Why National Assembly's Bills Against Free Speech Are Unconstitutional
Freedom of expression is one of the fundamental rights provided in the Constitution of the Federal Republic of Nigeria 1999 (as amended). By virtue of same and other international instruments, it is the freedom to hold opinions, receive ideas and information and impart ideas and information without interference. Social media is used in reference to the means of expression other than the main stream media.
Freedom of Expression in Nigeria
Section 39 of the CFRN entrenches the right to freedom of expression in the following words:
“(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
(2) Without prejudice to the generality of subsection 1 of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information ideas and opinions:
Provided that no person, other than the Government of the Federation or of a State or any other person or body authorized by the President on the fulfillment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting a station for the any purpose whatsoever.
Similar provisions are found in Article 9 of the African Charter on Human and Peoples Rights, Article 19 of the Universal Declaration of Human Rights 1948, Article 19 of the International Covenant on Civil and Political Rights.
It does not appear a mere coincidence that section 39 of the CFRN which provides for freedom of expression comes immediately after section 38 which provides for right to freedom of thought, conscience and religion. Next to thought is expression. The basis for this right therefore cannot be over emphasized in a democratic society. It is one of the essential foundations of a democratic society and the basic condition for its progress and development as held the European Court on Human Rights in Handyside Case.
The Director of Amnesty International in Nigeria, Osai Ojigho underscored this fact in the following words:
“I think the debate that is ongoing now in society is good for people to talk and have a debate. It is good for people to engage with others and too hear their opinions and the ideas that drive those opinions. Whatever terms or words used should not be a cause for alarm, but rather to draw attention to the issues at hand we know that in some cases, some people try to stimulate interests, we even in the media, sensational headlines because they want to draw attention to an issue and it’s important that people interrogate the issues. Fixation on a word or phrase would lead us nowhere and it does not address the foundation or the root causes of the problem which the people are trying to raise in present –day Nigeria. That should be the focus – that should be the most important thing. I think because people are kind of tired, people are fed up, they want to see improvements in their lives, in their communities, you find that everyone is looking for one way or the other to be heard. For me the best reaction would have been what exactly is happening; what exactly do we need to show that there is light at the end of the tunnel? And we can bring people who are dissatisfied with the current state of affairs to the table so that we can engage and discuss. I think that is needed a lot more now, to engage, discuss and deliberate, to hear the people’s concerns and problems. Trying to stifle free speech is not going to get that necessary discussion that we need to have among people who have different views on the current state of affairs in the country.” (Culled from Punch Newspapers, September 8, 2019).
Restriction of Freedom of Speech
The Supreme Court per Ayoola JSC, in the case of Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001) 85 LRCN 908 declared that the courts are the institution, society has agreed to invest with the responsibility of balancing conflicting interests in a way as to ensure the fullness of liberty without destroying the existence and stability of society itself. Therein lies the wisdom and need for qualification of all rights including this one most essential right.
The primary restrictions on the right to freedom of speech are provided in Sections 39 (3) and 45(1) of the CFRN. Section 39(3) provides thus:
“Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society –
(a) for the purpose preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(b) imposing restrictions upon personal holding office under the Government of the Federation or a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.”
Section 45(1), CFRN reinforces the foregoing by stating that:
“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 purpose of protecting the rights and freedom of the other persons.”
In the case of Gozie Okeke v. The State (2003) 15 NWLR (Pt.842) 25, the Supreme Court held that the word “reasonable” in its ordinary meaning means moderate, tolerable and not excessive. In this regard, there are extant laws in Nigeria which seek to prevent abuse of free speech. Section 24(1) of the Cybercrime (prohibition, Prevention, etc) Act 2015 makes it a criminal offence to send a message or other matter by means of computer systems of network that is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be sent or he knows to be false, for the purpose of causing annoyance, injury, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such message to be sent. Also Section 24(2) of the Act criminalizes transmitting or causing the transmission of any communication through a computer system or network to bully, threaten or harass another person where such communication places another person in fear of death, violence or bodily harm or to another person.
In the same vein there is the tort of defamation under a victim of abuse of freedom of speech can seek redress besides the criminal offences of defamation and injurious false under the Criminal Code and Penal Code. Section 391 of the Penal Code Law makes is a defamation to speak or represent by mechanical means or by signs or visible representation or publish any imputation concerning another intending to or knowing or having reason to believe that it will hard the reputation of the person. While a false statement of fact under similar circumstances is injurious false under section 393 of the Penal Code Law. There are similar provisions in sections 373, 374 and 375 of the Criminal Code Laws of the Southern States. Besides there are various provisions in the Nigeria Broadcasting Commission Act dealing with violations which have become known as “hate speech” with varying degrees of sanctions.
The Problem of Over Regulation and Limiting Access To Social Media
To require more than the existing laws have provided would portray the government in bad light and peach it against the people and any such further regulation will only take Nigeria centuries back in civilization with attendant consequences of gross and flagrant abuse like in the colonial era or the immediate after which had such over regulation like the laws on sedition by which a lot of persons were frequently charged and convicted for what ordinarily would be fair comment by citizens of democratic society. A lot of these cases are high profile cases with potential to cause political tension, affect the peace and stability of the entire country which the proponents of the of social media regulation claim to want to prevent. This would further deepen the already entrenched distrust between the people and government. This way, the government loses its right and benefit of feedback from the people.
As much restriction or qualification of the right to freedom of expression is desirable and also constitutional, the operating words for any such restriction or qualification is that it should be “reasonably justifiable in a democratic society”. And although the question of what is reasonably justifiable in a democratic society is a matter of fact depending on the circumstance of each case, it means that restriction of the right should not be arbitrary or targeted at silencing opposition or a tool of getting back at public criticism or negative perception of governance or government policies or the running of the affairs of the State which social media is perceived to be achieving but wholly about democratic ideals and practices. These were the underlying bases for which the law of sedition was introduced into our society basically to protect the so-called sovereign and her colonial government and it does appear history is about to repeat itself.
Thus a discourse on the regularization and over regularization of the right to freedom of expression or debate on preventing “hate speech” cannot be complete without a consideration of the law of sedition which, though has been held to be inconsistent with the Constitution, still exists.
There is legal definition of sedition but Section 50(2) of the Criminal Code defines a “seditious intention” as an intention:
“to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, her heirs or successors, or the person of the Governor-General or the Governor of a Region or the Government or constitution of the United Kingdom, or of Nigeria, or of any Region thereof, as by law established or against the administration of justice in Nigeria; or to excite her Majesty’s subjects or inhabitants of Nigeria to attempt to procure the alternation, otherwise, than by lawful means, of any other matter in Nigeria as by law established; or to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Nigeria”; or to promote feelings of ill-will and hostility between different classes of the population in Nigeria.”
This law led to more turmoil than peace as evident in many trials. In D.P.P. V Chike Obi, the Defendant was convicted for sedition for the publication like a typical social media tantrum: “Down with the enemies of the people, the exploiters of the weak and oppressors of the poor” etc. directed at the Federal Government of Nigeria. In James Ogidi V Commissioner of Police (1960), a published telegram which accused the Customary Courts of a Division of being used to oppress the supporters of an opposition political party were held to be seditious. In R V Agwuna and others (1949) 12 W.A.C.A 456, the Defendant, Chief Osita Agwuna, was convicted of sedition for his lecture titled, ‘A call for Revolution’ in which he referred to the British colonial masters as “a common enemy” adding that they had a plan to continue their domination of Africa till the duration of the third world war and that “we must forget our so-called differences and direct our energy towards the common foe or else we remain like this for another fifty years.”
The law wizard, Chief FRA Williams, SAN in the Chike Obi case postulated that:
“Any law, which punishes a person for making a statement which brings a government into discredit or ridicule or creates disaffection against the government irrespective of whether the statement is true or false… is not a law which is reasonably justifiable in a democratic.”
The unconstitutionality of the law of sedition finally came to the fore in the celebrated case of Arthur Nwankwo V The State (1985)6 NCRL 228 in which the appellant was charged with sedition for publishing and distributing a book entitled, How Jim Nwobodo Rules Anambra State. The court examined the case in the light of sections (36) and (41) of the 1979 Constitution which gave all Nigerian citizens the right to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference except as stipulated by the Constitution itself. The Court of Appeal concluded that the law of sedition as contained in section 51 of the Criminal Code derogated from the constitutional provisions on freedom of speech guaranteed under the 1979 Constitution; more so when the publication could not lead to public disorder envisaged under section 41(2) of the Constitution. The Court made very far reaching pronouncement that, till date, continue to guide modern and present view of whether there is need for more regulation or restriction of the right to freedom of speech especially in the light of the advent and outburst of social media. The Court held thus:
“…While Chike Obi V D.P.P, (Supra), Wallance Johnson V the King (1940) AC, 231 were birds of their respective periods, it is my view that sections 50(2), 51 and 52 which cover them are inconsistent with the provisions of sections 36 and 41 of the 1979 Constitution and are by implication repealed from the first day of October, 1979. There is no ban in the Constitution… against publication of truth except for the provision and security necessities embodied in those sections. If a publication is false news with intent to cause fear and alarm in public, there is section 59 of criminal code to cover it. If a person feels defamed there is the civil remedy of suing for libel or slander. There are also provisions in chapter XXXIII of the criminal code law as to criminal defamation – see section 374 thereof. By looking at the constitution in the light of existing law so as to accommodate and save the provision of existing law defeats the purpose of section 274(3) of the constitution. If the existing law is inconsistent – with the constitution the existing law is null and void to the extent of that inconsistency.”
Summary and Conclusion
It is a firm view that society thrives on robust plurality of ideas and opinions and the availability of information. Freedom of speech offers that platform for the exchange of those ideas and should not be unnecessarily clogged in the name or form of laws that seek to guard against hate speech and the likes. HUMAN RIGHTS WRITERS ASSOCIATION (HURIWA) hereby ask the National Assembly to suspend ad infinitum the current attempts at introducing obnoxious legislations to curb access to social media, create a commission against the so called hate speech and the attempt at muzzling press freedoms. Democracy thrives on free speech.
*Comrade Emmanuel Onwubiko;
Chief Executive Officer; HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA).