The ECOWAS Court of Justice has fixed June 29, 2021 for judgment in a suit challenging the “unlawful” arrest and prosecution of a Nigerian journalist and publisher, Agba Jalingo, under the cybercrime, terrorism and criminal code laws
The suit was instituted by a civil society group, the Socio-Economic Rights and Accountability Project (SERAP), against the Federal Republic of Nigeria and Cross River State.
The applicant alleged that Nigerian government is fond of using the various laws to harass and intimidate critics, and to suppress freedom of expression as well as press freedom.
It wants the regional court to order the government to drop the treason and terrorism charges instituted against Mr Jalingo and pay him compensation.
PREMIUM TIMES had reported how Mr Jalingo was arrested on August 22, 2019, and remained incarcerated till the court in Cross River granted his third request for bail after he had been detained for 179 days.
He was charged with terrorism and treason following a report published by his Cross River Watch alleging that Cross River State Governor, Ben Ayade, diverted N500 million belonging to the state.
SERAP in its suit marked ECW/CCJ/APP/10/20, sued the Nigerian government at the ECOWAS Court for the use of the Cybercrime (Prohibition, Prevention, etc) Act 2015, Terrorism (Prevention Amendment), 2013 and the Criminal Code Act to unlawfully charge Mr Jalingo before the Federal High Court, Calabar Judicial Division.
The applicant alleged that the alleged harassments, intimidation, arbitrary arrest, detention, torture, unfair prosecution and imprisonment of Mr Jalingo and other journalists exercising their rights to freedom of expression and information and media freedom violated all the international and regional treaties on human rights to which Nigeria is a State Party.
A statement by the information unit of the court stated a three-man panel of the court had during a virtual court session held on April 6, 2021 heard Mr Jalingo’s oral testimony and adjourned till June 29 for judgment.
Mr Jalingo’s testimony
Mr Jalingo, who was led in evidence by SERAP’s counsel, Kolawale Oluwadare, recounted how security officials broke into his house and arrested him after he wrote an editorial article in which he alleged that a N500 million expenditure by the State for the establishment of a microfinance bank was diverted.
He further told the three-man panel of the court led by Edward Amoako Asante that he was taken by the security personnel on a 26-hour journey.
He said he was not allowed to dismount from the vehicle, and on arrival was detained at a detention facility run by the anti-cult and anti-kidnapping police for 34 days before his arraignment on August 31, 2019.
SERAP in its suit accused the Nigerian government of wrongful use of Cybercrime (Prohibition, Prevention, etc) Act 2015, Terrorism (Prevention Amendment), 2013 and the Criminal Code Act to unlawfully charge Mr Jalingo before the Federal High Court, Calabar Judicial Division.
The applicant averred that Mr Jalingo, a publisher of the online Cross River Watch who also reports for another online newspaper, Sahara Reporters, was charged with treason for allegedly inciting the people to protest for a change of government, through the publication in his Cross River Watch, an offence punishable under section 41 of the Criminal Code Act, Cap C39, LFN, 2004.
He was also charged with allegedly causing alarm, hatred and disturbance of public peace through his publication contrary to section 59 of the Criminal Code.
Under counts 3 and 4, Mr Jalingo was charged for allegedly conspiring with the journalist and human rights activist and Sahara Reporters publisher, Omoyele Sowore, to cause terrorism and for allegedly meeting with cultists to instigate violence and acts of terrorism against Cross River State Governor, Ben Ayade, offences punishable with life imprisonment under sections 17 & 1 (2)(a) & (b) of the Terrorism (Prevention Amendment) Act, 2013.
Mr Jalingo, who is on bail, after 179 days in detention, was also charged with terrorism, an offence that attracts life imprisonment and death penalty.
The applicant contends that the defendants and their agents have consistently and frequently used the provisions of the Terrorism (Prevention and Amendment) Act, Cybercrime Act and other repressive laws to harass, intimidate, arbitrarily arrest and detain and unfairly prosecute journalists, users of social media and activists and other Nigerians who express views perceived to be critical of government, at the Federal and State levels.
On Friday, October 4, 2019 a national court in the State had dismissed the bail application of Mr Jalingo after a judge of the Federal High Court in Calabar, Simon Amobeda, held that the offences for which he was charged were not bailable as one of the counts carried death sentence.
The applicant argued that the alleged harassments, intimidation, arbitrary arrest, detention, torture, unfair prosecution and imprisonment of Mr Jalingo and other journalists who were exercising their rights to freedom of expression and information and media freedom violate all the international and regional treaties on human rights to which Nigeria is a State Party.
The applicant further argued that criticising the actions of government, government officials and expressing one’s opinion on issues of national, political, social or economic interest is the bedrock of a vibrant and transparent democracy and that persons in government such as the Defendant and its agents must exercise high tolerance to criticism.
Among other prayers sought by the applicant is an order directing the defendants to immediately drop all charges against Mr Jalingo and “unconditionally set him free from prison and an order directing the defendants and/or their agents in Nigeria to provide effective remedies and reparation, including adequate compensation, restitution, satisfaction or guarantees of non-repetition that the Honourable Court may deem fit to grant to Mr. Jalingo for being unfairly prosecuted by the Respondent.”
The ECOWAS Court had, at an earlier date, struck out the second defendant, Cross River State Government, from the suit, not being a proper defendant before the court, and a signatory of the Revised Treaty of ECOWAS.
Nigerian government’s defence
However, the 1st defendant, the Federal Republic of Nigeria, which is a Member State of ECOWAS and a signatory to the ECOWAS Revised Treaty, through its counsel, Chijioke Amadi, filed and adopted his preliminary objection arguing that the person on whose behalf/interest the applicant instituted this suit has been granted bail and is currently being prosecuted at a competent municipal/domestic court on criminal allegations bordering on treason and terrorism.
The defendant further argued that the applicant failed to disclose a reasonable cause of action to be entitled to the prayers sought nor discharge the evidential burden placed on him in proof of his case and therefore asked the Court to dismiss the suit.
Also on the panel of the Court are Dupe Atoki and Januaria Tavares Silva Moreira Costa.
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