In a previous blog post last year, I stated that:
“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 online considered to be defamatory or constitutes
injurious falsehood under the Penal Code or Criminal Code.”
The
aforementioned provisions of the law now appear to be one ready tool employed
by political office holders to silence or clamp down on anyone who criticizes
them or their policies. Instances of such use abound as indicated in the Freedom on the Net 2016 report.
It never
occurred to me that sections 114 and 399 of the Penal Code could also be used
to achieve the same purpose; which appears to be to stifle public censure or
criticism of the government or conduct of political office holders as indicated
by the news that one Gambo Saeed has been sentenced to nine
months imprisonment for
insulting and defaming the character of Gov. Aminu Masari of Katsina State on
social media.
Section
114 of the Penal Code provides that whoever does any act with intent to cause
or which is likely to cause a breach of the peace or disturb the public peace
shall be punished with imprisonment which may extend to two years or with fine
or with both.
Furthermore,
section 399 of the Penal code provides that whoever intentionally insults and
thereby gives provocation to any person intending or knowing it to be likely
that such provocation will cause him break the public peace or commit any other
offence shall be punished with imprisonment for a term which may extend to two
years or with fine or with both.
Whether
the aforementioned laws as contained in the Penal and Criminal Code handed down
to us by our colonial masters are still relevant today or whether they are
constitutional is up for debate. However it is worth noting that about 34
years ago in Arthur Nwankwo vs The State,
the Court of Appeal, while declaring the law of sedition inconsistent with the 1979
Constitution per
Olatawura JCA held that:
“Those who occupy sensitive
posts must be prepared to face public criticisms in respect of their office so
as to ensure that they are accountable to the electorate ... They are within
their constitutional rights to sue for defamation but they should not use the
machinery of government to invoke criminal proceedings to gag their opponents
as the freedom of speech guaranteed by our constitution will be meaningless. As
long as the constitution is not suspended, and this is not done in democratic
society, freedom of expression should be protected ... It should not be
misunderstood that the freedom under this constitution is a license for
defamation as it is equally guaranteed that those who run foul of the law of
defamation cannot call in aid this freedom…It is my view that the law of
sedition ... is inconsistent with the 1979 Constitution more so when this
cannot lead to a public disorder as envisaged under s.41(a) of the 1979
Constitution. We are no longer the illiterates or the mob society our colonial
masters had in mind when the law was promulgated ... The decision of the
founding fathers of this present constitution to guarantee freedom of speech,
which must include the freedom to criticize, should be praised, and any attempt
to derogate from it except as provided by the constitution must be resisted
...Criticism is indispensable in a free society.”
The
court from the above holding appears not to be in support of criminal
defamation laws provided for under our penal laws and thus stated that “…they
are within their constitutional rights to sue for defamation but they should
not use the machinery of government to invoke criminal proceedings to gag their
opponents as the freedom of speech guaranteed by our constitution will be
meaningless." Be that as it may, criminal defamation is
nevertheless still being used across the country by occupiers of
"sensitive posts" to gag those who criticize them.
It is worthy to note that whereas many social media and legalcommentators have often condemned the provisions of section 24 of the
Cybercrimes Act, 2015 as being unconstitutional and a tool to be used to impair
freedom of expression, they ignore the other potent laws earlier mentioned
which have the effect of restricting the freedom of expression and can as well
be used to gag political opponents or public criticism of government.
It
is curious that many civil society groups or organisations/individuals who
claim to be human rights advocates have not found it worthy to challenge the
constitutionality of criminal defamation in Nigeria. However, some civil society
organisations (Paradigm Initiative Nigeria, Enough is Enough Nigeria and Media
Rights Agenda) seem to have woken up to their responsibility and they
challenged the constitutionality of section 24 of the Cybercrimes Act, 2015
which can and is being used as a machinery of government to invoke criminal proceedings to gag opponents and severely limit public censure of government or
those occupying "sensitive posts" as highlighted in the Freedom on
the Net report earlier cited.
In The Incorporated
Trustees of Paradigm Initiative for Information Technology Development & 2
Ors vs Attorney General of The Federation & 2 Ors, a case filed
by the civil society organisations aforementioned, the applicants sought a declaration
that section 24 of the Cybercrimes Act is in violation of section 39 of the
Constitution of the Federal Republic of Nigeria 1999 (as amended) which
protects the right to freedom of expression and information. However, the court
held that section 24 is not unconstitutional as by section 45 of the
Constitution, the right to freedom of expression and information is not
absolute and same can be curtailed by a law that is reasonably justifiable in
democratic society for the interest of defence, public safety, public order,
public morality or public health or for the purpose of protecting rights and
freedom of other persons. According to the court, section 24 been one of such
laws reasonably justifiable in a democratic society, is not unconstitutional.
Specifically
in the words of the court, it held at pages 13 through 15 of the judgement that:
“...it is pertinent to
ask, what rights the Applicant (sic) is seeking to protect and how have
sections 24 and 38 of the Cybercrimes Act violated these rights? The Applicant
(sic) is seeking a declaration that section 24 of the Cybercrimes Act is in
violation of section 39 of the Constitution which protects the right to freedom
of expression and information. It is my firm view that the wordings of section
24(1)(a) of the Cybercrimes Act is clear, straightforward and unambiguous. In
simpler terms, all that section 24 is saying is that if anyone who causes to be
sent or is found sending an offensive message or a message with pornographic or
obscene content which is of a menacing character, such a person shall be liable
to a term of not more than 3 years and a fine not more than N7,000,000.00.
Section 24 (1) (b) of the Cybercrimes Act provides that any person who
knowingly transmit or causes transmission of any communication in order to
bully, threaten or harass another person or places the person in fear of death,
violence or bodily harm commits an offence under the Act... According to
section 45 of the Constitution and from the authorities cited above, I presume
Counsel understands that the fundamental rights of citizens as guaranteed and protected
under the Part IV of the Constitution are not ultimate. They suffer certain
derogations, restrictions and limitations. Therefore, the question I find
myself asking is whether the provisions of sections 24…of the Cybercrimes Act
fall within the said exceptions? The answer to the foregoing has to be a
resounding YES!...one of the protection that section 45 of the constitution
aims to provide is public safety, public order, public morality or public
health and for the purpose of protecting rights and freedom of other persons.
It seems to me that the provisions of the section 24 of the Cybercrimes Act
seek to protect the society at large regardless of the fundamental rights of
the citizens.”
The
applicants have appealed against the above judgement. I await
the judgement of the Court of Appeal.
CONCLUSION
It is
instructive to note that even if section 24 of the Cybercrimes
Act, 2015 is declared
unconstitutional on appeal it would not yet be Uhuru for freedom of expression
advocates as criminal defamation and insult laws would still be available for use to gag
or silence those critical of the government or occupiers of sensitive posts or
elected public office holders.