Criminalization of the freedom of expression

Last week, I presented a paper at the Webinar organized by Rule of Law and Development Foundation, which is a national discourse being promoted by the former President of the Nigerian Bar Association, Mr. Joseph Daudu, SAN. Permit me to share thoughts expressed with you, especially in the wake of Twitter suspension, media control and seeming intolerance to opposing views. No one ever thought that the suspension of Twitter would take this long, given the economic consequences of that decision, especially as it affects our youths. Whenever questions concerning the right to freedom of expression are raised, there are a lot of controversial arguments and more often than not subjective criticisms, trailing them. It is thus not surprising that in the wake of the renewed clampdown by the Federal Government on false, inciting and hateful speeches/publications, particularly via the internet/social media, the Nigerian polity is faced with warring views and reactions on the matter. We cannot deny the negative impact of fake news, inciting publications and unverified posts, to our national psyche. It is to find a balance between freedom of speech and expression and the protection of every individual and indeed the society, from defamatory and damaging publications.

Whilst many citizens, media practitioners and some right-activists have thrown their weight in support of the regulation of free speech and publications, notable warnings and vehement protests in opposition to the blanket rule/rein on free speech have continued to remain vocal by other stakeholders. Hence, from the recent ban on Twitter Incorporated by the President Muhammadu Buhari-led administration to the proposed Anti-Media Bills, the Criminalization of the Freedom of Expression has become a center stage of legal and political discourse in Nigeria. I therefore, along with other pro-democracy activists, join my other co-panelists to interrogate the extant topic at this 4th Annual Criminal Law Review Conference. Let us quickly delve into the meat of this matter.

The concept of freedom of expression
The concept of freedom of expression is not unfamiliar in our jurisprudence. Freedom of expression is one of the fundamental rights which are universally recognized and protected. The 1999 Constitution of the Federal Republic of Nigeria (as amended) (1999 CFRN), particularly Section 39 thereof, has expressly provided for the protection of this right because of its importance and relevance to the enhancement of personal liberty and democracy. It states:

“(1)Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference
(2)Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions…”   
Under Article IX of the African Charter on Human and Peoples’ Right (AFCHPR), it is guaranteed that:
“(1) Every individual shall have the right to receive information
(2) Every individual shall have the right to express and disseminate his opinion within the law.”

Going further, Article 19 of the Universal Declaration on Human Rights (UDHR) provides that:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and impart information, and ideas through any media and regardless of frontiers.”

Finally, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to freedom of expression as follows: “1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print in the form of art or through any other medium of his choice.”

From the avalanche of the legal and constitutional backings on freedom of expression and the press, the importance and impact of this right cannot be overemphasized. What then is Freedom of Expression?

Freedom of Expression, as captured by several authors/jurists, connotes the liberty to openly discuss issues without fear of restriction or restraint’. It can be said that freedom of expression is basically that right inherent to every human to hold, articulate, share or disseminate their respective ideas, views and opinions without any fear of censorship. It is in furtherance of this right that one holds and expresses dissenting and unpopular views without fear of sanction. Hence, it is not out of place to hold that the right to freedom of expression extends to all other forms of rights (i.e right to life, liberty, thought and religion etc) through which one expresses, imparts or conveys his ideas, thoughts, opinions or information into concrete actions. Freedom of expression is held sacrosanct and inalienable, being attached to the existence of the individual or entity. So long as there is a right to life, then the freedom of expression must be guaranteed and protected.

It has now been held by judicial decisions (both local and foreign) that freedom of expression and the press constitutes one of the essential foundations of democratic society and the basic condition for its progress and development. In the case of Kauesa v. Minister of Home Affairs & Ors (2003) 3 CHR 234, the Supreme Court of Namibia held that free expression is necessary to the maintenance of a democratic state; that citizens must be free to speak, criticize and praise and that muted silence is not an ingredient of democracy because exchange of ideas is essential to the development of democracy.

To be continued tomorrow.

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