by Legalnaija | Jun 3, 2021 | Law
Past general secretary, Nigerian Bar Association. Presented on 2nd June, 2021 at the public hearing of the House Of Representatives Committee on the review of the 1999 constitution of the Federal Republic Of Nigeria 1999 (as amended).
Protocols
INTRODUCTION
Quite often, I meditate on the affairs and the future of this nation. Each time I do this, I believe like many others in this Country, become very apprehensive of the future of the Country even though I am a man of faith. As a messenger of hope and confidence, I try to suppress and overcome my fears by faith. However, I do recognize that faith does not deny the facts. Faith only insists that the fact do not represent the final position if something is done to change that position. It is an undeniable statement that faith without work is dead.
The situation in Nigeria today to face the reality is precarious from all dimensions.That is not the focus of my short presentation, But I dare say that all that we are seeing today are symptoms, products and reminiscents of a faulty foundation. If the foundation be destroyed, God says there is nothing the righteous can do. The point was well made yesterday by the RT. Hon Speaker, Mr. Femi Gbajabiamila in his opening speech and this is very fundamental that “the foundation of any nation is its constitution and that the Constitution of Federal Republic of Nigeria 1999 as amended is short of standard. That the Constitution is a product of a horrid National compromise to return the military back to the barracks.”
WHAT IS A CONSTITUTION?
In Nigeria, the Supreme Court has said in AG Federation Vs. AG Abia State that “It must be remembered that the fountain of all laws is the Constitution. It is the composite document setting out how the Country is to be held together. It is not a document to be read with levity or disdain …. It is the very foundation of the nation’s existence.”
It is the Supreme law in which the principles of fundamental nature for a nation are established.” It is supreme and superior to any other law. Indeed, it determines the validity or otherwise of governmental actions.
The Constitution of the Republic of South Africa, 1996 inSection 2 states “This Constitution is the supreme law of the Republic of South Africa. Law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled.”
Article 6 Clause 2 of the Constitution of the United States of America says “This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States shall build the supreme law of the land….. any thing in the Constitution or law of any State to the contrary notwithstanding.”
Similarly, Section 1(1) of the 1999 Constitution FRN as amended also established the supremacy and the binding force of the 1999 Constitution I submit in an inelegant manner unlike the very vocal and direct provision of the South African Constitution I cited above.
THE INCURABLE VICES OF THE 1999 CONSTITUTION AS AMENDED
- The late constitutional Lawyer Chief Rotimi Williams SAN said on the 18th of June 1999 at a Seminar organized by the NBA Ikeja on the 1999 Constitution that “The 1999 Constitution is a document that tells lie against itself.”
- Itse Sagay SAN in his characteristics self was more categorical when he described the Constitution as a fraud, contending that the people of Federal Republic of Nigeria never gave to themselves or resolved to give to themselves the 1999 Constitution. I will expantiate on this later.
- Another foremost constitutional Lawyer, Prof. Ben Nwabueze SAN has described the Constitution as an illogicality contending that the 1999 Constitution is a unitary constitution for a Federal system of Government.
- My Learned Brother Silk and Constitutional Law expert, S.T. Hon, SAN, had this to say in his book titled‘Constitutional Law and Migration Law’: “there is no doubt that the 1999 Constitution was enacted by the military. That the apex Court merely imputed this exercise to the Nigerian people.”
- In a Paper titled “Preventing the Breakdown of Democracy in Nigeria – an overview of the 1999 Constitution”presented by me in year 2000, I said “The 1999 Constitution is in my view nothing more than a legacy bequeath on us by the Military neo colonial masters at the eve of their departure on the 29th of May, 1999, in a fashion reminiscent of a will that takes effect after the demise of the testator…”
Many other well informed Nigerians, too numerous to mention have said repeatedly based on the vices stated above and many others that the 1999 constitution lacks legitimacy and popular acceptability fundamentally because of the circumstances of its making and because of the several positions in it which are alien to all known principles of federalism.
First, it is to be recalled that we have successfully carried out 4 Amendments through 1st, 2nd, 3rd and 4th Alteration exercises. Several Sections of the Constitution were altered in the course of the four (4) exercises, all these within approximately a period of 21 years of the existence and operation of the Constitution. The question is if we find it desirable to embark on another exercise as profound and expansive as the one being contemplated, whether it is not far better and more desirable to think about a holistic replacement of the 1999 Constitution?
Second, I noted with satisfaction that some of the issues scheduled to be considered in the review exercise constitute fundamental and existential issues for Nigeria as a safe and secured Nation, as a Federation and lastly as a successful Constitutional Democracy. I am referring here to such items as devolution of powers, Federal Structure and true Federalism, the Nigeria Police and Nigerian Security Architecture, comprehensive Judicial Reform, Local Government autonomy and the National Assembly itself. Once these foundational issues are going to form the cornerstone of this review, the question is whether it is not better and preferable to garner the thoughts, feelings, visions and aspirations of the Nigerian people with a well articulated, negotiated agreement towards embarking on the process of making a new Constitution for Nigeria to mark a new beginning.
Third, the Constitution was described as a fraud and a document that lies against itself at a Seminar on the new Constitution organised by the Nigerian Bar Association, Ikeja Branch, on the 18th of June, 1999 because the Constitution purportedly stated in its opening recital that “We the people of the Federal Republic of Nigeria having firmly and solemnly resolved… do hereby make, enact and give to ourselves the following Constitution.” Since the enactment of the 1999 Constitution, the question has been asked repeatedly, where and when did that resolution take place? How did the people of the Federal Republic of Nigeria arrive at that firm and solid resolution purportedly expressed in the recital to the 1999 Constitution?
It must be recalled that the 1999 Constitution of the Federal Republic of Nigeria was midwifed by the then Military Government of General Abdusallam Abubakar, GCFR, pursuant to the promulgation of the Constitution of the Federal Republic of Nigeria Decree No. 24 of 1999. The question is whether Decree No. 24 of 1999 can take the place of a referendum by the people in the making of a people’s Constitution recognising that the ultimate sovereignty lies with the people?
FAULTY FEDERAL STRUCTURE
Inthe case of Attorney-General of Abia State v. Attorney-General of the Federation, the Supreme Court stated the meaning and scope of Federalism in the following words: “Federalism as a legal concept generally connotes an Association of states formed for certain common purposes, but the State retains a large measure of their original independence or autonomy. It is the co-ordinate relationship of power between the individual States and the National Government which is at the centre.”
The Supreme Court went further to say that “Federalism as a viable concept of organising a pluralistic society such as Nigeria for governance does not encourage so much concentration of powers in the centre which is the Federal Government. In federalism, the component states do not play the role of errand boys.” The point was also made by the Supreme Court in Attorney-General of Lagos State v. Attorney- General of the Federation, that each Government in a Federation “exists not as an appendage of another Government but as an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs, free from direction from another Government.” None of these essential characteristics of a true Federalism can be said to exist in Nigeria in real and practical terms.
I am fully persuaded by the opinion of Professor Ben Nwabueze, SAN, that “one single Constitution for all the governments involved both Federal and State in a Federation is a manifest contradiction.” For instance, in 1960, we had the Independence Constitution. There were separate Constitutions for both the Federation and the Regions as separate Schedules to the Independence Order-in-Council. Similarly, the 1963 Republican Constitution made provisions for the establishment of regional Constitutions for the three regions that composed the Federation at the time. Section 5 (1) thereof stated as follows: “Subject to the provision of this Constitution (Federal Constitution) the Constitution of each region shall have the force of law throughout the region.”
There was also a specific provision in that Constitution which stated that the Executive Authority of a Region (which extended to the execution and maintenance of the Regional Constitution) shall be exercised so as not “to impede or prejudice the exercise of the Executive Authority of the Federation or endanger the continuance of the Federation.”
It thereforefollows that in an ideal Federal system, apart from sharing of powers, both the Federal and the Federating units must have their own Constitutions. The question is whether we truly want a Federal or a Unitary System of Government in Nigeria and whether an elaborate discussion on the desirability or otherwise of this initiative can be undertaken under an amendment process such as the one being contemplated?
Everyone in this Nation today accepts the fact that the Nation is faced with a lot of structural and systemic challenges, a good number of which are the products of the inadequacies of the 1999 Constitution. It is no longer news that there has been over concentration of powers at the centre at the detriment of the federating units. Indeed, over the years the centre has been grabbing and grabbing powers at the expense of the federating units. The long years of military adventure in governance has not helped the situation. For the sake of comparison, the 1954 Constitution donated 43 items to the centre in the Exclusive Legislative List, 45 items in the 1960 and 1963 Independence and Republican Constitutions, 66 items in the 1979 Constitution and 68 items to the centre in the 1999 Constitution as amended.
The reality of our Constitutional structure and power sharing today is that simple items such as census, labour, trade unions and industrial relations, mines, minerals, natural gas, drugs, evidence, trade and commerce are in the Exclusive Legislative List. Not to talk of the Policing system. This is in addition to 30 items under the Concurrent Legislative List for which both the Federating States and the Federal Government have powers to make laws subject of course to the supremacy of the Federal Law over the State Law on any such matter where one is inconsistent with the other.
A CENTRALIZED AND MONOLITIC POLICE STRUCTURE – AN ABSURDITY
The issue of Nigeria Police and the security architecture in particular is very germane. It is not an over statement to say that the greatest challenge confronting our Nation today and particularly the security and sustenance of our Constitutional democracy is that of insecurity. I believe that nobody is left in any doubt that the centralized and monolithic Police structure established by Sections 214 and 215 of the Constitution can no longer guarantee the security of this Nation and its component parts and this explains why the other security agencies like the Military, the Airforce and the Navy are now directly involved in the maintenance of law and order in different parts of the country.
PARTICIPATORY/ PEOPLE DRIVEN CONSTITUTION
The process of making the 1999 Constitution as stated earlier falls short of guaranteeing its popular legitimacy and acceptability. No amendments no matter how many times can in a retroactive manner cure this foundational defect in the making of the 1999 Constitution. It remains a military-donated Constitution. A deliberate effort to embark on the making of a new Constitution will offer an opportunity to Nigerians for popular participation in the Constitution making process of their Country.
Scholars of Constitutional Law have argued and I wholeheartedly agree with their reasoning that the scope of making a Constitution should not be determined by the rulers or those who govern them. Professor Julius Ihombere, talking about the value of participatory/ people driven Constitution making approach had this to say: “political elites and leaders have not come to fully appreciate the importance of a participatory or people driven Constitution making approach to their own survival in office and to the reduction of conflicts and pressures on the State, its institutions and custodians. Asides from using the process to resolve burning national issues, a participatory approach is probably one of the best panaceas to instability, public cynicisms and alienation from government. It is equally the best way to cultivate a culture and tradition of reliance on dialogue and consensus rather than the result to violence in the political process.”
The contemporary challenges being faced in the Nation today such as the wide spread insecurity, various sectional loyalty and allegiances instead of loyalty and commitment to the cause of the Nation on the basis of nationalism and patriotism, lack of properly focused political system cloaked in ideology and the uncountable number of political parties jostling for power, the agitation for true federalism, both fiscal and structural, make the call for a new Constitution not only worthy of consideration but I submit compelling and inevitable.
It is my humble view that the time to take the bull by the horn and drive a wholesale replacement of the 1999 Constitution through the instrumentality of an autonomous and independent body is now. Such body must emanate from the people. Like I stated earlier the ultimate sovereignty lies with the people. It is my contention that we have gotten to a point in Nigeria when we should subject the Nation to the sovereign will of the people by making a people driven Constitution.
ARGUMENT AGAINST PROPOSAL FOR A NEW CONSTITUTION
I am not unaware of the argument that we cannot have two sovereigns in a nation in the sense of having a Sovereign National Conference as well as a Sovereign Government and Sovereign National Assembly. I am not here to advocate for a sovereign national conference. Any conference or assembly of people can drive a new constitution for Nigeria. Going by the example we have seen in South Africa, I think both can coexist without one impeding or obstructing the workings of the other. Example they say is better than precept. Let us draw example from those who have successfully passed through this stage before and came out very successfully.
Let it be recalled that the agitation and resistance against the Apartheid System of Government in South Africa was what led to the setting up of the Convention for Democratic South Africa (CODESA). At the time of formulating a new Constitution by the Convention for Democratic South Africa (CODESA), the Republican Constitution of South Africa 1961 was in place and a democratically elected government led by the National Party was also in place.
History recorded that it was the Convention for Democratic South Africa that fashioned a new Constitution that ultimately removed discrimination and all forms of apartheid rule in South Africa. It is time for us to recognise that no problem is ever solved by technically avoiding the problem. Let us collectively resolve to confront our constitutional problem, resolve it by taking the bull by the horn.
It will be a great day for Nigeria if we can take this giant step to fashion out a new Constitution that will satisfy the yearnings, aspirations and inspirations of all Nigerians rather than embarking on limitless amendments. A Constitution that will enjoy a buy-in of all Nigerians. A Constitution that Nigerians can take ownership of by their participation in the process of its making. Somebody says that no matter how long you persist on a wrong route, you can never arrive at your desired destination. The time for us to take our destiny in our own hands is now. With all its noticeable inadequacies, the 1999 Constitution has tried to give us a Constitutional democracy albeit in a limited sense. We can all see the failures that are threatening the survival of our democracy. If it is not Panadol, it cannot do the work of a Panadol. The flaws of the Constitution of Federal Republic of Nigeria 1999 cannot, no matter how many alterations be cured.
CONCLUSION
In conclusion, I cannot agree less with Professor Julius Ihombere when he stated in his paper titled ‘Towards Participatory Mechanisms and Principles of Constitutional Making in Africa’ published in 2000 said: “rather than just seeing the Constitution as a power map focusing exclusively on the question of power (which is what we may achieve by the various Amendments) we must see the Constitution as an instrument for addressing pressing socio-economic, cultural and economic questions as well as an embodiment of consensus around constitutionalism.”
The Constitution must be seen and regarded as “an expression of the general will of the Nation, a reflection of its history, fears, concerns, aspirations, vision and indeed, the soul of the Nation. Furthermore, the Constitution is not just an elite affair rather it must be seen as a single document under which diverse and ideologically opposed people unite and rally in defence of democracy.”
The Chairman of this Review Session and through you the Rt. Hon. Speaker of the House of Representatives of the Federal Republic of Nigeria, a new Constitution will translate: “We the people of the Federal Republic of Nigeria having firmly and solemnly resolved… do hereby make, enact and give to ourselves the following Constitution” from make believe into reality. May I conclude by saying that if we must decisively address the inadequacies, distortions, confusions, fundamental omissions and the inherent contradictions and illogicalities in the 1999 Constitution of the Federal Republic of Nigeria, as amended, if we must establish a true and functional Federation that will guarantee National cohesion,our focus must be to give to ourselves a new Constitution. This is the truth, no matter how inconvenient.
THE END
by Legalnaija | May 17, 2017 | Uncategorized
On
the 5th of May, 2010, President Musa Yar’adua passed-on, thereby
leaving the office of the President of the Federal Republic of Nigeria vacant. Shortly
after, President Goodluck Jonathan, the Vice President at the time, was sworn in
as the President of the Federal republic of Nigeria. This action was in line with
the constitutional provision to that effect.
Upon
vacancy in the office of the President by virtue of any of the instances cited
in the constitution, the law provides for succession. The relevant provision of the constitution which
refers to the above can be found in Section 146.
The
provisions of Section 146 (1) of the Constitution of the Federal Republic of Nigeria
(1999) states that;
(1)
The
Vice-President shall hold the office of President if the office of President
becomes vacant by reason of death or resignation, impeachment, permanent
incapacity or the removal of the President from office for any other reason in
accordance with section 143 of this Constitution.
The above provision of the Constitution seeks to
ensure continuity of government upon the unwelcome demise of a sitting
president. Such as, the aforementioned, untimely death of President Musa Yur’adua
in 2010. In this spirit, the Constitution
also provides for instances when the position of Vice President may also become
vacant. Sub-section (2) provides that;
(2) Where
any vacancy occurs in the circumstances mentioned in subsection (1) of this
section during a period when the office of Vice-President is also vacant, the
President of the Senate shall hold the office of President for a period of not
more than three months, during which there shall be an election of a new
President, who shall hold office for the unexpired term of office of the last
holder of the office.
Furthermore,
the constitution provides for instances when the office of the Vice President
is vacant, however, the office of the President is occupied.
(3) Where
the office of Vice-President becomes vacant:-
(a) by
reason of death or resignation, impeachment, permanent incapacity or removal in
accordance with section 143 or 144 of this Constitution;
(b) by
his assumption of the office of President in accordance with subsection (1) of
this section; or
(c) for
any other reason,
the
President shall nominate and, with the approval of each House of the National
Assembly, appoint a new Vice-President.
As
stated by the Supreme Court in Bakare
v. L.S.C.S.C (1992) 10 SCNJ 173; “the constitution is the source of our
Nigerian laws. The right, privileges and the protection of the citizen are
derived from its provisions. The regulations and rules governing the tenure and
rights of the public officer derive their authority and validity from the
constitution”.
Though, President Yar’adua
is the only Nigerian civilian president to pass away while in office, other
heads of states include Major General Aguiyi-Ironsi, General Murtala Mohammed
and General Sani Abacha.
Adedunmade Onibokun
Photo Credit – www.newsreelonline.com
by Legalnaija | Nov 29, 2016 | Uncategorized
The right of individuals
to protect their data is very sacred and fundamental. Section 37 of the 1999
Nigerian Constitution provides that; “the privacy of citizens, their
homes, correspondence, telephone conversations and telegraphic communications
is hereby guaranteed and protected”.
The Nigerian Communications
Commission also provides
that all licensees must take reasonable steps to protect customer information
against “improper or accidental disclosure” and must ensure that such
information is securely stored. It also provides that customer information must
“not be transferred to any party except as otherwise permitted or required by
other applicable laws or regulations”.
This right is however constantly at logger
heads with government intrusion, as governments and security agencies are always
looking for ways to collect, intercept and interpret user data for security and
administrative reasons.
An international
illustration was the legal battle between mobile phone giant, Apple and the U.S
government, when Apple refused to help F.B.I investigators gain access to an
iPhone used by Syed Rizwan Farook in the December, 2015, mass shooting in San
Bernardino, Calif. Apple argued, that such access could create a permanent way
to bypass iPhone password protection for law enforcement officials or even the
spy agencies of other countries[i].
Sadly, if the above
scenario were to play out in Nigeria, the outcome may not have been as eventful
as the Apple case, as service providers in Nigeria usually cooperate with
directives from security agencies to give out customer user information and
data. This is as a result of the provisions of the Cybercrimes Act, 2015 which
mandates the service providers to do so.
Does this mean all user
data are not protected? Certainly not. User information is protected in-line with
the fundamental right to privacy under the Nigerian Constitution. However, does
this mean all user data is accessible by security agencies in Nigeria? The
answer is yes.
By virtue of Section 38 of
the Cybercrimes Act, 2015, service providers are mandated to keep all traffic
data and subscriber information as may be prescribed by relevant authority, for
a period of 2 years. Furthermore, service providers shall, at the request of
the relevant authority or any law enforcement agency preserve, hold or retain
any traffic data, subscriber information, non-content information, and content
data; and release any such information upon request. It is worthy of note that the law prescribes
that any person who contravenes the above mentioned law shall be liable to 3
years imprisonment or fine of up to N7,000,000 (Seven Million Naira) or both.
Section 39, also empowers
security agencies by virtue of a court order, to request that electronic
communications of service users be intercepted, collected or recorded. The
above makes it clear that security agencies most likely have unbridled access
to customer information in Nigeria and if Mr. Syed Rizwan Farook had been in Nigeria,
the service providers will most likely have handed his information on a platter
to the FBI.
As seen in Section 40 of
the Cybercrimes Act, service providers have a duty to disclose information
requested by any law enforcement agency or otherwise render assistance
howsoever in any inquiry or proceeding under this Act. Such duties include –
(a) the identification, apprehension and prosecution of
offenders;
(b)
the identification, tracking and tracing of proceeds of any offence or any property,
equipment or device used in the commission of any offence; or
(c)
the freezing, removal, erasure or cancellation of the services of the offender which
enables the offender to either commit the offence, hide or preserve the proceeds
of any offence or any property, equipment or device used in the commission of
the offence.
Any service provider who
contravenes these provisions commits an offence and shall be liable on conviction
to a fine of not more than N10,000,000.00.
Also, each director, manager or officer of the service provider shall be liable
on conviction to imprisonment for a term of not more than 3 years or a fine of
not more than N7,000,000.00 or to both
such fine and imprisonment. With such stringent statutory provisions of the
law, hardly will any service provider put up a fight in Nigeria as Apple did in
the US.
In Conclusion, the court
held in FRN V. DANIEL, (2011) LPELR-4152(CA); that –
“Undoubtedly, by virtue of the provision of
section 37 of the 1999 constitution, the privacy of every Nigerian Citizen, the
home, correspondence, telephonic and other telegraphic communications are
cherishingly guaranteed and protected. However, notwithstanding the provision
of section 37 (supra), section 45(1) of the 1999 constitution has provided in
unequivocal terms that nothing in sections 37, 38, 39, 40 and 41 thereof shall
invalidate what appears to be 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.”
Adedunmade Onibokun, Esq.
Adedunmade is the Principal
Partner of Adedunmade Onibokun & Co., a corporate commercial law firm
located in Lagos, Nigeria. He can be reached via dunmadeo@yahoo.com and www.adedunmadeonibokun.com
[i] [i] New York
Times. (2016).
Breaking Down Apple’s iPhone Fight With the U.S. Government.
Available:
http://www.nytimes.com/interactive/2016/03/03/technology/apple-iphone-fbi-fight-explained.html?_r=0.
Last accessed 29th November, 2016.
by Legalnaija | Sep 20, 2016 | Uncategorized
The recent arrest of Abubakar Sidiqu; a blogger, by operatives
of the Economic and financial Crimes Commission (EFCC) supposedly because of a
post which is critical of the EFCC Chairman has brought to the fore once again
the issue of freedom of expression and defamation especially on the Internet.
The 1999 Constitution of
the Federal Republic of Nigeria (as amended) under section 39(1) provides for
freedom of expression. But under section 39(3) the right to freedom of
expression could be restricted by a law reasonably justifiable in a democratic
society, for the purpose of preventing the disclosure of information received
in confidence or for the purpose of maintaining the authority and independence
of the courts and also section 45(1) which provides that nothing in section 39
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.
Therefore the test to
determine whether a law which limits freedom of expression is constitutional or
otherwise is whether the law is:
(a) reasonably
justifiable in a democratic society;
(b) for the purpose
of preventing the disclosure of information received in confidence;
(c) for the purpose
of maintaining the authority and independence of the courts;
(d) in the interest
of defence;
(e) in the interest
public safety;
(f) in the interest
public order;
(g) in the interest
public morality;
(h) in the interest public health; or
(i) for the purpose of protecting the
rights and freedom of other persons.
The question that follows
therefrom is whether the following laws which tend to limit freedom of
expression meet or do not meet the constitutional criteria for a law limiting
the freedom of expression as provided in section 39(3) and 45(1) above
mentioned. The laws are as follows:
“Any person who
knowingly or intentionally sends a message or other matter by means of computer
systems or network that –
(a) is grossly
offensive, pornographic or of an indecent, obscene or menacing character or
causes any such message or matter to be so sent; or
(b) he knows to be
false, for the purpose of causing annoyance, inconvenience danger, obstruction,
insult, injury, criminal intimidation, enmity, hatred, ill will or needless
anxiety to another or causes such a message to be sent: commits an offence
under this Act…
(2)Any person who
knowingly or intentionally transmits or causes the transmission of any
communication through a computer system or network –
(a)to bully,
threaten or harass another person, where such communication places another
person in fear of death, violence or bodily harm or to another person;
(b)containing
any threat to kidnap any person or any threat to harm the person of another,
any demand or request for a ransom for the release of any kidnapped person, to
extort from any person, firm, association or corporation, any money or other
thing of value; or
(c)containing any
threat to harm the property or reputation of the addressee or of another or the
reputation of a deceased person or any threat to accuse the addressee or any
other person of a crime, to extort from any person, firm, association, or
corporation, any money or other thing of value: commits an offence under this
Act…”
Section 391(1) of the
Penal Code for Northern Nigeria which provides as follows:
“whoever by words
spoken or reproduced by mechanical means or intended to be read or by signs or by
visible representations makes or publishes any imputation concerning a person,
intending to harm or knowing or having reason to believe that such imputation
will harm the reputation of such person is said, save in the cases hereinafter
excepted, to defame that person.”
Section 391(2) provides
for instances which are an exception to sub-section 1 above.
Section 393(1):
“Whoever,
save as hereinafter expected, by words either spoken or reproduced by
mechanical means or intended to be read or by signs or by visible
representations makes or publishes any false statement of fact, intending to
harm or knowing or having reason to believe that such false statement of fact
will harm the reputation of any person or class of persons or of the Government
authority in the Northern Region shall be punished with imprisonment.
(2) It is not an
offence under this section to make or publish in good faith a false statement
of fact which the accused had reasonable grounds for believing to be
substantially true and proof that he had such reasonable grounds shall lie on
the accused.”
Section 394:
“Whoever prints or engraves any matter or
prepares or causes to be prepared any record for the purpose of mechanical
reproduction of any matter, knowing or having good reason to believe that such
matter is defamatory of any person shall be punished with imprisonment for a
term which may extend to two years or with fine or with both.”
Section 395:
“Whoever
sells or offers for sale any printed or engraved substance containing
defamatory matter or any record prepared for the purpose of the mechanical
reproduction of defamatory matter, knowing that such substance or record
contains such matter, shall be punished with imprisonment for a term which may
extend to two years or with fine or with both.”
The Criminal Code for Southern Nigeria also criminalises
defamation. See sections 373 to 381 of the Criminal Code. See also chapter 7 of
the Criminal Code which deals with sedition and the importation of seditious or
undesirable publications. Chapter 7 contains offences such as publication of
false news with intent to cause fear and alarm to the public. Section 59(1)
provides that any person who publishes or reproduces any statement, rumour or
report which is likely to cause fear and alarm to the public or to disturb
the public peace, knowing or having reason to believe that such statement,
rumour or report is false is guilty of a misdemeanour and liable on
conviction to imprisonment for three years.
Furthermore Section
60 provides that any person who, without such
justification or excuse as would be sufficient in the case of the
defamation of a private person, publishes anything intended to be read,
or any sign or visible representation,
tending to expose to hatred or contempt in
the estimation of the people of any
foreign State any person exercising
sovereign authority over that State is guilty of a misdemeanour, and is
liable to imprisonment for two years.
As can be read from above
provisions, apart from section 24 of the Cybercrimes Act 2015, sections 391 and
393 of the Penal Code and sections 59 and 373 of the Criminal Code could be
used to clamp down on a blogger or any person who posts contents considered to
be defamatory or constitutes injurious falsehood under the Penal Code.
In 2012 Abbas Faggo was arrested and charged to court under section
393 of the Penal Code for the alleged Facebook publication, which the
Attorney-General and Commissioner for Justice, Mr. Almustapha Suleiman
described as “injurious falsehood and defamation to Yuguda’s (Bauchi State
Governor) administration.”
Abbas
Faggo was alleged to have posted comments on his Facebook
account about monumental corruption in the state. He was alleged to have specifically
commented on the funding of the wedding ceremony of the eldest son of Governor
Isah Yuguda, Idris Yuguda, ostensibly with public funds.
In spite of the above many
commentators while often condemning the provisions of section 24 of the
Cybercrimes Act, 2015 as been unconstitutional often ignore the fact that even
before the Cybercrimes Act, 2015 there was and there are still other laws which
restrict the freedom of expression and they could be used to clamp down on
bloggers and social media users who post content which the government considers
to be critical of it.
The Supreme Court of India
in May, 2016 in the case of Subramanian Swamy v. Union of India held that
section 499 of the Indian Penal Code (IPC) which criminalizes defamation is
constitutional and not a breach of freedom of expression. Section 499 of the
IPC is the same and contains the exact wording as 391(1) of the Penal Code.
In that case the
petitioners, Subramanian Swamy and Rahul Gandhi, argued that sections 499 and
500 of the IPC dealing with criminal defamation have an “inhibitive
effect” on freedom of speech and expression, particularly political speech. The
two leaders, who have been charged with criminal defamation under section 499
and 500 of the IPC for their political speeches contended that the colonial law
enacted in the 19th century has become “unreasonable and arbitrary” in
independent India and was continuing without debate or a test on its
constitutionality.
The stand of the
petitioners that defamation be treated as a “civil wrong” was opposed by
the Government which advocated retaining sections 499 and 500 in the IPC,
saying that criminal defamation works as deterrent against growing tendency to
defame people through social media. While describing the penal provisions
as “deterrent”, the government had defended their retention on the
grounds that while in other countries, defamation cases are decided very fast,
in India it takes years even decades before they reach conclusion.
In another Indian case of Shreya Singhal and Ors. vs Union of India the
Supreme Court of India was called upon to decide on the constitutionality of
section 66A of the amended Information Technology Act of 2000 (which is
similar; though not in exact words, but in effect or substance with portions of
section 24 of the Cybercrimes Act). Section 66A defines the punishment for
sending “offensive” messages through a computer or any other communication
device like a mobile phone or a tablet. A conviction can fetch a maximum of
three years in jail and a fine. The section
specifically provides that:
“Any person who sends, by means of a computer resource or a
communication device, —
(a)
any information that is grossly
offensive or has menacing character; or
(b)
any information which he knows
to be false, but for the purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will,
persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of
causing annoyance or inconvenience or to deceive or to mislead the addressee or
recipient about the origin of such messages, shall be punishable with
imprisonment for a term which may extend to three years and with fine.“
In the case under
reference two women were arrested by the Mumbai
police in 2012 for comments on they posted on Facebook. The arrested women were
released later on and the criminal cases against them dropped yet their arrests
attracted widespread public condemnation. It was felt that the police had
misused its power by invoking Section 66A inter alia contending that it
violates the freedom of speech and expression.
The
Supreme Court of India in declaring section 66A unconstitutional held that that
the terms:
“annoying,
offensive, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill-will” used in the section were vague
and indefinite… If judicially trained minds can come to diametrically opposite
conclusions on the same set of facts it is obvious that expressions such as
“grossly offensive” or “menacing” are
so vague that there
is no manageable standard by which a person can be said
to have committed an offence or not to have committed an offence. Quite
obviously, a prospective offender of Section 66A and the authorities who are
to enforce Section 66A
have absolutely no manageable
standard by which to
book a person for
an offence under Section 66A. This being the case,
having regard also to the two English precedents
cited by the learned
Additional Solicitor General, it is clear that Section 66A is
unconstitutionally vague”.
The court
further held that:
“Governments
may come and Governments may go but Section 66A goes on forever. An assurance
from the present Government even if carried out faithfully would not bind any
successor Government. It must, therefore, be held that Section 66A must be
judged on its own merits without any reference to how well it may be administered,”
the bench observed while striking down the law. “…We, therefore, hold
that the section is unconstitutional also on the ground that it takes within
its sweep protected speech and speech that is innocent in nature and is liable
therefore to be used in such a way as to have a chilling effect on free speech
and would, therefore, have to be struck down on the ground of
over-breadth.”
Whereas the offence of
criminal defamation has been held to be constitutional in India and section 66A
which is similar to portions of section 24 of the Cybercrimes Act 2015, has
been held to be unconstitutional also in India, it would be interesting to see
how the Nigerian courts would decide on the constitutionality of sections
391(1), 393 of the Penal Code, sections 59 and 373
and of the Criminal Code and section 24 of
the Cybercrimes Act, 2015 earlier stated if their constitutionality is
challenged. The decision in the India cases may be highly persuasive to a
Nigerian court deciding on the constitutionality of the Nigerian laws above
mentioned.
The
United Nations Special Rapporteur on freedom of expression, David Kaye on the 3rd
May 2016 in a speech
to commemorate the World Press Freedom Day, said:
“Some governments
target journalists, bloggers, political dissidents, activists and human rights
defenders as ‘extremists’ or ‘terrorists’, criminalizing and detaining them,
using legal systems to counter broad and unclear offences. The harm is felt not
only by journalists but also by their audiences, the public that deserves the
right to know and to access information of public interest. Freedom of
expression plays a critical role in promoting equality and in combating
intolerance, and the role the media, the Internet and other digital
technologies play in keeping society informed is essential.”
It is hereby recommended
that social media activists, human rights advocate and civil liberties
organizations should avail themselves of the option of public interest
litigation provided under the Fundamental Rights (Enforcement
Procedure) Rules 2009 which has drastically
increased the potentiality of the public interest litigation as peoples’
tool against abuse of powers in governance, to challenge the
constitutionality of Nigerian laws especially those that have been highlighted
in this article, which restrict or limit the freedom of expression guaranteed
by the Constitution.
Timothy Tion attended the Benue State University, Makurdi
and Nigeria Law School where he obtained an LL.B and BL respectively. He has an
avid interest in the intersection of law, information and communications
technology or techno-legal issues. He also blogs via Naija Cyber Lawyer
Ed’s Note – This article was originally published here.
