I have always contended that the bill titled: “A Bill for an Act to Prohibit Frivolous Petitions and other Matters Connected therewith” overstepped its bounds when it added the following small paragraph in its body;
“Where any person through text message, tweets, WhatsApp or through any social media post any abusive statement knowing same to be false with intent to set the public against any person and group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction, shall be liable to an imprisonment for two years or a fine of N2,000,000.00 or both fine and imprisonment”.
This bill has passed its second reading on its way to being voted for on the senate floor.
Freedom of speech never gave one freedom from the consequences of speech. We all know about the preponderance of emergency online “news” pages and all the dissemination of falsehood and incitement that they are used for. That said, there are existing laws to address hate speech, sedition, treason, call to violence and even slander and defamation. With the amended evidence act, electronic evidence can now be used against people in court. This is where the social media targeted bill fell off tangent. It was not necessary, would address no new issue but would serve to send a message of censorship on social media. This is the crux.
The recent amendment of the Evidence Act in 2011 was intended to provide for the use of such electronic evidence in court proceedings. The real concerns are that lawyers are still getting abreast with the technicalities guiding the admissibility of the said electronic evidence. A classic case in point of where this was unsuccessful due to poor presentation was Kubor v Dickson (2012). In this case the Supreme Court ruled that the appellants failed to meet the conditions spelt out in the section 84(2) of the amended evidence act of 2011. What the senate should have been looking at was how easy it was to tender electronic evidence based on the stipulations and guidelines of the act. From the standpoint of not being a lawyer or an IT guru, the language and goals of the following stated conditions are hazy at best.
See below conditions from section 84(2):
- The statement sought to be tendered was produced by the computer during a period when it was in regular use;
- During that period of regular use, information of the kind contained in the document or statement was supplied to the computer;
- The computer was operating properly during that period of regular use; and
- The information contained in the statement was supplied to the computer in the ordinary course of its normal use.
According to Section 84(4) the party tendering electronic evidence shall file an affidavit:
- Identifying the document or statement;
- Describing the manner of its production;
- Stating the specifications of the device used in the production of the document; and
- Signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.
Just think how this would work with a Facebook post or a WhatsApp broadcast? You can see how fraught with difficulty executing such evidence can be.
I believe there is opportunity for the senate to simplify the electronic evidence parts of the evidence act and its conditions/guidelines towards making it easy for such evidence to be presented and admissible in our courts.
This is where they should be focusing their energies on with regards to the issue of consequence for behavior online.
(Highly) Recommended reading:
- Electronic Evidence in Nigeria – Timothy Tion (http://sas-space.sas.ac.uk/5717/1/2126-3117-1-SM.pdf ) This document from Mr. Tion analyzes several cases of failures and successes of electronic evidence based litigation in Nigeria. very interesting read, I promise you.
Evidence Act 2011 – http://www.nassnig.org/document/download/5945