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.
“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.”
“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.”
“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.
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:
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.
Timothy Tion attended the Benue State University, Makurdi and Nigeria Law School where he obtained an LL.B and BL respectively. He has an avid interest in the intersection of law, information and communications technology or techno-legal issues. He also blogs via Naija Cyber Lawyer
Ed's Note - This article was originally published here.