. The four suits were filed against the Nigerian Government by:
• Media Rights Agenda (MRA) and three other non-governmental organizations, Paradigm Initiative (PIN), Premium Times Centre for Investigative Journalism (PTCIJ), the International Press Centre (IPC), and Tap Initiative for Citizens Development (TICD) as well as four journalists, Mr. David Hundeyin, Mr. Samuel Ogundipe, Ms Blessing Oladunjoye, and Mr. Nwakamri Zakari Apollo;
• Socio-Economic Rights and Accountability Project (SERAP), a Lagos-based NGO, and 176 Nigerians;
• Mr. Patrick Elohor, President of the NGO, One Love Foundation; and
• Chief Malcolm Omirhobo, a Lagos-based human rights lawyer.
Against the objection of the Nigerian Government, the Court also granted the requests by several international human rights organizations to be admitted as “amici curiae” (friends of the court) to enable them to intervene in the matter. The organizations are Robert F. Kennedy Center for Justice and Human Rights, Amnesty International (AI), Access Now, the Electronic Frontier Foundation (EFF) and Open Net Foundation.
At the last hearing before the Court on July 6, the lawyer representing the Government, Mr. Abdullahi Abubakar, moved a motion filed the previous day asking the Court to consolidate all the four suits pending before the Court on the Twitter ban.
The lead counsel for SERAP, Mr. Femi Falana (SAN), and the lead counsel for MRA and the eight others, Mrs. Mojirayo Ogunlana-Nkanga, raised no objection to the application for consolidation.
Mrs. Mojirayo Ogunlana-Nkanga, MRA’s lead counsel
The Court, however, declined to give a ruling on the matter then, noting that Mr. Elohor and Chief Omirhobo were not represented in court as their cases were before another panel of the Court and not scheduled for that day. The court ruled that since they were not represented at the hearing, it could not make any order for consolidation without hearing from them or knowing their position is on the matter.
At today’s proceedings, Mr. Samuel Ihensekhien, representing Mr. Elohor, and Ms Franca Abubokhale, lawyer to Chief Omirhobo, both confirmed that they were not objecting to the application for a consolidation of the four suits.
Ruling on the application, the presiding judge, Justice Gberi-bè Ouattara, who is the Vice President of the Court, ordered that the four suits be consolidated into one.
The Court then heard separate applications by Mr. Ikechukwu Uzoma, lawyer to the Robert F. Kennedy Center for Justice and Human Rights, and Mr. Deji Ajare, on behalf of Amnesty International (AI), Access Now, the EFF and the Open Net Foundation, requesting the Court to admit them as friends of the court to enable them to intervene in the consolidated suit.
The Government’s lawyer, Mr. Abdullahi Abubakar, objected to both applications, saying there was nothing to show that organizations are juristic persons registered in Nigeria. He said he needed to consult with the Corporate Affairs Commission to ascertain if the international organizations are juristic persons in Nigeria.
Mr. Falana, Mrs. Ogunlana-Nkanga, Mr. Ihensekhien, and Ms Abubokhale said they had no objection to the organizations being allowed to intervene in the matter.
In his arguments, endorsed by the other lawyers, Mr. Falana said there was nothing in the Court’s protocols barring the organizations from intervening or requiring them to be registered in Nigeria before they can intervene in any matter before the Court.
Mr. Femi Falana (SAN), SERAP’s lead counsel
He cited the case of Amnesty International v. Togo where the Court had previously allowed a similar application and urged the Court to take judicial notice of the fact that Amnesty International has appeared before the Court several times not as a national organization but as an international organization.
Mr. Falana contended that the intervention by the international organizations would assist the Court in coming to a just decision on the matter, adding that although the Court is a regional court, its decisions are being cited all over the world and as such, it needs to take into account jurisprudence from all over the world in resolving the issues involved in the consolidated suit.
Arguing along the same lines, Mrs. Ogunlana-Nkanga reminded the Court of previous cases before it, including one in which she had appeared as counsel for the applicant, where the Court allowed international organizations not registered in the defendant countries to intervene.
She argued that given the complexity of digital rights and internet freedom issues involved in the suit, the court would benefit from the intervention of well-known international organizations.
Ruling, Justice Ouattara granted the application and admitted all the international organizations as friends of the court.
He adjourned hearing in the consolidated suit to September 29, 2021, saying that it would give all the lawyers time to organize themselves as there are now a lot of lawyers in the matter and the court would need to manage the time strictly in order to be able to deal with the matter expeditiously.
Mrs. Ogunlana-Nkanga, however, requested the Court to reconsider its decision to adjourn the hearing to September 29, arguing that violation of the rights of her clients arising from the Twitter ban was continuing as well as the risk they face from the Government’s threat to prosecute anyone who uses Twitter.
She noted that some of her clients also use Twitter in their businesses and that the suspension of Twitter in Nigeria was hurting their businesses and causing them economic hardship.
Saying that the lawyers did not need any time to organize themselves and the presentation of their cases, she argued that hearing in the substantive suits had been fixed for July 6 before the Government raised the issue of consolidation of all the cases.
Mrs. Ogunlana-Nkanga stressed that since all the parties had long been served all the processes in the suit before the July 6 hearing, she was prepared to present her case today if the Court could hear the suit.
Mr. Falana, Mr. Ihensekhien, and Ms Abubokhale agreed with Mrs. Ogunlana-Nkanga, saying that they were also prepared to present their cases today.
But the Government lawyer, Mr. Abubakar said he was not prepared for the hearing today and urged the Court to retain the September 29 date already fixed.
Ruling, Justice Ouattara noted that the Court was sitting for the last time today before its vacation and that even if it began hearing the suit today, it could not finish the matter today and deliver its judgment before September as it is not supposed to sit during the vacation period.
Besides, the judge said, the substantive matter was not fixed for hearing today and the parties were not invited by the court to plead their cases and so he did not expect that they would be prepared to do so.
He declared that the provisional measures already issued by the court were now valid for all the cases and accordingly extended the court’s order to apply to all the cases.
In the provisional measures issued by the Court on June 22, 2021, it order the Nigerian Government and its agents to refrain from imposing sanctions on any media house or harassing, intimidating, arresting or prosecuting the applicants or concerned Nigerians for the use of Twitter and other social media platforms pending the hearing and determination of the substantive suit.
Restating the provisional measures at today’s hearing, Justice Ouattara stressed that the Court had already asked Nigeria’s Attorney-General to stop the arrest of any person for using Twitter and ordered all the parties to comply with the Court’s decision.
He said the Court would maintain the September 29 date fixed for the hearing of the substantive suit.