AUTHORS: OTITOOLA OLUFOLAJIMI & OLAOGUN JOSEPH
LL.B Student, Faculty of Law, University of Lagos
LL.B Student, Faculty of Law, University of Lagos
The right to freedom of expression simply is the ability to speak or express one’s self freely without censorship or sanction. In the words of Adekeye JCA,in IGP v ANPP (2007) 18 NWLR (Pt. 1066) 457, the rights to freedom of expression and assembly are the bone of any democratic form of government. However, nationally, when questions regarding the right to freedom of expression are raised, there are a lot of controversial arguments and subjective criticisms. The government blames the press and people for overstepping the limits of their right; the press and people blame the government for placing illegitimate and unlawful restriction as regards the exercise of this right. The importance of this right cannot be overemphasized, thus the problems surrounding it will remain a recurring one until it is resolved. Either ways it is evident that the government, the press and the people have come short in fulfilling their part as regards the exercise of this right, and it is left to the law to give clarity on these conflicting issues.
The right to freedom of expression is a bellwether: how any society tolerates those with minority, disfavoured, or even obnoxious views will often speak to its performance on human rights more generally. It can be said that Nigeria has undergone a rather positive transition as regards the right to freedom of expression. From Decree No. 4 of 1984, which made it a criminal offence to publish any material that was considered embarrassing or against the interests of the government, to enactment of more civilized laws like the Freedom of Information Act of 2011.
In times past, the ‘90s to be precise, there was “political intolerance” towards the media, where the government jailed its critics, fired employees who did not promote or approve of their views and ideals and even subjected the media to scare tactics and intimidation, through threats of possible imprisonment. Renowned newspapers were shut down by the government.
However, inasmuch as the measures of freedom of expression have improved now, there are still questionable acts of the government against this right which can still be improved upon. As according to critics, Nigeria is “partly free”.
For example, there have been several allegations against President Muhammadu Buhari for trying to cage the press and deny Nigerians freedom of expression as many feel he thinks he is still under a military regime. There were instances where security agencies went after people simply because of something they said or wrote. A series of arrests of bloggers, newspaper reporters, media houses and even a dog owner in connection with freedom of expression. Even the Special Assistant to the President on media, on a radio program, told a co-guest to shut up simply because he criticized Buhari’s government. With all these, one will start to wonder, is the right to freedom of expression in Nigeria gradually going back into extinction?
Also, there was the then Anti-Social Media Bill, now; another example of these questionable acts is the Frivolous Petitions (Prohibition, etc.) Bill 2015, which the Senate stated that it was not intended to cut down on the right to freedom of expression of the citizens but was intended to make people responsible for what they publish or say. However, taking a look at the provisions, one would be driven into perplexity as it criminalizes this freedom by providing rather outrageous punishments such as six months to two years imprisonment and =N= 200,000 to =N=2,000,000 fine. This makes one wonder whether this is not a rather too heavy punishment to make someone responsible for his actions.
Most recently isthe declaration of the Vice President of Nigeria, Prof. YemiOsinbajo that the Federal Government of Nigeria will classify hate speech as a specie of Terrorism, and offenders will be charged under the Terrorism Prevention Act, as amended. This brought about the debate of whether the classification of hate speech as an act of terrorism infringes on the right to free speech and its criminalization is not an infringement of free speech. However, it must be stated that the hate speech is not free speech and its criminalization is not an infringement of free speech. This even holds citizens accountable to their expressed views, thereby ensuring responsibility in expression. As international treaties, such as the ICCPR, permits and requires states to prohibit hate speech. Thus, the debate should be “what constitutes hate speech?”
THE PRESS (AND THE PEOPLE)
Every legal system contains means and mediums through which opinions are conveyed and aired for appraisal or criticisms, and of the various mediums, a popular one is the press. In most societies, without prejudice, the press is viewed as the emblem of expression and in any case where intimidation is directed at them, the general morale of expression is somewhat suppressed.
Without doubt that the press, and some persons who have aired their views and opinions, have suffered a great deal in the hands of the Nigerian government, and as a result, expression, until recently, never had a space for breath. As earlier mentioned, the Federal Military Government was merciless in dealing with the press and even when democracy was ushered in, the press had considerable breathing space only starting from 2011. Undoubtedly, from the provisions of the aforementioned law, the Freedom of Information Act of 2011, the press now have the discretion and freedom to publish any material, opinion, idea, it sees of worth and importance, but has that been the case?
It is of importance to commend the press on their fulfilment of the mandate to deliver the details of events, often regarded as news, to the people. The time and money spent on research, follow up and confirmation is something of a great deal. Some journalists have risked their reputation and lives to get the nitty-gritty of some things or events which lies at the core of government administration, particularly corruption and terrorism. Furthermore, their unwavering criticism of the government when erring cannot be overemphasized. The press has become a sort of watchdog and tool for checking and balancing the acts of the government and its agencies.
However, it must be noted that the press, and other persons or groups who feel the obligation to air their views and ideas, have taken things to the rather extreme end and are on the verge of stepping out of the confines of which the right to freedom of expression andthe Freedom of Information Act of 2011 puts them. In recent times, the press has turned themselves into tools for politicking, spewing hard and unreasonable criticisms, and worse of all, the purposeful dissemination of improper or fake news and making minor issues more of a caricature.
Also, the press and persons, in the process of airing their views, have in various times, under the umbrella of exercising its freedom of expression and also its privileges under the Freedom of Information Act of 2011, infringed on the individual right to privacy and dignity, and in other cases, the press have been considered to be guilty of libel and slander, as well as defamation of persons’ reputation.
In addition to the foregoing, the press has also been found guilty of having news headlines twisted in ways they are easily misconstrued and, in most cases, the press have shown elements of bias.
In the light of the aforementioned, can it be said that the Freedom of Information Act 2011 has indeed been abused? Or should there be strict limitations to this act?
4.0 THE LEGAL ASPECT
The generic provision for the right to freedom of expression is in Section 39 of the 1999 Constitution and this is quite similar to the provisions of Article 19 of the International Convention on Civil and Political Rights, a United Nations treaty ratified by Nigeria. They both provide for the right to freedom of expression, to hold opinions and to receive and impart ideas and information without interference. Also, there is a provision for the right to own and establish any means through which information can be disseminated, either orally or in writing; which is the right of the press. Lastly, they provide for the limitations to the exercise of this right, with the 1999 Constitution further providing other limitations in Section 45.
Nonetheless, it is of pertinence to note that these limitations, in relation to the provisions of the Freedom of Information Act, are rather excessive and vague, and capable of hampering the proper fulfillment of this right. Since the rationale for the enactment of the Freedom of Information Act was for the public to have access to information kept by public institutions, that there are a lot of exemptions to access this public information only leads to the conclusion that some ill-intentioned public officers can use these exemptions for unjust and mischievous purposes. These purposes can include these public officers using the machinery of the State to silence their opponents and the press or cover up corrupt practices and shield themselves from public scrutiny. Also, there is the effect of some existing laws on the Freedom of Information Act, such as, the Evidence Act, the Public Complaints Commission Act, the Official Secrets Act,the Federal Commissions (Privileges and Immunities) Act, the Statistics Act, and the National Securities Agencies Act; as they all have some sections that are aimed at suppressing the free flow of information in the country. All these laws affect the effectiveness of the Freedom of Information Act as they are loopholes that can be utilised to avoid obligations under the Freedom of Information Act. However, it would seem impossible for these public officers to exploit the aforementioned exemptions by reason of the omnibus proviso against denial of information that says “where the interest of the public would be better served by having such record being made available, this exemption to disclosure shall not apply,” however, it is clear that the proviso lacks clarity and is also vague, thus majority of the work is on the judiciary to determine what is what.
Despite the fact that this is how the Nigerian Legal System works in several cases, the courts themselves have however stated in quite a number of circumstances that it will be better for the legislature to give clarity on these vague provisions and not always leave them to judicial interpretation and determination.Acts from which an example can be drawn with regards to clarity on vague provisions are the Criminal Code and the Penal Code, as in sections 59-60, 373-381 and sections 391, 417-418 respectively which provides for the crimes of and punishment for defamation, inciting statements, breach of the peace, criminal intimidation, publication of statement, rumour or report which may disturb public peace and false publication which is imprisonment with varying terms of sentence. Lastly, it must be said that it is the constitutional responsibility of the Police, by virtue of Section 4 of the Police Act, to maintain law and order in a democratic society in relation to the right to freedom of expression. Thus, the use of Armed Forces for the purpose of enforcing this right is gravely unconstitutional.
Now, while the government have their role to play in relation to the enactment of specific laws, clarification of their vagueness in certain circumstances and the further enforcement of these laws, the press also have the obligation of not overstepping boundaries expressly stated by the law. Some of these laws include the aforementioned sections of the Criminal and Penal Code. Also, section 95 of the Electoral Act 2010 (as amended) provides that no political campaign or slogan shall be tainted with abusive language directly or indirectly likely to injure religious, ethnic, tribal or sectional feelings. Thus, abusive, intemperate, slanderous or base language or insinuations or innuendoes designed or likely to provoke violent reaction or emotions shall not be employed or used in political campaigns. It then provides for the punishment of a maximum fine of N1 000 000 or imprisonment for the term of 12 months for an individual; and in the case of a political party, a fine of N2 000 000 in the first instance, and N1 000 000 for any subsequent offence. Something to note with regards this provision is its express specification and clarity. In addition, there is the Cyber Crimes (Prohibition, Prevention e.t.c) Act 2015, which although some of its provisions have been severely criticized, states expressly what is a violation and punishments for violation.
Lastly, there are times when this right to freedom of expression will be curtailed by other rights, for example the right to privacy (Section 37 of the 1999 Constitution). In this case, if in the process of exercising one’s right to freedom of expression, a person infringes on another person’s right to privacy, the right to privacy will be given preference and damages will be granted to the aggrieved party.
Freedom of information in itself is a sine qua non for the fulfillment of all other rights and also important as a vital tool for democracy to thrive. First, justifiable laws on freedom of expression should be enacted. And where they already exist, they should have clear provisions as regards this right and its restrictions.This is to ensure that the law is easily construed and majority of the work is not left for judicial determination, as in such cases, damage is most likely to have been done. Once this is done, the press and the people in the process of exercising this right should ensure they do this within the ambit of the necessary law(s). Also, the executive in process of implementing enacted laws should follow due process as laid down by the Nigerian Legal System. Lastly, information held by the Government and its officials should be made available to the people, once demanded for, to ensure the successful implementation of the Freedom of Information Act 2011, as this law is acrucial tool for socio-economic development in the country which will amount to having an empowered and well-informed public who can hold their government accountable.
Otitoola Olufolajimi is a 300 level student of the Faculty of Law, University of Lagos. He has keen interest in human rights, public and environmental law. He is a passionate and quick learner with other interests in MUNs and Maritime Law.
Olaogun Joseph is a 300 level student of the Faculty of Law, University of Lagos. He has developed a great interest in Human Rights, public and commercial law. He is an avid reader who has the zeal to learn something new each day.