ECOWAS court is not entitled to criminalize the suspension of Twitter because the suspension of Twitter in Nigeria does not fall under any treaty enforceable by ECOWAS.
In its preliminary objection to the suit brought by Socio-Economic Rights and Accountability Project (SERAP) and 176 Nigerians over its directive to prosecute those in violation of the suspension, the Federal Government stated as much.
Under Nigerian law, the court does not have jurisdiction to determine the criminalization of an act. Twitter is a microblogging site, not an “organisation of any member state”.
Part of the Federal government’s objection reads
“The right to freedom of expression is completely different from freedom of reach. The suspension of Twitter does not fall under the provisions of arts 8 and the African Charter on Human and Peoples’ Rights. The suspension of Twitter in Nigeria is not a right recognized under any treaty enforceable by this Court. In the unlikely event that this Honourable Court agrees with SERAP that the suspension of Twitter is a fundamental right, the dissolution or liquidation of twitter as a profit-making entity may as well open a floodgate and vest the users the rights of a non-existent right. Twitter is a profit-making entity which can be proscribed/dissolved in compliance with any national laws. The compulsory shut down of an entity cannot be termed the breach of any fundamental rights by this Honourable Court. The suspension of Twitter in Nigeria is in compliance with the provisions of sections 420, 419 of the Penal Code [Northern Nigeria]; Federal Provisions Act, and section 58 of the Criminal Code Act. The operation of Twitter is in violation of Nigerian domestic legislation. Ground Two: This Court lacks the jurisdiction to determine the criminalization of an act under Nigerian laws. The subject matter of the SERAP suit borders on the criminalisation of Twitter operation in Nigeria pursuant to the Penal Code and the Criminal Code. The use and operation of Twitter in Nigeria constitutes the offences of Importation of Prohibited publication under sections 420 and 421 or the offence of possession of seditious articles under section 419 of the Penal Code Federal Provisions Act. In any event there is a right of action vested in the suspension of Twitter in Nigeria, the said right vests directly on Twitter and not individual users of Twitter. This is more so that individual user’s Twitter accounts were not tempered but only the operation of Twitter.”
According to the government, “Nigerians and SERAP have no cause of action,” adding that Twitter’s suspension is backed by the Company and Allied Matters Act, 2020.