As will be seen, the cases were decided before the Constitution of Nigeria 1999 came to force. However they are all still relevant for our purpose here because the provisions relating to the right to free expression and media in the 1999 Constitution are the same or similar to those in the previous 1979 Constitution under which some of those cases were decided. In addition, most of the criminal legislations interpreted in those cases are still in force. It is proposed to deal essentially with only the principles of law decided in these cases.
Sedition
The State v. The Ivory Trumpet Publishing Co. Ltd& 3 Ors.
The four accused persons were charged under section 51(1)(c) of the Criminal Code in an Information filed in the High Court with publishing in their newspaper an article with intention to bring into hatred or contempt, or to excite disaffection against the person of the Governor of Anambra State of Nigeria. The first accused was the publisher of Weekly Trumpet Newspaper; the 2nd accused was the printer of the newspaper; the 3rd accused was said to be author of the alleged seditious article whilst the 4th accused was the editor of the Newspaper. The article was titled “JUST BEFORE THE BATTLE”. After full trial, the court, in discharging and acquitting the accused persons, held:
— that the Sedition law does not punish anyone who makes a publication in the press when such publication merely embarrasses the government;
— that the sedition law prohibits a publication which has a tendency to create disorder, or disturbance of law and order or causes or has a tendency to cause incitement to violence having due regard to the right of free speech guaranteed under the Constitution.
Nwankwo v. The State
The accused person here was tried in the High Court summarily for the offences of “publishing seditious publications” and “distributing seditious publications”, both counts under section 51(1)(c) of the Criminal Code. After trial in the High Court, the Judge found the accused person guilty on both counts and sentenced him to 12 months imprisonment. The accused appealed to the Court of Appeal and, in discharging and acquitting the accused person, held as follows, that is: that a printer, publisher, seller, offer or for sale, distributor or reproducer of a seditious publication is not guilty of sedition if the intention to bring the government into hatred or contempt or to excite disaffection against the government is not alleged and established; i.e. that there cannot be a Seditious publication without a seditious intention.
Contempt of Court
In re: Ekpu & 5 Ors
The accused were cited for contempt under section 12(i)(a) of the Tribunals of Inquiry Act for the 1st accused article titled “A Hollow Ritual” contained in the weekly magazine called “Newswatch” The said article commented on the Tribunal that was trying the case of the former civilian President and Vice President of Nigeria. The Tribunal discharged the 2nd to 6th respondents but found the 1st accused guilty of contempt and sentenced him to a fine. In the process, the Tribunal held:
— that for a Journalist to write an article calling a Tribunal of Inquiry a kangaroo court is not a criticism of the Tribunal but a calculated attempt to destroy the very basis of the proceedings at the Tribunal and such article amounts to contempt of the Tribunal
In re: Onagoruwa
The appellant was cited for contempt for an article he wrote in a newspaper in respect of a pending case. He appealed and the Court of Appeal the appeal and held as follows:
— that if the hearing of a matter in court will not be grossly affected by the publication of an article in a newspaper, it is not proper to punish the writer and proprietor or the editor for contempt of court.
— contempt committed ex facie curiae being words published or acts done outside court which are intended or likely to interfere with or obstruct the fair administration of justice, a newspaper apparently prejudging a trial could clearly be prima facie contemptuous, but in deciding whether it actually offends the law, the court should act with caution and restraint and consider whether the hearing will in fact be grossly affected, particularly where the issue concerned is a civil one to be heard without a jury but solely by a judge trained to assess the evidence fairly and to arrive at a conclusion based on that alone.
Akinrisola v. Attorney-General, Anambra State
The appellant was the author of an article published in a newspaper in respect of a pending case. The Chief Judge of Anambra State considered the article contemptuous of his court and he summarily tried and convicted the appellant. He appealed and the Court of Appeal allowed the appeal and held as follows:
— generally where a publication is made which is likely to prejudice a fair trial or conduct of proceedings, contempt may be committed by any person responsible for the publication of the matter of which complaint is made. Thus, it is said the following persons may be held for contempt: editors, newspaper proprietors, publishers, printers, distributors and, in certain circumstances, reporters.
— that a publication of a general comment on a matter which is related to a court proceedings presided over by a trained judge and without any specific reference to the court of trial cannot be held to be contemptuous of the court.
Injurious Falsehood
Commissioner of Police v. Iweanya
Held: an editor or a publisher of a newspaper cannot be found guilty of the criminal offence of injurious falsehood under the Penal Code if the editor or publisher never intended to harm, or had reason to believe that the publication would harm the reputation of some person.
Obscene Publications
Commissioner of Police, Midwest State v. Igene & Anor.
The accused were tried on charges of having in their possession for purposes of exhibition obscene printed matters, to wit: magazines with obscene pictures which tend to corrupt morals and of exhibiting material that contained obscene pictures contrary to section 175(1)(a) and 175(1)(c) of the Criminal Code. They were acquitted by the Chief Magistrate before whom they were charged and the prosecution appealed to the High Court which held thus:
— a book or magazine or newspaper is not necessarily obscene merely because it is in bad taste or undesirable. An indecent, shocking or disgusting article may not necessarily deprave and corrupt
— the test whether obscene articles tend to deprave and corrupt is an objective test. No matter how obscene a publication is, it is a good defence to the charge if it can be shown that the publication is for the public good on the ground that it is in the interest of science, literature, art or learning.
Constitutional Provisions on the Rights of Freedom of Expression and Media Freedom
(a) Constitution of the Federal Republic of Nigeria, 1999
The Constitution of the Federal Republic of Nigeria which came into force on 29th May, 1999 is the supreme law of Nigeria and the fons et origo of Nigerian Jurisprudence.
The provisions regarding the press, mass media and the right to freedom of speech and expression are provided in two separate chapters.
Under Chapter II, S.22.
This section deals with obligation of the mass media, and states thus:
“The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the Government to the people”.
The said Chapter II of the Constitution which contains sections 13 to 24, is headed “Fundamental objectives and Directive Principles of state policy”. The position of Nigerian law as decided in many cases is that the said chapter II is at present non-justiceable, i.e. that it does not confer a right of action on any citizen to enforce in the court of law those provisions contained in sections 13 to 24.
See Olubunmi Okogie v. A.G., Lagos State
Under Chapter IV, s. 39:
Chapter IV is captioned “Fundamental Rights”. Section 39 under that chapter states as follows:
“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”.
(2) Without prejudice to the generality of subjection as of this section every person shall be entitled to own, establish and operate any medium for the dissemination of information, Ideas and opinions; provided that no person, other than the Government of the Federation or of a state or any other person or body authorized by the president on the fulfillment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever.
(3) Nothing in this section shall invalidate any law that is reasonable justifiable in a democratic society:
(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematography films, or
(b) imposing restrictions upon persons holding office under the Government of the federation or of a state, members of the armed Forces of the Nigeria police force or other Government security services or agencies established by law.
The importance and sanctity of S.39 as well as the whole of chapter IV which run from Section 33 to Section 46 have been widely recognised under Nigerian law and the courts have demonstrated sufficient inclination, determination and courage to enforce those rights where they have been violated or infringed upon or where there has been threat of violation or infringement.
(b) The African Charter on Human and Peoples’ Rights In the area of fundamental rights of citizens which include the right to information and press freedom, the “African Charter on Human and Peoples’ Rights” which was adopted by a charter signed by an Assembly of Heads of States and Government in Banjul Gambia in 1981 come second only to the Constitution of Nigeria, 1999. The charter has been made part of Nigerian law by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983, Cap A9 Laws of the Federation of Nigeria 2004.
Section 1 of the Act makes the provisions of the African Charter have force of law in Nigeria.
Article IX of the charter deals with of Rights to receive information and to express and to disseminate opinion. In the hierarchy of laws in Nigeria, the Act is superior to every other law save the Constitution of the Federal Republic of Nigeria. See:—
i. Abacha v. Fawehinmi (2000) 6 NWLR (pt 660) 228 ii. Abiodun v. A.G. Fed (2007) 15 NWLR (pt 1057) 359
Conclusion
It can be stated with some justification that the Right to freedom of expression and the press have come to stay in Nigeria. In spite of continued regulation, the Nigerian press is very robust and vibrant in criticism of public office holders and government actions and there is a perceived general tolerance on the part of government to such criticisms. This is not unconnected with the constitutional democracy that is in place. It is now 13 (thirteen) years that Nigeria returned to this round of civil rule. That is the longest period of uninterrupted civil rule in the history of Nigeria since independence. Hopefully, this will continue especially for the positive outlook that it portends for freedom of expression and press freedom in Nigeria.
Credit: Media Foundation for West Africa
