Law of defamation is soft on political statements, says Ikechukwu Ikeji
THERE is a saying that if you must get honey from the bush, you must be ready to fight bees. Politics the world over is such that statements which could have ordinarily passed for defamation are usually taken as normal. These are the words of a Legal practitioner and Human Right Activist, Ikechukwu Ikeji, while expressing views on the implication of defamatory statements.
According to him, defamation is the communication of a false claim or statement of fact about another person that harms that person’s reputation. He said that liability arises when the statement is made to a third party. “Once the statement is false, it becomes defamatory”, he stated.
Ikeji has these to say: “The law of defamation is soft on statements having political implications but which appear to defame the character of politicians. Any statement of public concern is usually not deemed defamatory because of the need to protect free communications. However, we must distinguish between defamatory statements and inciting comments. The essence of this protection is to guide against legal intimidation of political critics.
To understand the implications of a statement, it must first be decided that the statement is defamatory and this is very difficult to prove in political campaigns and among politicians. Propaganda flies around during politicking and political campaigns such that it becomes difficult to look out for actionable statements.
“When a person runs for public office, or is involved in leading political activity, he puts his character in issue so far as it relates to his fitness and qualifications for office. Accordingly, the law recognizes the principle of qualified privilege, which protects the maker of the statement where the statement is of public interest and the maker believes it to be true.
“The basis of the defence of qualified privilege is an acceptance that there are situations in which one may have a duty to tell the truth as one sees it without being liable to damages claim if one is mistaken. It is essential to the existence of the privilege not only that the maker of the statement has a duty to make it but also that the recipient of the information has a duty or interest in receiving it.
“To understand the implications of a statement, it must first be decided that the statement is defamatory and this is very difficult to prove in political campaigns and among politicians. Propaganda flies around during politicking and political campaigns such that it becomes difficult to look out for actionable statements. If one sets out to look out for defamatory statements, then just about every statement from political opponents will pass for defamation. This is the reason why the law takes a soft stand towards political statements.”
Speaking on the role of lawyers in the forthcoming election, he stated: “As lawyers, we are expected to guide politicians and voters on what their rights and obligations are. We are expected to ensure that all electoral laws and regulations are strictly adhered to. As citizens, we are entitled to our political convictions but that should not clog our minds to the operation of the rule of law within our parties and in the larger political space. It is our duty to uphold the rule of law at all times irrespective of our political leanings.
“Lawyers serve as watchdogs on the electoral process while also serving as legal experts to protect the rights of candidates and parties in the elections. For example, lawyers have just filed actions in court challenging the propriety or otherwise of Buhari not attaching his certificate to the Form he submitted to INEC as APC presidential candidate.
In other situations, when a candidate has been wrongly substituted or not allowed to participate in the primaries or where the primaries were not conducted according to laid down rules, lawyers are called upon to approach the court to referee on behalf of aggrieved persons or parties.
There is presently a litany of cases before our courts seeking for one form of redress or the other regarding the 2015 elections. The most recent intervention by lawyers is the suit by APC against AIT for defamation regarding certain documentary contents of a programme being aired by the television station. Another role of lawyers can be seen in the also recent court case instituted by Senator Musiliu Obanikoro against Sahara Reporters for defamation. These cases can only be defined by the intervention of lawyers.”
In the recent proposed removal of Presidential assent to Bills from National Assembly by the Senate during the consideration of the 6th alteration of the 1999 Constitution, the revered lawyer said: “It is the function of the National Assembly to make laws but this function has what is called checks and balances. It is as a result of these checks and balances that provisions are made to allow the President to assent to any Bill before it becomes law. So, I would personally not support any attempt to take away this principle of checks and balances by way of making the entire process of law making the exclusive preserve of the National Assembly.
This principle of checks and balances also sees the President not being able to act in certain ways without the involvement of the National Assembly. So, it is a two way thing that should not be tampered with. It is said that power corrupts and absolute power corrupts absolutely. Without presidential assent, the National Assembly would have given to itself absolute powers. This is against the intendment of democracy and the principle of separation of powers. Most jurisdictions adopt the system of ensuring that the President must assent to any bill before it becomes law. Even if the Senate is uncomfortable with the role of the President, the law making process takes this into cognizance by allowing the bill to automatically become law if it goes back to the National Assembly and the National Assembly passes it a second time at which point the President may have failed in his or her diplomatic efforts to stop the bill. One would advise that the Senate reviews its position or in the alternative create an opportunity for the third arm of government, the judiciary, to play an arbitral role. This is how it works in South Africa. The bill must be presented to the President for his assent, and if he refuses to assent, the bill is sent to the Constitutional Court (our Supreme Court can play this role). If the constitutional court decides that it should become law, the President would be bound to assent to it. This creates a room for interplay of the principle of checks and balances. It is suggested that Nigeria adopts this approach if we intend to move forward.
“The importance of checks and balances in the effective operation of government in modern times cannot be overemphasized. Under this system, no one branch of government can make laws without the guidance and approval of the other. Power corrupts and absolute power corrupts absolutely, whether in a group or in individual persons.”
The human rights lawyer, having finished a pre-degree course in political science at the University of Calabar in 1986, attended the Imo State Unveristy ( now Abia University, Okigwe) and the Lagos State University where he studied Law. He proceeded to the Nigerian Law School with a Second Class Upper Division. Ikechukwu has garnered a wide wealth of experience over the years in the area of Business Law, Criminal Law, Property and Constitutional Law as well as in advocacy. He was head counsel, Legacy Law Associates, Ogba, Ikeja, Lagos. He was also head of Practice at Oaklem Law Associates until January 2010 when he establishes his own law practice.
Before joining Oaklem Law Associates, he practiced at the law firm of Olisa Agbakoba $ Associates, Apapa, Lagos where he cut his advocacy teeth. He is a rights activist known for his fearless expositions on issues of public interest both in the media and at relevant forum. Ikechukwu is an active member of the Nigerian Bar Association and Lead Advocate, Constitutional Rights Advocacy Initiative (CRAI).
The reverred lawyer has presented several papers at different seminars and forums, he was also the Managing/Law Editor and a member of the Editorial Board of Ikeja Weekly Newpaper. He lectures law at the Oak Professional Business Institute, Ogba, Ikeja where he takes CIS,ICAN,NIM and A level students. His experience spans the hospitality, politics and automobile business as well as academia. He was Legal advicer and Company Secretary of Oak Group Ltd from March 2007 to December 2009. He has written several seminar and workshop papers among which are The Doctrine of ‘Omina Praesumuntur, Rite Esse Acta’; Constructive Trusts as the future of Commercial Litigation; Mergers and Acquisition in the Nigerian Banking Sector: Legal Framework and The President of Nigeria: Extent and Limits of Powers. He has also written another book that will soon be published named: Constructive Trusts as the future of Nigerian Commercial Law Practice. He is married and bless with children.