The recent arrest of Abubakar Sidiqu; a blogger, by operatives of the Economic
and financial Crimes Commission (EFCC) supposedly because of a post which is
critical of the EFCC Chairman has brought to the fore once again the issue of
freedom of expression and defamation especially on the Internet.
The 1999 Constitution
of the Federal Republic of Nigeria (as amended) under section 39(1) provides
for freedom of expression. But under section 39(3) the right to freedom of
expression could be restricted by a law reasonably justifiable in a democratic society,
for the purpose of preventing the disclosure of information received in
confidence or for the purpose of maintaining the authority and independence of
the courts and also section 45(1) which provides that nothing in section 39
shall invalidate any law that is reasonably justifiable in a democratic society,
in the interest of defence, public safety, public order, public morality or
public health; or for the purpose of protecting the rights and freedom of other
persons.
Therefore
the test to determine whether a law which limits freedom of expression is
constitutional or otherwise is whether the law is:
· (a) reasonably justifiable in
a democratic society;
· (b)for the purpose of
preventing the disclosure of information received in confidence;
· (c)for the purpose of
maintaining the authority and independence of the courts;
· (d)in the interest of defence;
· (e)in the interest public
safety;
· (f)in the interest public
order;
· (g)in the interest public morality;
· (h)in the interest public
health; or
· (i)for the purpose of protecting
the rights and freedom of other persons.
The question
that follows therefrom is whether the following laws which tend to limit
freedom of expression meet or do not meet the constitutional criteria for a law
limiting the freedom of expression as provided in section 39(3) and 45(1) above
mentioned. The laws are as follows:
Section 24
of Cybercrime (Prohibition, Prevention, Etc.) Act, 2015 which provides that:
“Any person who knowingly or intentionally sends a message or other
matter by means of computer systems or network that -
(a) is grossly offensive, pornographic or of an indecent, obscene or
menacing character or causes any such message or matter to be so sent; or
(b) he knows to be false, for the purpose of causing annoyance,
inconvenience danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred, ill will or needless anxiety to another or causes such a
message to be sent: commits an offence under this Act…
(2)Any person who knowingly or intentionally transmits or causes the
transmission of any communication through a computer system or network –
(a)to bully, threaten or harass another person, where such communication
places another person in fear of death, violence or bodily harm or to another
person;
(b)containing any threat to
kidnap any person or any threat to harm the person of another, any demand or
request for a ransom for the release of any kidnapped person, to extort from
any person, firm, association or corporation, any money or other thing of
value; or
(c)containing any threat to harm the property or reputation of the
addressee or of another or the reputation of a deceased person or any threat to
accuse the addressee or any other person of a crime, to extort from any person,
firm, association, or corporation, any money or other thing of value: commits
an offence under this Act…”
Section 391(1) of the Penal Code for Northern
Nigeria which provides as follows:
“whoever by words
spoken or reproduced by mechanical means or intended to be read or by signs or
by visible representations makes or publishes any imputation concerning a
person, intending to harm or knowing or having reason to believe that such
imputation will harm the reputation of such person is said, save in the cases
hereinafter excepted, to defame that person.”
Section 391(2)
provides for instances which are an exception to sub-section 1 above.
Section 393(1):
“Whoever, save as hereinafter expected, by words either
spoken or reproduced by mechanical means or intended to be read or by signs or
by visible representations makes or publishes any false statement of fact,
intending to harm or knowing or having reason to believe that such false
statement of fact will harm the reputation of any person or class of persons or
of the Government authority in the Northern Region shall be punished with
imprisonment.
(2) It is not an offence under this section
to make or publish in good faith a false statement of fact which the accused
had reasonable grounds for believing to be substantially true and proof that he
had such reasonable grounds shall lie on the accused.”
Section 394:
“Whoever prints or engraves any matter or prepares or
causes to be prepared any record for the purpose of mechanical reproduction of
any matter, knowing or having good reason to believe that such matter is
defamatory of any person shall be punished with imprisonment for a term which
may extend to two years or with fine or with both.”
Section 395:
“Whoever sells or offers for sale any printed or engraved
substance containing defamatory matter or any record prepared for the purpose
of the mechanical reproduction of defamatory matter, knowing that such
substance or record contains such matter, shall be punished with imprisonment
for a term which may extend to two years or with fine or with both.”
The Criminal Code for Southern Nigeria also criminalises defamation. See sections 373 to 381
of the Criminal Code. See also chapter 7 of the Criminal Code which deals with sedition
and the importation of seditious or undesirable publications. Chapter 7 contains offences such as publication of false news with intent to cause fear and alarm to the public. Section 59(1) provides that any person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that such statement, rumour or report is false is guilty of a misdemeanour and liable on conviction to imprisonment for three years.
Furthermore Section 60 provides that any person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any sign or visible representation, tending to expose to hatred or contempt in the estimation of the people of any foreign State any person exercising sovereign authority over that State is guilty of a misdemeanour, and is liable to imprisonment for two years.
Furthermore Section 60 provides that any person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any sign or visible representation, tending to expose to hatred or contempt in the estimation of the people of any foreign State any person exercising sovereign authority over that State is guilty of a misdemeanour, and is liable to imprisonment for two years.
As can be read from above provisions, apart from section 24 of the Cybercrimes Act 2015, sections 391 and
393 of the Penal Code and sections 59 and 373 of the Criminal Code could be used to
clamp down on a blogger or any person who posts contents considered to be
defamatory or constitutes injurious falsehood under the Penal
Code.
In 2012 Abbas Faggo was arrested and charged
to court under section 393 of the Penal Code for the alleged Facebook publication, which the Attorney-General and Commissioner
for Justice, Mr. Almustapha Suleiman described as “injurious falsehood and
defamation to Yuguda’s (Bauchi State Governor) administration.” Abbas Faggo was alleged to have posted comments on his Facebook account
about monumental corruption in the state. He was alleged to have specifically
commented on the funding of the wedding ceremony of the eldest son of Governor
Isah Yuguda, Idris Yuguda, ostensibly with public funds.
In spite of
the above many commentators while often condemning the provisions of section 24
of the Cybercrimes Act, 2015 as been unconstitutional often ignore the fact that even
before the Cybercrimes Act, 2015 there was and there are still other laws which restrict
the freedom of expression and they could be used to clamp down
on bloggers and social media users who post content which the government
considers to be critical of it.
The Supreme
Court of India in May, 2016 in the case of Subramanian Swamy v. Union of India held that section 499 of the Indian Penal Code (IPC) which
criminalizes defamation is constitutional and not a breach of freedom of
expression. Section 499 of the IPC is the same and contains the exact wording as
391(1) of the Penal Code.
In that case the petitioners, Subramanian Swamy and Rahul Gandhi, argued that sections
499 and 500 of the IPC dealing with criminal defamation have an
"inhibitive effect” on freedom of speech and expression, particularly
political speech. The two leaders, who have been charged with criminal
defamation under section 499 and 500 of the IPC for their political speeches contended
that the colonial law enacted in the 19th century has become "unreasonable
and arbitrary” in independent India and was continuing without debate or a test
on its constitutionality.
The stand
of the petitioners that defamation be treated as a "civil wrong” was opposed by the Government which advocated retaining sections 499 and 500 in the
IPC, saying that criminal defamation works as deterrent against growing tendency
to defame people through social media. While
describing the penal provisions as "deterrent", the government had defended
their retention on the grounds that while in other countries, defamation cases
are decided very fast, in India it takes years even decades before they reach
conclusion.
In another
Indian case of Shreya Singhal and Ors. vs Union of India the Supreme
Court of India was called upon to decide on the constitutionality of section
66A of the amended Information Technology Act of 2000 (which is similar; though
not in exact words, but in effect or substance with portions of section 24 of
the Cybercrimes Act). Section 66A defines the punishment for sending
“offensive” messages through a computer or any other communication device like
a mobile phone or a tablet. A conviction can fetch a maximum of three years in
jail and a fine. The section specifically provides that:
"Any person who sends, by means of a
computer resource or a communication device, —
(a)
any
information that is grossly offensive or has menacing character; or
(b) any information which he knows to be
false, but for the purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will,
persistently by making use of such computer resource or a communication device,
(c)
any
electronic mail or electronic mail message for the purpose of causing annoyance
or inconvenience or to deceive or to mislead the addressee or recipient about
the origin of such messages, shall
be punishable with imprisonment for a term which may extend to three years and
with fine."
In the case under reference two
women were arrested by the Mumbai police in 2012 for comments on they posted on
Facebook. The arrested women were released later on and the criminal cases
against them dropped yet their arrests attracted widespread public condemnation.
It was felt that the police had misused its power by invoking Section 66A inter
alia contending that it violates the freedom of speech and expression.
The Supreme Court of India in declaring
section 66A unconstitutional held that that the terms:
"annoying,
offensive, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill-will" used in the section were vague
and indefinite… If judicially trained minds can come to diametrically opposite
conclusions on the same set of facts it is obvious that expressions such as
“grossly offensive” or “menacing” are
so vague that
there is no
manageable standard by which a person can be said to have committed an offence
or not to have committed an offence.
Quite obviously, a prospective offender of Section 66A and the
authorities who are to enforce Section
66A have absolutely
no manageable standard by
which to book
a person for
an offence under Section 66A. This being the case,
having regard also to the two English
precedents cited by
the learned Additional
Solicitor General, it is clear that Section 66A is unconstitutionally
vague”.
The court further held
that:
"Governments
may come and Governments may go but Section 66A goes on forever. An assurance
from the present Government even if carried out faithfully would not bind any
successor Government. It must, therefore, be held that Section 66A must be
judged on its own merits without any reference to how well it may be
administered," the bench observed while striking down the law.
"...We, therefore, hold that the section is unconstitutional also on the
ground that it takes within its sweep protected speech and speech that is
innocent in nature and is liable therefore to be used in such a way as to have
a chilling effect on free speech and would, therefore, have to be struck down
on the ground of over-breadth."
Whereas the offence of criminal defamation has been held to
be constitutional in India and section 66A which is similar to portions of
section 24 of the Cybercrimes Act 2015, has been held to be unconstitutional
also in India, it would be interesting to see how the Nigerian courts would
decide on the constitutionality of sections 391(1), 393 of the Penal Code, sections 59 and 373 and of the Criminal Code and section 24 of the Cybercrimes Act, 2015 earlier stated if their constitutionality is challenged. The decision
in the India cases may be highly persuasive to a Nigerian court deciding on the
constitutionality of the Nigerian laws above mentioned.
The United Nations Special
Rapporteur on freedom of expression, David Kaye on the 3rd May 2016 in
a speech to commemorate the World Press Freedom Day, said:
“Some governments target
journalists, bloggers, political dissidents, activists and human rights
defenders as ‘extremists’ or ‘terrorists’, criminalizing and detaining them,
using legal systems to counter broad and unclear offences. The harm is felt not
only by journalists but also by their audiences, the public that deserves the
right to know and to access information of public interest. Freedom of
expression plays a critical role in promoting equality and in combating
intolerance, and the role the media, the Internet and other digital
technologies play in keeping society informed is essential.”
It is hereby recommended that social media activists, human
rights advocate and civil liberties organizations should avail themselves of the
option of public interest litigation provided under the Fundamental Rights
(Enforcement Procedure) Rules
2009 which has drastically
increased the potentiality of the
public interest litigation as peoples’ tool against abuse of powers in governance, to challenge the
constitutionality of Nigerian laws especially those that have been highlighted
in this article, which restrict or limit the freedom of expression guaranteed by
the Constitution.