Freedom of Expression Limitations and Enforcement
There is a special procedure for the enforcement of the fundamental rights guaranteed under Chapter IV of the 1999 constitution. The constitution empowers anyone who alleges that the fundamental human rights as provided under sections 33-45 of the 1999 constitution of Nigeria to which he is entitled, have been or are likely to be violated, infringed, limited, or contravened in any state in relation to him, to apply to a High Court in that state of redress.
The High courts include the state High Court and the Federal High Court. However, the circumstances under which any of the High Court has resorted, differ. Notably, section 251 of the 1999 constitution vests exclusive jurisdiction over specific matters in the Federal High Court.
In respect of human rights enforcement, the combined effect of section 251 of the 1999 constitution and the Supreme court decision in Tukur v Government of Gongola State was that an action for the enforcement of fundamental rights against the Federal Government or any of its agencies must be brought in a Federal High Court.
Fundamental right enforcement actions that are not against the Federal Government or any of its agencies should be instituted at the State High Court, and in the area where the violation of rights occurred.
Subject to the provisions of this constitution, a High court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any of the fundamental rights to which the applicant is entitled.
In Ogugu v State the Legal implication of the foregoing subsection is that only a High Court of a State or a Federal High Court has original jurisdiction to entertain and determine matters in respect of fundamental rights enforcement, especially where they are really relevant or intrinsic to the determination of the merit of the case or the merit of an appeal thereon.
Essentially, the appellate courts including the Supreme Court have no original jurisdiction to determine questions relating to an alleged breach of fundamental rights where the issue involved is relevant or intrinsic to the determination of the merit or otherwise of an appeal properly brought before it. Accordingly, the Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High court to enforce the fundamental rights guaranteed by the constitution.
It is in pursuance of the foregoing section 42 (3) of the the1999 constitution which is in pari materia with section 46 (3) of the 1999 constitution, that the then chief justice of Nigeria, Justice Idris Legbo Kutigi, made the Fundamental Rights (Enforcement Procedure) Rules, 2009. Therefore, in examining the enforcement of the fundamental rights guaranteed under chapter iv of the 1999 constitution, copious reference shall be made to this Court Rules.
It is important to stress that the fundamental rights guaranteed in chapter iv of the 1999 constitution can be enforced not only against the government but also an individual who infringes on the rights. In the case of Peterside v. I.M.B (Nig) Ltd, the Court of Appeal held that it was wrong in law to say that the fundamental rights guaranteed in the constitution can only be enforced against the government but cannot be enforced by one individual against another.
While some of the provisions can only be enforced against the government, there are some others that can be enforced against both the government and an individual. The determining factor is the provision of the section in question as to whether it guarantees the right against the government, an individual, or both of them.
Commencement of Action under the 2009 FREP: Before the 2009 Rules, the procedure for the enforcement of Fundamental Rights in the High Courts required bringing up the action within a specified period from the occurrence of the breach of such rights, but under the 2009 Rules the limitation of the period has been done away with.
Equally under the 1979 Rule, leave of court was a requirement for the enforcement of the Right under Chapter IV of the Constitution but under the 2009 Rules, no leave is longer required thus the era of inhibition on the issue of Locus Standi is gone.
The new Rules unlike the previous one allow Lawyers or Litigants to file their brief, even if the Applicant is detained. In other words, it is not necessary that the applicant must be physically present before the Commissioner for Oaths to swear to his statement or the Affidavit.
Under the new rule, such application can be made on behalf of an Applicant whose rights have been infringed upon and who is seeking redress of same. This has brought some relief to Lawyers and Litigants as well.
By the provisions of Order II Rule 1, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or likely to occur, for redress; and by the proviso to this Rule, where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court Administratively responsible for the State shall have jurisdiction.
Application for the Enforcement of a Fundamental Right
Under Order II Rule 2 of the 2009 FREP Rules- An application for the enforcement of a fundamental right may be made by any originating process accepted by the court which shall lie without leave of court. Thus, the requirement for leave has been abolished.
In Tofi v. UBA, the court held that an applicant is at liberty to use any vehicle that is most convenient to reach the courts when commencing an action. The known originating processes for commencing cases in our courts are writ of summons, application, petition, motion, and summons.
It seems that any of these may now be used to commence an action for the enforcement of fundamental human rights. The previous practice of commencing human rights enforcement with an application is no longer mandatory.
In view of the underlying philosophy of the 2009 FREP Rules which is to simplify access to the courts for the enforcement of fundamental rights, it is suggested that ‘any originating process accepted by the court’ leaves the mode of commencement absolutely to the discretion of the court.
Thus any originating process which clearly informs the court, even if not adequately of the nature of the case of the applicant or aggrieved party, the respondent, the violations complained of and the remedies sought even if not couched in the usual technical format should not be rejected.
Since the intendment of the 2009 FREP Rules includes the broadening of access to court in fundamental human rights cases, the simplification of the originating process is intended to facilitate the filing of human rights cases by the aggrieved persons themselves with or without the services of a lawyer.
In other words, an applicant who uses a faulty originating process to commence an action for the enforcement of his or her human rights should not be thrown out on the technical ground of noncompliance with the requirements of an originating process.
As mentioned above the limitation of time for commencing an action under the 1979 Rules is no longer applicable under the 2009 FREP Rules; Order III Rule 1 of the 2009 Rules provides thus “an application for the enforcement of fundamental right shall not be affected by any limitation statute whatsoever.” An application to secure the enforcement of fundamental rights cannot become statute-barred to extinguish the right of an applicant to institute an action in the High Court.
In other words, the right of an applicant to file an application for the enforcement of fundamental rights can be exercised at any time, regardless of when the violation occurred. Just as time does not run against the State in the prosecution of most criminal offenses the application for the enforcement of fundamental rights shall not be defeated by any statute of limitation whatsoever.
Strict Adherence to Forms of Action: Failure to observe the foregoing rules may lead to the nullity of the entire proceedings. However, in Ransome Kuti v. A-G Federation, the Supreme Court applied the equitable principle of Ubi Jus Ibi Remedium hence, liberalizing the procedure for the enforcement of fundamental human rights.
In Ogugu v. State, the Court held that the provision of section 42 of the 1979 Constitution for the enforcement of the fundamental rights enshrined in chapter IV thereof is only permissible and does not constitute a monopoly for the enforcement of those rights.
The section does not exclude the application of the other means for the enforcement of the fundamental rights under the Common Law Statutes or Rules of courts. For instance, a person could resort to any of the common law prerogative remedies of habeas corpus, certiorari, mandamus, injunction, and action for damages as contained in sections 18, 19, and 20 of the High Court of Lagos State Rules to enforce his fundamental human rights.
Therefore, apart from the procedure under the Fundamental Rights (Enforcement Procedure) Rules, any procedure which will enable an aggrieved person to approach the Court for the redress of his violated human rights as guaranteed under the African Charter may be resorted to. In the case of Abacha v. Fawehinmi, it was held that the courts nowadays make less noise about complaints based solely on adjectival law which intends only to impede the attainment of justice.
Application to quash proceedings: The tribunal and indeed any of the inferior courts or the powers that be may make an order of arrest, detention, or even convict a particular named person. The victim may apply to the court, by way of certiorari, for an order that such proceedings of the tribunal be removed into the court to be quashed for lack of jurisdiction.
The applicant shall be unable to question the validity of such an order, inquisition, committal, or conviction if a certified copy of the same is not attached to the application before the court. In granting such application the court shall direct that the order, proceedings, committal, or conviction be quashed forthwith.
Order of Court and Effect of Disobedience; At the hearing of any application motion or summons under these rules, the court may make such orders, issue such writs and give such direction as it may consider just or appropriate for enforcing and securing the enforcement of any of the fundamental rights provided for in the Constitution.
Damages may, in appropriate cases, be awarded against the perpetrator. In Federal Minister of Internal Affairs and Ors v Shugaba the court N50,000.00 against the Federal Government for infringing upon the fundamental right of the applicant. In default of obedience to the order of the court under the rules in question, committal proceedings shall be taken against the defaulter.
Having examined, with lucidity, the enforcement of the fundamental rights provisions in chapter IV of the 1999 constitution, it can be unmistakably stated that the Enforcement Rules are beautifully constructed.
The object is to provide a simple and effective process for the enforcement of these rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions.
However, the Enforcement Rules are fraught with confusion as to when a fundamental right is fit to be enforced under the Rules. It appears, however, that the correct approach is to examine the relief sought; the grounds for such relief and the facts relied upon. In sea Trucks (Nig) Ltd v. Anigboro, the court held that where the fundamental right of the applicant is the basis of the claim, the redress may be sought for the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules.
But where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the Rules.
I wish to submit that the Right to freedom of expression and the press which is one of the inalienable rights under the Fundamental human rights provided in Chapter IV of the 1999 CFRN cannot be enforced separately except in the way and procedure provided above.
However as beautiful as the new rules are there are still so many challenges in the enforcement of the Fundamental Human Rights. These challenges are as follows:
Defamation as a Limitation to The Right of Expression
Given the foregoing, one wishes to observe that the business relating to news should not be left to the monopoly of one agency instead, competition should be encouraged by allowing all to participate so that the right of those buying and receiving the news items are not limited.
This will add a score to the dictum of the inter-American court of Human Rights on a similar issue when it observed that: …when freedom of expression is violated it is not only the right of that individual (Journalist) that has been violated but also the right of all others to receive information and ideas…
Defamation is concerned with injury to reputation resulting from words written or spoken by others. A defamatory statement may be defined as one which tends:
(a). To lower the plaintiff in the estimation of right-thinking members of society generally, or
(b). To expose him to hatred, contempt, or ridicule; or
(c). To cause other persons to shun or avoid him or
(d). To discredit him in his office, trade, profession; or
(e). To injure his financial credit.
The words complained of must tend to injure the plaintiff’s reputation in the minds of right-thinking people generally; not merely in the minds of a particular section of the public. “To write or say of a man something that will disparage him in the eyes of a particular section of the community, but will not affect his reputation in the eyes of the average right-thinking man, is not actionable within the law of defamation.
This principle is well illustrated by Byrne V Dean. There the plaintiff and the defendant were both members of a golf club. The plaintiff alleged that the defendant had defamed him by putting a notice in the club to the effect that the plaintiff had made a report to the police about certain illegal gaming machines kept on the club premises.
It was held that the defendants’ statement could not be defamatory since, although the other members of the club might think less well of the plaintiff as a consequence of it, right-thinking members of the general public would approve rather than disapprove of a person who reported a criminal offense to the police.
The term “a particular section of the community” was defined by the Supreme Court in Egbuna v. Amalgamated press of Nigeria Ltd as “a body of persons who subscribe to standards of conduct which are not those of society generally”.
Thus, for example, the colleagues or business associates of a professional person are not a particular section of the community in this context unless their standards of conduct or morality are different from those of right-thinking people generally.
Therefore, a statement that would tend to lower the plaintiff in the estimation of his colleagues would be defamatory, unless it were shown that reasonable members of society would take a different view.
Types of defamation
There are two types of defamation:
1. Libel and
Libel and slander distinguished
1. Libel is defamation in a permanent form, the most common being written or printed words contained in, for example, a newspaper, a book, a letter, or a notice. Defamation is also in the permanent form if contained in a painting, cartoon, photograph, statue, or film.
Also by the Defamation law 1961, S.3, and the defamation law 1959, s 3, defamatory words contained in a radio broadcast are within the ambit of the sections, which define ‘words’ as including pictures, visual images, gestures and other methods of signifying meaning.”
The defamation law of the eastern states expressly provides that “broadcasting” includes publication for general reception by means of wireless telegraph or television.
Slander is defamation in a transient form, most often through the medium of spoken words or gestures. It is sometimes said that libel is addressed to the eye, whilst slander is addressed to the ear. It is doubtful whether defamatory statements contained in gramophone records, tape recordings, or cassettes are libel or slander, for they are in permanent form and yet addressed to the ear.
Most commentators consider such statements to be libel, but there appears to be no firm judicial authority on the point.
3. Libel actionable per se; this means that whenever a libel is published, the law will presume that damage has been caused to the plaintiff’s reputation and will award him general damages by way of compensation. In Nthenda v Alade for instance, the plaintiff brought an action against the proprietor, the editor, and a reporter of the Lagos weekend newspaper, alleging that an article published in the newspaper was defamatory of him.
The defendants argued that the plaintiff’s action should fail as he had not proved that he had suffered any actual damage as a consequence of the publication. Bello S.P rejected this contention, saying that.
In action for libel, the plaintiff need not malice in law and need not prove that he has suffered any actual damage as the result of the publication. Both malice and damage are presumed from the publication itself in the absence of a lawful excuse in Williams v. the West African Pilot, it was held that once a publication is a libel, the law presumes damage. If the plaintiff in a libel action does prove he has suffered actual damage, he will be entitled to recover a further sum in action to the general damages.
Defenses to a Charge of Defamation
A defendant who was alleged by the plaintiff to have defamed his character, whether through libel or Slander can challenge and battle the rebuttal of such an allegation by way of defenses;
The defenses are:
a. Absolute privilege
b. The Defense of Truth and Justification:
c. Fair comment
d. Qualified privilege
(A). The Defense of Absolute privilege
This defense is usually available so as not to inhibit free discussion without fear or favor, especially on matters of public interest or policy. It is employed where defamatory matters are alleged in proceedings of the court of law or legislative house.
Where therefore the defendant was alleged to have defamed the plaintiff in the event of the plaintiff’s contribution in proceeding in court or legislative house, the appropriate defense against the defamation complained of is the defense of absolute privilege. It is a complete defense to defamation.
The privilege extends to defamatory statements contained in trial and pre-trial documents, such as pleading and affidavits, and to communications between advocates or solicitors and witnesses before the trial. In Foley v. Asfour,Wheeler J. held that an affidavit sworn with reference to and in the course of judicial proceedings was absolutely privileged notwithstanding that there was no express reference to the affidavit in the record of those proceedings.
And in Adene v. Oyeyemi, The same learned judge held that an affidavit sworn for use in interlocutory proceedings before the High Court was so privileged.
(B). The Defense of Truth and Justification
Generally speaking, the defense of truth and justification possess an inescapable resemblance with the defense of fair comment. The two are pivoted on facts and truth and for the same reason, overlap one another.
The defense of justification believes that no allegation of a defamatory matter shall subsist where the defendant maintains that the defamation is true and justifiable in that regard. This was the view expressed in Onwuchekwa v. Onovowhere the court held that; “ the law will not allow a man to recover damages for injury to a character he is in fact not entitled to bear” and as such upheld the defense of justification.
C. The Defense of Fair Comment
The defense of fair comment is based on the belief that the right of expression harbors the principle that debates on public issues should be uninhibited but robust and Wide it is not in doubt that in civilized societies, the need to raise fair comment and honest criticism on matters of public interest and governance. This is necessary and indispensable for the efficient working of any public institution of office.
Therefore, an action of defamation can be successfully defended by a plea of the defendant that the alleged defamatory matter was only a personal contribution in the course of fair comments on public issues. The defense of fair comment is an inherent right for all. The onus is on the defendant to prove that;
i. There was a matter of public interest in favor of which the defendant passed a comment
ii. That the facts which prompted the defendant’s commentaries are premised on truth; and
iii. That comment on the fact is true.
For there to be a fair comment, the whole exercise must revolve around facts not laced with the inference of other motives of dishonorable nature but it must be a sincere expression on the part of the defendant.
(D). The Defense of Qualified Privilege:
If truth is to be told on matters of general interest to the society, the daring members of the society should be accorded protection and security. Otherwise, baseless and unfounded actions of defamation would be slapped in-discriminately against them, and hence the society would be without necessary checks and balances.
It is to extol these virtues and reinforce sanity in the society that the defense of qualified privilege was propounded to avail persons in our society who in the quest of commentaries on the welfare of the society are alleged to have committed defamation.
The defense of qualified privilege could be restored to generally, where the defamatory matter complained relates to those statements made in self-defense or the performance of public obligation be it moral or legal or statement of legislation or judicial proceedings etc.
Notwithstanding the clear-cut defense afforded to the defendant in a case of defamation as adumbrated above, it should also be stressed that the defense of qualified privilege produces an effect akin to the other unqualified defense. They jointly or severally support the argument of the defendant in that the action of defamation against him should either not be heard or be struck out before the adjudicating court.
Sedition as a Limitation to The Right of Expression
The often-cited definition of Sedition is one coached by Fitzgerald J. in R v Sullivan. There he described sedition as a crime against society, nearly allied to that of treason and it frequently precedes treason by a short interval.
Apart from that justice, Fitzgerald provided an inventory of the contents of sedition when in the same Sullivan’s case he explained that sedition is a comprehensive term and it embraces all those practices whether by word deed, or writing which is calculated to disturb the tranquility of the state and overthrow the government.
Under the Nigerian criminal law, sedition is defined under section 50 (1) of the Criminal Code (applicable in southern Nigeria) according to that law, a seditious publication is a publication having a seditious intention. Section 50 (2) defines sedition intention as an intention to.
a. To bring into hatred or contempt or excite disaffection against the person of the president or of the Governor of a state or the Government of the Federation.
b. To excite the citizens or other inhabitants of Nigeria to attempt to procure the alteration, otherwise than by lawful means of any other matter in Nigeria as by law established or
c. To raise discontent or disaffection amongst the citizens or other inhabitants of Nigeria or
d. To promote feelings of ill will and hostility between different classes of the population of Nigeria.
Therefore, any write-up or speech or any device of communication whether by sign, tapes. Caricature etc has the effect of producing any of the above acts notwithstanding the constitutional freedom of expression amount to sedition.
The author of such publication cannot claim immunity from prosecution merely because he is exercising his right to freedom of expression. At the same time, the author must be prepared to face the evil consequences of his act.
In Nigeria, just like in other jurisdictions, the concept of sedition is traceable to colonialism. At that time, sedition is any act Likely to embarrass or cause disaffection to her majesty and the Crown. In Independent Nigeria, Sedition as an offense has been retained in our statute book by virtue of Adaptation of Laws order, 1954 and Adaptation of Laws (Miscellaneous provision) order 1964 section 50 (2) (a) of the criminal code applicable in southern Nigeria.
Defined sedition as an intention to create hatred, disobedience, or excite disaffection against the person of the governor of a state or president of Nigeria as established by Law.
Looking at the above provision, it would appear as if the constitutional right of expression provided for in section 39 of the 1999 constitution has been limited by these provisions. This is because it seems impracticable under the constitution to hold opinions and receive and impart ideas and information within the purview of the penal section earlier mentioned without the least interference by the government.
This creates a likelihood of conflict, therefore, between the constitutional right of expression and provisions of the penal code and criminal code on sedition as an offense as seen in the case of DPP v Chike Obi. Where the Supreme Court wasted no time in affirming the conviction of the appellant. Charged with sedition because it was clear from the publication of the accused that he intended to ridicule and cause disaffection to the government.
In line with the spirit of the above decision, sedition law has been a common tool in the hands of successive governments in Nigeria to harass the Nigerian press who unfortunately acted under the right to freedom of expression guaranteed by the constitution.
One cannot help but recite a few instances of reported coercion by the government in a bid to protect sedition law. The instances are;
Mr. Ben Charles Obi the publisher of weekend Classique – 15 years imprisonment
Mr. Kunle Ajibade the publisher of The News Magazine -15 years imprisonment.
Sedition Law in Nigeria, a Dead or Living Law?
There is a divergent argument on the offense of sedition. One is of the view that sedition as an offense is still part of our statute book; while the other seems to suggest that it has been eroded and overtaken by the Liberty and democratic modern state. Curiously, either of the opposing postulations rightly or wrongly portrays the level of freedom of expression in Nigeria as sanctioned in the constitution.
The former view, for instance, is premised on the argument that a grant of right to speech by the constitution is not a license to inflame society with disorder and disaffection.
Approval of this line of argument can be seen in the celebrated case of Chika Obe v DPP. Where Ademola C.J. F reasoned that the right to freedom of expression provided for in the constitution should not be narrowly interpreted as to exclude seditious speech or publication, this contention that sedition is a living law is a testimony of the legal adage that the king shall do no wrong and thus Nigeria, like its British Colonial Lord, must retain within its systems, sedition law to preserve and enhance the status of the head of government.
The overall decision, in this case, appeared to have overturned the Supreme Court ruling in Chike Obi’s case. Chike Obi’s case. Chike Obi’s case was based on the 1960 parliamentary constitution. And since Nigeria is no Longer in parliamentary government the decision in Chike Obi is no longer relevant.
However, it should be reckoned that the provision of sedition in both the penal and criminal codes respectively has not been expunged or repealed. However, the better view we believe is to amend our statute books on the offense of sedition.
This is not only a revalidation of our Independence; it is civilized in the interest of democratic ideas. The amendment of the affected section is to indicate circumstances that make sedition justifiable in our society and when it ceased to be so given our national democratic status.
To achieve that, section 50 of the criminal code should be redrafted to delete the words ‘Hatred’ and ‘Contempt’ and disaffection because they are general words of intention that can be manipulated by an overzealous government, president, or governor to intimidate or settle scores with opposition.
This has the effect of stifling the right of expression guaranteed by the constitution. One must observe that for the reason of ill-draft and the likelihood of abuse as manifested above in the case of section 50 of the criminal code, sections 416, 417, and 419 of the Northern penal code should be amended in like manner, in their place, section 50 of the criminal code as suggested to be amended above, along with current section 51 of the criminal code, should be introduced into the Northern penal code as the applicable Law on sedition.
By Section 251 of the 1999 Constitution of the Federal Republic of Nigeria, the Federal High Court has exclusive jurisdiction on matters affecting the Federal Government or any of its Agencies. As a result, the hitherto unlimited jurisdiction of the State High Court to entertain matters involving an infringement on the Fundamental Rights of citizens was circumscribed.
An action for the enforcement of Fundamental rights cannot be maintained against the Federal Government or any of its Agencies in the State High Court. Identifying the party to be sued is now a very important consideration, which may determine the Court where the action is to be instituted.
The inherent problem with this requirement is that Federal High Courts are very sparsely spread across the States of the Federations, various States do not even have Federal High Courts, and Litigants will have to travel far distances at enormous expenses to institute actions in the nearest Federal High Court covering their locality.
Even where the action can be filed in State High Court, most States High Courts are rooted in the cities, very few of the 774 Local Government Headquarters in the Country can boast of a High Court and again, most are within the cities, so that Litigants must bear the financial burden not only of the transportation and Legal Fees of their solicitors, but themselves to the nearest court to enforce their rights.
The result is that various cases of infringement of rights do not get to the courts at all. One of the primary aims of the Fundamental Rights Procedure Rules is to expedite disposal of Fundamental Rights Cases, what is the essence of speedy disposal of a suit if adverse economic factors prevent prospective Litigants from seeking redress for infringement of their rights?
Although there is a Constitutional provision for Legal Aid as an obligation of the Government this is rarely provided and only in Criminal Cases. Redress for breaches of Fundamental Rights in most cases, if not all, take the form of civil wrongs.