The Right To Freedom Of Expression And The Press As The Nemesis Of Absolutism By Ogbu, Blessing Ekpere Esq. – TheNigerialawyer

As the world marks World Human Rights Day, it
is imperative we sit down and reflect on the significance of this
day, the relevance of these freedoms, their roles in the
entrenchment and sustenance of constitutional democracy and how to
preserve both the freedoms and this constitutional democracy.

The right to freedom of expression and the press has had a
rather distinguished history. This right predates modern
international and national protocols on its protection. For
example, Smith, David in “Timeline: a History of Free Speech”
argues that this right was present in the ancient Athenian
democracy in the 5^th and 6^th century BC.
Similarly, Raaflaub, Kurt; Ober, Josiah; Wallace, Robert in “Orgins
of Democracy in Ancient Greece” espouse similar view.  On the
other hand, M. P. Charlesworth in “Freedom of Speech in Republican
Rome.” identified this right in the practices of the governments of
the ancient Roman Republic and argued that this right appeared in
conjunction with the right to freedom of religion. In the course of
evolution of modern governments, this right found expression in
several instruments. Some of those instruments include the English
Bill of Rights of 1689, the Declaration of the Rights of Man and of
the Citizen following the French Revolution of 1789, and the
American Bill of Rights of 1791.

The Black’s Law Dictionary 6^th edition defines the
right to freedom of expression in the context of freedom of speech
as the ‘right guaranteed by the First Amendment of the U.S.
Constitution to express one’s thoughts and views without
governmental restrictions.’ The other half of this right, the
freedom of press, is defined ibidem as the ‘right to
publish and distribute one’s thoughts and views without
governmental restriction as guaranteed by First Amendment of U.S.
Constitution. Such right includes freedom from prior restraint of
publication. There is little difference between “freedom of speech”
and “freedom of press.”’

Perhaps, the best characterisation of this right can be found in
the instruments themselves. Article XIX of the Universal
Declaration of Human Rights 1948 states 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.”  The African Charter of Human and People’s
Rights 1981 in Article IX provides that “(1) Every individual shall
have the right to receive information. (2) Every individual shall
have the right to express and disseminate his opinions within the
law.” In Nigeria, the Constitution of the Federal Republic of
Nigeria 1999 as amended (hereafter refer to as the CFRN 1999 as
amended) encapsulates this right in section 39 where it is stated
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;

Provided that no person, other than the Government of the
Federation or of a State or any other person or body authorised by
the President on the fulfilment of conditions laid down by an Act
of the National Assembly, shall own, establish or operate a
television or wireless broadcasting station for any purpose
whatsoever.

(3) Nothing in this section shall invalidate any law that is
reasonably justifiable in a democratic society –

(a) for the purpose of preventing the disclosure of
information received in confidence, maintaining the authority and
independence of Courts or regulating telephony, wireless
broadcasting, television or the exhibition of cinematograph films;
or

(b) imposing restrictions upon persons holding office under
the Government of the Federation or of a State, members of the
armed forces of the Federation or members of the Nigerian Police
Force or other Government security services or agencies established
by law.”

Inherent in this right are four sub-denominations,
videlicet: the right to hold an opinion, the right to seek
ideas and information, the right to receive ideas and information,
and the right to impart or disseminate these ideas and
information.  These four components are inviolable as long as
such are exercised within the perimeters of the law. While this
right is exercisable without any interference, the proviso of this
section ensures that the right to freedom of press as it relates to
owning, establishing or operating a television or wireless
broadcasting station must be done only upon the issuance of a
licence to that effect by the President upon the fulfilment of the
conditions laid down by an Act of the National Assembly. The
Nigerian Brooadcasting Corporation is the agency of government
through which the President exercises this power.

Of all the fundamental rights enshrined in the Constitution, the
right to freedom of expression and the press is, arguably, the only
right that has direct implications in a democracy, especially, in a
constitutional democracy. As far back as 1787, Edmund Burke
recognised the importance of the press in a modern government when,
looking up at the press gallery in the House of Commons, he
exclaimed: “Yonder sits the Fourth Estate, and they are more
important than them all.” In the days of Burke, the known Estates
of the Realm were the Lords Spiritual, the Lords Temporal, and the
Commons. Today, the Estates of the Realm are the legislature, the
executive, and the judiciary.

Commenting on this Burkian categorisation, the Court in
Bulus v. Suleiman (HJ/136/1981 delivered on 28^th
July, 1982) held that “But as was remarked by Edmund Burke
in his own days, the press had become a political institution in
its own right. It has assumed the status of the fourth estate of
the realm in the hierarchy of governmental power structure, a
posture which now dictates its view point in the characterisation
of event.” Underlining the sublime and solemn obligations of the
mass media as enshrined in section 22 of the CFRN 1999 as amended,
the Court in Nigerian Textile Mills Ltd. v. Punch
(ID/768/84) held in its Judgment delivered on
13^th June, 1986 that “The Press has social obligation
and duty to write on public issues that would affect the economy of
the country.” In Tarka v Sketch (1978) 2 CCHCJ
263, the Court held that “the issue of corruption by a
public office holder is a matter of public concern and interest and
any publication by a newspaper exposing such corrupt public officer
is a service to the public and as long as the facts on which
comments are based are correctly stated substantially by the
Newspaper there is a complete defence of fair comment to a libel
brought by such public office holder.”

This right is of vital significance to us as we mark the World
Human Rights Day for a number of reasons. In Nigeria, the
principles and hallmarks of a constitutional democracy have been
attacked stridently by the executive. The judiciary has been
subdued. The legislature has been compromised. The Press and
citizen journalism, like a sturdy bulwark, stand between Nigeria
and absolute tyranny. Allied with the press in this task are the
citizens performing the role of citizen journalism in the exercise
of their right to freedom of expression. As the conscience of the
society, the exercise of this right makes the government uneasy. A
government that detests responsibility and accountability to the
electorates will always find the exercise of this right a threat to
its legitimacy.

Why, then, would the government want to criminalise the right to
freedom of expression and the press? One, as Shawn Boyne observes
in “The Criminalisation of Speech in an Age of Terror”, the right
to freedom of expression and the press is a central right of
citizens in democratic states. Two, this is the right which, by its
very nature, seeks to hold the government accountable to the
citizens. Section 22 of the CFRN 1999 as amended provides that “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.” Three, a government that seeks to
exercise absolute powers begins by constricting the civil space.
Drawing inspiration from the American war on terror in the era of
George Bush Jr, Boyne further observes ibidem that “while
the process of labelling some organisations as terrorist
organisations is in itself contentious, government actions that
seek to inhibit individual freedom of expression also pose an even
stronger threat to the role that free speech plays in democratic
societies.” Predictably, the Nigerian government has consistently
used the war on terror as a legitimate excuse to abridge these
constitutionally guaranteed liberties.

In Nigeria, the onslaught by the government against private
citizens, journalists and media houses that have exercised this
right has been unrelenting. From citizens arrested for views
expressed on social media platforms to journalists arrested for
reports which the government, both at the Federal and the State
levels, considered censorious, the roll call is frightening. The
government’s determination to emasculate free speech is also seen
in its fixation on what it calls the regulation of social media. To
this end, two Bills, Protection from Internet Falsehood and
Manipulations Bill 2019 sponsored by Senator Mohammed Sani Musa
from Niger East and the Prohibition of Hate Speech Bill sponsored
by Senator Aliyu Sabi Abdullahi representing Niger North, seeking
to limit the use of the internet and the social media are before
the National Assembly. Nigerians and civil societies have risen up
to condemn the two Bills, arguing that the extant Nigerian criminal
law is robust enough to punish infractions incidental or arising
from the exercise of the right to freedom of expression and the
press. In addition to the criminal sanctions imposed under the
criminal law, the CFRN 1999 as amended makes provision for
derogation from the fundamental rights enshrined in the
Constitution. It is our submission that the two Bills do not meet
the test of objectivity contained in the expression “any law that
is reasonably justifiable in a democratic society,” especially the
Prohibition of Hate Speech Bill which provides for the death
sentence for speech considered hate speech.

I have always maintained that, contrary to the argument of the
government that the exercise of this right may be detrimental to
national cohesion, this right ensures that the citizens, like
active volcanoes, let out stem. This process of political catharsis
has a two-fold advantage: it gives the citizens a sense of
participation in the formation of public policy; and it enables the
citizens to express their displeasure with the government, thereby
dissipating negative and destructive emotions. Thomas I. Emerson
supports this position when he argued that this right provides a
‘balance between stability and change, as it acts as a “safety
valve” to let off steam when people might otherwise be bent on
revolution.’ Thus, attempts to criminalise speech and constrict the
constitutional obligations of the mass media can only be
counter-productive as such moves certainly will engender resentment
against the government among the citizens.

What is the way forward? First, the mass media must be accorded
unhindered freedom to fulfil their constitutional obligation under
section 22 of the CFRN 1999 as amended. Citizens, too, must be
allowed to exercise their right to freedom of expression and the
press ‘without interference’ as enshrined under section 39(1) of
the CFRN 1999 as amended. Second, we submit that it is an
invitation to absolutism to enact laws that seek to criminalise
political dissent and contrary views. In a democracy, especially a
constitutional democracy, this is an anachronism. Sadly, that is
what the two social media Bills seek to achieve. That these noxious
Bills are receiving serious attention in the Senate is alarming. As
Orji Sunday asked in “Nigeria’s Harsh Hate Speech and Social Media
Bills are making Ordinary Citizens Nervous – and this is why,”
published in Independent (UK), what is liberty without freedom of
speech? Nigerians should stand up against this budding tyranny.
Third, and as a corollary to the preceding recommendation, we
submit that Nigeria has a robust criminal law corpus juris that can
deal with unlawful – if such exists – exercise of the right to
freedom of expression and the press. Further, the Constitution
itself has an inherent mechanism for dealing with abuse of the
exercise of these rights. Section 45(1) of the CFRN 1999 which
provides for derogation from these rights provides that “nothing in
sections 37, 38, 39, 40 and 41 of this Constitution shall invaliate
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.”
 We submit that the two Social Media Bills are not reasonably
justifiable in a democratic society. Moreover, section 6(6)(c) of
the same Constitution allows any person, persons, group of persons
or authority who believes their civil rights and obligations have
been violated to approach the Courts for redress. Enacting
dystopian legislations is antithetical to the democratic spirit
Nigeria has nurtured and nourished since 1999.

As the world marks the World Human Rights Day, Nigerians should
be vigilant and ensure that the right to freedom of expression and
the press, the watchdog of the nation’s democracy and the
conscience of the nation, is not eroded by the government. It is
this conscious vigilance that can save Nigeria from this emergent
absolutism and a recrudescence of dystopian totalitarianism.

Ogbu, Blessing Ekpere Esq. writes in from
Abuja

[email protected]^[1],
[email protected]^[2]

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