Prosecuting criminal defamation in magistrate’s court is unconstitutional 

Make no mistake about it: criminal defamation law exists in Nigeria. It is a federal law replicated in some states. Just like in the United States v Comstock, where federal criminal laws are made upon the Necessary and Proper Clause, Emelogu v The State is no longer tenable in Nigeria in the light of the introduction of sections 20 & 24 into the 1999 Constitution of Nigeria. Sections 20 & 24 of the Constitution when read together with Item 60a of Part I of the Second Schedule to the Constitution, like the US Necessary and Proper Clause, clearly dispatches erstwhile States constitutional legislative powers to the Federal legislatures.

What is not clear is whether or not this federal criminal defamation law is constitutionally valid, given that the offence is constituted of the same facts constituting the exercise of a constitutional right enforceable under section 46 of the Constitution itself, and which enforcement must take precedence over an ordinary statutory criminal law enforcement, given the decision in FRN v Nganjiwa (2022) LPELR (58066) 1 at 46-50 on constitutional authority versus ordinary statutory authority. The Supreme Court of Nigeria in Aviomoh v COP lost the opportunity to declare criminal defamation law unconstitutional in 2022.

It is, therefore, obvious that all the states’ criminal defamation laws are in abeyance by concurrent, if not exclusive, federal preemption. Thus, trying a person based on the criminal defamation law of a state by the State’s Attorney General, is as invalid as trying a person based on a non-existent State law.

However, a state’s decriminalisation of a concurrent federal offence may only affect the prosecution at the Magistrate’s Court or by the State’s Attorney General (AGS), but the Police or Attorney General of the Federation (AGF) may still prosecute the offence in the High Court of that State. Any attempt by the Police to prosecute the federal criminal defamation offence at the Magistrate’s Court of a State, is caught up by Attorney General Kaduna State v Hassan (1985) 2 NWLR Pt 8 at 483, Anyebe v The State (1986) LPELR-520, and even Emelogu v. The State (1988) 2 NWLR (Pt. 78) 524.

More importantly, because criminal defamation law is now a Part I exclusive (and an intra-constitutional concurrent) matter that is outside Part II of the Second Schedule to the Nigerian Constitution, an effective decriminalisation of defamation shall involve both the federal and states legislatures. Federal decriminalisation of defamation where the state has the law in abeyance only resurrects the state law.

On the other hand, states decriminalisation of defamation where there is a federal prohibition, does not remove the federal prohibition from the state; a Federal law, which both the Police and AGF can still prosecute in the State’s High Court is still extant. Whichever you look at it, a criminal defamation law defendant may be tried by the Police or the AGS acting for the Federal Government, in the State High Court, though not in the Magistrate’s Court of the State.

In other words, the AGS cannot authorise the police or issue a fiat to any lawyer to prosecute criminal defamation in the State. Thus, criminal defamation is a federal law in Nigeria, and the fact that a state has decriminalised defamation does not make the offence non-existent in that state.

Secondly, the order of arrest of a person by a Magistrate’s Court in one state for the purpose of appearance in another state Magistrate’s Court is strictly regulated by law and not at large. 

This work draws attentions to the other unconstitutionality issue of prosecuting a person in Nigeria for criminal defamation in the Magistrate’s Courts; the first being that criminal defamation is a federal law by the principle of federal preemption, and thus not a Magistrate’s Court case for the States. Even where a State acts on the Malami general fiat of 2016, it is still not a State case. In Aviomoh v COP (2022) 4 NWLR (Pt. 1819) 69, 120, the appellant is referred back to the trial Magistrate Court for the continuation of his criminal defamation trial, after the Supreme Court of Nigeria declines to answer the question of whether or not the appellant/defendant’s criminal defamation trial is constitutional; a question that originates from a preliminary objection of the appellant at the First Information Report (FIR) stage at a Magistrate’s Court.

The nagging question after that judgment becomes whether a defendant can, at the First Information Report stage, raise a preliminary objection against his criminal defamation trial at the Magistrate’s Court on the ground of unconstitutionality of the criminal defamation law under which he is charged, or whether he has to wait until the facts of the case have been considered before raising his preliminary objection; or further still, whether raising a preliminary objection on the constitutionality of criminal defamation law at the Magistrate’s Court for being a criminal trial in contravention of defendant’s fundamental right to expression, is, in the first place, misguided, misplaced and incapable of determination by the Magistrate’s Court and all the appeals based on its ruling, irrespective of the time the objection is raised. In the final analysis, the issue of right to expression in a defendant’s preliminary objection at criminal defamation trial raises a main fundamental right question.

The Supreme Court’s refusal to answer the defendant’s preliminary objection in Aviomoh, cannot be different by delaying such preliminary objection until the facts of the case have been considered, on many grounds, particularly the ground of the trial Magistrate’s Court’s lack of competence and jurisdiction to entertain the preliminary and main fundamental right question.

There is, therefore, a need for a change of tactics by criminal defamation law defendants, as the constitutionality question of criminal defamation law, as a main question, can only be raised at the High Court, in a Writ, fundamental right enforcement application, or in a preliminary objection at the High Court.

Aviomoh v COP is an appeal against the decision of the Court of Appeal, which has dismissed the appeal of the defendant/appellant, and upholds that part of the judgment of the High Court, which dismissed the appeal of the defendant/appellant, to uphold the ruling of the trial Magistrate’s Court.

The appellant/defendant has, at the First Information Report stage, filed a preliminary objection at the trial Magistrate’s Court, challenging the competence and jurisdiction of the Magistrate’s Court to try him for criminal defamation in violation of his fundamental constitutional right to expression. The trial Magistrate’s Court overrules the preliminary objection and holds that it has the competence and jurisdiction to entertain the criminal defamation proceeding against the defendant/appellant. The trial Magistrate’s Court curiously finds the criminal defamation law constitutional.

The question of the constitutionality of the criminal defamation law climbs from the Magistrate’s Court to the Supreme Court on consecutive appeals. Ultimately, the Supreme Court is asked to determine, inter alia, the following question: “Whether the provisions of the Penal Code pursuant to which the First Information Report was filed and upon which the appellant was arraigned was unconstitutional on the ground that the offences stated therein were in conflict with the provision of Section 39 of the 1999 Constitution (as amended)”.

The Supreme Court, upon consideration of the question above, holds as follows: “Based on the application of the last two principles above, it is tenable to argue that criminalizing defamation is not reasonably justifiable in a democratic society and may therefore be declared unconstitutional. … My Lords, at this stage in the proceedings at the Magistrate’s Court, I do not see my way to declaring the law unconstitutional being one unjustifiable in a democratic society. The law itself cannot be viewed in isolation of a live issue. I am aware my lords that in some instances, where the charge is eventually quashed, the defendant would have suffered untold damage. However, the facts of each case must be considered before the court quashes a charge as one that would cause gross miscarriage of justice. In the circumstances, the 3rd issue is resolved against the appellant. The appeal is dismissed”.

Consent of parties does not confer jurisdiction, and any defendant that consents to be tried at the Magistrate’s Court, will not be any different from that of Mr Aviomoh. In the end, the fundamental right question of the defendant’s fundamental right to expression shall not be entertained by the Supreme Court when the Magistrate’s Court’s ruling on his preliminary objection climbs to the apex court. The reasons are simple.

First, a Magistrate’s Court has no original jurisdiction over a main fundamental rights question; section 46 of the Nigerian Constitution reserves that right to the High Courts. Secondly, there is no provision enabling a court to exercise its original jurisdiction on an appellate matter placed before it. Thus, in any appeal from the Magistrate’s Court’s ruling to the higher courts, the higher courts cannot raise a question that the Magistrate’s Court is incompetent to raise at the trial. This is because of the principle of law that an appellate court cannot entertain a question that the trial court is incompetent to entertain. An appeal is a continuation of the trial based on the trial court’s original jurisdiction. In other words, as long as the Magistrate’s Court cannot entertain a main fundamental right question, a High Court rehearing the case on appeal, is also incompetent of raising the fundamental right question from the Magistrate’s Court’s decision, notwithstanding that the High Court has an original jurisdiction to entertain the main fundamental right question. 

The solution is simple. The arrest and the criminal defamation trial itself is a violation of the defendant’s right to expression. The defendant can thus enforce his fundamental right at the High Court against his criminal trial at the Magistrate’s Court as being in violation of his fundamental right to expression. A trial is a violation of a person’s fundamental constitutional right if the allegation of the offence is constituted of same facts constituting the exercise of a fundamental right. This has to be contrasted with an allegation of an offence that is not constituted of same facts constituting the exercise of a fundamental right. Criminal trial being an ordinary statutory right, the determination of any allegation that the trial is against the defendant’s exercise of his guaranteed fundamental right takes precedence. In this manner, the Police, as Respondents in the defendant’s precedent fundamental right application at the High Court, have the onus to prove that the defendant’s expression in his publication is outside his guaranteed fundamental constitutional right to expression.

To prove that the defendant has exercised his right to expression outside his guaranteed fundamental right, the Police will not just be required to prove damage done to the nominal complainant, as that is in the realm of civil defamation; but are required by law to prove that the impugned expression is intended by the defendant to cause imminent lawlessness that the state is obligated to stop. See Counterman v Colorado, 600 U.S. 66 (2023). In a fundamental right application, it is the evidential duty of the Police to prove defendant’s intended imminent lawlessness, in a publication that may have already been as cold as weeks, without any consequential lawlessness manifested. 
• Awkadigwe, LLB Nig, MBBS Nig, FWACS, is a Consultant Obstetrian and Gynaecologist, ESUT Teaching Hospital Parklane Enugu, Nigeria; [email protected]; 08039555380.