HOW FREE IS THE FREEDOM OF SPEECH AND THE PRESS?

On the 2nd of October, 2018, a Saudi Arabian journalist and well known critic of the Saudi government named Jamal Khashoggi walked into the Saudi Arabian consulate in Istanbul but never left the building. Amid news reports claiming that he had been killed and dismembered inside, an inspection of the consulate, by Saudi Arabian and Turkish officials, took place on 15 October 2018. On 25 October 2018, Saudi Arabia’s attorney general admitted that the journalist had been murdered inside the consulate and that it was premeditated. Not only have the details of the journalist’s gruesome murder sparked much needed discussions about and investigation into the state of affairs in Saudi Arabia with regards to the treatment meted out to journalists and the media in general by the Saudi government, but it also shows that the actions of such governments leave much to be desired, especially in relation to their compliance with Article 19 of the United Nations’ Universal Declaration of Human Rights (UDHR) which states; “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and to seek, receive, and impart information and ideas through any media regardless of frontiers.”

The right to freedom of expression is one of those rights seen as very essential and fundamental to the development of a civilized society. It is the foundation for the enforcement of other rights. By the very nature of its existence, encroachment of all other rights can be made known. In fact, a major determinant of a nation’s respect for the rights of its people is the extent to which they can express themselves. As was remarked by the President of the International Court on Human Rights; “Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a condition sine qua non for the development of political parties, trade unions and scientific and cultural societies and, in general, those who wish to influence the public. It is the condition of social life that allows members of the society to reach the highest level of personal development and the optimum achievement of democratic values.” In other words, the importance of respect for a peoples’ right to freedom of expression and the press cannot be overemphasized. No one could have said it better than British philosopher, J.S Mills, when he succinctly stated; “…the peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation.”

With regards to the right of persons to their freedom of expression, the press and the media function in many countries all over the world as the unofficial fourth arm of the government which serves as a watchdog on the government. This is why it is automatically a cause for concern in any socially and politically alert community when the government of the day in one way or the other sanctions cartoonists, newspaper editors and media houses who dare to exercise these rights to freedom of expression and the press.

Ultimately and invariably, in a bid to control press freedom, freedom of expression is usually sacrificed on the altar of censorship, and it goes without saying that this is not only a great disservice to the people in countries where these rights ought to be respected and upheld, but in some countries such as Zimbabwe, it also sets aside democracy and paves the way for an authoritarian rule. Recently, in January 2019, the Zimbabwean government ordered a total internet blackout in the country during civilian protests which were as a result of a rise in fuel prices. Similarly, in the Philiphines, a Filipino journalist Maria Ressa whose news website has been highly critical of the Filipino government, has been indicted by the government in a bid to suppress the freedom of the press in the country. The consequences of such acts by the government cannot be overstated as not only is freedom of the press a vital ingredient to a country’s democracy but it is also germane to the observance of the rule of law and respect for the constitution of any nation. When a government feels that it does not have to be accountable to its people and can ride roughshod over them, that is the beginning of the end of respect for not only their right to freedom of expression but to every other fundamental right that is theirs by law.

On this premise, it can be argued that one of the greatest threats to press freedom and freedom of expression is disdain rather than respect shown by the government for fundamental rights. However, it can be argued that more detrimental to the very work that is done by journalists and news houses, and in fact anyone who has any news content or information which the government considers damning to its image; is the phenomenon called fake news. The phrase “fake news” is not one that has been in common usage for that long. In fact, it is widely believed, and of course this can also be argued, that this phrase originated from Donald J. Trump, the president of the United States of America, who shortly upon his assumption of office in January 2017, came under fire for what certain Americans suspect was his active participation in Russian interference with the hotly contested 2017 American presidential elections. As is to be expected, the American people are hungry for the truth and it is to this very end that investigations on the president’s campaign team, members of his family and the President himself are ongoing, and one of such investigations is the very popular Mueller Probe which is being carried out by special counsel, Robert Mueller, despite the President’s repeated assertion that there was no collusion between his campaign and Russia.

Interestingly, media houses such as CNN and BBC have relentlessly reported on these investigations and have hotly pursued any story at all pertaining to the US president, reporting and analyzing everything to the minutest detail. This investigative journalism usually exposes unpopular behavior of the President with regard to careless public statements made by him which with time, have proved to either be controversial, completely false or both. Every such news story or investigative journalism showing the president in any kind of unfavorable light is automatically tagged fake news by the president himself either verbally or through his very handy twitter account.

The Position in Nigeria

Chapter 2 of the 1999 Constitution of the Federal Republic of Nigeria, in respect of the Fundamental Objectives and Directive Principles of State Policy lays the foundation for what should be free rein for the press, radio, television and other agencies of the mass media to exercise their civic liberty but unfortunately, as has been evidenced through happenings in the country, that has not been the case. Section 22 of the 1999 Nigerian Constitution clearly provides; “The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the people.” This provision is consolidated by Section 39(1) & (2) of the same constitution which provides that; (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.” However, this ideal as prescribed by the law is a far cry from reality. In 2018, officers of Nigeria’s Department of State Services (DSS) arrested and detained for seven days, Tony Ezimakor, the Abuja Bureau Chief of Daily Independent Newspaper for publishing a story on Boko Haram and alleged ransom payments for abductees. He was interrogated about his sources but he declined to disclose. Similarly, Samuel Ogundipe, a journalist with Premium Times was arrested by the Special Anti-Robbery squad (SARS) on 14 August for a story on the National Assembly invasion investigation which led to the dismissal of the former Director-General of the DSS. He refused to disclose sources of his story and was subsequently charged to court for criminal trespass and theft of police document. However, he was released on bail on 17 August 2018. These are just a few in the plethora of examples of the stinging dichotomy between what the law provides and what truly obtains in the country. A close look at history reveals that blatant disregard for these rights is not a novelty in Nigeria. In 1976, the military government took over some newspapers from private hands, despite the guarantee of freedom from censorship provided for in the 1963 constitution. This amounted to an infringement of the freedom to own and establish a press. The interpretation of these events in spite of provided law is not in any way lost on Nigerians. Such occurrences leave little to the imagination as to what media practitioners are allowed or not allowed to do in the line of their work. There is and has always been an invisible red line drawn by the Nigerian government with regards to what the press can and cannot share to the public and this is, to say the least, depriving the public of being informed and empowered. It is safe to say that these happenings are not at all what was envisioned by the drafters of 1999 Nigerian Constitution when they stipulated in Section 22 that the press; “…shall at all times be free to… uphold the responsibility and accountability of the government to the people.”

However, in spite of what one would love to believe, the right to freedom of expression and the press is a qualified right, in other words, it is not an absolute right. Which is why on the other side of the coin, the Nigerian people, the media and the press are enjoined not to abuse this freedom and this can be achieved when they refrain from uttering or propagating any speech that incites violence or expresses hatred for any group of people on the basis of race, religion, ethnic origin, sexual orientation, disability or gender, especially when it is clear that such speech only serves malicious purposes.

In 1967, General Yakubu Gowon promulgated the Newspaper (prohibition of circulation) Decree No. 17 which stipulated that the head of the federal military government may ban the circulation of such a newspaper or magazine in Nigeria where he is satisfied that the unrestricted circulation of such a newspaper or magazine in Nigeria is, or may be detrimental to the interest of the federation of Nigeria. Fortunately, such laws became unconstitutional and automatically ineffective under the Nigerian constitution. However, this has not hindered the propensity of current governments who attempt to gag the press and members of the public under the guise of preventing any speech that is either deemed “hate speech”, “fake news” or in their own estimation, “detrimental to national interest.” Introspectively however, it should be noted that there have been instances of the Nigerian people using social media platforms as a tool to propagate unverified sensational information for purposes which they alone can explain, such as the widespread rumours claiming that the Nigerian President Muhammad Buhari had died and had been replaced by a body double called Jubril from Sudan. One report on BBC recently highlighted this growing negative trend of disinformation across Nigeria. Such speech is often unscrupulous and can be categorized as speech which is likely to incite violence, hatred or any form of malevolence at least and should be shunned at all times.

Today, Section 45(1) (a) and (b) recognizes the necessity for limitation on freedom of the press. Although necessary, it is pertinent that these limitations are not used as an excuse to stifle the press to the extent that their rights become non-existent. During the colonial era in the history of Nigeria, there existed the law of sedition which was a tool used by the colonial masters to prevent the “locals” from complaining about the injustice suffered by them under the hands of their oppressors, the colonialists, and it was also used to suppress nationalistic views. Today, the law of sedition is entrenched in Section 50 of the Criminal Code and further takes form in the Public Order Act and that perfidious Hate Speech Bill sponsored by the Senate spokesperson, Sabi-Abdullahi in 2018 which proposed the death sentence for “hate speech” among other outrageous penalties. This writer chooses to refer to the afore mentioned Acts and proposed bill by the Nigerian legislature as a manifestation of the Animal Farm Syndrome which is popularly characterized with abuse of power by leaders who should know better based on past events and the nation’s history.

Though varying degrees of press suppression exist, the real problem is that it exists at all. Of course, implicit in the actions of governments worldwide taken to suppress, censor, stifle or gag the press is the dangerous reality that these powerful world leaders do not believe in freedom of the press or freedom of expression and this, in any country is a big hindrance to democracy.

In the case of the gruesomely murdered and dismembered Saudi Arabian journalist, Jamal Khasoggi, one would be forgiven for saying that in certain parts of the world if not most parts of the world, there is in fact no freedom of the press, rather any such liberty taken by a journalist is at a deathly high cost and may prove to be too expensive. It is the responsibility of every stake holder involved to continue to advocate for the enjoyment of the right to freedom of expression and the press to create a safe environment for democracy to thrive, because the alternative which is lack thereof might prove too costly for not only the individuals involved but also for nations and by extension, the world as a whole. Former South African President Nelson Mandela once said; “a critical, independent and investigative press is the lifeblood of any democracy. The press must be free from state interference. It must have the economic strength to stand up to the blandishments of government officials. It must have sufficient independence from vested interests to be bold and inquiring without fear or favour. It must enjoy the protection of the constitution, so that it can protect our rights as citizens.”

Victoria Harrison is a 300 Level student of the Faculty of Law, University of Lagos. She is interested in issues relating to Constitutional law, human rights, social change and development and she not only writes articles but short stories and flash fiction.

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