On the Issue of the Man Jailed for Insulting, Defaming Katsina Governor on Social Media

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.