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Criminalization of the freedom of expression – Part 2

By Ebun-Olu Adegboruwa
03 December 2021   |   2:54 am
One can therefore safely assert that freedom of expression is of great importance to the human race wherein free exchange of ideas promotes harmony and societal development

Freedom of Speech. Photo: mhinews

One can therefore safely assert that freedom of expression is of great importance to the human race wherein free exchange of ideas promotes harmony and societal development; whilst suppression of the freedom of expression often leads to conflict, instability and sometimes outright revolution. When people become chained through their mouths, then tyranny beckons.

Limitations against freedom of expression
Notwithstanding the vital role and value that freedom of expression plays in the stability of a democratic society, the aforesaid right, like most other rights, is limited and not absolute.

Nonetheless, the Nigerian Constitution and all other International Instruments (to which she is a signatory) strictly provide for those circumstances where this extant right may be qualified, restricted and or derogated from. Under Section 39

(3) of the 1999 CFRN, freedom of expression may be restricted by a law that is reasonably justifiable in a democratic society for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television… Also, by virtue of Section 45 (1) of the 1999 Constitution, the right to freedom of expression could be curtailed by any law that is reasonably justifiable in a democratic society (i) in the interest of defence, public safety, public order, public morality or public health; or (ii) for the purpose of protecting the rights and freedom of other persons.

The foregoing constitutional limitation against this right has become the foundation and legal framework heralding several statutory weapons and arms against the exercise of free speech and expression in Nigeria. These statutory weapons include the offence of defamation, sedition, incitement to mutiny or disaffection among Armed Forces or the Police, incitement to commit any criminal or public disorder and blasphemy, to list a few. Every society has always developed protection for the reputation and dignity of its citizens. Thus, a person who alleges defamation through freedom of expression is always free to approach the courts in a civil suit to seek an apology and even damages, in appropriate cases. It can then be seen that freedom of expression is not absolute. We shall thus take out the time to promptly highlight some of these notable statutory limitations on the freedom of expression.

The sedition law in Nigeria dates back to the colonial period whereby the colonial government used the law of sedition as a cudgel against all forms of the nationalist uprising. By virtue of sections 50 and 51 of the Criminal Code Act, it is a criminal offence to amongst others,

(a) bring into hatred or contempt or disaffection against the person of the President or of the Governor of a State or the Government of the Federation.

(b) excite the citizens of Nigeria to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Nigeria as established by law

(c) raise discontent or disaffection amongst the citizens or other inhabitants of Nigeria.
Part of the alarming implications of the above law is that the government/prosecution need not prove all the aforesaid conditions in establishing the offence of sedition. Just any publication, speech or expression that brings disaffection against the person of the President is enough to justify the offence of sedition. More insidious is that truth is no defence to a charge of sedition. In the case of Queen v. Amalgamated Press of Nigeria Ltd (1962) WNLR 272, the court held that the real test of sedition is not the falsity or otherwise of the article but whether the publication is likely to expose the government to hatred, contempt or ridicule. Hence, a newspaper accusing the government of reckless corruption, unabated nepotism and abuse of office, even if true, can be held to be a seditious publication.

A respite to the draconian provisions of our sedition laws has however come on the heels of judicial activism vide the celebrated case of Nwankwo v. State (1983) 1 NCLR 366. There, the defendant was charged, convicted and sentenced to one-year imprisonment for publishing a pamphlet titled “How Jim Nwobodo rules Anambra State”.

In setting aside the conviction and sentence on appeal, the Court of Appeal in a historic decision held that Sections 50 (2) and 51 of the Criminal Code Act were inconsistent with the provisions of Sections 36 and 41 of the 1979 Constitution (in pari materia with Sections 39 and 45 of the 1999 CFRN) and are by implication repealed from the 1st of October 1979.

Even though this cannot be a licence for defamation, the State should not criminalize offending publications given the consequences of such statutory prohibition on society. What it means is that state actors can get away with the deployment of the instrumentalities of state to gag citizens, subject them to arbitrary trials and in that wise, shut all avenues for dissent. Freedom of expression and the press is one of the basic components of any democratic society. We cannot hold ourselves in chains after many of our people have lost their lives and liberties to rid our land of military dictatorship. Every civilian government voted into power by the will of the people should allow the people to disagree whenever the need arises. We cannot go back to the dark ages.

Adegboruwa, is a Senior Advocate of Nigeria (SAN).