Why Nigeria should decriminalise defamation, argues Oguche

A Port Harcourt-based lawyer, Chief Festus Oguche, has called for decriminalisation of defamation in the Nigerian legal system.

He noted that doing so will enable a positive step in striking a balance between protection and preservation of fundamental rights on the one hand, and individual reputations on the other.

Recalling several unpalatable cases of abuse due to alleged perceived character defamation in the country, Oguche held that indeed, every pronouncement of the domestic courts in Europe and the European Court of Human Rights observed the unwholesome effects of criminal defamation on free speech, and are consistent with the view that it is primarily purely a civil matter, where the plaintiff must prove his reputation and his entitlement to damages.

According to him, the situation is the same on the African continent, and the position of the courts, particularly the regional ones, aligns with the rest of the world on the matter.

Nigeria being a signatory to the African Charter and the Protocols of the African Court on Human and Peoples’ Rights as well as the Ecowas Court of Justice to which it is bound by its decisions, Oguche informed that by Article 30 of the Charter, and Article 28 of the Protocol on the Court, it behoves on Nigeria to take necessary steps towards harmonising its domestic laws and bringing it in conformity with the Court’s decision.

He recalled that two judgments of the regional Court are in force in many African countries, some of which have expunged criminal defamation from their Criminal Codes, including Kenya, Ghana and Tanzania.

He maintained that leaving the offence of defamation of character still extant in Nigeria’s criminal laws does not translate to its efficacy or effectiveness as being erroneously contested by some people.

“For as long as it existed in the statute books, the law on defamation with its twin attributes of libel and slander had every colouration of the common law principles attached to it.

“It may not have been well explored and adjudicated as a regular subject of complaints before the courts but it has garnered sufficient evidence to point to a legal regime that protects individual reputation, honour and prestige.

“Taken into the jurisprudential sphere, the law on defamation not only protects the just from the pouring of murk on his person but also advances the capacity to renew a damaged, distorted or disjointed reputation tainted by another.

“The standpoint of the law on the issue shows a remarkable predilection to the protection of the individual against attacks on his person and character, that it allows its pursuit from both ends of the civil and criminal jurisdictions.

“And both can go together without necessarily disputing each other in such a manner that the victim could obtain remedies and at the same time, obtain the conviction of his traducer. But that was then”, he said.

He added that the evolvement of human rights, which has developed as entrenched universal norms, has upturned the age-long principles that attached criminal responsibility to unfounded and unjustified vilification as established under common law.

“This is specifically in the area of the right to speech, and contemporary case laws are suffused with the principle that a man cannot be found guilty under criminal law for the words he wrote or spoke but that the victim can obtain reprieve in civil law for such misdeeds.

“The essential of this jurisprudence is anchored on the notion of the right and power of expression as a natural quality that flows from the matrix of the nature of man. Underlying this quality is the nature of man and the vulnerabilities that underscore his essence and being.

“A plethora of judicial authorities of both the municipal courts of Europe and the European Court of Human Rights support this position. Then, there is the statement of the UN Human Rights Committee of 2001, which emphasises that criminal defamation laws are antithetical to, and suppress the freedom of expression.

“This prompted many great countries such as the USA, Canada, Australia and almost the entire Europe to yank off provisions on defamation from their criminal statutes,” he declared.