When abuse of power disguises as media regulation
• Media Gags Violate Rule Of Law, Constitutes Abuse Of Power — Stakeholders
On Monday, July 26, 2021, the Department of State Service (DSS) supervised a guided media coverage of the trial of the leader of the proscribed Indigenous Peoples of Biafra (IPOB), Mazi Nnamdi Kanu, where he is facing terrorism and treasonable felony charges brought against him by the Federal Government.
In the trial, presided over by Justice Binta Nyako, at the Federal High Court, Abuja, the DSS restricted some media houses and lawyers from gaining entrance into the courtroom on the grounds that it was “part of the security measures put in place by the management of the Federal High Court in Abuja, and the DSS to control crowds at the court premises.”
The restriction of the number of media organisations to cover the trial to 10, effectively limited its coverage. Those accredited included Daily Post, Premium Times, Thisday, The Nation, The Herald, Daily Independent newspapers, the Nigerian Television Authority (NTA), Channels Television, Africa Independent Television (AIT), and Television Continental (TVC).
MANY stakeholders, including rights advocates and lawyers have, however, described the development as not only an abuse of power, but also one of many subtle moves by the President Muhammadu Buhari-led Federal Government to muzzle the media and infringe on the freedom of expression in the country.
They described the action of DSS to censor and limit the media coverage of the trial as an affront on press freedom, adding that the agency has no power to accredit journalists’ coverage of a public trial in a Federal High Court in the country.
Some of the activists reasoned that in democracies the world-over, restrictions are never placed on the media in the performance of its statutory functions of informing, educating, and enlightening citizens.
A global rights advocacy group, Amnesty International, while reacting to the development said, “selecting few journalists to cover the trial is a restriction on access to information, and an attempt to deny people the right to know. It is a violation of the rule of law, as well as the right to know of the citizens. It also violates all fair hearing guarantees.”
IN another show of disdain and intolerance for the media, agents of government, the DSS, at the Federal High Court in Abuja, on Monday, August 2, harassed journalists and media personnel who were on hand to cover the trial of abducted associates of Yoruba Nation agitator, Sunday Adeyemo, aka Sunday Igboho.
A photojournalist with Vanguard Newspapers, Gbenga Olamikan, was manhandled on the court premises while covering the arrival of the agitators, as armed DSS operatives pounced on him and seized his mobile phone.
The journalist was forced at gunpoint to delete all the pictures he took. It took the intervention of his colleagues who insisted that his phone must be returned.
Also, the operatives, in an attempt to prevent other journalists from filming the Yoruba Nation agitators, cordoned off the courtroom and prevented journalists from carrying out their duties. The situation led to heated arguments as journalists insisted that the security operatives could not stop them from the coverage.
While threatening legal action against the DSS over the harassment of journalists, counsel to Igboho, Pelumi Olajengbesi, said: “Newsmen and reporters who had exercised their right to cover the trial of the abducted associates of Mr. Sunday Igboho were today intimidated, badgered and obstructed from carrying out their assignments in court by aggressive men of the DSS, who went further to seize gadgets and other materials belonging to the newsmen.
“Their action stands strongly condemned and is in fact an assault on the hallowed chambers of the Federal High Court. The premises of the Federal High Court and indeed any court in the country is open to all Nigerians and professionals and it is simply not the property of the DSS over which they can exert such brutish control.
“By cordoning off the court’s premises and intimidating newsmen in court away from the spectre of the trial, the DSS erred arrogantly and aggrieved the very sanctity of the courtroom.”
Olajengbesi called on President Buhari to call the DSS officials to order, and also urged the Attorney General and Minister of Justice, Abubakar Malami, to re-orientate the DSS on the extent and limits of their powers under the law.
It would be recalled that only recently, as part of its growing penchant for gagging the media, in the guise of regulation, another government agency had issued directives to broadcast organisations with a view to regulating their reportage of terrorism-related news contents.
That development was on the heels of a covert attempt by the government to enact draconian laws, through the National Assembly, to shackle the media. Specifically, two bills sponsored by chairman of the House of Representatives Committee on Information, National Orientation, Ethics and Values, Olusegun Odebunmi, had sought to amend the National Broadcasting Commission, (NBC) Act and the Nigerian Press Council (NPC) Act. The bills, purportedly aimed at strengthening either organisations, was carpeted by media stakeholders as bills meant to destroy press freedom in the country.
The NPC Amendment Bill had sought to give the president a free rein to appoint the NPC’s board, including its chairman, without the Senate’s approval. The bill makes the information minister a media authority, with powers to approve the establishment, ownership and operation of newspapers; create a National Press Code; and impose punitive measures, including the revocation of licence of any media house deemed to have breached the code. Journalists can be fined, jailed and deregistered. Analysts added that the bill would allow the president to fill the board with government cronies and loyalists.
If the bills had been allowed to sail through the NASS, they would have made the NPC and NBC appendages of the information ministry, giving the minister enormous powers to control the media, possibly turning them into government mouthpieces.
Even though the presidency denied having a hand in the bills with President Buhari’s senior media adviser, Femi Adesina saying, “the President has nothing to do with that,” while the Minister of Information, Lai Mohammed, also reiterated that the Federal Government was not behind the bills, stressing that they were a private member’s bills, the Nigerian Press Organisations (NPO) is convinced that the bills were meant to stifle the press and criminalise journalists for doing their job. Therefore, the members of the NPO, mainly newspaper firms, jointly published front page editorials in protest, condemning and opposing the proposed laws. The result was the immediate suspension of the bills by Odebunmi for “further consultation.”
To further underscore the current administration’s intolerance for the media, the Nigeria Union of Journalists (NUJ), and Media Foundation for West Africa had earlier last month released a report detailing atrocities, murder, torture and rights abuses of journalists practising in the country, naming the administration of President Buhari, state governors, NASS members, politicians, security agencies, among others, as the biggest violators of press freedom.
The report, entitled, “The State of Media Freedom in Nigeria,” focused primarily on the last six years of President Buhari in power. It listed journalists killed and those whose deaths were yet to be resolved, as well as those harassed by state actors and beaten up in their line of duty. Media houses harassed by security operatives were also included in the report.
What Constitution Says
THE role of the media in ensuring governmental accountability, the judiciary not excluded, is fully guaranteed in Section 22 of the 1999 Constitution. The section states: “The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the government to the people.”
Justice delivery is believed to start with the incorrigibility of the judiciary, which should be more interested in opening the democratic space for multi-stakeholder interface towards creating an open society. In like manner, an open trial is an essential element of an open society that every democracy aspires to. A free press, not hobbled by any institutional restriction, has also been identified by analysts as a reliable barometer for measuring the functionality of a democracy. It is, therefore, absurd for a court to restrict freedoms in a democracy.
Taking Cue From Other Climes
DURING the murder trial of the disabled South African athlete, Oscar Pistorius, the judge, Thokozile Maspia, allowed live coverage of court proceedings, prompting all three local 24-hour news channels on Pay-TV to offer wall-to-wall coverage of the trial in 2014.
In a 1999 decision, the California Supreme Court upheld the public’s right to be present during civil trials and set out guidelines advising judges of the limited circumstances in which such proceedings may be held in private. In the unanimous decision, Chief Justice Ronald George wrote that, “the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.”
Constitutional law professor at USC, Erwin Chemerinsky, while commenting on the decision of the court, said: “The decision will really be followed not only in California, but throughout the country. That’s why it’s such an important precedent.”
The ruling arose from a case involving a contractual dispute between actor Clint Eastwood, and his former companion, actress Sondra Locke.
During the 1996 civil trial, which came in the wake of the O. J. Simpson murder prosecution, the Los Angeles County Superior Court Judge, David M. Schacter, barred the public and the news media from all court proceedings that did not take place before a jury.
The United States Supreme Court has since ruled repeatedly that criminal trials must be open to the public and the media.
According to Cornell Law School bulletin, the United States Supreme Court has cited many civic and process-related purposes served by open trials: they help to ensure the criminal defendant a fair and accurate adjudication of guilt or innocence; they provide a public demonstration of fairness; they discourage perjury, the misconduct of participants, and decisions based on secret bias or partiality. Open trials educate the public about the criminal justice system, give legitimacy to it, and have the prophylactic effect of enabling the public to see justice done.
Way To Go
WHILE the unfortunate scenario made possible by the incumbent administration continues to play out, many are curious why it has become attractive to the President Buhari-led (who personally enjoyed unfettered media usage and support while seeking power) to be fighting tooth and nail to gag the media? They are also asking when the country can have a truly and wholly free media when the APC-led government is persistently toying with the idea of outright control and regulation of the media space through controversial amendments to affected bills.
For the records, unfettered media access to court proceedings is guaranteed in the Nigerian constitution, and the principle of “open courts” means that anyone is allowed to watch most cases, and the media can generally report on what takes place.
Giving his views on the seeming stand-off between government, its agents/representatives and the media, the President of the Newspaper Proprietors’ Association of Nigeria, and Chairman, Trust Media Limited, Mallam Kabiru Yusuf, said it was wrong and unacceptable to give the power to control the press to government bureaucrats, including the Minister of Information and Culture.
He noted that the powers that newspapers have to get licences; to decide whether there is infringement, or power of free press should never be given to any individual, including individuals in government representing political parties and the government of the day.
“Regulation from the top will not be acceptable to the media. The right way is for the media to be involved in self-regulation; to admit cases where mistakes are made, either deliberately or by error by the press itself, and to find ways to give the public the right to complain for these mistakes to be addressed. The media is capable of doing that. Indeed, we have attempted to do that; we have appointed an ombudsman who is a former judge of the Lagos High Court. The system did not take (the issue) on properly, but we must find a way to give the public, including the government, the right to complain where there are excesses, and for the media to be able to address these within its role,” he said.
Yusuf disclosed that the Nigeria Press Council Act has always been there and the NPAN for many years has challenged it. He added that NPAN was now in court over the decree, saying that the action should be enough reason for the government, or the legislature to pause and see what the Supreme Court says about it. “It is short-sighted and mistaken of the legislature to deliberate on the matter. We have had many conversations with the minister on how to break the whole thing down. The government has its views on how to regulate the sector and we also have our views and are ready to cooperate to do this in a way that will protect the interest of the public. The minister made an effort to have conversations initially but maybe he has given up. He needs to come back to the negotiation table.”
The NPAN president noted that the press would be there long after the government of the day has gone and will continue to agitate for the freedom of the press in the country.
The Programme Director, Media Rights Agenda (MRA) Ayode Longe, examining the situation, said: “It is actually an irony that the same tools that the present government used while in opposition are the same tools it is fighting against. The APC, while in opposition, used and enjoyed civil protests as a tool to make its voice heard, it used traditional and social media to the fullest.
“Ironically, these same media, which served their purposes yesterday have become mediums of divisiveness, which must be crushed. This is hypocrisy and their actions go against the rights of freedom of expression, of association and assembly, which are all guaranteed by the constitution. While the APC was in opposition, it was spewing what it today calls hate speech freely. Yet, it now seeks to enact laws and policies to criminalise expression in breach of constitutional guarantees,” the MRA chief said.
Longe expressed the belief that what might have made repressing the media attractive to the government is the fact that the APC has majority in the National Assembly with which it probably believes it can choke-hold Nigerians, not knowing that Nigerians are irrepressible people who get louder with attempts to suppress them.
“Unfortunately, the APC government seems to be blind to the fact that a viable opposition is needed to keep a government on its toes, and to hold it accountable because any democracy without a viable opposition is a despotic regime,” he said.
Longe observed that there were more than enough laws already regulating media operations, noting that the laws were even too restrictive as they are now and that some of them needed review, amendment or repealing. “For instance, the world has moved from criminalising expression to making expression offences civil matters, but we still have criminal provisions for expression offences. We have criminal defamation in our statute books against international standards and norms,” he said.
For the Deputy Director, Socio-Economic Rights and Accountability Project (SERAP), Kolawole Oluwadare, under the Nigerian Constitution of 1999 (as amended), and international human rights treaties such as the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights to which the country is a state party, trial hearings and judgments in criminal cases must be public except in prescribed and narrowly defined circumstances, such as cases involving children.
According to him, the right to a public trial in criminal cases does not concern merely the parties in the case, but it extends to the general public, trial observers and the media, who have the right to be present. As such, he contended that restricting the right to a public hearing in criminal cases violates the Nigerian Constitution and international human rights law.
“Violating the right to a public hearing undermines the public’s right to monitor and ensure the fair administration of criminal justice, as well as the independence and impartiality of the judiciary. The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or in print, through any media of choice,” Oluwadare said.
The Director, International Press Centre (IPC), Lanre Arogundade, on his part, stressed the need for continuous condemnation of the Buhari-led administration’s seeming genetic abhorrence of freedom of expression and press freedom.
He said that the ongoing media gag, through repeated “legal” or “legislative” coups via anti-media bills, violates the principles of rule of law, transparency, accountability and anti-corruption. “Indeed, it constitutes gross abuse of power in contravention of the oath of office of the president, and other elected officials. It is abuse of power to shut down a radio or TV station without thinking of how it abridges the right to receive and send information. The arbitrariness is underscored by the fact that the shut downs are decreed without recourse to the law courts. The assault is total with the existence of over 20 laws that stifle the media one way or the other and in due course the real reasons behind it all will unfold,” he noted.
What must then be done by stakeholders to arrest the ugly development before the government succeeds in having its way and getting illegalities entrenched in the polity? Arogundade welcomed the recent front-page protests by newspapers, tagged, “Information Black Out,” and the subsequent strong editorials against the relentless attacks, as steps in the right direction. He, however, stressed the need for there to be more of such actions, noting that it should be extended to the broadcast and online media.
“We need sustained campaigns and advocacy on the issue at hand and some of it could be targeted. For example, it is necessary for the media to consider one or two days, or even a week’s blackout of the activities of the DSS to protest its recent penchant for preventing journalists, especially photojournalists and cameramen, from covering cases involving it and some citizens. Physically molesting journalists in court premises is actually an exhibition of lawlessness in the face of the law. It is a slap on the judiciary.
“The danger that the media is facing is real and no month should pass without one form of protest or the other so that proposed legislations, such as the bills seeking amendments to the National Broadcasting Act (2010), and the Nigeria Press Council Act (1992) can be completely withdrawn for proper dialogue with stakeholders on acceptable models or mechanisms for regulating the media,” he said.
To completely nip government’s sinister motives in the bud, or forestall their recurrence, Arogundade said stakeholders must continue to engage. He noted that engagement should be diverse and multi layered, including with the leadership of the committees on information, and that of the National Assembly as a whole.
He also highlighted the need to continue sensitising citizens to the dangers that the violation of press freedom pose to their well being, saying that citizens, the civil society, the youth, women, and persons Iiving with disability should all team up with the media to preserve the right to know because it is the root that produces the freedom of expression tree; an important branch of that tree being press freedom.
To have a truly and wholly free media, Arogundade recommended the first step to be taken to include having constitutional provision for freedom and responsibility of the media so that there could be appropriate constitutional backing. Citing Ghana as a good example in this regard, he said that the country’s constitution preserves the independence of the media’s regulatory body, and that of the media by stating for example that the government shall not appoint editors of the state, or government-owned media.
By cordoning off the court’s premises and intimidating newsmen in court away from the spectre of the trial, the DSS erred arrogantly and aggrieved the very sanctity of the courtroom
It is actually an irony that the same tools that the present government used while in opposition are the same tools it is fighting against. The APC, while in opposition, used and enjoyed civil protests as a tool to make its voice heard, it used traditional and social media to the fullest. Ironically, these same media, which served their purposes yesterday have become mediums of divisiveness, which must be crushed. This is hypocrisy
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