Internet Shutdown in Nigeria – A Possibility?

By Chuks Okoriekwe & Caleb Ogundele

Introduction

As Nigeria heads to the polls in what has been described as one of the keenly contested elections, which were unceremoniously postponed for a week by the Independent National Electoral Commission (INEC), there have been rumours of a possible Internet shutdown to prevent the spread of fake election results. Although, these rumours have been dispelled by the Office of the National Security Adviser (ONSA) in a statement released by Mr. Danjuma Reuben, the Spokesperson for the ONSA, reiterated government’s commitment to protect the country’s Critical National Information Infrastructure (CNII) of which the Internet is a major component.

This article seeks to examine the propriety of an Internet shutdown in Nigeria in a bid to curb fake news and false election results given the provisions of Nigeria’s Constitution which guarantees freedom of expression and the press.

Access to Internet for Social Good and Internet Shutdown

Undoubtedly, the Internet has contributed immensely to the advancement witnessed in the twenty-first century. Dubbed the fourth industrial revolution (4IA), development in Information Communication Technology (ICT) such as Machine Learning, Artificial Intelligence, Virtual and Augmented Reality, Cryptocurrency etc. have led to the development of a global digital economy. According to the Organisation for Economic Co-operation and Development (OECD), the digital economy is “…the full range of our economic, social, and cultural activities supported by the Internet and related information and communication technologies.”[1] This therefore portends that reliance is placed on the Internet for our daily needs including information dissemination, healthcare, commerce, banking, etc.

According to Internet World Stats, more than 55.1% of the global population have access to the Internet with Africa having only 36.1% of its population with access.[2] In an ever growing interconnected world, the need to deepen Internet penetration in Africa ought to be paramount given the potential of the Internet to bridge regional integration as well as promote access to trade, investment, health and other basic amenities.

Africa has witnessed numerous Internet shutdowns as a measure to restrict access to information and curtail violent protests.[3] Access Now puts it thus: An Internet shutdown is an intentional disruption of Internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information.”[4] In the same vein, Internet Freedom India posits that: Internet shutdowns are an absolute restriction placed on the use of Internet services due to an order issued by a government body. It may be limited to a specific place and to specific period, time or number of days. Sometimes it can even extend indefinitely. An Internet shutdown may be limited to mobile Internet that you use on smartphones, or the wired broadband that usually connects a desktop – or both at the same time.”[5]

Consequently, an Internet shutdown can operate in two different forms. Full Internet shutdown which involves “a total shutdown or blackout where all services on the Internet are blocked off, targeting mobile Internet access and/or fixed lines, such that users in a country or region are not able to access the Internet” and “… partial shutdown, where content blocking techniques are applied to restrict access to websites or applications, very often to block people from communicating or sharing information amongst them.” This could however be intentional or unintentional. Whilst it is often misconceived that most Internet shutdowns are as a result of government’s take down requests and Denial of Service (DoS), there have been instances where same have been occasioned by inadvertent actions and inactions of the Telecommunication Companies (TelCos) such as service disruption, base station vandalism, etc. which affects a particular service area.

One major advantage of the Internet is democratization of access to information. Before the advent of the Internet, access to information was heavily regulated by various governments through strict laws on licensing – many have since proceeded to extend their regulations to online media. With the Internet, there have been an upsurge in information some of which are often considered as fake news and against national security. Thus, frantic efforts are being made by governments on content censorship. According to IEEE Internet Initiative on Internet censorship in Nigeria, it was discovered that certain websites with contents relating to the word ‘biafra’ were reportedly blocked.[6]

It is instructive to note that the right to freedom of expression (of which right to express one’s thoughts and opinion through the Internet is pivotal) is guaranteed and protected under various international laws. The right to freedom of expression is particularly protected under Article 19 Universal Declaration of Human Rights (1948) as well as Article 19 International Covenant on Civil and Political Rights (1966). In addition to these laws, Article 15 International Covenant on Economic, Social and Cultural Rights (1966) guarantees the right to enjoy the benefit of scientific progress and its applications.  Internet access – being a scientific application – is thus protected. In recognition of the State’s responsibility to protect and guarantee access to the Internet, the International Telecommunication Union (ITU)’s Constitution pursuant to Article 33 states that: “Member States recognize the right of the public to correspond by means of the international service of public correspondence…” which underscores the obligation on the State to protect access to the Internet and abhor restricted access.

Right to Access to Internet in Nigeria?

It has often been asked whether there is the right to access the Internet in Nigeria. Unlike other countries such as Finland,[7] Estonia,[8] Greece[9] and the European Union[10] where the right to basic Internet access is part of the citizens’ fundamental rights, Nigeria is yet to recognise access to Internet as a fundamental right guaranteed and protected under Nigeria’s Constitution. The Supreme Court (SC) in a plethora of cases has highlighted the distinction between Fundamental Rights protected under chapter four of the Constitution and ‘resource-based rights’ provided under chapter two – Fundamental Objective and Directive Principle of State Policy. In Badejo v. Fed. Minister of Education,[11] the SC held that the right to education is not guaranteed as a fundamental right and thus unenforceable. However, the Digital Rights and Freedom Bill which seeks to protect the rights of Nigerian online is currently before the President for his assent. If passed into law, it will provide right to digital privacy, anonymity, data and information privacy amongst others.

Nigeria’s Constitution guarantees the right to freedom of expression and the press. Accordingly, section 39 (1) and (2) provides: “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact ideas and information without interference. Without prejudice to the generality of sub-section (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinion…”[12] However, this right is not absolute as there are grounds provided under the Constitution upon which the State could derogate from it. These are provided under section 45(1) to include “…the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons.”

In addition to these restrictions created by the Constitution, the Cybercrimes (Prohibition, Prevention, etc.) Act,[13] National Broadband Policy, 2013, the National Broadcasting Commission (NBC)’s Draft Broadcasting Code, 2017, the Nigerian Communications Commission (NCC)’s Draft Internet Code of Practice, 2018 and National Information Technology Development Agency (NITDA) Framework and Guidelines for Public Internet Access, 2019 all seeks to regulate access and usage of the Internet in Nigeria.

It is therefore pertinent to ask whether the dissemination of fake news (fake election results) qualifies as a basis for a possible Internet shutdown in Nigeria? Whilst it must be stated that fake news could be a basis for criminal and civil prosecution by the government, it is doubtful if same could validly be used as a basis for ordering Internet shutdown. The spread of fake news where same is calculated to defame another could constitute criminal defamation under section 375 Criminal Code Act[14] as well as civil action in defamation and where it is targeted at the government, it could constitute sedition under section 51 Criminal Code Act.[15] Recently, an Ivorian member of parliament, Mr. Alain Lobognan was sentenced to one year imprisonment and fined US$520 for spreading fake news and incitement of violence.[16] Section 27 Electoral Act, 2010 (as amended) saddled the INEC with the sole responsibility of announcing election result whilst offences relating to announcement of fake election results is punishable with a 36 months’ imprisonment in pursuance with section 123 (4) Electoral Act, 2010 (as amended).  Thus, it is apposite that the law had made adequate provision for penalties for fake news and as such an Internet shutdown would be said to be an overreach of the regulatory authorities.

Drawing a parallel with Zimbabwe, the country’s Internet was recently shutdown owing to the purported order by the Minster of State in charge of National Security of Zimbabwe relying on the provisions of section 5 Interception of Communication Act. This action was however successfully challenged in Zimbabwe Lawyers for Human Rights and Media Institute of Southern Africa (Zimbabwe Chapter) v. Minister of State for National Security and Others[17] wherein the High Court in its interim ruling agreed with the Applicants and ordered Internet Services Providers to resume the provision of Internet Service in Zimbabwe.

Considering the nature of Nigeria’s frontier economy which heavily relies on Nigeria’s CNII including the Internet, a shutdown would occasion an irreparable economic loss due to the interconnectivity of the various segments of the economy to the Internet. For instance, major banks and other financial services providers have developed chatbots to ease business transaction, major travel bookings are now conducted online, amongst many others. According to NetBlocks, using economic methodologies including; size of the economy, Gross Domestic Product (GDP) growth rate, etc. it was estimated that a total shutdown, outage or blackout affecting landline and mobile service would result in Nigeria losing $134,251,654 whilst in a partial shutdown involving Facebook, WhatsApp, Twitter, YouTube and Instagram, Nigeria would lose the sum of $6,014,390 on each online platform per day.[18]

Conclusion

The Internet plays a key role in Nigeria’s economy and as such there should be a multi-stakeholder engagement in the determination of the future of Nigeria’s Internet. There is no doubt, purveyors of fake news and hate speech might be poised to use the Internet as a medium of reaching many people, however, the far reaching impact of an Internet shutdown ought to be considered. Government should however isolate incidents of fake news and enforce the applicable laws to serve as deterrent. The civil society groups should continue to engage the relevant government agencies including the ONSA, NITDA, NBC, NCC etc. on protecting the rights of Internet users in Nigeria. When the Digital Rights and Freedom Bill secures the President’s assent, Nigerians will be able to seek redress when their right to access the Internet is infringed. Nonetheless, should the government proceed to shut down the Internet, there are various Virtual Private Network (VPN) tools which could be used to bypass Nigerian IP address. They include; Tor,[19] Psiphon,[20] Orbot (App),[21] Tails (OS),[22] Lantern,[23] FireChat,[24] etc. whilst OONI Probe[25] is used to ascertain when an Internet shutdown has taken place.

 

1] Tojo Jose, ‘What is Digital Economy’, Indian Economy.net January 27, 2017 <https://www.indianeconomy.net/splclassroom/what-is-digital-economy/>  (accessed 20 February 2019)

[2] Internet World Stats – Usage and Population Statistics, ‘Internet users in the world by regions’ June 30, 2018  <https://www.Internetworldstats.com/stats.htm> (accessed 20 February 2019)

[3] See, Association for Progressive Communications (APC), Internet shutdowns in Africa: It is like being cut off from the world’, APC News January 19, 2019 <https://www.apc.org/en/news/Internet-shutdowns-africa-it-being-cut-world> (accessed 20 February 2019); See also, Tonderayi Mukeredzi, ‘Uproar over Internet shutdowns’, Africa Renewal August – November 2017, <https://www.un.org/africarenewal/magazine/august-november-2017/uproar-over-Internet-shutdowns> (accessed 20 February 2019)

[4] Access Now, ‘Keep It On’, <https://www.accessnow.org/keepiton/#resources>  (accessed 20 February 2019); See also, International Federation of Library and Institutions, ‘IFLA Statement on Internet Shutdowns’, <https://www.ifla.org/files/assets/hq/topics/info-society/documents/ifla_Internet_resource_pack.pdf> (accessed 20 February 2019)

[5] Ibid (note 4)

[6] Babatunde O, Maria X, Leonid E, Sodiq A, and Chukwuzitere O.,  ‘Evidence of Internet Policy Advocacy in Africa’, IEEE Internet Policy Newsletter, December 2018

<https://Internetinitiative.ieee.org/newsletter/december-2018/measuring-Internet-censorship-in-Nigeria> (accessed 20 February 2019)

[7] Following the amendment of Finland’s Communications Market Act to include the provision of Internet access of 1 Mbit/s as part of the universal service obligations, Internet access became a right enforceable in Finland. See, International Telecommunication Union, ‘Broadband now a legal right in Finland’, ITU News July – August, 2010 <https://www.itu.int/net/itunews/issues/2010/06/pdf/201006_34.pdf> (accessed 20 February 2019)

[8] See, Article 5, Telecommunications Act, 200; See also, Ministry of Foreign Affairs, ‘Internet Freedom’, January 9, 2017 <https://vm.ee/en/internet-freedom>  (accessed 20 January, 2019)

[9]See, Articles 5A, 9, 9A and 19, Constitution of Greece (as amended)

[10] European Commission (EC) Directive 2009/136/EC which amended Directive 2002/22/EC

[11] [1996] 8 NWLR (Pt.464)15

[12] Section 39 (1) and (2) Constitution of the Federal Republic of Nigeria 1999 (as amended)

[13] Act No.17 of 2015

[14] Cap. C38 Laws of the Federation of Nigeria (LFN), 2004

[15] Ibid

[16] BBC News, ‘Ivorian MP Alain Lobognan jailed for ‘fake news’ tweet, <https://www.bbc.com/news/world-africa-47057509> (accessed 20 February 2019)

[17] Case N0. HC 265/19

[18] This cost wes calculated using NetBlock’s methodology found on <https://netblocks.org/cost/> (accessed 20 February 2019)

[19] Download link: <https://www.torproject.org/download/download-easy.html.en> (accessed 20 February 2019)

[20] Download link: <https://psiphon.ca/en/download.html> (accessed 20 February 2019)

[21] Download link: <https://guardianproject.info/apps/orbot/> (accessed 20 February 2019)

[22] Download link: <https://tails.boum.org/install/> (accessed 20 February 2019)

[23] Download link: <https://getlantern.org/en_US/index.html> (accessed 20 February 2019)

[24] Download link: <https://www.opengarden.com/firechat/> (accessed 20 February 2019)

[25] Download link: <https://ooni.torproject.org/> (accessed 20 February 2019)

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1 Comments

  1. Nice piece

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