CHAPTER ONE

INTRODUCTION

1.1 BACKGROUND OF STUDY

Human rights are moral principles that set out certain standards of human behavior,

and are regularly protected as legal rights in national and international law.1

Human right goes to the root of human civilization and enlightenment. The concept

of human rights has its philosophical ancestry in the natural law school.2 That is

why the expression human rights had been used synonymously with natural law

and natural rights. Thus Professor Maurice Cranston defines human rights as a

twentieth century name for what has been traditionally known as natural rights or

in a more exhilarating phrase right of man.3 The theory of natural law draws its

inspiration from nature, it is predicated on the assumption that there is a law of

nature according to which tenets and principles all things including man himself

ought to behave.

The concept of human rights was introduced into the international community due

to the outbreak of the Second World War. Consequently, the war strengthened the

conviction that the international recognition and protection of human right was
1
Nickel 2000
2
Ricoeur, P. (ed) Philosophical Foundations of Human Rights (Paris UNESCO, 1986); Karel Vasak
(Ed), International Dimensions of Human Rights (Paris: Pendone, 1981).

3
Cranston, M. What are Human Rights? (New York: Taplings Publishers, 1973) p. 1.
essential for international peace. However, this led to the San Francisco

conference4 which produced the United Nations Charter which ushered in a new

international law of human rights. Subsequently, the international bill of rights 5

was ushered in to promote and protect rights of man everywhere in the world.

These international law instruments were however substantially reproduced in

Chapter 4 of the 1999 Constitution and entrenched as fundamental rights. The

question now becomes what is the difference between human rights and

fundamental human rights. Human rights are universal rights, whereas fundamental

human rights are those rights that are guaranteed by the constitution of a state. 6

Right of expression as part of the fundamental human rights was first entrenched in

the constitution of the independent Nigeria in 1960 as recommended by the Sir

Henry Willinks Commission on minorities and those other Constitution that

followed it. The independence constitution of 1960 and the republic constitution of

1963 have provisions for the protection of fundamental human rights. The 1979

and 1999 constitution went further by providing a bill of rights.

Constitutionally, right of expression is provided for in Section 39 of the 1999

constitution 7 where it is stated that every citizen has the fundamental right of

4
San Francisco conference of 1945
5
Universal Declaration of Human Rights (1948), Interna tional Covenant on Civil and Political Rights (1966),
International Covenant on Economic, Social and Cultural Rights (1966)
6
Ibid
7
Hereinafter referred to as the Constitution
information, ideas, and opinions, including the right to own, establish and operate

any school or institution for imparting information, ideas and opinion.

Section 22 of the Constitution clearly out-lines the role thus, the press, radio,

television and other agencies of the mass media shall at time be free to uphold the

responsibility and accountability of the government to the people. The role a

responsible press should play in any policy, irrespective of the ideological

foundation on what is based, or the ownership structure of the universal conception

that freedom of press and expression are so fundamental that any law that tend to

obstruct any of the two ideas, cannot be properly so called.

Every person is accorded the freedom of expression including the freedom to hold

opinion and to receive and impact ideas and information without any interference.

For impacting ideas, holding opinion and information, it is necessary that the

individual should have the right to any media of his choice.8

The freedom of expression can therefore be exercised orally or in writing through

the print as well as electronic media. For the proper exercise of the rights, section

39 of the constitution 9 has extended to the ownership or the establishment and

operation of any medium for the dissemination of information, ideas, and opinion

to the public.

8
Section 39(1) CFRN 1999 as ammended
9
S. 39(1) CFRN 1999 as ammended
However by the provision of section 45 of the constitution, it is noted that the right

of expression can be curtailed. The implication of this is that this section permits

derogation from certain guaranteed rights under the constitution. 10 It is therefore

possible that on account of defence, safety, public order, and public health the right

or freedom guaranteed under listed sections of the constitution is disregarded.

Section 45 however states that the law invalidating the right so guaranteed should

be reasonably justifiable in a democratic society.

In conclusion, it can be discerned that based on the adoption of universal

declaration of Human Rights and the incorporation of these rights in our

constitution, basic fundamental human rights have been created and which should

be respected by all men in the Nigerian society. Unfortunately some of these rights

are not absolute reason being that it can be derogated from. In this respect, this

research seeks to examine the scope of its important, evaluate the challenges posed

by other legal and institutional framework. To what extent is the guaranteed right

available to citizens, are there challenges in redressing breach of this right. What is

the attitude of courts and other relevant agencies in this regard?

10
Section 37, 38, 39, 40 and 41 CFRN 1999 as ammended
1.2 STATEMENT OF PROBLEM

Right of expression as part of the fundamental human rights was first entrenched in

the constitution of Independent Nigeria in 1960 as recommended by the Sir Henry

Willink Commission of inquiry. Today the Constitution in its chapter IV provides

for fundamental human rights.

In spite of these provisions, Nigeria confronts quite substantial problems of values,

governance, citizenship and institutional capacity that together define the

challenges for the realization of human rights in the country. Nigerias human right

problems are also challenges of renewing the norms, institutions as processes of

government. But this will be practically difficult because the government has been

badly compromised by corruption, indifference, cynicism and abuse of power

which afflicts all echelons of governance, including those charged with ensuring

accountability of such conduct.

For the promotion and protection of human rights in Nigeria, accountability,

compliance and prevention of impunity must be given priority.

What are the impediments to the full realization of this right? Are the citizens

aware of the scope and limitations of this right? It is observed that there is need to

chart a new course to enhance the full potentials of this right, a need for reform of
justice administration, greater sanction for those responsible for breach, greater

government role in enhancing access to justice etc.

1.3 OBJECTIVES OF THE STUDY

The aim and objectives of this research are:

1. To examine the practical application of the right of expression in Nigerian

polity

2. To examine the constitutional and statutory framework within which right of

expression is enhanced;

3. To bring to the fore various remedies available to aggrieved person in

enforcing their right of expression;

4. To examine the impediments to right of expression; and

5. To proffer possible suggestion to overcome the impediments and ensure full

realization of this right.

1.4 SCOPE OF THE STUDY

This study will put to periscope the various concepts, sources and development of

right of expression in Nigerian nationhood and how the mechanism and purveyors

of right of expression fared during military regimes. This will be fine-tuned in

order to show that right of expression was at its lowest ebb during regimes, whose

policy thrust was anti-freedom of expression and the press. This is primary focus
on the constitutional provision on right to expression. This research work will

examine institution and legal framework; it will also consider all relevant agencies

associated with promoting and enhancing this right and also appraise the

impediments. Reference will be made to other countries like USA and Britain. The

work will draw strength from international laws and conventions.

1.5 RESEARCH METHODOLOGY

This research work is based on primary and secondary sourced materials. The

primary sources include the Constitution of the Federal Republic of Nigeria, statute

books, law reports, journals relevant to the subject matter. While the secondary

sources, include textbooks written by foreign and Nigerian authors, dictionaries,

juristic articles and other materials necessary for the achievement of the aims of

this study.
 CHAPTER TWO

LITERATURE REVIEW AND HISTORICAL BACKGROUND

2.1 CONCEPTS AND THEORIES

For a better understanding of this research work, it will be necessary to explain

better the theories and terms involved in this work. These theories and terms

include;

RIGHT OF EXPRESSION

The term, Right to Freedom of Expression according to the New Lexicon of

Websters Dictionary, relates to the liberty of open discussion without fear of

restriction, or restrain. It has acquired a technical meaning. According to

Blackstone11, it consists in laying no previous restraints upon publication and not

in freedom from censure for criminal matter when published.

This provision is not confined to the press as it talks of every person. Thus any

one, not only citizens of Nigeria but aliens alike, have the right to express

themselves without any interference or censure subject only to the provis ion of the

Constitution. The idea is in-line with the Declaration of Human Rights that

guarantee the right of expression. Article 9 of the African Charter on Human and

11
Blackstone Commentaries (1959) p15- 159
Peoples Right also provides that every individual shall have the right to receive

information and every individual shall have the right to express and disseminate

his opinion within the law.

According to B.O. Nwabueze,12 free speech and free press are instruments of self

government by the people because they enable the people to be informed and

educated about the affairs of the government. Political responsibility as a contact of

democracy requires that public opinion shall be one of the factors informing the

actions of government. Free speech and free press enable corruption, abuse of

office and other official wrongdoings by public officers to be publicly exposed. For

instance, the involvement of President Nixon of America in the Watergate scandal

was exposed by the press.

It is suitable to approach the definition of the subject matter by taking a look at

established views with the hope that all items contained therein will lead to a

comprehensive meaning for the concept Right of Expression. In that context, it

may mean any of the following:

1. The liberty to say or speak on any item without hindrance except by law.

Justice Jackson in contemplating this aspect of right of expression said in the

case of U.S. v Ballard13 that:

12
Nwabueze, B. O., Presidential Constitution of Nigeria (London: c. Hurst & Company, 1981) p. 458.
13
1944 332 U.S 78
 The price of freedom of religion, or of speech or of
the press is that we must put up with or even pay
for a good deal of rubbish.

2. The capacity to disseminate knowledge, information, and idea through

accepted medium owned and operated by a person or organization that may

not have any direct connection with the press. It is worthy to note that the

same approach of definition was adopted for right of expression in Okogie

v. A.G of Lagos State14

3. Right of expression is a synonym for press freedom. In this context, it

presupposes the authority of man to communicate with his fellow beings on

any issue of his choice subject, the provisions of law through Radio,

Television, Newspapers, etc, in order to market information and ideas.

Furthermore, Alexander Hamilton15 added his voice to the argument when

he said that freedom of the press is the right to publish with good motives for

justifiable ends, though reflecting on the government and individuals.

It is significant to harness a definition of right of expression from a synthesis of the

foregoing. Therefore, right of expression is the input of the mind relayed to the

positive act of speech or writing or channeled through other communicative

devices with intent to inform or impart ideas by lawful means.

14
(1981) 1 NCLR 105
15
In Ballards case at 95
CONSTITUTION

The term constitution was coined from the Latin word constitutio, used for

regulations and orders, such as the imperial enactments.

The constitution is the fundamental and organic Law of a Nation or State;

establishing the conception, character and organization of its government as well

as prescribing the extent of its sovereign power and the matter of its exercise. It is

also a written instrument embodying the fundamental laws of the society. 16 These

rules together make up what the entity is. When these principles are written down

into a single document or set of legal documents, those documents may be said to

embody a written constitution, whereas if they are written down in a single

comprehensive document, it is said to embody a codified constitution.

Constitutions concern different levels of organizations, from sovereign states to

companies and unincorporated associations. A treaty which establishes an

international organization is also its constitution, in that it would define how that

organization is constituted. Within states, a constitution defines the principles upon

which the state is based, the procedure in which laws are made and by whom.

Some constitutions, especially codified constitutions, also act as limiters of state

power, by establishing lines which a states ruler cannot cross, such as fundamental

16 th
8 Edition of Blacks Law Dictionary. P330
human rights. An example is the constitution of the Federal Republic of Nigeria

and that of the United States of America amongst others.

CLAW-BACK

A Claw-back clause refers to those provisions of the Constitution that tends to limit

some of the rights guaranteed under the Constitution. They qualify the enjoyment

of the right as contingent upon other notions of state prescription. For example,

Article 8 of the African Charter 17 grants the freedom of conscience, profession and

free practice of religion, subject to law and order. Under Article 10 of the

Charter, an individual has the right to free association provided that he abides by

the law. Similarly freedom of movement of an individual is guaranteed by Article

12 of the Charter provided he abides by the law. Citizens have the right to

participate freely in their governments in accordance with the provisions of the

law. Article 14 of the Charter provides for the right to property, but that property

may be encroached upon in accordance with the provision of the appropriate law.

Another example of such provision was provided for under S. 45 of the

Constitution 18 where it provides that nothing in this section of the Constitution

shall invalidate any law that is reasonably justifiable in a democratic society-

17
Hereinafter referred to as the Charter
18
S.45(1) 1999 Constitution
 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.

SEDITION

This, perhaps is the vaguest of all offences known to Criminal Law, is defined as

the speaking or writing of words calculated to excite disaffection against the

Constitution as by law established, to procure the alteration of it by other than

lawful means, or to incite any person to commit a crime to the disturbance of the

peace, or to raise discontent or disaffection, or to promote ill-feeling between

different classes of the community 19.

The often cited definition for sedition is one couched by Fitzgerald J. in R v

Sullivan20. He described sedition as a crime against the society, nearly allied to

that of treason and it frequently precedes treason by a short interval. Apart from

that Justice Fitzgerald provided for an inventory of the contents of sedition when in

the same Sullivans 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.

The objects of the law of sedition are:

19 th
8 Edition of Blacks Law Dictionary. P1388, See also Section 50 (2) (a) Criminal Code
20
(1886) 11 Cox C.C 44
 I. Ignite civil war

II. Cast hatred or disaffection to the government

III. Subvert obedience to the constitution

IV. Challenge sovereignty of the country

Where therefore any write-up or speech or any device of communication whether

by sign, tapes, caricature etc, that has the effect of producing any of the above,

such write-up notwithstanding the constitutional freedom of expression amounts to

sedition. The author of such publication cannot claim immunity from prosecution

merely because he is exercising his right to freedom of expression.21

At the same time, the author must be prepared to face the evil consequences of his

act.22

DEFAMATION

Otherwise known as calumny is the communication of a false statement that harms

the reputation of an individual, business, product, group, government, religion, or

nation.23 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:

21
Mukete v Broadcasting Corporation and D.S. Ebake (1961) 1 All N.L.R. 482
22
Queen v Amalgamated Press of Nigeria Ltd and Fatogun (1991) 1 All N.L.R 186
23
Ibid
 I. To lower the plaintiff in the estimation of right-thinking members of society

generally; or

II. To expose him to hatred, contempt or ridicule; or

III. To cause other persons to shun or avoid him; or

IV. To discredit him in his office, trade or profession; or

V. To injure his financial credit 24

The words complained of must tend to injure the plaintiffs 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 25

Any written or spoken words which fall within one or more of the five definitions

listed above may be defamatory. The following are examples of statements held

defamatory by the Nigerian courts; to state that a medical practitioner has a fake

24 th
See generally Parkes R., Gatley on Libel and Slander (7 ed., London, Sweet & Maxwell, 2013) Chap.2
25
Tolley v Fry (1930) 1 K.B.467 at p.479, per Green L.J. cited with approval by Brett
J.S.C. in Egbuna v. Amalgamated Press of Nigeria Ltd (1967) 1All N.L.R. 25 at p.29
degree and that he exploited the public,26 that a legal practitioner had defrauded his

client. 27

Finally, it may be noted at this point that there is an initial presumption that a

defamatory statement is untrue; but if the defendant can prove that the statement is

substantially true, he will have a complete defence to an action for defamation.

SLANDER

Slander is the action or crime of making a false spoken statement damaging to a

persons reputation. 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, 28 but there

appears to be no firm judicial authority on the point

LIBEL

Libel is a published false statement that is damaging to a persons reputation; a

written defamation. Libel is defamation in a permanent form, the most common

26
African Press Ltd. V. Ikejiani (1953) 14 W.A.C.A 386
27
Lardner v. The Sketch Publishing Co. Ltd. (1979) 3 L.R.N. 276.
28
E.g. Salmond op. cit. para47
being written or printed words contained in, for example a newspaper, a book, a

letter, a notice. Defamation is also in permanent form if contained in a painting,

cartoon, a photograph, a statue or a film. 29 Defamatory words contained in a radio

broadcast are also within the ambit of the sections, which define words as

including pictures, visual images, gestures and other methods of signifying

meaning. 30

2.2 CLASSIFICATION OF RIGHT OF EXPRESSION IN NIGERIA

Right of Expression in Nigeria is classified into three. This classification hinges on

the simplest logic that the individual is continuously tempted to pass a remark of

commendation or condemnation on matters affecting him in the environment.

Right of expression may include:

a. Individual Right of Expression

b. General Right of Expression

c. Corporate Right of Expression

29
See Gatley, op. cit. para. 81-85
30
Cap. 34, Laws of Lagos State (1973). This section is identical to s.1 of the English
Defamation Act 1952
Ademola Yakubu reflected on the classification that it is fundamental in any

civilized society for a person to have the right to express himself in respect of

matters of public interest31

On the strength of the above, it appears individual right of expression revolves on

the individual contribution whether orally or in writing or by other devices on such

thing as he is connected personally in the society. General right of expression

however is the concerted opinion, views or ideas of group of people on matters of

public interest. It is worthy to mention here that these species of right of expression

are sometimes interwoven depending on the conduct of the individual, the

surrounding circumstances and of course the wherewithal at his disposal at the

material time of dissemination of opinion or ideas. This is typified by the

contribution of human rights concern he opined that through freedom of

expression, we are able to criticize or give our opinion on others, or other persons

view, action or the policies and programmes of the government. These may be via

rallies peaceful demonstration among other lawful channels. 32

The third category of right of expression namely the corporate right of expression

represents opinion and or ideas being disseminated to the society by companies,

corporations and organizations for purpose of enlightenment, campaign,

31
Yakubu J.A. Press Law in Nigeria (Malthouse Press Ltd. 1999)p.33
32
Ibid at p.5
advertisement and information. It can take the form of jingles, riddles, posters,

pamphlets, etc. usually, a scheduled officer in the respective company or

organization is left to enforce the ideas of right of expression on behalf of the

company or organization. Ordinarily, it resembles the general right of expression

except that the expressive matters are attuned to specialty aimed at the fore which

the organization is formed. For instance, the Planned Parenthood Federation

Organization set up to propagate reproductive rights is most likely to disseminate

ideas bordering on health and reproduction only.

Finally, the corporate rights of expression behoves on an institution, organization

or corporate bodies who in pursuance of their object find it inescapable to

disseminate or propagate their ideas or knowledge by lawful means. A case point is

Okogie V. A.G Lagos State33 where the Court of Appeal held that school must be

accepted as a medium for dissemination of knowledge, information and ideas.

2.3 THE HISTORICAL BACKGROUND OF RIGHT OF EXPRESSION IN

NIGERIA

As an erudite scholar once canvassed, the issues connected to Human Rights in the

last couple of decades perpetually radiate charm to stake holders in Africa and

33
1981) 1 NCLR 105
beyond. He opined that human right issues have bedeviled the academic industry in

the last 54 years. This works on human rights in African has become enormous in

size 34

Interestingly, Right of Expression as an integral segment of Human Right occupies

focal point of reference in both municipal35 and international instruments 36. It is a

facilitator to other Human Rights.

Human right goes to the root of human civilization and enlightenment. The

concept of human rights has its philosophical ancestry in the natural law

school37.That is why the expression human rights had been used synonymously

with natural law and natural rights. Thus, Cranston Maurice, an English

philosopher, and author defines human rights as a twentieth century name for

what has been traditionally known as natural rights or in a more exhilarating phrase

right of man 38. The theory of natural law draws its inspiration from nature, it is

predicated on the assumption that there is a law of nature according to which tenets

and principles all things including man himself ought to behave.

34
Shlvin Issa. The Concept of Human Rights in Africa, (Codesrl Book Series, 1989) p 9
35
S. 3 CFRN, 1990
36
Article 19 of the Universal Declaration of Human Rights 1948. See also Article 19 of the In ternational Covenants
on Civil and Political Rights, 1966
37
Ricoeur, P. (ed) Philosophical Foundations of Human Rights (Paris UNESCO, 1986); Karel Vasak
(Ed), International Dimensions of Human Rights (Paris: Pendone, 1981).

38
Cranston, M. What are Human Rights? (New York: Taplings Publishers, 1973) p. 1.
The concept of human rights was introduced into the international community due

to the outbreak of the Second World War. Consequently, the war strengthened the

conviction that the international recognition and protection of human right was

essential for international peace. However, this led to the San Francisco

conference39 which produced the United Nations Charter which ushered in a new

international law of human rights. Subsequently, the international bill of rights 40

was ushered in to promote and protect rights of man everywhere in the world.

These international law instruments were however substantially reproduced in

Chapter 4 of the 1999 Constitution and entrenched as fundamental rights.

Right of expression as part of the fundamental human rights was first entrenched in

the Constitution of the independent Nigeria in 1960 as recommended by the Sir

Henry Willinks Commission which was set up to look into the fears of the

minority and to allay such fears by providing a legal frame work for protecting the

minority from the majority and those other Constitutions that followed it. The

independence Constitution of 1960 and the Republic Constitution of 1963 have

provisions for the protection of fundamental human rights. The 1979 and 1999

Constitution went further by providing a bill of rights.

39
San Francisco conference of 1945
40
Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966),
International Covenant on Economic, Social and Cultural Rights (1966)
Without being graphic, the Military in Nigeria have had the largest chunk of

governance in our corporate national existence. Of our fifty four years nationhood,

they inundated the seat of power six times, which spanned more than six decades.

One thing appeared to characterize the length and breadth of these military

regimes. It is their inability to allow free flow of information and therefore ensured

that the Press including other purveyors of right of expression is gagged by

draconian legislations 41. At various times therefore journalist were tied down to

unscrupulous strings in their pursuit for right of expression. Each of the military

regimes in differentials (or even the same) mutatis mutandis was characterized

with decrees such as State Security (Detention of Persons) Decree42, Nigerian Press

Council Decree 43

In Addition, right of expression has formed the nucleus of many National and

International Conferences, Workshop44, Seminars, etc. Similarly, the importance of

right of expression has attracted not less a mighty organization than the United

Nations to declare every 3rd May of our Calendar year as World Press Freedom

41
For example Decree No. 6 , 7 and 8 of 1994, proscribing and prohibiting the circulation of the following
Newspaper: National Concord, the Punch and Guardian Newspaper consequently offenders to these draconian
Laws were either instantly brutalized
42
State Security (Detention of Persons) Decree. No.2 of 1984
43
Nigerian Press Council Decree. No. 38 of 1992
44
See Recommendation of a workshop aimed at enhancing conflicts resolution vide right of expression hosted in
th th
Accra. Ghana from 26 27 April, 1999 and reported in the West African Bulletin No October 1999 pp 43 - 44
day45. Moreover, right of expression unlike other Human rights, is not only

palatable with divine scriptures but ranked as old as human history. In robust

approval of its ancient origin and affinity to holy books, the Holy Quran 46 reserved

rudiments of rights of expression therefore revealing that believers should read the

name of the Lord who gave them knowledge.

Elucidating further, the same Holy Quran provide

Nor should the believers all go forth together,

if a contingent from very expedition remained

behind they could devote themselves to studies

in religion and admonish the people when they

returned to them that thus they (may learn) to

guard themselves against evil 47

In another token, the Holy Bible 48 also maintained a similitude when it takes that:

Let your speech be always with grace, seasoned with salt, that ye may

Know how he ought to answer every man

In our present day, the ancient origin of right of expression was re-enacted by

Justice M.B. Belgore49 when he observed that, the concept of human right and

45 th rd
The United Nation General Assembly by resolution 48/432 of 20 December, 1993 declared 3 May of every
year as World Press Freedom Day
46
Quran 96. 4-6
47
Quran 9: 22
48
The Holy Bible. Colossian 4:6 published by Watchtower Bible and Trust Society Incorporated
Brooklyn. New York
49
Hon. Justice Balgore, M.B; A Journal of Contemporary Legal Problem (October 1990 No 6
Federal Ministry of Justice, Nigeria) p. 73
social justice has been abused and given different interpretations under different

political concepts at various time. Yet most people believe that human happiness

depends upon the practice of human rights and social justice.

Coupled to that, Artabus wrote in 480 B.C that:

It is impossible if no more than one opinion is altered to

Ma`1ke choice of the best: a man is forced then to follow

whatever advice may have been given him; but as opposite

speeches are delivered, and then choice can be exercised 50

The United States of America in lending credence to the age long concept of right

of expression had cause to glorify the right in one of her earliest constitutional

amendments in 1791. The amendment is to the effect that Congress shall enact no

law abridging the freedom of expression51

In England, the idea of right of expression was muted in order to tame and gags the

radical citizenry. This could be seen from an Ancient English statute which

provided that the object of the statute is to preserve the realm of England. And the

law will sanction anyone who engages in dissemination of false news 52

50
Cited by Mohammed Bala What Role for the Journalist Democracy Advocate or Non Participant Watchdog?
In Mass Media and Democracy. Civil Liberties Organization Lagos 1996 p.47
51
First Amendment of the Constitution of the United State 1791
52
De Scandelis Magnatum, 3 Edward I, Statute of W estminster; 1(c) 34, 12741
The provision of this statute was concerned with restraining and sanctioning the

disturbing effect of the press53

Form the foregoing, one can easily hazard to conclude that right of expression

flows primarily from creation and was subsequently concretized by divine

scriptures. In fact, J.F. Kennedy, the 35th President of the United States of America

affirmed that right of man comes not from generosity of the government but from

divinity. 54

In Nigeria, the existence and enforcement of the right of expression is invariably

linked to the applied common law 55 and the constitutional warranty over time for

the citizens to express their minds and convictions on matter within their

intellectual range and capability. Indeed it becomes pertinent to say that the

adoption by Nigeria of Common Law makes the impressive dictum of Lord

Denning on inalienable right of man to speech and expression relevant at this

juncture. He said that it is rational for people to inquire after the truth 56

Beside, since Nigeria operates a Common Law Legal System, the ancillary

recognition and enforcement of rules of Magna Carta is to make is to make the

enjoyment of right of expression in Nigeria jurisdiction automatic.

53
Per Justice Coke Edward in De Libellis Famosis (1609)
54 th
Cited by Prof. B.J Dudley in Daily Times of January 19 ,1997
55
The general body of English Common Law, Dictionary of Equity and Statutes of General
Application was received in Nigeria vide ordinance of No.3 of 1803 and ingrained in section 45 of the Nigeria
Interpretation Act, 1945
56
Denning M.R. Freedom Under the Law (Butterworths, 1949) p.35
To drive home this point, M.B. Belgore, former Chief Judge of the Federal High

Court argued further that the rule of law in Anglo Saxon and Common Law

countries had their origin from Magna Carta of June 15th 1215, perimeters of Right

of Expression was dragged to include artistic creativity, scientific research and

academic freedom57

CHAPTER THREE

CONSTITUTIONAL AND INTERNATIONAL PROVISIONS ON THE

RIGHT TO EXPRESSION

3.1 THE 1999 CONSTITUTION58

Section 39 of the 1999 Constitution which guarantees the right to freedom of

expression provides as follows:

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.

57
See National Action Plan for the Promotion and Protection of Human Rights in Nigeria.
November 2002. Pg 27
58
S 39(1) & (2) CFRN 1999 as amended
 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 a state, or any other
person or body authorized by the President on fulfillment of a condition laid
down by an Act of National Assembly, shall own, establish or operate a
television or wireless broadcasting station for any purpose whatsoever.

Under the constitution, the obligations of the press in the context of the

fundamental objectives and directive principles of state policy are stated in the

following terms:

The press, radio, television and other agencies of the

mass media shall at all times be free to uphold the

responsibility and accountability of the government to

the people.

As earlier manifested, the 1999 Constitution should be cherished for making a

provision for freedom of expression and the press. It is equally remarkable that

such a freedom is found worthy of derogation on such ground as provided under

the section 45(1) of the 1999 constitution of the Federal Republic of Nigeria. What

has escaped remark by commentators on the issue is whether or not the same

section 39 of the Constitution which provides for right of expression under

subsection (1) did not rob the beauty of that freedom under subsection (2) to

section 39 of the 1999 constitution. The subsection provides that:

 Without prejudice to subsection (1) of this section,

every person shall be entitled to own, establish and

operate any medium for dissemination of information,

ideas and opinions.

Obviously to own, establish and operate a medium of dissemination of information

and ideas amounts floating of newspaper, radio, television houses, including

schools. To establish any of this media warrants expending money in both

personnel, machines, real property acquisition, etc. it is evident even without being

graphic that acquisition of these terms requires a lot of expenditure. Very few

Nigerians can afford it. Sadly, if only a handful can own and disseminate

information and ideas through our schools including radio and television houses,

especially bearing in mind expenses involved, then one can safely aver that the

exercise of right of expression through either the radio or television is inherently

restrictive. By extension, means there is limitation within the purview of sub-

section (2) to section 39 of the 1999 Constitution. That is the intent. It allows right

to establish such if one so desires.

There is therefore, deprivation and denial of right of expression when only the

privilege few can acquire and control the means of information dissemination. The

situation was aptly summarized in the words of Justice Matthew of the Indian

Supreme Court when in Bernt V Union of India, he states that:

With the concentration of the mass media in few hands ideas

 which are antagonistic of those of the proprietors do not get
to the market. It becomes useless to have the right to express

ideas if there is no medium for expressing them. If free access

is denied for any idea, then the means of competition is limited
and therefore there is no chance for every idea coming to the
market 59

It is equally undeniable that if only the few ideas and information received comes
from few wealthy members of the society who are the only privilege to own media
houses, then it means that there is no room for equal access to freedom of
expression the society is thus opened up to few dominating ideas and opinions.

This position can also remain firm in era of Information Communication

Technology (ICT). In fact, when discussing internets communicative tool it needs
to be stressed that it draws on some preconditions. One precondition is cyber
access another is cyber listeners. Regarding cyber access, the 1999 UNDP Human
Development Report shows that access is still not available to most of the worlds
population, though the fastest rates of growth are in less developed countries 60.

Consequently, the operation of internet media is in contrast to mass media, where a

system enrolled, norms are codified in codes of conduct, customer contracts and/or
access criteria. Filtering system can be effective regulators. Since freedom of
expression is meant to protect especially those communications that shock, offend
or disturb; one should be very cautious towards a development, where private
parties define, which conversation can be allowed, and which are not.

59
(1972) 2 SCC 788
60
See UNDP Human Development Repor t 1999 (p.53)
However, Bernard Shaw 61 made the point of the dominance of the rich in
ownership and access to the media even clearer when he opined that our entire
theory of freedom of speech rest not on the assumption that every person is right
although if everybody is free to express his ideas there will be struggle between the
truth and falsehood and truth will eventually prevail.

Invariably, if only few ideas are heard and disseminated, the rights of the majority
to canvass an affirming reply or otherwise are denied. Hence, the theory of
freedom speech propounded by Bernard Shaw is rendered senseless. Holmes 62
levied an inequality in the inner chambers of freedom. The direction of Justice
Holmes is no doubt imperative even though untenable in the context of Nigeria
since media houses are owned by the rich. The poor masses who cannot bid an
access to the media because of their abject poverty are denied the gateway to
freedom of expression. The second effect that is produced into the polity by the
provision of subsection (2) to section 39 of the Constitution of the federal republic
of Nigeria apart from the above is that even practicing journalist in flagrant
violation of etiquette have the propensity of shifting their production of ideas and
opinions.

Thus, we end up receiving information through programmes that are bias or

factually incorrect, late chief M.K.O Abiola 63 a leading publisher of newspapers
and magazines warned against this attitude when he cautioned a gathering of press
men in Lagos on the 15th day of June 1992. He said that the strength of a good
editor is his commitment to truth and objectivity.

61
An Irish playwright and a Co-founder of the London School of Economics
62
An American jurist who served as an Associate Justice of the Supreme Court
of the United States from (1902-1932)
63
Abiola M.K.O., cited by Clement Okwankwo Et al in The Crises of Press Freedom published by
Constitutional Rights Project, Lagos, 1993 at p.6
Apart from obvious restrictions (aforementioned) to right of expression as might
flow from the stream of sub-section 2 to section 39 of the 1999 Constitution, there
are other legislations that are primarily gazette to allow freedom of expression but
unfortunately are not justifiable in a free and democratic society 64. Most of these
legislations are founded on the provisions of the Constitution that stated that no
individual other than the government or persons acting under its authority shall
own, establish or operate a television or wireless broadcasting station for any
purpose whatsoever.

A similar provision can be found under section 36(2) of the 1979 Constitution of
the Federal Republic of Nigeria. In recognition of and compliance with that, the
following statutes were inherited and afterwards passed into law, so that one way
or the other they will regulate ownership and operation of television, newspaper
and radio houses.

These are:

a. Newspaper Act
b. Nigerian Television Authority Act
c. National Broadcasting Commission Act
d. News Agency of Nigerian Act

RIGHT OF EXPRESSION VIS-A-VIS NIGERIAN TELEVISION

AUTHORITY ACT

It is to be noted that although right of the Authority for Television Broadcasting

in Nigeria has now been overtaken by events with the coming of private
Television Authorities courtesy of National Broadcasting Commission Act does
not make Nigerian Television Authority Stations totally democratized. The
64
Section 39(2) para, 2 of the 1999 Constitution of the Federal Republic of Nigeria.
 entire activities of the authority are subject to general directives of the
Honorable minister of information. The power of the minister as such can be
gathered from section 12 of the National Television Act, which states that the
minister may give directives on matters of this Act and it shall be the duty of
the authority to comply with such directives in respect of is functions.

Because the minister is an appointee of the president of the Federal Republic of

Nigeria, it follows without any fear of contradiction that an overzealous
minister may issue directives to curtail any opinion or idea that is not in
agreement with his judgment or that of his ministers interest or policy. This is a
major problem in a democratic regime. Where party allegiance may overturn
the objectives of the ministers directives. An attitude of this nature certainly
has the effect of limiting freedom of expression. Such portion of the law is not
only unreasonably justifiable in a democratic and free society. It is inconsistent
with section 39 of the Constitution65, which confers on every person the right to
freedom of expression and the press. Times are ripe for section 12 of the
Nigerian Television Authority to the supervision of Federal Minister of
Information, but there is definitely something wrong in the eyes of freedom of
expression to subject the authority to the mercy of directions of the Minister of
information for obvious reasons.

Suggestively, the puppetry tendencies of the minister of information may be

reduce if he is appointed by the president subject to the recommendation for
appointment and removal by the appropriate union groups.

RIGHT OF EXPRESSION VIS--VIS NEWS AGENCY OF NIGERIAN

ACT

65
Section 39(1) 1999 Constitution
 The idea of having a News Agency enshrined in our law is civilized. It is a
glowing tribute to the status of our democracy and freedom of expression.
However, the element of monopoly66 by News Agency of Nigeria in obtaining
news and marketing it is rather unpleasant to both democracy and right of
expression. It is prejudicial to the liberty of dissemination of information
sanctioned by the constitution. The reference portion of monopoly for is
stipulated in section 2 of the News Agency of Nigerian Act.

In view of the foregoing, one wish to observe that the business relating to news
should not be left to 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
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 is being violated, but also the

right of all others to receive information and ideas 67

RIGHT OF EXPRESSION VIS--VIS NEWSPAPER ACT

The Newspaper Act is the regulatory statute providing guidance for floating
newspaper including their circulation, distribution and general management.
The Act was one of the earliest laws promulgated during the pre-colonial
66
Cap 85, Vol. 11 Laws of the Federation 2004
67 th
Stephen Schmit case Inter-American Court of Human Rights o/c 5/85, 13 November 1985paper
 Nigeria in 1917. This Act is characterized with provisions that are not palatable
to right of expression largely because the colonial authorities of that time had an
avowed commitment in checking articles and write-ups that are anti-colonial. A
synopsis of the situation was provided in these words:

Due to its focus on the abolition of slave trade, education and

The rights of the citizen, Iwe Irohin (Newspaper) became very

popular. And as the missionaries school established by Townsend

began to flourish; he also set up English Language edition of the

paper. However, the more he got involved in the interest and affairs

Of the Yorubas, the more he antagonized the colonial administration

By his pro-active stance. 68

In order to check the anti-colonial stance of this newspaper, the Newspaper Act
1903 was passed by the colonial government. It later transform into the
Newspaper Act of 1917. The Newspaper act does not qualify as legislation that
is justifiable in a democratic setting because it contained provisions that are
inconsistent with tenets of right of expression.

Section 3 and 4 of the Act apparently meant to vouch for control of Newspaper,
made it mandatory for newspaper proprietors to enter a bond and affidavit to be
endorse by sureties wherein they are expected to disclose their names, place of
abode, business office of the paper etc to the full knowledge of Attorney of the
Federation or the state as the case may be.

Newspaper oriented companies are required under Section 14 of the Act to

ensure daily delivery of their products to the Minister of information as well as
open a compulsory office in the Federal Capital Territory by the implic ation of

68
Nwankwo, C. et al, Crises of Press Freedom in Nigeria (Constitutional Rights Project, 1992) p.43
 Section 19 of the Act. The contents of Section 3, 14 and 19 paraphrased are
substantially democratic.

Further to that, they are not positive deposition to right of expression under
Section 39 of the 1999 Constitution. Is it not a denial of freedom of speech to
warrant a newspaper proprietor to compulsorily open a business office in
Abuja? What if he intends circulation in his hometown or state? Again
considering the right cost of rents in Abuja, what if the company does not have
sufficient resources to comply? If the proprietor cannot operate in more than
one pace for any reason, he is thus compelled to operate in Abuja even though
contrary to his wish and the circulation of newspaper is also limited to Abuja.
This act is a gross violation of freedom of expression and was evident in the
decision of People Star Press v Adebayo, where it was held that:

Freedom of circulation of News of Newspaper is an essential

Part of freedom of speech and expression69

The contents of Section 3 and 14 which cumulatively requires execution of

bond and affidavit including delivery of daily editions of the Newspaper to the
minister of information seems to treat the proprietor with suspicion. After all, in
law, there is no respect for unguarded newspaper publication. Where a
newspaper caught with unguarded and injurious publication appropriate steps
can be taken either in civil and criminal law to deal with issue suggested below:

One can have no respect for a newspaper which is

careless with facts and with institutions founded

on its carelessness70
69
(1971) U.I.L.R. 269
 Therefore, the citizenry against who rumors or false news peddled as per
Section 22 of the Newspaper Act can use it for redress as was decided recently.
The court said:

Where a writer exceeds the bounds, there should be a

Resort to the law of libel where the plaintiff must of

Necessity put his character and reputation in issue 71

In addition to that, the section should be redrafted to empower the Honorable

Minister of Information to revoke licenses of any newspaper properties whose
publication was a danger to national security, morality national interest. This
revocation can easily be justified under grounds, which justify derogation of
freedom of expression under section 45 (1) of the 1999 Constitution (Claw-
Back Clause). This section states:

Nothing in Section 37, 38, 39, and 41 of this Constitution

Shall invalidate any law that is reasonably justifiable in

A democratic society.

ENFORCEMENT PROCEDURE OF THE RIGHT TO EXPRESSION

UNDER THE 1999 CONSTITUTION

The rights enshrined in the Constitution especially right to expression can be

said to be guaranteed only if there is adequate machinery for their enforcement
and remedies available to a victim if a breach occurs. The enforcement

70
Blackstone Commentaries (1959) p. 4
71
Olatawuara J.C.A in Nwankwo v the State (1985) N.C.L.R. 288
 provision in the Constitution made no reference to specific remedies. Section 46
(1) of the Constitution provides-

Any person who alleges that any of the

provisions of this chapter has been is being or
likely to be contravened in any State in relation
to him may apply to a High Court in that State
for redress.

Constitutionally, enforcement of all forms of rights, remedies, duties etc are vested
with Nigerian Judiciary 72. Therefore, the Nigerian Judiciary comprising of various
courts at the center 73 and the State level74 are obliged to determine disputes
between persons or between government and individual citizens respectively.
Thus, the courts are levied with judicial powers 75 to pass judgment in any dispute
between litigants. On that note, it behoves that judicial power exercised by the
judiciary also import penalties from judgment, decrees, orders conviction,
sentence, etc. Expatiating further on the scope of judicial powers Professor
Akande 76 while banking on the case of Mukstrat v. United States77 poised that it
is the power of a court to decide and pronounce a judgment and carry it into effect
between persons and parties who bring a case before it for decision.

72
Chapter VII of the Nigerian Constitution which makes elaborate provisions on powers and
Functions of the Judiciary is relevant to expatiate on this point
73
Such Courts include the Supreme Court, Cour t of Appeal and Federal High Court
74
Such courts particularly include the State High Court and Magistrate Court
75
See section 6 of the 1999 constitution on powers of superior courts of record
76
Akande J. Introduction to the Nigerian Constitution (Sweets and Maxwell, London. 1982) p. 6
77
U.S 346 at 361 (1911)
Consequently, a judgment of a court can either be declaratory or executor in form.
The difference in the two was well made per excellence by Idigbe J.S.C (of the
blessed memory) in Akunnia V Attorney General Anambra State78.

It is observable that majority of the court judgment in terms of enforcement of

human rights are executor in nature. The enforcement of human rights in that
regards strongly hinges on law enforcement agencies. To execute a court order or
award on litigation bordering on human rights, the police 79 will be requested to
bring forth such orders of judgment into evidence. Apart from the police, the
federal and each state government have officers called the sheriff and his deputy.
These two officers by virtue of the sheriff and civil processes law 80 are empowered
to enforce court orders relating to right of expression in various forms. For
instance, they can, in that connection issue court processes on judgment debto rs
like writs of execution, warrant, imprisonment, commitment, etc.

Specifically and with bias to enforcement of right of expression, it must be

mentioned that Section 46(1) and (2) of the 1999 Constitution made an elaborate
provision. The gist of the section is to the effect that any person whose right is
violated or that his right is likely to be contravened can go to court to forestall
contravention of his fundamental human right 81. Under the section, the High Court
of a state has also been invested with original jurisdiction to bear and determine
questions of human rights breach. So also is the federal High Court 82, provided the
alleged breach on ones right is brought to the notice of the court not later than
twelve months from the date of its occurrence. The fundamental right

78
(1977) 5 S.C 161
79
Police Act, Cap P19 LFN 2004
80
Section 104, 109 Cap.6.Vol 14 LFN 2004
81
In Balley v President of Nigeria (1982) 3 N.C.L.R 658, it was held that the scope of violation
Extend to rights already violated or would be violated.
82
Umaru Abba Tukur v Government of Gongola State (1989) 4 N.W.L.R (Pt.117) 617
(Enforcement Procedure Rules) 1979 was also marshaled into law 83 to regulate
rules of practice and procedure applicable to enforcement of human rights, and by
the authority of Ladejobi v A.G of the Federation84 any attendant inadequacy of
the Fundamental Human Rights Enforcement Procedure Rules can be
supplemented by the Rules of practice and procedures State High Court.

Exercise of the so called judicial powers by Nigerian courts is marked with

necessary trend of a metamorphosing nation. In the earliest cases of dispute on
right of expression immediately after independence, the judicial attitude was
counter productive to right of expression. This is particularly typified in the
decision of Chike Obi v D.P.P85 In this case, the court held that:

It is clearly legitimate and constitutional by means of fair

argument to criticize the government of the day. What is

not permitted is to criticize the government in a malignant

manner as described above for such attacks by their nature

tend to affect public peace

In the same year and on the same question of right of expression, a similar posture
was maintained by the court in the case of Queen v the Amalgamated Press of
Nigeria Ltd86.

However, with impact of civilization and democratization, Nigerian courts have

long changed their attitude in favour of right of expression87. Now, the position is

83
It should be noted that legislative competenc e on matters affecting the Act are settled on the Chief
Justice of Nigeria.
84
(1982) 3 N.C.L.R. 563
85
(1961) 1 All N.L.R. 186
86
(1961) 1 All N.L.R. 199
87
See the decision in State V Ivory Trumpet Co Ltd (1964) 5 NCLR 736
that right of expression subject to constitutional limit is at large. Honorable Justice
Olatawura J.C.A, (as he then was) opined the same when he said that those who
occupy sensitive positions must be prepared to face the public crit icism in respect
of their office so as to ensure that they are accountable to the electorate. They
should not be made to feel that they live in an ivory tower and therefore belong to a
different class. They are within their constitutional rights to sue for defamation.
But they should not use the machinery of government to invoke criminal
proceedings 88 .

Whereas these cases were decided in the escapade of our nations second republic
i.e. from 1979 to 1983, the quality of the law is still the same under our current
dispensation mutatis mutandis. So ebullient and charming are the courage of
present day judges that compliments trail their boldness in construing the nature
and character of right of expression provided in the constitution 89

On the whole, it is hoped that our judges will continue to civilize all tenet of right
of expression for greater democracy in Nigeria 90

3.2 INTERNATIONAL INSTRUMENTS ON THE RIGHT OF

EXPRESSION

3.2.1 THE UNITED NATIONS

(A) THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

AND RIGHT OF EXPRESSION (ARTICLE 19)
88
Ibid
89
See Nwabueze B.O. Nigerian Presidential Constitution, (Longman 1985 at p. 328)
90
It is hoped that very soon there will be Judicial pronouncement on laws like sedition
Human rights are international norms that help to protect all people everywhere
from severe political, legal, and social abuses. Examples of human rights are the
right to life, right to freedom of expression, the right to religion, the right not to be
tortured, and the right to engage in political activity. These rights exist in morality
and in law at the national and international levels. They are addressed primarily to
governments, requiring compliance and enforcement. The main sources of
contemporary conception of human rights are the Universal Declaration of Human
Rights (United Nations 1948) and the many human rights documents and treaties
that followed in international organizations such as, the Council of Europe, the
Organization of American States, and the African Union.

The Universal Declaration of Human Rights (1948) sets out a list of over two
dozen specific human rights that countries should respect and protect. These
specific rights can be divided into six or more families: security rights that protect
people against crimes such as murder , massacre, torture, and rape; due process
rights that protect against abuses of the legal system such as imprisonment without
trial, secret trials, and excessive punishments; liberty rights that protect freedoms
in such areas such as belief, expression , association, assembly, and movement;
political rights that protect the liberty to participate in politics through actions such
as communicating, assembling, protesting, voting, and serving in public office;
equality rights that guarantee equal citizenship, equality before the law, and non-
discrimination; and social (or welfare) rights that require provision of education
to all children and protections against severe poverty and starvation. Another
family that might be included in group rights, but subsequent treaties does. Group
rights includes include protections of ethnic groups against genocide and the
ownership by countries of their national territories and resources.
The Universal Declaration of Human Rights (UDHR) is a resolution of the UN
General Assembly and was adopted in 1948. As a resolution, it is not itself
formally legally binding despite common assumptions to the contrary. However,
the UDHR did establish important principles and values which were later
elaborated in legally binding UN treaties. Moreover, a number of its provisions
have become part of customary international law. Article 19 provides 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.

B) THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHT (1976) AND THE RIGHT OF EXPRESSION (ARTICLE 19)

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral

treaty adopted by the United Nations General Assembly on December 16, 1966,
and in force from March 23, 1976. It commits its parties to respect the civil and
political rights of individuals, including the right of expression, freedom of
religion, freedom of assembly, electoral rights and rights to due process and a fair
trial. As of April 2014, the Covenant had 74 signatories and 168 parties 91

The ICCPR is part of the International Bill of Human Rights along with the
Universal Declaration of Human Rights (UDHR) and the International Covenant
on Economic, Social and Cultural Rights (ICESCR)92

91
UN Treaty Collection: International Covenant on Civil and Political Rights. UN. 2009-02-24
92
Fact Sheet No.2 (Rev.1), the International Bill of Human Rights. UN O HCHR. June 1996.
http://www.unhchr.ch/html/menu6/2/fs2.htm. Retrieved 2008-06-02
The International Covenant on Civil and Political Rights is monitored by the
Human Rights Committee (a separate body to the Human Rights Council which
replaced the Commission on Human Rights, under the UN charter in 2006) with
permanent standing, to consider periodic reports submitted by member States on
their compliance with the treaty. Members of the Human Rights Committee are
elected by member states, but do not represent any State.

The main international treaty on civil and political rights, also known as ICCPR, is
very specific about the right to freedom of expression

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regard less
of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with
it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of
public health or morals.

By virtue of subsection (3) of Article 19 it provides that the right to freedom of

expression is not absolute.
THE EUROPEAN COVENTION ON HUMAN RIGHTS (1953) AND THE
RIGHT OF EXPRESSION (ARTICLE 10)

The European Convention on Human Rights (ECHR) (long title: Convention for
the Protection of Human Rights and Fundamental Freedoms) is an international
treaty to protect human rights and fundamental freedoms in Europe. Drafted in
1950 by the then newly formed Council of Europe,93 the convention entered into
force on 3 September 1953. All Council of Europe member states are party to the
Convention and new members are expected to ratify the convention at the earliest
opportunity. 94

Article 10 protects the right of every person to their expression. This right shall
include freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. In the case of
Lingens V Austria the European Court of Human Rights placed restrictions on
libel laws because of the freedom of expression provisions of Article 10 of the
European Conventions of Human Rights. 95 The first paragraph further provides
that the Article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises. The provision about licensing of
broadcasting, television or cinema enterprises, i.e. the states right to license the
media companies, was included because of the limited number of available
frequencies and the fact that, at that time, most European states had a monopoly of
broadcasting and television. Later Court decision held that due to the technical
progress in the last decades, the justification of these restrictions cannot be made

93
The Council of Europe should not be confused with the Council of the European Union or
The European Council. The European Union is not a party to the Convention and has no role
In the administration of the European Court of Human Rights.
94
Resolution 1031 (1994), on the honoring of commitments entered into by members states
When joining the Council of Europe.
95
(1986) 8 EHRR 407
by reference to the number of available frequencies and channels. The public
monopolies within the audiovisual media were seen by the Court as contrary to
Article 10, primarily because they cannot provide a plurality of sources of
information 96. The Court also held that devices for receiving broadcasting
information, such as satellite dishes, do not fall under the restriction provided for in
the last sentence of the first paragraph 97.

Paragraph 2 of Article 10 further provides that the right of expression may be

subject to certain formalities, conditions, restriction or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary.

THE INTER AMERICAN CONVENTION ON HUMAN RIGHTS (1979)

AND THE RIGHT OF EXPRESSION. (ARTICLE 10)

Everyone has the right to freedom of thought and expression. The right includes
the freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing, in print, in the front of the art, or
through any other medium of ones choice. Paragraph 2 of this article provides that
the exercise of the right provided for in paragraph 1 shall not be subject to prior
censorship but shall be subject to subsequent imposition of liability, which shall be
expressly established by law to the extent necessary to ensure:

96
Monica Macovei A guide to the implementation of Article 10 of the European Convention on
Human Rights, Human Rights Handbooks, No.2, January 2014.
97
Ibid
 1. Respect for the rights or reputation of others; or
2. The protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means,
such as the abuse of government or private controls over newsprint, radio
broadcasting frequencies, or equipment used in the dissemination of
information, or by any other means tending to impede the communication
and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2, public entertainments may
be subject by law to prior censorship for the sole purpose of regulating
access to them for the moral protection of childhood and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or religious
hatred that constitute incitements to lawless violence or to any other similar
action against any person or group of persons on any grounds including
those of race, color, religion, language, or national origin shall be considered
as offenses punishable by law.

Going by the provisions of Article 10 it is important to note that the freedom of

expression under the Inter-American Convention on human rights is not absolute
reason being that it could be derogated from under those grounds specified in sub
(5) of paragraph 2.

THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHT (1986)

AND THE RIGHT OF EXPRESSION (ARTCLE 10)
The African Charter on Human and Peoples Rights (also known as the Banjul
Charter) is an international human rights instrument that is intended to promote
and protect human rights and basic freedoms in the African continent.

It emerged under the aegis of the Organization of African Unity since replaced by
the African Union) which, at its 1979 Assembly of Heads State and Government,
adopted a resolution calling for the creation of a committee of experts to draft a
continent-wide human rights instrument, similar to those that already existed in
Europe (European Convention on Human Rights) and the Americas (American
Convention on Human Rights). This committee was duly set up, and it produced a
draft that was unanimously approved at the OAUs 1981 Assembly. Pursuant to its
Article 63 (whereby it was to come into force three months after the reception by
the Secretary General of the instruments of ratification or adherence of a simple
majority of the OAUs member states), the African Charter on Human and
Peoples Rights came into effect on 21 October 1896- in honour of which 21
October was declared African Human Rights Day.

The main African human rights instrument protects the right to freedom of
expression. The African Charter in Artic le 9 guarantees the right to freedom of
expression as follows:

1) Every individual shall have the right to receive information

2) Every individual shall have the right to express and disseminate his opinion
within the law.

It is also important to note that Freedom of expression imposes an obligation on

the authorities to take positive measures to promote diversity, which include
among other things-:
 availability and promotion of a range of information and ideas to the public;
pluralistic access to the media and other means of communication, including
by vulnerable or marginalised groups, such as women, children and
refugees, as well as linguistic and cultural groups;
the promotion and protection of African voices, including through media in
local languages; and
the promotion of the use of local languages in public affairs, including in the
courts.

The Charter also provides that No one shall be subject to arbitrary interference
with his or her freedom of expression. And that any restrictions on freedom of
expression shall be provided by law, serve a legitimate interest and be necessary in
a democratic society.

The freedom of expression under the African Charter is still not absolute, but it is
important to note that the only restrictions permitted on freedom of expression
shall be that provided by the law and not by any person. And that such restriction
provided by law must serve a legitimate interest and be necessary in a democratic
society.
 CHAPTER FOUR

CRITIQUE OF RIGHT TO FREEDOM OF EXPRESSION THROUGH

THE CASES AND LIMITATION TO THE RIGHT OF EXPRESSION IN
NIGERIA

4.1 INTRODUCTION

This chapter will focus on the judicial attitude towards the right to freedom of
expression by reviewing past cases of the Nigerian Judiciary so as to ascertain if
truly this right has been protected and promoted by the Nigerian judiciary, and also
recourse will be made to the available limitations of the right to freedom of
expression in Nigeria.

IFEANYI UKEGBU V N.B.C. & 3ORS

On the 30th Day of March, 2004, In the case of IFEANYI UKEGBU V N.B.C.98

the Director-General of the 1st respondent did a press briefing on the re-

transmission of foreign signals by Nigeria terrestrial broadcast stations and

announced that in keeping with the mandate of monitoring and regulating the

Nigerian airwaves, the 1st respondent has directed all terrestrial broadcast stations

in Nigeria who re-transmit live foreign news and news programmes to put an end

to the practice forthwith, in accordance with section 2(1)(k) of the National

98
(2007) NWLR 14
Broadcasting Commission Act99. The order was to take effect from 1st April, 2004.

According to the 1st respondent, the directive become necessary because of the

perspective the news and news magazines convey and the danger the broadcast

post to Nigerians national interest.

In the press briefing, the 1st respondent also noted the persistent issue of unverified

claims of miraculous healings on radio and television stations. The 1st respondent

insisted that all stations should ensure that their religious programmes conform

with the requirements of the Broadcasting Code and ordered that an advert

promoting religion in any form must present its claim especially those relating to

miracles in such a manner that it is provable and believable.

The appellant was very uncomfortable with the stance of the 1st respondent in the

press briefing. Consequently, he filed a motion on notice at the Feral High Court

under the Fundamental Rights (Enforcement Procedure) rules seeking inter alia a

declaration that the directive issued by the 1st respondent stopping the relay of

news and news magazine broadcasts from foreign stations by Nigerian terrestrial

stations effective from 1st April, 2004 is illegal, unconstitutional and a breach of

the appellants right to receive information as guaranteed by section 39(1) of the

1999 Constitution and Article 9(1) of the African Charter on Humans and Peoples

Rights (Ratification and Enforcement) Act; a declaration that the compliance by

99
CAP N11 LFN 2004
the 2nd respondent with the directive of the 1st respondent is illegal, and

unconstitutional, a breach and a denial of the appellants right to expression.

After hearing arguments on the motion on notice, the trial court dismissed the

application on the ground that it lacked merit. The trial Court held that the banning

of direct relay of foreign news in the National Broadcasting Code was justifiable

and in accordance with the provisions of section 39 of the 1999 Constitution.

Dissatisfied, the appellant appealed to the Court of Appeal.

In determining the appeal, the Court of Appeal considered the provision of Section

39 (1) and S46 (1) of the 1999 Constitution which state thus:

39(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

46(1) Any person who alleges that any of the provisions of this

Chapter has been, is being or likely to be contravened in any

State in relation to him may apply to a High Court in that State

for redress.

The Court of Appeal unanimously dismissed the appeal. It was further stated

that notwithstanding the Constitutional guarantee of right to freedom of

 expression in S.39 of the 1999 Constitution, it should be noted that the rights

under S. 39 of the Constitution are not absolute rights. The rights can be

regulated by S.45 of the Constitution when it comes to wireless, broadcasting,

television or films where public interest overrides.

TONY MOMOH V SENATE

In Tony v Senate 100, the plaintiff, editor of Daily Times, was summoned by the

Senate of the National Assembly to come and disclose the source of his

information of an article about how senators lobby for contracts from the executive

branch of government. The High Court held that any attempt to force the plaintiff

to disclose the source of his information, apparently given in confidence, is an

infringement on his freedom of expression without interference, guaranteed under

Section 36(1) of the 1979 Constitution (now S.39 of the 1999 Constitution).

100
(1984) 4 NCLR
On appeal by the Senate to the Court of Appeal, the court held that mere invitation

by the Senate did not infringe the fundamental right of the Respondent and that,

the press or any other medium of information cannot claim any right to

confidentiality of the source of their information in a proper investigation by a

house of the National Assembly or the police and the appeal was upheld.

INNOCENT ADIKWU AND ORS V. FEDERAL HOUSE OF

REPRESENTATIVES OF THE NATIONAL ASSEMBLY AND ORS

In Adikwu v Federal House of Representatives101, The applicants were

journalists who had published an article entitled Fraud- legislators claim salaries

and allowances for fictitious staff in a publication of Sunday Punch of 5th April

1981. The publications resulted in significant interest and charges were made that

the journalists had obtained their information illegally. The applicants denied this,

saying that the information on which they had based their article had been

volunteered by an unpaid source and that a firm promise was made to the source

that his identity would not be revealed.

The applicants then received an invitation from the House of Representatives to

appear to testify on the information contained in the aforementioned article. The

applicants claimed that the act of the House of Representatives amounted to an

101
(1982) 3 NWLR
interference with their rights to freedom of expression and claimed an absolute

privilege against official interrogation.

It was held by the Court that the right to freedom of expression can be relied on by

journalists not to reveal their source save in exceptional circumstances for example

where it is justified by an overriding requirement in the interest of defence, public

safety, public order, public morality, public health and for the purpose of

protecting the rights and freedom of other persons.

The Court emphasized the delicacy of the matter given that it was called upon to

resolve the conflicting claims of legislative power and of press freedom. The Court

emphasized the importance of freedom of expression, recalling that it was a

fundamental right that belongs to all. Furthermore the Court stated that the right

the right to freedom of expression entitles every person to own establish and

operate a newspaper or other medium for the dissemination of opinions and ideas.

It was the Courts duty to protect press freedom, and this included a freedom, and

this included a freedom to protect confidential sources of information.

The Court quoted with approval parts of the US Supreme Court case of Branzburg

V. Hayes102, which held the Court went on to declare that The Court considered

that legislative inquiries were subject to the constitutional demand that no

102
(1972) US 665, 408
legislative body shall make laws abridging freedom of speech or press. It would be

wrong simply to assume that every legislative inquiry is justified by a public need

which outweighs a constitutional right. It was the courts responsibility to ensure

that legislative bodies did not unjustifiably encroach upon fundamental rights

guaranteed under the Constitution.

In the case at hand, the Court saw no exceptional circumstances that would justify

compelling the journalists to reveal confidential information

4.2 DEFAMATION AS A LIMITATION TO RIGHT OF EXPRESSION

For purposes of defamation effectuated under the guise of right of expression, the

defamatory words must be so qualified before a reasonable man contemplated

above and in that regard, the ordinary and natural meaning of the words is to be

seen from the eyes of a reasonable man of ordinary intelligence guided by a

general knowledge and not from the eyes of a person who is fettered by legal rules

of construction or forced into an unreasonable interpretation 103. Of equal

importance to the doctrine of reasonable man in an essay of defamation vis --vis

103
Per Ounmola JCA in African Newspaper of Nig. Ltd vv Adamu Ciroma (1996) NWLR (pt. 432) 156
right of expression; is the fundamental question- what really constitutes

defamation? In other words, what are the essential ingredients of defamation?

In moulding the rudimental indices of defamation as per the above poser, a rough

and sketchy formula was established in the dual cases of Nigerian Textile Mills v

Punch104 and Omo-Bare Odukomaya 105. As a statement which tends to lower a

person in the estimation of right thinking members of the society generally to

whom they are published or the statement exposes him to public hatred, odium,

contempt or ridicule or it causes him to be shunned or avoided.

Recently, a better picture of the essentials of defamation emerged courtesy of the

Supreme Court decision in Sketch v Ajagbemokeferi106. In this case, the apex

court held that any action of defamation to succeed, the burden of proof lies on the

plaintiff to establish credible evidence to prove the following:

a. That the statement was defamatory of the plaintiff

b. That the statement referred to the plaintiff.

c. That the defendant actually published the statement complained of and

d. That the statement conveys a defamatory meaning to those to whom it was

published

104
Unreported
105
CCHCJ/573 at p.54
106
(1989)1 NWLW (pt.100)
Having said that, a brief explanation on the ingrediential value of the above

essentials of defamation will in turn be made at this juncture

As for (a) above, the requirement of the law was succinctly laid in the case of

Joseph Mangtup Din v African Newspaper of Nig. Ltd 107. In this case, the court

observed that the basis of complain in an action of defamation is that the plaintiff

must have been injured in his reputation, trade, business or profession in the

estimation of right thinking members of the society he belongs. The rule was also

extended to refer to the reputation of the plaintiff may unilaterally think of himself.

that is the requirement that the statement must refer to the plaintiff, it was

elaborated to include any reference to the plaintiff not necessarily by the name; it is

enough and sufficient if those who knows him understood the defamatory

statement to refer to no other person but himself 108

As appendage to this rule, reference to the plaintiff could also be scored by

referring to his sobriuent, initials, car registration number of caricatures. In Mrs

Eva Anike Akomolafe & Anor .V. Guardian Press Ltd. &.3 Ors 109 for instance,

mere references in cartoon of the plaintiff was held to be valid identification of

reference of the plaintiff as far as defamation of the plaintiff is concerned.

107
(1990) 3. NWLR (pt.139) at 392
108
A relevant authority for purpose of this point is the case of Nsirim (1999) 3 NWLR pt. 38 at 285
109
(2010) 1 SC (Pt 1) 74 1525
 However, the rule does not extend to those defamatory statements made to whole

class of people because of the difficulty in narrowing the effects of the defamatory

words to an individual member of that class. Judicially, a rule to that effect was

resolved in the following words:

the libel published of a large or indeterminate number

of persons described by some general name generally

falls to be actionable is the difficulty of establishing

that the plaintiff was in fact included in the defamatory

statement, for reason why the habit of making

unfounded generations is ingrained in ill-educated or

vulgar minds or the words are occasionally intended to

be a facetious exaggeration 110

Similarly, a writer 111 ventured to scheme the same principle when he argued that

this difficulty may yet be overcome by proving himself to be specifically

identified either because the group is so small that the accusation can

reasonably be understood to refer to each and every one of its members, or

because the circumstances of the publication permit the conclusion that it was

him who was aimed in a group.

110
Per Lord Atkin in Knuffer v London Express (1944) A.C.116 at 122
111 th
Fleming, The Law Of Torts, (6 Ed, The Law Book Publishing Company Limited, London. 1983)
The only exception is where the group is so small and reference to an individual

of that group is easily depicting his character or semblance as distinct from

those of the others.

It needs to be observed there that the liability should be stretched to cover class

of people who can be identified in whole and thus a defamatory matter directed

at them could easily be understood by reasonable members of the society as

referring to the group. For instance, would it not be defamatory to say the

entire petroleum tanker drivers of Maiduguri depot branch is economic

saboteurs, smugglers and black-marketers of petroleum products?

TYPES OF DEFAMATION

Since defamation is about defamatory statements made of plaintiff as

understood by members of the society, it means the way and manner it is

being made: the extent of their coverage and consumption by the society; and

the medium used to refer to the words complained of by the plaintiff can

easily be adopted to characterized a particular defamation at stake. This will

in turn yield the type or types of defamation abound in our jurisprudence.

Consensus of opinion by jurist and text writers has classified defamation into

two types. They are:

a. Libel; and
 b. Slander

It should be pointed out that a rather loose class has also emerged out of

slander. It is called vulgar abuse.

Vulgar abuse per se does not constitute slander. Whether or not it amounts to

slander generally depends on the circumstances of each case112. Vituperation

uttered on the heat of quarrel or brawl does not amount to vulgar abuse unless

otherwise suggested by the surrounding circumstances. The test for determines

the interpolation of vulgar abuse into slander is premised on the judgment of

the hearers of the speaker who in their opinion construes the vulgar abuse to be

defamatory orientation.

On the contrary, written vulgar abuse automatically qualifies as slander because

they were first mediated and released before uttered. It is also pertinent at this

juncture, to highlight the meaning of Libel and Slander.

In Law Libel was allocated meaning in OBrien v Clement 113 as

everything printed or written which reflects on the character of another, and is

published without lawful jurisdiction or excuse is a libel, whatever the

intention may have been while slander on the other hand was described as a

112
Compare and contrast the judgment of Bakare V Ishola (1959) ESCLR 194106 and the decision
Ubeanu V Uba (1972) 2 ESCLR 194 in order to appreciate how circumstances determine vulgar abuse
113
(1846) 15 M & W 435
false and defamatory statement concerning a person made by word of mouth or

in other transient form114 .

DISTINCTION BETWEEN LIBEL AND SLANDER

a. Slander is a defamatory matter conveyed in a transient manner

b. Slander is made by words and gestures only

c. Slander is business for the ear to conceive and comprehend

Whereas:

a. Libel is defamatory matter conveyed in a permanent form

b. Libel is made in writings or conveyed through signs, films effigy,

picture

c. Libel s business for the eyes to conceive and comprehend.

DEFENCES 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 such an allegation by way of

defenses. These defenses have the effect of impeaching the intent of

defamatory matter complained of and hence render nugatory and hollow the

114 nd
Burke, J.Dictionary of English Law (Sweet & Maxwell 1977) 2 Edition Vol 2
 substance of the action against the defendant. Either or all of these defenses

have the efficacy of exculpating the defendant of defamatory liability.

These defenses are enumerated hereunder:

a. Absolute privilege

b. Fair comment

c. Justification; and

d. Qualified privilege

Apart from the above defenses that are more popular and easily enforced,

another defense appears to be emerging. It is referred to as the defense of

innocence115

The defense of Innocence generally avail newspaper vendors, booksellers,

and libraries whose main thrust of business is disseminating information

materials. If therefore in the course of their business, they got involved in

disseminating libelous defamatory matters, they can raise the defense of

innocence.

Claiming among other things that:

i. They are ignorant of the libelous matter at the time of the business.

115
Ibid
 ii. They are not ordinarily negligent in not discovering the alleged libelous

matter in the normal cause of dissemination

The burden of proof therefore is on the defendant to lay evidence in order to

prove his ignorance of the libel and lack of negligence in not discovering the

libel.

As for the popular defenses, an explanation now follows:

a. The Defense of Absolute Privilege

This defense is usually in order not to inhibit free discussion without fear or

favour on matters of public interest or policy. It is employed where

defamatory matter is alleged in proceedings of court of law or legislative

houses. Where therefore the defendant was alleged to have defamed the

plaintiff in the event of the plaintiffs 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 same view was held in the case of Ojeme V Punch (Nig) Ltd. Where the

court held that:

A fair and absolute report in newspaper or proceedings held

before any court exercising judicial authority if published

 contemporaneously with the proceedings is absolutely

privilege 116

b. The Defense of Fair Comment

In the case of Mrs. Eva Anike & Anor.v. Guardian Press Ltd it was held that

Fair comment is an impartial observation, opinion or criticism on a matter of

public interest, currency, or disclosure, it is a dispassionate expression of

opinion on fact correctly stated.;

Therefore, it is a defence to an action for libel or slander that the statement

complained of was fair comment on a matter of public interest.117

The defence of fair comment is very important for the press who daily

examine, and comment on multifarious topics and people. Nonetheless, the

plea is for everyone generally and is based on the important need to preserve

fundamental right to freedom of expression for a person to comment on any

matter of public interest affecting the community or country.

For the defence of fair comment to succeed, the statement must meet the

following requirements;

116
(1996) NWLR (Pt. 427)701
117
(2010) 1 SC (Pt 1) 74 1525
 1. The matter must be a matter of public interest. For example, a matter is

of public interest, when it affects a large number of people or draws

their attention so that they may be legitimately interested in it, or what

is going on; such a matter of public interest on which everyone is

entitled to make a comment on fair comment.

2. The statement must be a comment or an opinion. The statement alleged

to be offensive must be a comment, observation, conclusion, or

opinion and not assertion of fact.

3. The comment must be based upon facts truly stated. That is, it must be

based on true facts as they existed in the subject matter under

consideration as they existed at the time of the comment was made.

The law is that you cannot invent untrue facts about a man and then

comment on them 118.

However, where in a defence of fair comment the defendant wishes to

prove that the facts upon which he commented are true, and therefore

wants to rely on the rolled up plea. Then he must in addition to fair

comment plead justification separately.

4. The comment must be honestly made. A comment may be fair for the

purposes of the defence of fair comment notwithstanding that it is

118
Ibid
 violent, exaggerated, biased or clearly wrong, provided it was honestly

made.

The determinant factor is not whether a reasonable man would hold such an

opinion, but whether he honestly expressed his genuine views.

5. The comment must not be motivated by malice. A plea of fair

comment will be defeated if the plaintiff proves that the defendant, in

making his comment was actuated by express malice 119

c. The Defense of Truth or Justification

Generally speaking, the defense of truth and justification possessed

inescapable semblance with the defense of fair comment discussed above.

The two are pivoted on facts and truth and for the same reason, overlap

one another. The defense of justification is of the opinion that no

allegation of defamatory matter shall subsist where the defendant

maintains that the defendant is true and justifiable in that regard. This

view expressed in Iwuoha v Okorike120.

Where it was held, that:

119
Ibid
120
(1996) 2 NWLR (Pt. 429) 321
 A plea of justification means that the words were true and

the plea covers not only the bear statements of facts in the

alleged libel but also any imputation which the word in their

contest may be taken to covey

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 in that escapade should be accorded protection

and security. Otherwise, baseless and unfounded actions of defamation

would be slumped indiscriminately against them and hence the society

would be without necessary checks and balance. 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 where alleged to have

committed defamation.

The defense of qualified privilege could be resorted to generally where the

defamatory matter complained or relates to those statements made in self-

 defense or in the performance of public obligation be it moral or legal; or

statements of legislation or judicial proceedings etc 121

Notwithstanding the clear cut defense afforded to the defendant in a case

of defamation as adumbrated above, it should be stressed also that the

following though not really defenses, properly so called, yet produce an

effect almost akin to the defenses proper. They jointly or severally support

the defendant in that the action for defamation against him is either not

heard or is struck out before the adjudicating court. Sometimes, they

helped in mitigating cost of damages as may be awarded against the

defendant tortfeasor by the adjudicating tribunal.

They include:

1. Plea of res judicata successfully raised by the defendant. Thereafter the

suit terminates as between the parties since it was presumed to have

been resolved intra parties by a preceding valid fact.

2. By the death of either the plaintiff or the defendant

3. By a published corrigendum or apology retracting or correcting the

alleged defamatory matter

121
Yakubu L.A, Press Law in Nigeria.Ikeja: Malthouse Press Ltd, 1999 Pg.9
 4. Delay in bringing the action before the court of competent jurisdiction

so much so that the action becomes statute barred 122.

4.3 SEDITION AS A LIMITATION TO RIGHT OF EXPRESSION IN

NIGERIA

In Nigeria just like in other African jurisdictions, the concept of sedition is

traceable to colonialism. At the time the idea ingrained, as to curtain any

form of campaign likely to embarrass or cause disaffection to her majesty

and the crown. Coupled to that, the law was oriented to nib the militant

anti- colonial movements whose conducts both in words and in actions

was to incite revolt and stir disorder against white colonial rule.

In independent Nigeria, sedition as an offence has been retained in our

statute book by virtue of Adaption of Laws Order, 1954 and the

Adaptation of Laws (Miscellaneous Provisions) Order 1964.

Hence it was provided under section 50(2) (a) of the Criminal Code

applicable in Southern Nigeria. Looking at the above provisions rather

122
Ibid
 seriously, it would appear as if the constitutional right of expression

provided for in the 1999 Constitution under section 39 has been limited by

these provisions. It doesnt seem practicable to, as the constitution

guarantees, hold opinions and receive and impart ideas and information

within the purview of the penal sections earlier mentioned without the

least interference by government. There is likelihood of conflict therefore

between the constitutional right of expression and provisions of the penal

code and criminal code on sedition as an offence. The bottom line in

distinguishing the two is only a matter of evidence. The intention of the

accused who purportedly exercise his right of expression would be the

reference point of the court. In Wallance Johnson v The King 123, a

formula to that effect was formulated in the following words:

Questions would necessarily arise in every case as to the facts

to which it is sought to apply to these definitions. Fine

distinctions may have to be drawn between facts which

justify the conclusions that the intentions of the person

charged was to bring into hatred and contempt the

government and facts which are consistent only with the

123
5 WACA 56 at p.60
 view that the intention was no more that to point out errors

or defects in government

In adopting this view, Araka J. in the case of Ivory Trumpet Towers Ltd

v The State124, dismissed a charge of sedition when the held that Sedition

law does not punish someone who makes a publication that merely

embarrasses the Government or the Governor.

His Lordship was also resolute in holding that the law of sedition does not

merely prohibits publications made pursuit to right of expression unless

that has the tendency to create disorder or disturbance of law and order or

causes or has tendency to cause incitement to violence having due regards

of the right of free speech guaranteed the citizen under section 36(1) of

the constitution 125

On the contrary, in DPP V Chike Obi126 however, the Supreme Court

wasted 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.

124
Ibid
125
Ibid
126
(1987) 1 All N.L.R. 186
Sometimes the court will be left to grapple for a rule that is sandwiched

between the laid down principles in the State v Ivory Trumpet Tower 127 supra

and the principles in Chike Obis case128. In simple terms, it means how will

the fate of the accused be decided who in a write-up or publication mixed

words that amounts to fair comment as dictated by the right of expression and

laced same with other words suggestive of incitement or disaffection to the

government in such an instance, a guide was postulated by Bairamain J. in

the case of I.G.P V Anagbogu129. His lordship emphasized that he who

writes an article with a seditious intention as defined in (a) to (d) cannot be

including in the article criticism which is legitimate under (i) to (iv) be

excused from a charge of writing a seditious article. Often enough a seditious

article does contain parts which are not seditious, these parts do not excuse

the article from being seditious.

In the line with the spirit of the above decision, sedition law has been a

common tool in the hands of successive government in Nigeria to harass

Nigerian press who unfortunately are acting under the exercise of the

constitutional right to speech. One cannot but cite a few instances 130

127
Ibid
128
Ibid
129
(1954) 21 NLR 26t
130
These acts to Imprisonment wer e reported by the committee for the defense of Human Right
In their 1995 annual report on the human right situation in Nigeria.
 Name of Newspaper/Magazine Terms of
imprisonment
Journalists s

Mr. Chris Anyawu Publisher TSM 15 years

Mr. Ben Charles Weekend Classigue 15 years

Obi

Mr. George Mba Tell Magazine 15 years

Mr. Kunle Ajibade The News Magazine 15 years

etc

CHAPTER 5
SUMMARY, CONCLUSION AND RECOMMENDDATION

5.1 SUMMARY

Right to freedom of expression as part of Human rights goes to the root of human

civilization and enlightenment. The concept of human rights was introduced into

the international community due to the outbreak of the Second World War.
Consequently, the war strengthened the conviction that the international

recognition and protection of human right was essential for international peace and

order. However, this led to the San Francisco conference 131 which produced the

United Nations Charter which ushered in a new international law of human rights.

Subsequently, the international bill of rights 132 was ushered in to promote and

protect rights of man everywhere in the world. These international law instruments

were however substantially reproduced in Chapter 4 of the 1999 Constitution and

entrenched as fundamental rights.

Right of expression as part of the fundamental human rights was first entrenched in

the constitution of the independent Nigeria in 1960 as recommended by the Sir

Henry Willink Commission on minorities and those other Constitution that

followed it. The independence constitution of 1960 and the republic constitution of

1963 have provisions for the protection of fundamental human rights. The 1979

and 1999 constitution went further by providing a bill of rights.

Constitutionally, right of expression is provided for in Section 39 of the 1999

constitution 133 where it is stated that every citizen has the fundamental right of

information, ideas, and opinions, including the right to own, establish and operate

any school or institution for imparting information, ideas and opinion.

131
San Francisco conference of 1945
132
Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966),
International Covenant on Economic, Social and Cultural Rights (1966)
133
Hereinafter referred to as the Constitution
 5.2 CONCLUSION

The findings in the foregoing chapters had revealed that the penal provisions on

sedition particularly section 50 of the Criminal Code as well as sections 416, 417,

418 and 419 of the penal code are couched in such a general language that portends

the likelihood of being abused by person of authority to stifle right of expression

notwithstanding its constitutional warranty.

Legislation like the Public Order Act, National Broadcasting Commission Act,

Nigerian Television Authority Act, News Agency Act, etc are manifest with rubric

of right of expression. For instance, it has been found that that only News Agency

of Nigeria has been empowered in he polity to retail news. This monopoly negative

the idea of free dissemination of information and ideas as guaranteed by the

constitution.

Punishing a newspaper with fine for peddling rumors and false news as constrained

under section 22 of the news as contained under section 22 of the Newspaper Act

has outlived realities of our time. Instead, we observed that person aggrieved by

rumors or false news of any newspaper publication should be allowed recourse to

civil law for redress.

The supervisory powers given to the Minister of Information under section 6 of the

National Broadcasting Commission Act are too wide and are capable of being

abuse to the extent of downplaying the right of expression of those

media/communication outfits whose policies are not congruent to the government

to the government of the federation. Consequently, we found that the said minister

may, at his wish, either refuse or revoke licenses of those companies he dislike

under one pretence or the other and this is tantamount to violation of her right of

expression.

In order to erect right of expression to the desired height, the various government

we have need to package a policy that will:

a. Ensure easy and affordable instruments of information dissemination

b. Encourage the citizenry through rigorous campaign and enlightenment to

participate in the business of information dissemination and exercise of

rights of expression.

The enforcement mechanism of expression under the United Nations International

Commission on Human Rights as well also the African Commission on Human

Rights as well also under the African Commission on Human Rights left much to

be desired.

5.3 RECOMMENDATIONS

The following recommendations aimed at refining right of expression in Nigeria

especially in our drive towards a free and democratic society becomes necessary

for a more efficient and purposeful law reform.

1. The concept of right of expression should be extended to specifically cover

such expressions as academic freedom as well as scientific findings. It

should also include artistic endowments. This section 39 of the 1999

constitution of the Federal Republic of Nigeria should be couched in words

to reflect and accommodate this recommendation.

2. The offence of sedition which has been sanctioned by both criminal and

penal codes should be amended in such clear terms as to indicate when does

right of expression becomes seditious in democratic practice and when it

can be used especially by overzealous leaders to clog freedom of expression

guaranteed by the constitution.

3. Right of expression partly entails dissemination of individual belief, culture

and religion. On this score, morality plays key role in synthesizing the

nature and character of right of expression in practice in our societies. To

achieve credible right of expression in Nigeria therefore, they should be in

place sound regulation put in place by government to ensure entrenchment

of morals in all means of information and communication. In particular, the

National Film and Publication Board should ensure that all broadcasting

matters in films, audio and visual reduction are well censored in accordance

with our rule of morality.

4. The government of the federation should continue to support independence

of the National Human Rights Commission in order to enable it achieve its

laudable objectives, among which are promotion, protection and monitory

of right of expression. Resources should be sufficiently availed to the

commission to carry out the task of upgrading right of expression in tune

with our democracy.

5. Non-governmental organization with specific interest right of expression

should from national formidable front in order to articulate a common

position that is gingered towards championing proper exercise and control

of right of expression. Ankle to this is tie need by the NGOs to sponsor a

campaign and enlightenment aimed at educating the citizenry on right to

speech. This could be easily attained if the NGOs enter into partnership

with government agencies such as the citizenry in our democratic pursuit

through information collection dissemination.

6. The practice of journalism in Nigeria accounts for the substantial

percentage in exercise of right of expression. With that in mind, particularly

with near absent of regulations on the practice of journalism as an

honorable and responsible profession, one cannot escape to make a call for

standardization of rules with regard to academic and age qualification

including training requirement of prospective journalist. It is thus

recommended in favor of the above that for a person to qualify as a

reporter, correspondent, columnist, editor in any medium of inform to such

a person must have a first degree in mass communication its equivalent or

in the alternative, shall posses a first degree from a recognized university in

Arts or Social services. In addition to that, the Press Council Act should be

amended with empowerment to organize a compulsory post-degree

programme of six month to be attended with empowerment to organize a

compulsory post-degree programme of six months to be attended and

passed by degree holders.