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Femi Falana: x-rays libel laws in Nigeria

By Femi Falana

Last December, the Nigerian Army demanded a retraction of what it described as the ”unwarranted and serial provocative, unauthorized, libelous and defamatory publications against the person of Lt. Gen. T.Y. Buratai, the Chief of Army Staff and Nigerian Army counter insurgency operations in the North East” from the publisher of the Premium Times, an online medium.

Convinced that the publication could not be justified the Army threatened to sue for libel. In a detailed reply to the letter the counsel to the Premium Times, Mr. Jiti Ogunye, called off the bluff of the Army. Apart from rejecting the demand for a retraction he asked the Chief of Army Staff to apologise for threatening to violate the constitutional rights of his client’s staff to life and freedom of expression.

Instead of carrying out its threat to file a libel suit in a High Court,  the Army lodged a complaint with the police. And without any investigation whatsoever, the police invaded the Abuja office of the newspaper and took away its publisher, Mr Dapo Olorunyomi and judicial correspondent, Evelyn Okakwu to the headquarters of the Federal Capital Territory Police Command. As soon as they denied the charge of criminal libel slammed against them both suspects were granted bail pending the filing of a charge in a Magistrate Court.

But after a careful perusal of the allegation and a critical review of state of the law on press freedom the Police decided not to file any charge in court. The police officers became peace makers as they advised the parties to engage in an amicable resolution of the criminal complaint!

Although the criminal allegation was dropped by the Police,  it is germane to examine the constitutional validity of the offence of criminal libel. More so, that top public officers have a penchant for instigating the police to intimidate journalists and media houses for writing stories which are considered embarrassing or defamatory.

Under the British colonial regime the fundamental rights of Nigerians were brutally suppressed. In order to deny the natives access to vital information on the ruthless exploitation of the resources of the country by the foreign plunderers the divulging of information pertaining to the affairs of the government was a serious criminal offence under the Official Secrets ordinance.

The penalty for the offence was 14 years imprisonment without any option of fine.

(Also Read: Activist Wala jailed for criminal defamation

As if that was not enough, the criminal ordinance provided for sedition and criminal libel to prevent the natives from criticizing the abuse of powers by colonial administrators. While sedition is the offence of bringing into hatred or contempt or exciting disaffection against the person of the President or Governor or the Government criminal libel is any defamatory matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule or likely to damage the person in his profession or trade by an injury to his reputation. Unlike civil libel whose proof in court may attract monetary damages in favour of the plaintiff the penalty for the offence of criminal libel is imprisonment for one year.

The British colonial regime charged many Nigerian workers and youths with sedition and criminal libel for demanding for independence or protesting against discriminatory treatment of Africans.  In particular, the leading cadres of the Zikist Movement were convicted for sedition for calling for a socialist revolution in Nigeria. Thereafter, the patriotic youths were regularly jailed to prevent them from imparting knowledge and sharing information with the people on the need to shake off the yoke of imperialism.

Notwithstanding that the country gained political independence from the alien regime in 1960 the local political class retained all repressive colonial laws with the connivance of a timid judiciary.

“The journalistic slogan is ‘Publish and be damned’, but how many practicing journalists have the courage to take up the challenge of the slogan? Where therefore one finds practicing members of the profession like the Editor of the Defendant and his team mates who have the courage to publish and comment on such grave issues of public concern and interest as shown on the relevant page of Ex. 2, they deserve an accolade.”

In Chike Obi v DPP(1961) ANLR 186 the Supreme Court held that the sedition law was reasonably justified in a democratic society. Barely 5 years later, the military adventurers who seized power from the nationalist politicians suspended the Constitution and put fundamental rights in abeyance.

Newspaper houses were shut down at will while journalists and public commentators were detained under preventive detention decrees. Two journalists were killed through parcel bomb while not less than 10 others were jailed for publishing the list of ambassadors and for writing stories on phantom palace coup d’e tat. Although Dapo Olorunyomi was driven to exile his wife, Ladi was held hostage and detained in a military custody for several months by the security forces.

However, out of all the military dictators who ruled the country only the late General Murtala Muhammed refused to intimidate journalists. In the wake of his crusade against official corruption the publisher of the African Spark magazine, the late Dr Obarogie Ohonbamu, accused the military ruler of having engaged in illicit acquisition of properties during the civil war. In spite of pressures from his colleagues and the security forces the head of state refused to order the detention of his accuser. The publisher was however charged with criminal libel before the Lagos High Court. Convinced of his innocence General Mohammed had waived his immunity to give oral testimony in the case. But for his assassination during the pendency of the case his evidence would have demystified the secrecy that has continued to surround the declaration of assets and liabilities of public office holders in Nigeria. The case was eventually withdrawn and struck out following Dr. Ohonbamu’s retraction of the allegation.

Upon the return of the country to democratic rule in 1979 the Constitution imposed a duty on the media to ensure that the government was accountable to the people at all times by upholding the fundamental objectives contained thereof. In recognition of the fact that citizens could not promote accountability and transparency in government without access to information, the fundamental right of every citizen to freedom of expression, including the right to hold and impart ideas was enshrined in the Constitution. But some public officers have continued to use the machinery of the State, albeit illegally, to intimidate their political opponents by applying the provisions of anti-media statutes.

Arthur Nwankwo v. The State (1985) 6 NCLR 228 the defendant was charged with sedition under section 51 of the Criminal Code before an Onitsha High Court for publishing a book which had exposed corrupt practices under Governor Jim Nwobodo of former Anambra state.  The appellant was convicted and sentenced to one year imprisonment. But the conviction and sentence were set aside by the Court of Appeal on the grounds that the offence of sedition is illegal and unconstitutional, Speaking for the court, Olatawura JCA held :“We are no longer the illiterates or the mob society our colonial masters had mind when the law was promulgated…To retain S. 51 of the Criminal Code, in its present form, that is even if not inconsistent with the freedom of expression guaranteed by our Constitution will be a deadly weapon to be used at will by a corrupt government or a tyrant…Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.”

The laws enacted by “our colonial masters” and imposed on the country include the Official Secrets Act and the provisions of the Criminal Code relating to sedition and criminal libel. As criticism is indispensable in a democratic society Olatawura J.C.A charged the Nigerian people to defend their hard won freedom of expression at all times.

According to his lordship:“The decision of the founding fathers of this present constitution which guarantees freedom of speech which must include freedom to criticize should be praised and any attempt to derogate from it except as provided in the Constitution must be resisted. Those in public office should not be intolerant of criticism. Where a writer exceeds the bounds there should be a resort to the law of libel where the plaintiff must of necessity put his character and reputation in issue.”

Since the  judgment of the Court of Appeal in Nwankwo v The State supra is binding on all authorities and persons in Nigeria it is submitted that the resort to criminal libel and sedition by public officers to settle scores with critics and political opponents is illegal in every material particular. However, public officers who feel offended by any defamatory publication are not without remedy. They have been rightly advised by the Court of Appeal to defend their reputation and bruised ego by suing for libel in a court of law.

In Mallam Ismaila Isa & 5 Ors. v. President, the Federal High Court struck down several provisions of the Nigerian Press Council Act on the grounds that they were censorial and capable of being used by the authorities to restrict the right to freedom of expression guaranteed by Section 39 of the Constitution. In view of the settled legal principles on freedom of expression, it is indisputable that the provisions of the Criminal Code on the offences of criminal libel and sedition are inconsistent with section 39 of the Constitution and article 9 of the African Charter on Human and People’s Rights Act. To the extent of such inconsistency both offences are illegal and unconstitutional. Indeed, the capacity of the Nigerian people and particularly the media to promote public accountability has been enhanced by the Freedom of Information, 2011 which has imposed a duty on all public institutions to facilitate access to information in the custody of the government.

It is not unlikely that the authorities of the Nigeria Police Force realized, rather belatedly, that the offence of criminal libel could not be sustained in court under the current democratic dispensation. Hence, the publisher and editor of the Premium Times were not arraigned in court last week based on the complaint of the Chief of Army Staff. Apparently embarrassed that the Police authorities decided to wash off their hands like Pontius Pilate,  the Army has issued a fresh threat to sue the Premium Times for libel in a civil court.

It is pertinent to point out that the current trend in democratic countries is to repeal anti press laws. For instance, in January 2010, the British Parliament abolished the offences of sedition and seditious libel, defamatory libel and obscene libel. Since we always weep more than the bereaved we have retained the said criminal offences which were imposed on the country by the British colonial dictatorship over a century ago. In the same vein, some African countries have seen the wisdom in repealing all undemocratic laws which are in conflict with the bill of rights entrenched in the post-colonial constitutions.

About 5 years ago, the Parliament of Ghana acceded to the demand of the media by repealing all criminal laws which had violated press freedom and freedom of expression. In making a case for the repeal of such laws the Ghanaian media had urged the Parliament to consider the reasoning of the Justices of the Nigerian Court of Appeal in Nwankwo v The State supra. Persuaded by the judgment and similar judicial authorities which have upheld the fundamental right of freedom of expression in Africa the Parliament decriminalized press freedom in Ghana. Notwithstanding the progressive stand of Nigerian courts in upholding the right to freedom of expression it is high time the Nigerian media mobilised the National Assembly to further expand the democratic space in the country by decriminalizing all anti media legislations.

Finally, since the Army has resolved to seek remedy in a civil court the Premium Times publisher should be prepared to justify all the publications which are alleged to have embarrassed the Chief of Army Staff. But the attention of both parties ought to be drawn to the case of J.S. Tarka v Sketch (unreported) Suit No. CCHJ/2/78 of February, 1978. The plaintiff, a powerful federal commissioner for communication under the Yakubu Gowon regime had sued the defendant in the Lagos high court for publishing the allegation of a businessman, Godwin Daboh that he had used his official position to engage in unjust enrichment. The newspaper justified the entire publication. In dismissing the case the learned trial judge, Candide-Johnson J. (as he then was) had this to say: “The journalistic slogan is ‘Publish and be damned’, but how many practicing journalists have the courage to take up the challenge of the slogan? Where therefore one finds practicing members of the profession like the Editor of the Defendant and his team mates who have the courage to publish and comment on such grave issues of public concern and interest as shown on the relevant page of Ex. 2, they deserve an accolade.”

*Falana is a senior advocate of Nigeria

*First Published 24 January 2017. Republished after the imprisonment by a Federal High Court in Abuja of human rights activist Ibrahim Garba Wala for alleged criminal defamation of the chairman of NAHCON.

• Source: NAN