Defamation: How not to punish misdemeanour, uphold civil rights

While some states in Nigeria still criminalise defamation, others treat it as a minor offence, therefore creating inconsistencies in the application of the law. Either way, the discrepancy earns the country an infamous reputation akin to an abuse of power, AMEH OCHOJILA reports.
The discretionary application of defamation law in Nigeria highlights the complexities of the country’s federal system, particularly the division of legislative powers between the federal and state governments.

The Second Schedule of the 1999 Constitution, which outlined the Exclusive Legislative List, placed certain matters under the sole jurisdiction of the National Assembly. Defamation, however, does not fall under this list, thereby situating it within the legislative competence of state governments.

This decentralised approach allows each state the autonomy to determine whether to retain defamation as a criminal offence or to decriminalise it. The position of the State, legal experts noted, is influenced by such factors as socio-cultural existence of such a state.

As a result, Nigeria lacks a unified standard for handling defamation cases, leading to significant variations in their application and enforcement across the states. This
inconsistency poses challenges, particularly in a country where individuals and entities frequently traverse state boundaries for business, politics, and social engagements.

For instance, some states maintain criminal defamation laws, allowing for imprisonment and fines, while others favour civil remedies. Critics of criminal defamation argue that it stifles free speech and democratic engagement, often serving as a tool for the powerful to silence dissent.

Conversely, proponents argue that criminal defamation laws serve as a deterrent against reckless speech that could harm reputations unjustly. Ironically, criminal defamation is captured in the Criminal Code, which is a Federal legislation.

The lack of uniformity raises broader questions about the balance between federal government oversight and state autonomy. Should the National Assembly’s legislation on defamation be adopted as harmonised law across the federation? Or should the states continue to exercise their autonomy, reflecting the unique cultural and socio-political contexts of their jurisdictions? Even if the National Assembly was to legislate on a uniform law, due to our federal system of government, such law must be domesticated by the state legislatures for it to be operational in those states.

From a policy perspective, the retention of defamation as a criminal offence in some states reflects a lingering colonial-era legacy. In contrast, global trends lean toward decriminalising defamation, prioritising civil remedies that align with international human rights standards, such as the protection of freedom of expression.

The existence of criminal defamation laws in over 160 countries, including several European Union (EU) member states, still points to the global challenge of balancing freedom of expression with the protection of individual reputations.

While there has been a global trend toward decriminalisation, this issue remains contentious in Nigeria, where defamation laws are not only criminalised but are frequently seen as tools to suppress dissent and restrict press freedom. Critics argue that such laws undermine democratic principles and discourage accountability.

In the EU, there has been notable progress in repealing criminal defamation laws. For instance, Ireland abolished its criminal defamation statutes in 2009, Malta followed in 2018, and Romania also invalidated these laws after a series of reforms. However, several member states, including Germany, Poland, and Greece, still maintain defamation-related criminal offences. This reflects a fragmented approach within the EU, where the shift toward civil remedies is far from universal.

For a fact, the appropriate remedy for defamation ought to be the award of damages upon conviction. This is because the injured party gets the benefit of the money for the loss of reputation. But where criminal defamation is invoked, the ultimate penalty upon conviction is imprisonment, which does not restore anything to the victim, except perhaps, the satisfaction that such a convict has been deprived of his or her liberty. Again, criminal defamation is usually invoked only if the alleged defamatory statement is likely to cause public disorder.

Ultimately, this issue underscores the need for legal reforms that balance individual rights with societal interests, taking into account Nigeria’s federal structure, cultural diversity, and democratic aspirations.

Consequently, some proposed a national discourse on defamation law that could serve as a catalyst for achieving a more equitable legal framework that promotes both accountability and freedom of expression, making reference to the manner in which lawyer and human rights activist, Dele Farotimi’s liberty has been curtailed since December 4, 2024 over alleged defamation that could have ended in civil court.

As of today, criminal defamation laws remain in effect in numerous African countries, though several have taken steps toward decriminalisation. The legislature in South Africa in 2023, repealed the common law crime of criminal defamation through the Judicial Matters Amendment Bill, recognising the sufficiency of civil remedies for defamation. In Zimbabwe, in 2016, the Constitutional Court declared criminal defamation laws unconstitutional, aligning with the right to freedom of expression.

Also, Lesotho, in 2018, the Constitutional Court struck down criminal defamation provisions, citing violations of constitutional free expression rights. For Sierra Leone: Parliament repealed the 1965 Public Order Act in 2020, effectively decriminalising defamation. In 2022, the Penal Code was amended to abolish the offence of criminal defamation of the President in Zambia.

Despite these reforms, many African countries, including Nigeria continue to enforce criminal defamation laws, often utilising them to suppress dissent and limit press freedom.

A 2018 UNESCO report indicated that, at that time, four African Union member states had decriminalised defamation, suggesting that the majority still maintained such laws. However, it does not look like Nigeria is interested in decriminalising defamation as different states love to have it in their statutes.

According to a lawyer, Paul Mgbeoma, defamation is an issue that is within the legislative competence of the State Legislatures because it is not in the Exclusive Legislative List for which the National Assembly has exclusive authority to legislate on.

He added that if it was one of the items that the National Assembly could legislate on, there would have been uniformity of application nationwide. “It is for this reason that different States are at liberty to decide whether to retain or abolish it as part of their criminal laws,” he said.

Also, Douglas Ogbankwa, a lawyer argued that since Nigeria runs a federal system of government, each of the 36 states and the Federal Capital Territory (FCT) has the liberty to codify their distinct criminal codes or criminal laws. That, he said, is the reason defamation may be a crime in some jurisdictions and not in others.

He noted that the criminal code act, which is a federal law, is applicable across all the federation in only Federal High Courts. He, however, argued that any confusion created by the disparity from State to State could be cured by a federal law.

“If any defamatory statement enters into cyberspace, it has assumed the status of a cybercrime, if it is one that is capable of stirring public reaction in a way that will lead to the breakdown of law and order as provided for by Section 24 (1) of the Cyber Crime Prohibition Act 2015 (as amended) in 2024,” he said.

Ogbankwa stressed that making statements about people and institutions in the public space without proof, can activate criminal liability against the fellow. He warned citizens to be circumspect in making statements about persons and instructions without proof or evidence.

According to him, many people have laboured for years to build a reputation and won’t allow it to be ruined due to reckless statements and slurs that have far reaching implications for the person and his family. For the fact that some people will allow it to slide, he said, does not mean that others will do the same.

Ogbankwa explained that once a defamatory content is posted on the web, it activates a global jurisdiction, meaning that the suspect could be arrested and sued anywhere in the world where that content is read, downloaded or watched.

Senior lawyer, Ebute Moses, argued that allowing states to legislate on defamation laws would not create any confusion. He explained that defamation could carry criminal imputations, leading to criminal trials that may result in imprisonment or fines.

Simultaneously, the civil aspect of defamation allows the defamed person to seek damages and declaratory reliefs. According to him, these two aspects—criminal and civil—can operate concurrently without conflict.

Addressing concerns about forum shopping, Ebute dismissed the notion, stating that defamation occurs wherever the defamatory statement is published, spoken, or read, which grants the courts in that location jurisdiction over the matter.

For instance, if someone is defamed through a newspaper publication distributed and read in Abuja, he stated, the High Court of the Federal Capital Territory (FCT) would have jurisdiction, regardless of whether the offender resides in Lagos or any other state.

He further clarified that civil defamation is categorised as a tort, governed by distinct principles from other torts or crimes. This distinction, he explained, ensures that civil defamation has no territorial jurisdictional limitations, making it unique in its application.

“Defamation can convey criminal imputations and can ground criminal trial and conviction by way of prison terms or option of fine. But the civil aspect of it entitles the defamed person to damages and other declaratory reliefs.

“Civil defamation is a tort and the law and principles applicable to it are not the same with other torts or crimes, hence it has no territorial jurisdictional limitations as such,” he said.

For Douglas Terkura Pepe, also a lawyer, penal laws governing crimes involving harm or injury to individuals typically fall under the jurisdiction of state legislatures. According to him, defamation of character is criminalised by some State Houses of Assembly, because it falls within the Residual Legislative List.

Historically, Pepe noted, Nigeria inherited penal laws on sedition from the British, which criminalised speech or actions inciting opposition against government authority. “However, these laws were later declared unconstitutional by the courts. Presently, there is no uniform federal penal law on defamation of character, leaving it to individual states to decide whether to criminalise the offence or not. This is not a matter of judicial discretion but a legislative prerogative vested in state governments,” he said.

Similarly, the Executive Director, Sterling Law Centre, Deji Ajare, believes that different defamation laws for different jurisdictions would not cause confusion.

According to him, it is a reflection of Nigeria’s federal system. It enables each state to determine what best suits their circumstances and realities, he argued, adding that it is an ideal situation for a functional country without eliciting any confusion.