Two citizens in Nigeria have filed a
motion charging the Government with violating fundamental human rights, specifically
freedom of expression due to the suspension of mobile telephone services in the
northeastern Nigerian states affected by the state of emergency.
Comrade Shehu Sani & Ibrahim M.
Attahir filed the motion at the Federal High Court in Gombe yesterday, claiming
that under Section 39 of Nigeria’s 1999 constitution, the government’s shutting
down of telecommunications services “amounts to the deprivation of Rights of
Expression to the entire citizens of Nigeria.”
The applicants asserted that the
powers given to the President under the state of emergency declaration do not
“extend to or include the imposition of collective punishment on the applicants
and citizens of Nigeria through the shutting down of mobile communication
services in the three affected states.”The motion also called for an end to the
parts of the emergency that cover the shutting down of telecommunications in
the three states, and on the government and several named companies to
apologize as well as pay to the affected citizens, damages in the sum of 250
million Naira.
SEE LAWSUIT FILINGS BELOW:
FUNDAMENTAL RIGHT CASE
In
The Federal High Court of Nigeria
Holden
At Gombe
Suit No:..............
In
The Matter of an Application For
Orders For The Enforcement of The Applicants’
Fundamental Human Rights To Freedom
of Expression, Including Freedom to Hold
and to Receive and Impart Ideas And
Information Freely Without Interference
Between
Ibrahim M.
Attahir
... 1st Applicant
Comrade Shehu
Sani
...
2nd Applicant
And
The Federal Government of
Nigeria
...1st Respondent
The Attorney General of the
Federation
...2nd Respondent
Nigerian Communications
Commission
...3rd Respondent
Mtn Nigeria
Ltd.
...4th Respondent
Airtel Nigeria
Ltd.
...5th Respondent
Globacom
Ltd.
...6th Respondent
Etisalat Nigeria
Ltd.
...7th
Respondent
Motion
On Notice
Brought
Pursuant To:
1. Order ii
Rules 1-5 of The Fundamental Rights (Enforcement Procedure) Rules, 2009.
2. Sections
39 And 46 of The Constitution of The Federal Republic of Nigeria, 1999 (As
Amended)
3. Article 9
of The African Charter On Human and People’s Rights (Ratification &
Enforcement) Act (Cap A9) LFN, 2004
4. The Inherent
Jurisdiction of This Honourable Court Take Notice that this Honourable Court
shall be moved on the...Day of...2013 at the Hour of 9 O’clock in the forenoon
or so soon thereafter as counsel on behalf of the Applicants may be heard
praying this Honourable Court for Order enforcing the Fundamental Rights of the
Applicants to wit:-
1. A DECLARATION that the
complete shutting down of telecommunication/GSM services by the collaborative
effort of the Respondents in all parts of Borno, Yobe and Adamawa States
pursuant to the State of Emergency (Certain States of the Federation)
Proclamation Act, 2013 and the Regulations made thereunder by the President of
the Federal Republic of Nigeria amounts to deprivation of Rights of Expression
to the entire citizens of Nigeria thereby violating and threatening the
fundamental human right to freedom of expression including freedom to hold
opinions and to receive and impart ideas and information of the Applicants and
other Nigerians as guaranteed under Section 39 of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended) herein referred to as the
1999 Constitution.
2. A DECLARATION that the
powers of the President of the Federal Republic of Nigeria under Section 305 of
the 1999 Constitution and State of Emergency (Certain States of the Federation)
Proclamation Act, 2013 and the Regulations made thereunder affecting Borno,
Yobe and Adamawa States does not extend OR include the imposition of collective
punishment on the Applicants and the citizens of
Nigeria by completely shutting down
telecommunication/GSM services indefinitely in the 3 affected States.
3. A DECLARATION that the
complete shutting down of telecommunication/GSM services indefinitely as a
result of the imposed State of Emergency in Borno, Yobe and Adamawa States on
14th May, 2013 by the President of the Federal Republic of Nigeria has deprived
and continued to deprive the citizens of the Federal Republic of Nigeria
including the Applicants of their fundamental rights to freedom of expression
to receive and impart ideas within themselves and, therefore, such act is
illegal, unconstitutional and null and void.
4. AN ORDER nullifying and or
invalidating parts of the State of Emergency (Certain States of the Federation)
Proclamation Act, 2013 and the Regulations made thereunder that are related or
connected to the complete shutting down of telecommunication/GSM services
indefinitely by the Respondents in all parts of Borno, Yobe and Adamawa States
imposed on 14th May, 2013 to date.
5. AN ORDER directing the
Respondents jointly and or severally to pay the Applicants the sum of N
250,000,000.00 (Two Hundred and Fifty Million Naira) only as exemplary damages.
6. AN ORDER directing the 4th
to the 7th Respondents jointly and or severally to pay the Applicants and other
Nigerian subscribers of their respective services the sum of N 250,000,000.00
(Two Hundred and Fifty Million Naira) only as damages for denying them the
right and access to make and receive calls to and from all parts of Borno, Yobe
and Adamawa States from 14th May, 2013 to date.
7. AN ORDER directing the 4th –
7th Respondents jointly and severally to apologise to the Applicants and other
Nigerian subscribers for denying them
access to GSM services to make and
receive calls or text messages from all
parts of Borno, Yobe and Adamawa
States from 14th May, 2013 to date without explanation.
8. AN ORDER of perpetual
injunction restraining the Respondents from further completely shutting down,
continuing to completely shut down or further completely
shutting down telecommunication/GSM
services indefinitely in Borno, Yobe and Adamawa States or any part of Nigeria
without notice or reasonable ground justifiable in a democratic society of
Nigeria.
9. ALTERNATIVELY, AN ORDER
directing the Respondents to pay compensation to the Applicants and other
Nigerian subscribers as envisaged under Section 2 (e) of the State of Emergency
(Certain States of the Federation) Proclamation Act, 2013.
10. AND for such further
order(s) as this Honourable Court may deem fit to make in the circumstances.
Dated This 10th Day of June, 2013
........................
L.A. Haruna,
Rabiu
Ayuba,
Y.I.
Danbima
Applicant’s Counsel,
C/o L.a. Haruna &
Co.
Top floor, Gombe
Chemist Building,
Biu Road,
Gombe,Gombe State.
Email: lucasharuna@yahoo.com
Gsm:
0803 482 2618
OR
Suite
C – 12, Halima Plaza,
Balanga Street,
Behind Sahad Stores,
Garki II, Abuja.
For Service On The
Respondents
1. The 1st & 2nd Respondents
C/o Federal Ministry
of Justice,
Central Business
District,
Shehu Shagari Way,
Abuja, FCT.
1. 3rd Respondent
Plot 423, Aguyi
Ironsi Street, Maitama District,
Abuja, FCT.
1. The 4th Respondent
MTN Nigeria Ltd,
Golden Plaza, By
Folomo Bridge,
Ikoyi, Lagos State.
1. The 5th Respondent
Airtel Nigeria Ltd.,
Plot 12, Banana
Island, Ikoyi, Lagos.
1. The 6th Respondent
Globacom Ltd.,
Mike Adenuga Towers,
1 M/Adenuga close,
Off Adeola Adeku,
Victoria Island,
Lagos.
1. The 7th Respondent
Etisalat Nigeria
Ltd.,
Plot 19, Everest Court,
Zone L,
Banana Island,
Ikoyi, Lagos.
This Motion is for Service on the
1st, 2nd and 3rd Respondents in Abuja, Fct and 4th, 5th, 6th and 7th
Respondents in Lagos State Out of Jurisdiction of this Honourable Court.
In
The Federal High Court of Nigeria
Holden
At Gombe
Suit No:..............
In
The Matter of an Application For
Orders For The Enforcement of The Applicants’
Fundamental Human Rights To Freedom
of Expression, Including Freedom to Hold and to Receive and Impart Ideas And
Information Freely Without Interference
Between
Ibrahim M.
Attahir
... 1st Applicant Comrade Shehu
Sani
...
2nd Applicant
And
The Federal Government of
Nigeria
...1st Respondent
The Attorney General of the
Federation
...2nd Respondent
Nigerian Communications
Commission
...3rd Respondent
Mtn Nigeria
Ltd.
...4th Respondent
Airtel Nigeria
Ltd.
...5th
Respondent
Globacom Nigeria
Ltd.
...6th Respondent
Etisalat Nigeria
Ltd.
...7th Respondent
Statement In
Support Of Facts
1. Names
And Description of The Applicants. The 1st Applicant is Ibrahim M. Attahir,
Male, Nigerian, Legal Practitioner of Taufiq Law Office, Pantami Extension,
Gombe, Gombe State while the 2nd Applicant is Comrade Shehu Sani, Male,
Nigerian of Civil Rights Congress, Kaduna, Kaduna State.
1. Reliefs Sought:
1. A DECLARATION that the
complete shutting down of telecommunication/GSM services by the collaborative
effort of the Respondents in all parts of Borno, Yobe and Adamawa States
pursuant to the State of Emergency (Certain States of the Federation)
Proclamation Act, 2013 and the Regulations made thereunder by the President of
the Federal Republic of Nigeria amounts to deprivation of Rights of Expression
to the entire citizens of Nigeria thereby violating and threatening the
fundamental human right to freedom of expression including freedom to hold
opinions and to receive and impart ideas and information of the Applicants and
other Nigerians as guaranteed under Section 39 of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended) herein referred to as the 1999
Constitution.
2. A DECLARATION that the
powers of the President of the Federal Republic of Nigeria under Section 305 of
the 1999 Constitution and State of Emergency (Certain States of the Federation)
Proclamation Act, 2013 and the Regulations made thereunder affecting Borno,
Yobe and Adamawa States does not extend OR include the imposition of collective
punishment on the Applicants and the citizens of
Nigeria by completely shutting down
telecommunication/GSM services indefinitely in the 3 affected States.
3. A DECLARATION that the
complete shutting down of telecommunication/GSM services indefinitely as a
result of the imposed State of Emergency in Borno, Yobe and Adamawa States on
14th May, 2013 by the President of the Federal Republic of Nigeria has deprived
and continued to deprive the citizens of the Federal Republic of Nigeria
including the Applicants of their fundamental rights to freedom of expression
to receive and impart ideas within themselves and, therefore, such
act is illegal, unconstitutional and
null and void.
4. AN ORDER nullifying and or
invalidating parts of the State of Emergency (Certain States of the Federation)
Proclamation Act, 2013 and the Regulations made thereunder that are related or
connected to the complete shutting down of telecommunication/GSM services
indefinitely by the Respondents in all parts of Borno, Yobe and Adamawa States
imposed on 14th May, 2013 to date.
5. AN ORDER directing the Respondents
jointly and or severally to pay the Applicants the sum of N 250,000,000.00 (Two
Hundred and Fifty Million Naira) only as exemplary damages.
6. AN ORDER directing the 4th
to the 7th Respondents jointly and or severally to pay the Applicants and other
Nigerian subscribers of their respective services the sum of N 250,000,000.00
(Two Hundred and Fifty Million Naira) only as damages for denying them the
right and access to make and receive calls to and from all parts of Borno, Yobe
and Adamawa States from 14th May, 2013 to date.
7. AN ORDER directing the 4th –
7th Respondents jointly and severally to
apologise to the Applicants and other
Nigerian subscribers for denying them access to GSM services to make and
receive calls or text messages from all parts of Borno, Yobe and Adamawa States
from 14th May, 2013 to date without explanation.
8. AN ORDER of perpetual
injunction restraining the Respondents from further completely shutting down,
continuing to completely shut down or further completely
shutting down telecommunication/GSM
services indefinitely in Borno, Yobe and Adamawa States or any part of Nigeria
without notice or reasonable ground justifiable in a democratic society of
Nigeria.
9. ALTERNATIVELY, AN ORDER
directing the Respondents to pay compensation to the Applicants and other
Nigerian subscribers as envisaged under Section 2 (e) of the State of Emergency
(Certain States of the Federation) Proclamation Act, 2013.
10. AND for such further
order(s) as this Honourable Court may deem fit to make in the circumstances.
1.
Grounds Upon Which Reliefs Are Sought:
1. The
Applicants are law abiding citizens of the Federal Republic of Nigeria and as
such are entitled to their Fundamental Rights as enshrined in the 1999 Constitution particularly
rights to freedom of expression provided under Section 39 thereof.
2. Section 45 of the 1999
Constitution only allows derogation from fundamental rights during period of
emergency through a law that is reasonably justifiable in a democratic society.
3. The complete shutting down of
telecommunication/GSM services indefinitely in all parts of Borno, Yobe and
Adamawa States from 14th May, 2013 to date by Respondents in pursuance of the
State of Emergency (Certain States of the Federation) Proclamation Act, 2013
and the Regulations made thereunder which has affected other States of the
Country and beyond is unprecedented and unbecoming in a democratic society and
therefore, not reasonably justifiable in a democratic society.
4. The complete shutting down of
telecommunication/GSM services indefinitely by the 4th to 7th Respondents in
all parts of Borno, Yobe and Adamawa States on the basis of the proclamation of
State of Emergency by the 1st Respondent has flagrantly affected and prevented
telecommunication/GSM services to and from all parts the 3 affected states to
other States in Nigeria and beyond and this action has violated and is
violating the fundamental human right of the Applicants and many other
Nigerians alike to receive information, report and news about their children,
wives, parents, colleagues, business associates and well wishers resident in
the affected States who are students of the University of Maiduguri and other
federal universities and tertiary institutions in the 3 affected states.
5. The complete shutting down of
telecommunication services indefinitely by the 4th to 7th Respondents in all
parts of Borno, Yobe and Adamawa States on the basis of the proclamation of
State of Emergency by the 1st Respondent has flagrantly affected and prevented
telecommunication/GSM services to and from these States to other States in
Nigeria and beyond and this action has violated and is violating the
fundamental human right of the Applicants and many other Nigerians alike to receive
information, report and news about their children, wives, parents, colleagues,
business associates and well wishers schooling in University of Maiduguri and
other federal universities and tertiary institutions in the 3 affected states.
6. The denial by the Respondents to
allow the Applicants and many other parents/guardians in Nigeria and beyond to
have access to information, report and news about their children/wards in the
University of Maiduguri and other federal universities and tertiary institutions
in the face of the proclamation of the State of Emergency has subjected the
Applicants and other parents/guardians to psychological trauma and a situation
of complete helplessness.
7. The denial by the Respondents to
allow many other parents/guardians in Nigeria and beyond to have access to
information, report and news about their children/wards in Borno, Yobe and
Adamawa State in the face of the proclamation of the State of Emergency has
subjected the parents/guardians to psychological trauma and a situation of
complete helplessness.
8. The Fundamental Rights of the
Applicants guaranteed under the 1999 Constitution have been and are being
flagrantly violated by the Respondents without recourse to any law that is
reasonably justifiable in a democratic society as enshrined under Section 45 of
the 1999 Constitution.
9. The 1999
Constitution empowers this Honourable Court to give such directions
as it may consider appropriate for the purpose of
securing the enforcement of the Fundamental Right
of the Applicants AND Nigerians.
10. There is no reasonable ground
existing in a democratic society in Nigeria to warrant
the complete shutting down of telecommunications/GSM
services on the basis of the State of Emergency (Certain States of the
Federation) Proclamation Act, 2013 and the Regulations made thereunder.
11. The State of Emergency
(Certain States of the Federation) Proclamation Act, 2013 and the Regulations
made thereunder envisage that there may be some infringement of rights of innocent
citizens in course of enforcing the state of emergency.
Hence a provision is made under
Section 2 (e) of the Proclamation Act for payment of compensation to such
citizens whose rights are thereby infringed.
Dated This 10th June, 2013
........................
L.A. Haruna,
Rabiu
Ayuba,
Y.I.
Danbima
Applicant’s Counsel,
C/o L.a. Haruna &
Co.
Top floor, Gombe
Chemist Building,
Biu Road,
Gombe,Gombe State.
Email: lucasharuna@yahoo.com
Gsm:
0803 482 2618
OR
Suite
C – 12, Halima Plaza,
Balanga Street,
Behind Sahad Stores,
Garki II, Abuja.
In
The Federal High Court of Nigeria
Holden
At Gombe
Suit No:..............
In
The Matter of an Application For
Orders For The Enforcement of The Applicants’
Fundamental Human Rights To Freedom
of Expression, Including Freedom to Hold
and to Receive and Impart Ideas And
Information Freely Without Interference
Between
Ibrahim
M.
Attahir
... 1st Applicant
Comrade Shehu
Sani
...
2nd Applicant
And
The Federal Government of
Nigeria
...1st Respondent
The Attorney General of the
Federation
...2nd Respondent
Nigerian Communications
Commission
...3rd Respondent
Mtn Nigeria Ltd.
...4th Respondent
Airtel Nigeria
Ltd.
...5th Respondent
Globacom Nigeria
Ltd.
...6th Respondent
Etisalat Nigeria
Ltd.
...7th Respondent
Verifying Affidavit of Facts Relied
Upon
I, Ibrahim M. Attahir, Muslim, male,
Nigerian of Taufiq Law Office, No. 24 Pantami Extension, Gombe, Gombe State do
hereby make oath and state as follows:
1. That I am the 1st Applicant in
this case and by virtue of my position aforesaid I am familiar with
the facts of this case.
2. That I have the consent and
authority the 2nd Applicant and our Counsel, L.A. Haruna Esq. to
depose to this Affidavit.
3. That I verify that the facts which
constitute the grounds upon which the application is brought
are true and correct to the best of my knowledge, information and belief.
4. That the Respondents will
not be prejudiced if the application is granted.
5. That the Applicants will be highly
prejudiced if the application is refused.
6. That I swear to this affidavit in
good faith and in accordance with the Oaths Act, 2004.
..................
Deponent
Sworn
to at the Federal High Court Registry at Gombe
Dated
This 10th Day of June, 2013
Before
Me
Commissioner
For Oaths
In
The Federal High Court of Nigeria
Holden
At Gombe
Suit No:..............
In
The Matter of an Application For
Orders For The Enforcement of The Applicants’
Fundamental Human Rights To Freedom
of Expression, Including Freedom to Hold
and to Receive and Impart Ideas And
Information Freely Without Interference
Between
Ibrahim
M.
Attahir
... 1st Applicant
Comrade Shehu
Sani
...
2nd Applicant
And
The Federal Government of
Nigeria
...1st Respondent
The Attorney General of the
Federation
...2nd Respondent
Nigerian Communications
Commission
...3rd Respondent
Mtn Nigeria
Ltd.
...4th Respondent
Airtel Nigeria
Ltd.
...5th Respondent
Globacom Nigeria
Ltd.
...6th Respondent
Etisalat Nigeria
Ltd.
...7th Respondent
Affidavit In Support of Motion on
Notice
I, Ibrahim M. Attahir,
Muslim, male, legal practitioner,
Nigerian of Taufiq Law Office, No. 24 Pantami
Extension, Gombe, Gombe State do
hereby make oath and state as follows:-
1. I am the 1st Applicant in this
case and by virtue of my position aforesaid I am familiar with the facts of
this case.
2. That I have the consent and
authority of the 2nd Applicant and our Counsel, L. A. Haruna Esq. to depose to
this Affidavit.
3. That the 1st Respondent is
the executive arm of government of the Federal Republic of Nigeria responsible
for the day-to-day administration of the country.
4. That the 2nd Respondent is
the Chief Law Officer and Minister of Justice of the 1st Respondent.
5. That the 3rd Respondent is an
agency of the 1st Respondent that supervises and regulates
telecommunications/GSM services.
6. That the 4th – 7th Respondents
telecommunication/GSM service providers regulated by the 3rd Respondent.
7. I am the father of Al-Husain
Ibrahim, a part four student of Faculty of Law, University of Maiduguri, Borno
State.
8. That the said Al-Husain Ibrahim is
a subscriber of MTN Nigeria Ltd and his GSM line is 0803 705 4220.
9. I am also a subscriber of MTN
Nigeria Ltd, Airtel Nigeria Ltd, Globacom Ltd and Etisalat Nigeria
Ltd with the following GSM numbers: 0703 800 7711, 0802 374 8705, 0807 519
1975 and 0809 655 8695 respectively.
10. That all my 4 GSM lines are loaded
with enough credits /airtime at all times material to this application.
11. That since the proclamation of
state of emergency in Borno, Yobe and Adamawa States by the 1st Respondent on
14th May, 2013 I have severally tried to call the said Al-Husain Ibrahim
with all the 4 GSM lines and I am always told by the customised voice
responding that the line is switched off or cannot be reached.
12. The 2nd Applicant too severally
tried without success to reach his friend via Glo line but was
always told through the customised voice responding that the line
was switched off or could not be reached.
13. That we later realized that
telecommunication/GSM services in all parts the 3
affected states were completely shut down indefinitely as result of the
Proclamation of state of emergency.
14. that the 4th to the 7th
Respondents are carrying on substantial part of their business in Gombe and
other State of the Federation.
15. That my female relations keep on
crying because we cannot communicate with the said Al-Husain
Ibrahim to hear about his well being and I thereby suffered serious
psychological trauma.That I attended the University of Maiduguri
and, therefore, have a fair knowledge of its location in the city of Maiduguri.
16. That University of Maiduguri and
its surrounding have been peaceful since
the beginning the ongoing crisis in Maiduguri.
17. That the University of
Maiduguri is not among the places where 24 hours curfew is imposed in Maiduguri
as the University is on session and examinations currently going on.
18. That the 3rd – 7th Respondents
have never announced or otherwise informed me and the general public of the
complete shutting down of their services indefinitely in all parts of
the said 3 states affected by the proclamation of state of emergency
and have never apologised or explained the reason for the shut down.
19. That I have continued to buy
credit cards of the 4th – 7th Respondents
from 14th May, 2013 to
date when the GSM services to and from the said 3 states remain completely
shut down.
20. That Gombe and Kaduna States or
other States of Nigeria (apart
from Borno, Yobe and Adamawa
States) are not under the proclamation of state of emergency.
21. That the University of Maiduguri
has over 20, 000 students population from across all the 36 states of
Nigeria and the FCT.
22. That most of the parents and
guardians of the said students are suffering from similar psychological trauma
as a result of the complete shutting down of the telecommunication/GSM
services indefinitely.
23. The Applicants, residents of
Borno, Yobe and Adamawa States are now left incommunicado by the act of the
Respondents, their privies, servants and assigns.
24. That the general public in
Nigeria and beyond are also suffering and cannot reach their friends,
children, parents, wives, husbands, colleagues and associate resident in all
parts of the 3 State of Borno, Yobe and Adamawa as a result of
shutting down indefinitely of telecommunications following the
proclamation of
State of Emergency in the 3 affected
States.
25. That business activities and
provision of medical services to residents of the affected States is likely to
be adversely affected as a result of shutting down of
telecommunication/GSM services in all parts of Borno, Yobe and Adamawa
States following the proclamation of State of Emergency.
26. The grant of this application
will strengthen the cause of democratic development in Nigeria and as such the
Respondents will not be prejudiced.
27. That I depose to this
affidavit in good faith and in accordance with the Oaths Act, 2004.
..................
Deponent
Sworn
to at the Federal High Court Registry at Gombe
Dated
This 10th June, 2013
Before
Me
Commissioner
For Oaths
In The Federal High Court of Nigeria
Holden
At Gombe
Suit No:..............
In
The Matter of an Application For
Orders For The Enforcement of The Applicants’
Fundamental Human Rights To Freedom
of Expression, Including Freedom to Hold
and to Receive and Impart Ideas And
Information Freely Without Interference
Between
Ibrahim
M.
Attahir
... 1st Applicant Comrade Shehu
Sani
...
2nd Applicant
And
The Federal Government of
Nigeria
...1st Respondent
The Attorney General of the
Federation
...2nd Respondent
Nigerian Communications
Commission
...3rd
Respondent
Mtn Nigeria
Ltd.
...4th Respondent
Airtel Nigeria
Ltd.
...5th Respondent
Globacom Nigeria
Ltd.
...6th
Respondent
Etisalat Nigeria
Ltd.
...7th Respondent
Written Address In Support of
Application
1. Introduction
1.1. This is an
application by way of motion on notice seeking for the reliefs contained on the
face of the motion on notice. The application is brought pursuant to Order II
Rules 1-5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, AND
Sections 39 and 46 (1) of the Constitution of the Federal Republic of Nigeria,
1999 (as amended) and Article 9 of the African Charter on Human and People’s
Rights (Ratification and Enforcement) Act, LFN 2004 AND the Inherent
Jurisdiction of this Honourable Court.
1.2. The
Application is accompanied by statement in support of the Application,
Verifying Affidavit, Affidavit in Support of Application and a Written Address
in compliance with the rules governing this kind of application. We rely on the
statement, all the depositions in the said Affidavits and the Written Address.
We urge this Honourable Court to deem the Affidavits as read.
1. Brief Facts
2.1. The facts of
the case are as deposed to in the Affidavit in Support and the Statement and
Grounds of seeking the reliefs. However, by way of summary, on 14th May, 2013
the President of the Federal Republic Nigeria proclaimed state of emergency in
Borno, Yobe and Adamawa States.
2.2. Consequently,
from the 14th May, 2013, the day the proclamation was pronounced, all
telecommunication/GSM services provided by 4th to the 7th Respondents under the
supervision of the 3rd Respondent in all parts of the 3 affected states were
shut down completely indefinitely without any explanation or apology to the
various subscribers of their services.
2.3. The 1st
Applicant has his son, Al-Hussain Ibrahim who is a Part 4 student of the
Faculty of Law University of Maiduguri. The said Al-Hussain Ibrahim has MTN
Nigeria Plc GSM line 0803 705 4220.The 1st Applicant too has MTN Plc, Airtel
Plc, Globacom Plc and Etisalat Nigeria Plc GSM lines with the following numbers
respectively: 0703 800 7711, 0802 372 8705, 0807 519 1975 and 0809 655 8695.
The 1st Applicant severally attempted to call the said Al-Hussain Ibrahim with
all the above 4 GSM lines to know his well being but to no avail. The 2nd
Applicant similarly tried unsuccessfully to call a friend at Maiduguri.
2.4. Most of the
parents and guardians of students of University of Maiduguri and other federal
universities and tertiary institutions in the 3 affected states are suffering
from similar psychological trauma as a result of the complete shutting
down of the telecommunication/GSM services.
2.5. The
Applicants, residents of Borno, Yobe and Adamawa State are now unreasonably
left incommunicado by the act of the Respondents, their privies, servants and
assigns.
2.6. The general
public in Nigeria and beyond are also suffering and cannot reach their friends,
children, parents, wives, husbands, colleagues and associates resident in the 3
State of Borno, Yobe and Adamawa as a result of shutting down
indefinitely of
telecommunications/GSM services following the proclamation of State of
Emergency.
2.7. Business
activities and provision of medical services to residents of the affected
States is likely to be adversely affected as a result of shutting down of
telecommunication/GSM services to and
from all parts of Borno, Yobe and Adamawa States following the proclamation of
State of Emergency.
2.8. The Applicants
now brought this application on behalf of themselves and the general public
seeking to enforce their fundamental right to freedom of expression, including
freedom to hold opinions and to receive and impart ideas and information
without interference.
1. ISSUE(S) FOR DETERMINATION
3.0. Whether the
complete shutting down of telecommunication/GSM services to and from all parts
of Borno, Yobe and Adamawa States indefinitely by the Respondents pursuant to
the State of Emergency (Certain States of the
Federation) Proclamation Act, 2013, the Regulations made thereunder
or any other law or instrument related thereto is reasonably justifiable in a
democratic society?
1. ARGUMENT ON ISSUE
4.1. We state, at
the onset, with respect, that the fundamental right to freedom of expression,
including freedom to hold opinions and receive and impart ideas and information
without interference as guaranteed under Section 39 of the 1999
Constitution is not an absolute
right. It is a qualified one. See the decision of the Supreme Court in the case
of DIRECTOR OF SSS Vs OLISA AGBAKOBA (1999) LPELR – SC. 5/1995, (1999) 3 NWLR
(pt 595) p. 3 @ 40, (1999) 3 S.C 59.
4.2. However, it is
gratifying that the same Constitution provides guideline as to how to derogate
from the guaranteed fundamental right. Section 45 of the Constitution provides
thus:
45
(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall
invalidate any law that is
reasonably justifiable in a democratic society –
a.
In the interest of defence, public safety, public
order, public morality or public health; or
b.
For the purposes of protecting the rights and freedom
of other persons.
(2) An Act of the National Assembly
shall not be invalidated by reason only that it provides for the taking, during
periods of emergency, of measures that derogate from the provisions of
section 33 or 35 of this Constitution; but no such measures
shall be taken in pursuance of any such
Act during any period of emergency save to the extent that those
measures are reasonably justifiable for the purpose of
dealing with the situation that exists during that
period of emergency: Provided that nothing in this
section shall authorise any derogation from the provisions of section 33
of this Constitution, except in respect of death resulting from
acts of war or authorise any derogation from the provisions of section 36 (8)
of this constitution
(3) In this section, a “period of emergency” means any period during which
there is in force a Proclamation of a state of emergency declared by the
President in exercise of the powers conferred on him under section 305 of
this Constitution.” (Underlining supplied for emphasis)
4.3. A careful reading of
the above constitutional provision will reveal that there are 2 basic
requirements.
i. The derogation must be under a law. This
requirement excludes arbitrariness. It also affords opportunity for the
people to know the detailed provisions of the law that derogates from their
basic rights so as to guard against breaking it. When any such law derogating
from the fundamental rights is challenged the courts will also have the
opportunity to examine the provisions and see whether they can stand or not. As
far back as 1920s during colonial era the issue of whether or not government
must be guided by law in taking any action that affects rights of the people
came up in the case ESHUGBAYI ELEKO Vs THE OFFICER ADMINISTERING THE
GOVERNMENT OF NIGERIA No.1 (1928) 6 NILR 19. The Privy Council per Lord
Atkin held that: “Their Lordships are satisfied that the opinion which has
prevailed that the Courts cannot investigate the whole of the necessary
conditions is erroneous. The Governor acting under the Ordinance acts solely
under executive powers, and in no sense as a Court. As the executive he can
only act in pursuance of the powers given to him by law. In accordance with
British jurisprudence no member of the executive can interfere with the liberty
or property of a British subject except on the condition that he can support the
legality of his action before a court of justice...”
ii. The law must be reasonably justifiable in a democratic
society. This second requirement is an additional safeguard to ensure that
rights of the people are protected even during period of emergency. The law
derogating from the basic rights of the people must be subjected to the test of
whether or not it is reasonably justifiable in a democratic society.
4.4. For the requirement
of a law, the State of Emergency (Certain States of the
Federation) Proclamation Act, 2013
and the Emergency Powers (General) Regulations, 2013 were enacted. Supposedly
that is the basis upon which the Respondents shut down telecommunication/GSM
services to and from all parts of the 3 states affected by the proclamation
which the Applicants now complain of. It is noteworthy that declaration of
state of emergency is fairly new in our democratic experience. The first time
we had state of emergency was in 1962 under the Emergency Powers Act No. 1 of
1961. The second was in 2004 when the Emergency Powers Act, 1961 which was not
listed in Laws of the Federation of Nigeria 1990 was wrongfully relied upon to
declare state of emergency. Fortunately or unfortunately our courts did not
have the opportunity of pronouncing on the issue. This time around the
government avoided repeating that mistake. The learning process is now faster.
4.5.
It is doubtful if the shutting down
of telecommunication/GSM services to and from all the 3 affected states is
covered by the State of Emergency (Certain States of the Federation)
Proclamation Act, 2013 and the Emergency Powers (General) Regulations, 2013.
Sadly today 3 weeks after the proclamation the Act and the Regulations made
thereunder have not been publicised. This is a big minus. In this digital age
one will expect that any law passed by the National Assembly will be pasted in
its website immediately. However, three weeks after the proclamation the Act
and the regulations made pursuant to it are nowhere to be found in the National
Assembly website. The nature of proclamation of a state of emergency whether as
a result of war, disturbances or disaster is such that it will affect so many
human activities. The citizens must know its details. For example, there were
13 Regulations under the 1962 state of emergency affecting general powers,
essential services, retention of services, requisition, billeting, misleading
reports, protected places, procession and meetings, control of arms and
explosives, curfew, detention of persons, restriction orders and reporting of
persons. In 2004 there were 9 Regulations affecting general powers, process and
meetings, reporting of persons, control of arms and explosives, curfew,
detention of persons, restriction orders, and protected places. There may be more
or less Regulations under the present state of emergency. But people are still
in the dark. Laws are not hidden in a democratic society.
4.6. Assuming but not
conceding that the action of the Respondents in shutting down
telecommunication/GSM services to and from the 3 affected states is covered by
any law. The law must satisfy the second test of “reasonably justifiable in a
democratic society”. In trying to answer this issue, Your Lordship should bear
in mind that our democracy is still at its infancy stage. The Nigerian Supreme
Court came close to having the opportunity to make pronouncements on state of
emergency in the case of PLATEAU STATE & ANOR. VS ATTORNEY GENERAL OF THE
FEDERATION & ANOR. (2006) NWLR (pt.968) 346. But the case terminated at preliminary
stage. We, therefore, have to look at some jurisdictions with similar
constitution and longer democratic experience within the common law countries.
Canada is a good example. And so when their democracy was faced with similar
situation, the Supreme Court of Canada had to lay down the guidelines for
ascertaining whether or not a law is reasonably justifiable in democratic
society in the case of R Vs OAKES (1986) 1 S.C.R. 103. The Court
interpreted Section 11 (d) of the Canadian Charter of Rights and Freedoms
which guarantees freedom of presumption of innocence against the provisions of
the Narcotic Control Act, 1970 section 8 which contains “reverse onus” clause
which violates presumption of innocence. In coming to conclusion whether or not
to justify the limitation, the Court adopted two tests. The first test is that
of “an objective related to concerns which are pressing and substantial in a
free and democratic society. The second test is that “the means chosen is
reasonable and demonstrably justified”. These two tests are akin to our own
“reasonably justifiable in a democratic society” clause under Section 45 1999
of the Constitution.
4.7. The Supreme Court of
Canada then identified 3 important criteria to arrive at what is “reasonable
and demonstrably justified”. One, the measure must be fair and not arbitrary,
carefully designed to achieve the objective in question and rationally
connected to that objective. Two, the measure should impair the right in
question as little as possible. Three, there must be proportionality between
the effect of the limiting measure and the objective.
4.8. If we apply the
above tests to the instant case, the measures adopted by the Respondents may
satisfy the first and the third criteria. But they do not satisfy the second
criterion. That is to say the measure of shutting down telecommunication/GSM
services is not impairing the rights guaranteed under Section 39 of the
Constitution as little as possible. Conversely, it is rather impairing the
rights of the Applicants and other GSM subscribers as big as possible! If the
shutting down of telecommunication services is for only 48 hours, for example,
or it only affects few parts of the 3 states, it may satisfy the second
criterion. During the revolution in Egypt Internet was only shut down for 2 to
3 days and there was outcry. However, in the instant case the shutting down of
telecommunication/GSM is complete, indefinite and throughout the affected
states. It has so far reached considerable days since 14th May, 2013. The
University of Maiduguri alone has students population of over 20, 000. The
students have their parents and guardians. There are many other federal
institutions of higher learning in the three affected states. There are other
Nigerians especially employees of federal government agencies working in the
affected states. There are indigenes of the affected states working in so many
places within and outside Nigeria. The persons whose rights to freedom of
expression, including the right to hold opinions and to receive and impart
ideas and information without interference as guaranteed under Section 39 of
the Constitution will be over 5 million. This blanked shutting down of
telecommunication/GSM services is tantamount to collective punishment and
cannot be “reasonably justifiable in a democratic society”.
4.9. In the case of
DIRECTOR OF SSS Vs AGBAKOBA (SUPRA) the Supreme Court of Nigeria considered the
provision of Section 38 of the 1999 Constitution which guarantees right to
freedom of movement against the provision of Section 5 (1) of the Passport
(Miscellaneous Provisions) Act, CAP 343 LFN 1990 which empowers the Minister of
Internal Affairs to seize passport for certain defaults as stated in the Act.
It then came to the conclusion that the law authorising seizure of passport of
the Applicant was an unjustifiable derogation from his fundamental right to
freedom of movement under Section 38 of the 1979 Constitution because he could
not travel without the passport.
4.10 The right of the
Applicants and other Nigerian citizens to freedom of expression guaranteed
under Section 39 of the 1999 Constitution is of fundamental nature. That is why
the right is entrenched in the constitution. We submit, with respect, that the
burden of proving the legality of action of the Respondents is rested on them.
The rights of the citizens and the Applicants living in other parts of the
country cannot just be deprived without justification merely because of the
existence of State of Emergency in the affected States of Borno, Yobe and
Adamawa. That will enable this Hon. Court to determine whether or not there is
good, justifiable and reasonable ground for the complete shutting down of
telecommunication/GSM services.
4.11 Since the days of
military dictatorship, Nigerian Courts starting from the courageous decision of
the Supreme Court in the case of Lakami & Anor Vs. A.G. (West) & Ors
(1970) LPELR – SC. 58/69 have held that any law including a military
Decree must be subjected to judicial
scrutiny to determine whether or not the
Decree is consistent with the
provision of the constitution. Where the also
held that “In the distribution of
powers the courts are vested with the exclusive right to determine the
justiciable controversies between citizens and the State”.
4.12 See also Barclays Bank of
Nigeria Ltd. Vs. CBN (1976) 6 S.C 75; Uwaifo Vs. A.G. Bendel (1992) 7 S.C. 124
@ 281; A.G. Federation Vs. Guardian Ltd. (1999) V. 69 LRCN P. 1531 @ 1569.
4.12 In addition to the
constitutional provision, Article 3 of the African Charter on Human and
People’s Rights (Ratification and Enforcement) Act (Cap A9) Laws of the
Federation of Nigeria, 2004 provides that; “Every individual shall have the
right to receive information. And every individual shall have the right to
express and disseminate his opinions within the law.” That is the more reason
why the Respondents must adhere to this admonishment of our laws in discharging
their constitutional/statutory duties and must ensure that their actions
and inactions are subjected to the provisions of the1999
Constitution.
4.13 Section 1 (1) of the
1999 Constitution provides that: “This Constitution is supreme and its
provisions shall have binding force on all authorities and persons throughout
the Federal Republic of Nigeria” The Supreme Court has echoed the supremacy of
the1999 Constitution in the case of TROUSSEAU INVESTMENT Ltd Vs. EYO
(2011) 6 NWLR (pt.1242) p.195 @ 200 RATIO 7.
5
Conclusion
5.1 It
is the case of the Applicant that the Respondents have shut down telecommunication/GSM
services to and from all parts of Borno, Yobe and Adamawa States supposedly
pursuant to the State of Emergency (Certain States of the Federation)
Proclamation Act, 2013 and the Emergency Powers (General) Regulations, 2013
which act have unjustifiably and unreasonably denied the Applicants and other
citizens access to communicate with their children, parents, wives, husbands,
business and political associate in Nigeria and beyond.
5.2
Having regard to the argument canvassed in this application, with all the
authorities cited, we humbly urge this Honourable Court to resolve the sole
issue raised in favour of the Applicants and grant all the reliefs sought.
5.3
ALTERNATIVELY, if for any reason this Honourable Court finds that the State of
Emergency (Certain States of the Federation) Proclamation Act, 2013and the
Emergency Powers (General) Regulations, 2013 are reasonably justifiable in
democratic society, we urge your lordship to order the Respondents to pay
compensation to the Applicants in accordance with the provisions of Section 2
(e) of the Act which provides for payment of compensation to the persons to be
affected by the Order. The makers of this provision must be commended. They
know that enforcing the state of emergency may affect the rights of some
individuals. Hence the provision is inserted to take care of payment of
compensation to them.
5.4 We
are most obliged to your lordship.
6 List of
Authorities
1. African
Charter on Human and peoples’ Rights (Ratification & Enforcement) Act.
2.
Constitution of the Federal Republic Nigeria 1999 (as Amended 2011).
3. Emergency
Powers Act No. 1 of 1961.
4. Emergency
Powers (General) Regulations, 2013.
5.
Fundamental Rights (Enforcement Procedure) Rules 2009.
6. Passport
(Miscellaneous Provisions) Act, CAP 343 LFN 1990
7. State of Emergency (Certain
States of the Federation) Proclamation Act, 2013
8. DIRECTOR
OF SSS Vs OLISA AGBAKOBA (1999) LPELR – SC. 5/1995, (1999) 3 NWLR (pt 595) p. 3
@ 40, (1999) 3 S.C 59.
9. ESHUGBAYI ELEKO
Vs THE OFFICER ADMINISTERING THE GOVERNMENT OF NIGERIA No.1(1928) 6 NILR
19
10. PLATEAU STATE & ANOR.
VS ATTORNEY GENERAL OF THE FEDERATION & ANOR. (2006) NWLR (pt.968) 346
11. R Vs OAKES
(1986) 1 S.C.R. 103.
12. TROUSSEAU INVESTMENT
Ltd Vs. EYO ( 2011) 6 NWLR (pt.1242) p.
195
13. Odogu Vs. A.G
Federation (2000) 2 HRLRA PAGE 82 AT 86 2
Dated This 10th Day
of June, 2013
........................
L.A. Haruna,
Rabiu
Ayuba,
Y.I.
Danbima
Applicant’s Counsel,
C/o L.a. Haruna &
Co.
Top floor, Gombe
Chemist Building,
Biu Road,
Gombe,Gombe State.
Email: lucasharuna@yahoo.com
Gsm: 0803 – 4822618
OR
Suite
C – 12, Halima Plaza,
Balanga Street,
Behind Sahad Stores,
Garki II, Abuja.
For Service On The
Respondent
1. The
1st & 2nd Respondents
C/o Federal Ministry of Justice
Central Business District,
Shehu Shagari Way,
Abuja, FCT.
1. 3rd
Respondent
Plot 423, Aguyi Ironsi Street,
Maitama District,
Abuja, FCT.
1. The
4th Respondent
MTN Nigeria Ltd,
Golden Plaza, By
Folomo Bridge,
Ikoyi, Lagos State.
1. The
5th Respondent
Airtel Nigeria Ltd.,
Plot 12, Banana Island,
Ikoyi, Lagos.
1. The
6th Respondent
Globacom Ltd.,
Mike Adenuga Towers,
1 M/Adenuga close,
Off Adeola Adeku,
Victoria Island, Lagos.
1. The
7th Respondent
Etisalat Nigeria Ltd.,
Plot 19, Everest
Court, Zone L,
Banana Island,
Ikoyi, Lagos.
Source: Sahara Reporters
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