The Federal High Court sitting in Lagos State has ordered a former Minister of Information and Culture, Alhaji Lai Mohammed, and the Ministry of Information to disclose the details of the agreement between the Federal Government and X, formerly Twitter, to assess whether the agreement complies with the exercise of Nigerians’ human rights online.
According to a statement issued by the Socio-Economic Rights and Accountability Project’s Deputy Director, Kolawole Oluwadare, on Sunday, the judgment was delivered in May 2024 by Justice Nnamdi Dimgba following a Freedom of Information suit number: FHC/L/CS/238/2022, filed by the organisation.
The Certified True Copy of the judgment was said to have been obtained last Friday.
In his judgment, Justice Dimgba held that, “The former minister and the Ministry of Information are directed and compelled to provide a copy of the agreement between the Nigerian government and Twitter to SERAP solely to ascertain its impact on the protection of fundamental human rights of Nigerians.”
Justice Dimgba added that, “Disclosing the details of the agreement between the Nigerian government and Twitter is in the public interest and does not affect Twitter’s business interest as a third party. It is also not prejudicial to Nigeria’s sovereignty and national security.”
The judge also stated that, “The agreement between the Nigerian government and Twitter must still be disclosed irrespective of the harm to Twitter if it would be in the public interest to make sure disclosure.”
The judge dismissed the objections raised by the minister’s counsel and upheld SERAP’s arguments. Consequently, the court entered judgment in favour of SERAP against the minister.
Justice Dimgba further said, “The minister has failed to prove that the President has followed the due process of law to designate Twitter as a Critical National Information Infrastructure upon the National Security Adviser’s recommendation and issued an order in the Federal Gazette in that regard.”
Justice Dimgba’s judgment, dated May 28, 2024, read in part: “Therefore, I hold that the disclosure of the Twitter agreement is not prejudicial to Nigeria’s sovereignty and national security or protected by the Official Secrets Act, as the minister has failed to prove the same.
“The first question that needs to be answered is how the need to disclose the agreement is outweighed by the importance of protecting the commercial interests of the third party, Twitter.
“The former minister has unequivocally argued that the disclosure could harm Twitter’s business interests in other jurisdictions, potentially with Twitter’s contractual negotiations.
“However, this defence is hypothetical and does not point to the specific business or contractual interests of Twitter that could be affected.”
He said the details of the agreement as requested by SERAP will not interfere with the commercial interests and trade secrets of Twitter or lead to financial losses to it even as the former minister has failed to prove the same.
“Besides, Section 15(4) of the Freedom of Information Act envisages only real and not hypothetical financial loss or gain to or prejudice to, the competitive position of or interference with contractual or other negotiation of a third party like Twitter which could be affected by the disclosure.
“No evidence was placed before this court pointing to the fact that Twitter has an agreement with another country as a precondition for its operation in such jurisdiction as obtainable in Nigeria.
“I am of the view that SERAP has a legitimate reason to wish to be availed of the agreement, which is to understand how the agreement affects them and other Nigerians as far as the protection of the human rights of Nigerians are concerned,” he added.
Justice Dimgba pointed out that another controversy is whether the need to disclose the agreement for public interest is subject to the need to protect national sovereignty, as argued by the minister.
“National sovereignty depending on context is synonymous with national security.
“In most cases, the need for national security outweighs public interest, including protection of fundamental human rights. In this case, however, I am of the view that the reason for the refusal by the minister to disclose the agreement does not come within the need to protect national security and sovereignty.
“The minister’s defence is predicated on the Cybercrimes (Prohibition and Prevention Act) 2015 but has failed to prove how the Act relates to the Twitter agreement other than mentioning the same,” he added.
He noted that more than merely linking SERAP’s request for the agreement to ‘critical national information infrastructure’ in Section 3 of the Cybercrime (Prevention and Prohibition) Act, nothing more is said about its relevance and how it supports non-disclosure of the Twitter agreement.