The saga of the Sexual harassment allegations between Senator Natasha Akpoti-Uduaghan and Senator Godswill Akpabio, the Senate President, has gone on for a while now fully engaging the public. It has thrown up for reflections, the fate of women as possible victims of abuse in the political arena.

Equally so the power of high office, the fight for political survival and the role of the media in the age of digitalised communications managing information, or exacerbating conflict, through the promotion of every minutiae of details into controversies, in the persistent drive for traffic much of it for online income. 

The current turn of events is the reported filling of Charges on Defamation under section 391 Penal Code against Senator Natasha Akpoti-Uduaghan by the Federal Government of Nigeria. This entry of the Federal Government into the fray changes the dynamics of the saga and seems intended, even if by default, to tilt the scale with prosecutorial powers in favour of the other dramatis personae in the saga.

This is totally inappropriate. There is a reason why the governments (State or Federal) must keep away from this saga, this matter in controversy, at this time, to allow the individuals ventilate their rights by themselves without the power of government behind any of the parties. So far, this has been the case with many of the matters now pursued in the various courts. Keeping away by government is necessary, essentially because, anything outside neutrality will give the impression of state bias.  

What are the issues? The accusation of sexual harassment by one Senator against another in superior authority which is the case of Senator Natasha against the Senate President a matter still under judicial adjudicatory evaluation. In the miasma of several correlated and inter-connected issues playing out, the idea of threat to her life arises from Senator’s perceptions and the gut feeling of insecurity which she expressed.

The natural fears of a female Senator without her security details and protection should elicit understanding not condemnation. In her current vulnerabilities, her home was attacked as widely reported by armed men. No arrests have been made several weeks after. It is interesting then that despite several reported cases of different sorts, the case of defamation got such a swift investigation reaching conclusion with the current charge in which the Senate President and the former Governor of Kogi State Alhaji Yahaya Bello are the principal parties and witnesses. 

Our jurisprudence recognises the Criminal and Civil options in the pursuit of claims under Defamation, but the former has since gone down into practical disuse only noticed when powerful political power takes control of law enforcement.

In fact, the current thinking is that Defamation, however rationalised, should be pursued as a Civil claim. Far back in 2011, Lagos State took the progressive step of removing Defamation from Criminal law leaving individuals who alleges or reports such cases to seek redress, using civil means. In other words, the individual who feels that his reputation or integrity has been harmed should pursue the matter as a civil right.

This is rightly so for a law which has its history in part in the coercive forces of colonial government intended to rein in activists and dissenters through oppressive instruments of the law, should not remain operative under the refreshing air of freedom and democracy.   

It is for that reason that Defamation confined to a purely Civil matter, received judicial validation in Clement Aviomoh Vs C.O.P 2021 25 E-WRN/02/(SC); 2021 LLJR-SC. This is the case that firmly establishes the judicial rejection of the criminal regime of the offence even where proved. In that case, the opinion was expressed thus by the justices: ‘My Lords the misuse of the criminal law machinery for getting reliefs in disputes that are civil in nature, by using the instruments of state has become dangerously rampant in recent times.

The practice leads to oppressive litigation and is contrary to sec. 36(12) of the 1999 Constitution.’ The Court after citing with approval the American authority on the point Chaplinsky vs New Hampshire 315 US 5681, 571 (1942) added that the present trend globally is the tilted towards the abolition of criminal defamation. 

The consideration is clear; the right to free speech cannot exist on the same lame with criminalised punishment for self-expression. Principal amongst the issues is the Constitutional guarantee of freedom of expression. Section 39(1) guarantees freedom of expression and protects an individual from being gagged or prohibited from expressing fears or apprehensions about possibilities of bodily harm.

This is a right which cannot be so easily taken away from a citizen. When government takes such issues up, it would seem to observers that the consequence or the aim then is to intimidate and silence all those with such fears.  

A disquisition of the Supreme Court’s ratio in the above judgment shows that criminalising defamation incentivises abuse of powers and does arm twists a weak party into legal capitulation thus defeating justice itself. A strong case in point is Nwankwo Vs The State (1983) NCR 366 where abusive state powers by a Governor against a citizen for publishing an information was condemned in all ramification by the Court of Appeal.  

In the final analysis and submission, the Federal Government is implored to drop the charges and all the parties to pursue the rights through damages in the civil Court. With that a balance and absence of state oppression will remain in the eyes of well meaning Nigerians at this time. 
 Odiadi is a Lagos-based lawyer and can be reached via: [email protected]