Perilous times for activists and media professionals

If you have been following the news and keeping up with recent
arrests of some people in the media/information dissemination
sectors, you will agree with me that these are perilous times for
activists and media professionals. Perilous because their exercise
of their constitutional right to express themselves may lead to an
arrest, trial and imprisonment.

While in America, under the Donald Trump administration, critics
of the government may suffer a barrage of tweets from President
Trump, in Nigeria, criticising the government may get you locked
up. The 1999 Constitution of the Federal Republic of Nigeria as
amended provides for certain fundamental rights including the Right
to Freedom of Expression and the Press under Section 39. However,
as it has been said time and time again, our fundamental rights are
not absolute. Our rights end at the point where another person’s
rights begin. And so when the Constitution gives us fundamental
rights with its right hand, the same Constitution limits those
rights with the left hand of Section 45, which restricts and
derogates from the fundamental rights granted.

The offence of Sedition is still on the books in Nigeria, in
both the Criminal Code and the Penal Code and the issue of its
constitutionality has been settled by the courts. Sedition is any
conduct, speech or writing that incites rebellion against or
resistance to government or other lawful authority. In upholding
the constitutionality of the offence, the courts have considered
the need to balance the interests of the individual right to
freedom of expression with the interest of the government to
maintain peace, security and order and have decided. In fact, the
National Assembly and some state legislatures are continually
looking for ways to limit the right to freedom of expression and it
seems they have sufficient cover to do so under Section 45 of the
Constitution.

Section 45(1) of the Constitution provides that, nothing in
sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate
any law that is reasonably justifiable in a democratic society

(a)in the interest of defence, public safety, public order,
public morality or public health; or(b) for the purpose of
protecting the rights and freedom of other persons.

Who decides what is in the interest of the public, public order,
etc? Certainly not the person who is trying to vindicate his right
to express his thoughts and opinions. It is the government that
decides what is in the public interest, and it would not be a
stretch to say that the public interest is a fluid concept that
changes depending on who is in power in government and how
sensitive they are to public engagement.

In the Court of Appeal case of Aviomoh v COP & Anor (2014)
LPELR-23039(CA), Abubakar Datti Yahaya, J.C.A., had this to
say:

“It is correct that the freedom of expression and freedom to
hold opinions, are rights accruing to Nigerian Citizens. Section
39(1) of the 1999 Constitution as amended provides: – “Every person
shall be entitled to freedom of expression, including freedom to
hold opinions and to receive and impart ideas and information
without interference.” It is also correct, as submitted by learned
counsel to the appellant, that Section 39(3) of the Constitution
does not diminish the rights in Section 39(1) of the Constitution.
However, Section 45(1) of the Constitution is very clear in its
limitations. It states thus – “Nothing in Sections 37, 38, 39, 40
and 41 of the Constitution shall invalidate any law that is
reasonably justifiable in a democratic society, in the interest of
defence, public safety, public order, public morality or public
health; or for the purpose of protecting the rights and freedom of
other persons.” What the above means, is that Section 39 of the
1999 Constitution as amended, which is relevant for our purposes
here, cannot operate, to invalidate any law promulgated by any
legislative body, when that law is made in the interest of defence,
public safety, public order, public morality, public health or for
the purpose of protecting the rights and freedom of other persons.
So when Section 39(1) of the Constitution entitles a person to
freedom of expression and imparting ideas and information, it is
not a blanket right.

It must not be utilised or invoked in such a way, that it
offends public safety, order, morality and health, and it must not
be injurious to the rights and freedom of other persons. Once a
person lives in a community, his rights stop where the rights of
the other members of the community begin. He has to behave
according to the norms of that society, otherwise his conduct will
be injurious to the wellbeing and continued existence of that
community. He cannot, in the guise of exercising his freedom of
expression or imparting information, trample upon the rights of
other persons in the society. He must not act in such a way, that
he defames their character or endanger their safety, health, order
or morality. The Constitution recognises the fact that if such a
person acts to the detriment of others, he can be liable in a civil
action, but the issue goes beyond the right of an injured
individual to act and the whole society has to be involved to
protect itself. Hence, criminalising such conduct of the
individual. That is why Section 45(1) of the Constitution was
promulgated.”

I agree that it is important to protect the public interest, but
some of the arrests being made and the attempts at regulating free
speech take one’s mind to a time in our history that we would all
rather forget. We could all sit back and fold our arms and say
nothing, but the problem with that is that we are all travelling in
this vehicle called Nigeria. If the driver and his conductor(s)
lead us into a ditch, we will all suffer injuries. We must
therefore be allowed to call out to the driver and the conductor(s)
once in a while to ensure that the vehicle in still on the right
course.

If you have been following the news and keeping up with recent
arrests of some people in the media/information dissemination
sectors, you will agree with me that these are perilous times for
activists and media professionals. Perilous because their exercise
of their constitutional right to express themselves may lead to an
arrest, trial and imprisonment.

While in America, under the Donald Trump administration, critics
of the government may suffer a barrage of tweets from President
Trump, in Nigeria, criticising the government may get you locked
up. The 1999 Constitution of the Federal Republic of Nigeria as
amended provides for certain fundamental rights including the Right
to Freedom of Expression and the Press under Section 39. However,
as it has been said time and time again, our fundamental rights are
not absolute. Our rights end at the point where another person’s
rights begin. And so when the Constitution gives us fundamental
rights with its right hand, the same Constitution limits those
rights with the left hand of Section 45, which restricts and
derogates from the fundamental rights granted.

The offence of Sedition is still on the books in Nigeria, in
both the Criminal Code and the Penal Code and the issue of its
constitutionality has been settled by the courts. Sedition is any
conduct, speech or writing that incites rebellion against or
resistance to government or other lawful authority. In upholding
the constitutionality of the offence, the courts have considered
the need to balance the interests of the individual right to
freedom of expression with the interest of the government to
maintain peace, security and order and have decided. In fact, the
National Assembly and some state legislatures are continually
looking for ways to limit the right to freedom of expression and it
seems they have sufficient cover to do so under Section 45 of the
Constitution.

Section 45(1) of the Constitution provides that, nothing in
sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate
any law that is reasonably justifiable in a democratic society

(a)in the interest of defence, public safety, public order,
public morality or public health; or(b) for the purpose of
protecting the rights and freedom of other persons.

Who decides what is in the interest of the public, public order,
etc? Certainly not the person who is trying to vindicate his right
to express his thoughts and opinions. It is the government that
decides what is in the public interest, and it would not be a
stretch to say that the public interest is a fluid concept that
changes depending on who is in power in government and how
sensitive they are to public engagement.

In the Court of Appeal case of Aviomoh v COP & Anor (2014)
LPELR-23039(CA), Abubakar Datti Yahaya, J.C.A., had this to
say:

“It is correct that the freedom of expression and freedom to
hold opinions, are rights accruing to Nigerian Citizens. Section
39(1) of the 1999 Constitution as amended provides: – “Every person
shall be entitled to freedom of expression, including freedom to
hold opinions and to receive and impart ideas and information
without interference.” It is also correct, as submitted by learned
counsel to the appellant, that Section 39(3) of the Constitution
does not diminish the rights in Section 39(1) of the Constitution.
However, Section 45(1) of the Constitution is very clear in its
limitations. It states thus – “Nothing in Sections 37, 38, 39, 40
and 41 of the Constitution shall invalidate any law that is
reasonably justifiable in a democratic society, in the interest of
defence, public safety, public order, public morality or public
health; or for the purpose of protecting the rights and freedom of
other persons.” What the above means, is that Section 39 of the
1999 Constitution as amended, which is relevant for our purposes
here, cannot operate, to invalidate any law promulgated by any
legislative body, when that law is made in the interest of defence,
public safety, public order, public morality, public health or for
the purpose of protecting the rights and freedom of other persons.
So when Section 39(1) of the Constitution entitles a person to
freedom of expression and imparting ideas and information, it is
not a blanket right.

It must not be utilised or invoked in such a way, that it
offends public safety, order, morality and health, and it must not
be injurious to the rights and freedom of other persons. Once a
person lives in a community, his rights stop where the rights of
the other members of the community begin. He has to behave
according to the norms of that society, otherwise his conduct will
be injurious to the wellbeing and continued existence of that
community. He cannot, in the guise of exercising his freedom of
expression or imparting information, trample upon the rights of
other persons in the society. He must not act in such a way, that
he defames their character or endanger their safety, health, order
or morality. The Constitution recognises the fact that if such a
person acts to the detriment of others, he can be liable in a civil
action, but the issue goes beyond the right of an injured
individual to act and the whole society has to be involved to
protect itself. Hence, criminalising such conduct of the
individual. That is why Section 45(1) of the Constitution was
promulgated.”

I agree that it is important to protect the public interest, but
some of the arrests being made and the attempts at regulating free
speech take one’s mind to a time in our history that we would all
rather forget. We could all sit back and fold our arms and say
nothing, but the problem with that is that we are all travelling in
this vehicle called Nigeria. If the driver and his conductor(s)
lead us into a ditch, we will all suffer injuries. We must
therefore be allowed to call out to the driver and the conductor(s)
once in a while to ensure that the vehicle in still on the right
course.