INTRODUCTION
The emergent trend is for
some powerful actors to petition the police to go after anyone that says
anything they find offensive in regards to their person or business. Instances
abound of people employing the services of the police in settling private
disputes but it suffices to highlight a few of such cases to drive home the
point. A student, Aminu Adamu, was arrested at his university in Jigawa state
on 18 November 2022 and subsequently charged with “criminal defamation” over a
tweet he made about the physical appearance of Aisha Buhari, the then first
lady who caused his arrest; there is the case involving the renown sex
therapist named Jaruma and Regina Daniels, the wife of billionaire politician,
Ned Nwoko leading to the arrest and prosecution of Jaruma for "criminal
defamation” at the instigation of Ned Nwoko. There are also the more recent
cases involving Erisco Foods Limited and a customer (Chioma Okoli) who bought
and used one of its tomato paste products and did a review of it on her
Facebook timeline which the company found offensive and she was subsequently
arrested and arraigned for cyberbullying at the instigation of Mr. Eric
Umuofia, the promoter of the company and that of the gospel artist, Nathaniel Bassey
that petitioned the police to go after certain individuals who posted on the
social media that he may have fathered another renown gospel artist, Chioma
Jesus' baby due to the alleged baby's striking resemblance with him.
NATURE OF DEFAMATION
As a preliminary point, generally, defamation, in law, is the
act of communicating false statements about a person that result in damage to
that person’s reputation. The communication could be oral (slander) or written
(libel). In all actions for defamation, the claimant must prove that the
statement is defamatory; refers to the claimant; has been published and that
the publication was actuated by malice.
Admittedly, by law,
defamation could either be a civil tort or a crime in Nigeria. The defamed
could either decide to institute a civil action to claim damages or petition
the police to prosecute an offender. Criminal defamation finds support under
the provisions of Section 375 of the Criminal Code Act where it is provided
that any person who publishes any defamatory matter is guilty of a misdemeanor
and is liable to imprisonment for one year; and any person who publishes any
defamatory matter knowing it to be false, is liable to imprisonment for two
years. Sections 391 to 395 of the Penal Code for the northern states and the
FCT Abuja also account for criminal defamation.
FREEDOM OF EXPRESSION
Freedom of expression is one of the most essential human rights which is
entrenched in several legal documents in the world, be it local, regional or
international. Section 39(1) of the Constitution of the Federal Republic of
Nigeria, 1999 (as amended) states that "Every person shall be entitled to freedom of
expression, including the freedom to hold opinions and to receive, impart
information without interference by a public authority;" the African Charter on Human and Peoples'
Rights, 1981, to which Nigeria is a signatory, makes provision, in its article
9, for the right to receive information and to freedom of expression in Africa;
and likewise, freedom of expression is a fundamental human right, enshrined in
article 19 of both the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). Article 19 of the
UDHR stipulates that: "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 and regardless of
frontiers."
Generally,
freedom of expression connotes the liberty of every person to openly discuss
issues, hold opinions and impart ideas without restrictions, restraints or fear
of punishment. Indeed, true freedom of a person or persons would be elusive if
it is not possible to ventilate one’s viewpoint or share one’s opinions with
others in the society. Therefore, freedom of expression is one of the essential
ingredients of every democratic society. Various courts have ruled that the
right to freedom of expression includes saying what may be considered deeply
offensive or shocking and that this right may only be tampered with in very
special exceptional circumstances.
RESTRICTIONS ON FREEDOM
OF EXPRESSION
It does appear however
like criminal defamation laws like the law of
sedition, the law relating to treason and treasonable felony, the Official
Secret Act, the Cybercrime (Prohibition, Prevention, etc) Act 2015 are
inconsistent with the right to freedom of expression guaranteed by the
constitution. But it helps to bear in mind that the
right to freedom of expression guaranteed by section 39 of the Constitution is
by section 45(b) subject to any law reasonably justifiable in a democratic
society for the purpose of protecting the rights and freedoms of other persons.
Section 45(b) is thus deemed to restrict freedom of expression but this
ought to be the case only in restricted circumstances and where public policy
dictates so. The highly respected Lord Coleridge CJ had this to say on public
interest:
"There ought to be some public
interest concerned, something affecting the Crown or the guardians of the
public peace (likely to be broken by the alleged libel), to justify the
recourse by a private person to a criminal remedy by way of indictment. If,
either by reason of the continued repetition or infamous character of the
libel, breach of the peace is likely to ensure, then the libeler should be
indicted; but, in the absence of any such conditions, a personal squabble
between two private individuals ought not to be permitted by grand juries, as
indeed, it is not permitted by sound law, to be the subject of a criminal
indictment.”
In other words, section
45(b) of the Constitution is meant to be narrowly construed in order not to
unduly override the fundamental right to free speech. For instance, the
European Court on Human Rights confirmed this approach in the Sunday Times Case
(Sunday Times v United Kingdom (A/30) (1979-80) 2 E.H.R.R. 245 (26 April
1979), when it ruled that where the principle of freedom of expression is
subject to a number of exceptions, such exceptions must be narrowly construed.
Thus in a landmark decision handed down by the African Court on Human and
Peoples’ Rights (African Court) in 2013 in the matter of Konaté v Burkina Faso
(African Court, Application No. 004/2013 (2013), it was held that
imprisonment for defamation violates the right to freedom of expression, and
that criminal defamation laws should only be used in restricted circumstances. Additionally, the ECOWAS Court has
upheld that criminal defamation and libel laws should be repealed, as evidenced
in the 2018 judgment in Federation of African Journalists and Others
v The Gambia which
“recognised that the criminal laws on libel, sedition and false news
disproportionately interfere with the rights of Gambian journalists and
directed that The Gambia “immediately repeal or amend” these laws in
line with its obligations under international law.”
In the
2016 case of Misa-Zimbabwe
et al v Minister of Justice et al, the
Constitutional Court of Zimbabwe declared the offence of criminal defamation
unconstitutional and inconsistent with the right to freedom of expression as
protected under the Zimbabwean Constitution. In
2012 Rwanda convicted a journalist of defaming the President, but in 2020 the
African Commission of Human and People’s Rights found that it violated her
right to freedom of expression and that Rwanda’s criminal defamation law
violates article 9 of the African Charter. Most recently, in 2018 the
Constitutional Court of Lesotho struck down the provisions of the Penal Code
relating to criminal defamation in Peta v Minister of Law, Constitutional Affairs and Human
Rights, (Constitutional Court of Lesotho, Case no. CC 11/2016 (2018)) stating that they violated the right to freedom of
expression as protected in the Lesotho Constitution.
THE EMERGENT
GLOBAL TREND ON CRIMINAL DEFAMATION
Some
countries such as the US, UK and Australia have already taken positive steps by
repealing criminal defamation laws in their domains as they are deemed to infringe
on the fundamental right to freedom of expression. In Africa, some countries
have also abolished criminal defamation. On July 27 2001, Ghana repealed its criminal
libel and seditious laws, Sierra Leone repealed its criminal defamation laws in
2020. South Africa also recently did the same thing.
The
International Covenant on Civil and Political Rights has clearly recognised the
law of defamation as one of the restrictions to the right to freedom of
expression. The concern that provides a basis for decriminalising defamation is
its potential to unduly interfere with the constitutionally guaranteed right to
freedom of expression. The constitution cannot guarantee free speech while a
lesser law(s) takes away that right. The time has therefore come to repeal
criminal defamation laws or have them reformed in line with emergent global
trend decriminalising defamation.
The
offence of criminal defamation is widely opposed, most notably by the United
Nations (UN) and the Africa Commission on Human and People’s Rights (ACHPR) who
have both urged states to reconsider such laws. For instance, the UN Human
Rights Council (UNHRC) General Comment No. 34 provides that: “States Parties should consider the
decriminalisation of defamation and, in any case, the application of the
criminal law should only be countenanced in the most serious of cases and
imprisonment is never an appropriate penalty.” Moreover, Principle 22 of the African Commission on Human
and People’s Rights’ (ACHPR) Declaration on Principles of Freedom of Expression
and Access to Information in Africa calls on states to amend criminal
defamation and libel laws in favour of civil sanctions that are necessary and
proportionate. It further states that the imposition of custodial sentences for
the offences of defamation and libel is a violation of the right to freedom of
expression
It is difficult to appreciate the continued retention of criminal
defamation in its present form in our statute books. Obviously, an attack on a
person's reputation is a civil matter, which is adequately addressed and
redressed by the tort of defamation. This was the position of the Supreme Court
in Aviomoh v. C.O.P
& Anor (2021) LPELR-55203 (SC) at (Pp 23–25 Paras B — A). The Supreme Court needs to move a step
further by declaring criminal defamation unconstitutional as a precursor to
repealing the various laws anchored on it.
Any law that is inconsistent with the constitution remains null and void
to the extent of its inconsistency. In Arthur Nwankwo v The State (1983) NCR 366 the Court of Appeal struck down on the offence
of sedition and held that sections 51 and 52 of the Criminal Code dealing with
sedition are inconsistent with section 36 of the 1979 Constitution (now section
39 of the 1999 Constitution). The same approach is needed to decriminalise defamation.
It raises questions when
the police move to arrest one party over a verbal dispute involving two
individuals or for making a social media post that is deemed offensive even when
there is no likelihood of a breach of the peace or public disorder. The role of
the Police has been defined severally and has been limited to the prevention,
detection, and prosecution of crimes and not involvement in civil disputes
among citizens. Written or oral false accusations are simply a tort of
defamation and anyone who feels defamed should exercise their constitutional
right to seek redress in a court of law rather than involving the police.
CONCLUSION
Defamation is essentially
a private dispute between individuals in which the state has no interest and
therefore should have no part to play in it. The dangerous misuse of the
criminal law machinery to get reliefs in civil dispute as is presently
manifested in criminal defamation needs to be reformed by repealing the laws on
criminal defamation. This is because personal squabbles between individuals
should not find their way into the criminal docket of any court. The courts
should be alert to the abuse inherent in criminalisation of civil wrongs. The right to freedom of expression is not absolute and
may be restricted in appropriate circumstances. However, free speech should
only be restricted in the interest of
public morality or pubic order. In other words, the interest of the state must
be involved before the criminal law machinery is invoked.
