Kaine Agary

If you have been following the news and keeping up with recent arrests of some people in the media/information dissemination sectors, you will agree with me that these are perilous times for activists and media professionals. Perilous because their exercise of their constitutional right to express themselves may lead to an arrest, trial and imprisonment.

While in America, under the Donald Trump administration, critics of the government may suffer a barrage of tweets from President Trump, in Nigeria, criticising the government may get you locked up. The 1999 Constitution of the Federal Republic of Nigeria as amended provides for certain fundamental rights including the Right to Freedom of Expression and the Press under Section 39. However, as it has been said time and time again, our fundamental rights are not absolute. Our rights end at the point where another person’s rights begin. And so when the Constitution gives us fundamental rights with its right hand, the same Constitution limits those rights with the left hand of Section 45, which restricts and derogates from the fundamental rights granted.

The offence of Sedition is still on the books in Nigeria, in both the Criminal Code and the Penal Code and the issue of its constitutionality has been settled by the courts. Sedition is any conduct, speech or writing that incites rebellion against or resistance to government or other lawful authority. In upholding the constitutionality of the offence, the courts have considered the need to balance the interests of the individual right to freedom of expression with the interest of the government to maintain peace, security and order and have decided. In fact, the National Assembly and some state legislatures are continually looking for ways to limit the right to freedom of expression and it seems they have sufficient cover to do so under Section 45 of the Constitution.

Section 45(1) of the Constitution provides that, nothing in sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate any law that is reasonably justifiable in a democratic society

(a)in the interest of defence, public safety, public order, public morality or public health; or(b) for the purpose of protecting the rights and freedom of other persons.

Who decides what is in the interest of the public, public order, etc? Certainly not the person who is trying to vindicate his right to express his thoughts and opinions. It is the government that decides what is in the public interest, and it would not be a stretch to say that the public interest is a fluid concept that changes depending on who is in power in government and how sensitive they are to public engagement.

In the Court of Appeal case of Aviomoh v COP & Anor (2014) LPELR-23039(CA), Abubakar Datti Yahaya, J.C.A., had this to say:

“It is correct that the freedom of expression and freedom to hold opinions, are rights accruing to Nigerian Citizens. Section 39(1) of the 1999 Constitution as amended provides: – “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” It is also correct, as submitted by learned counsel to the appellant, that Section 39(3) of the Constitution does not diminish the rights in Section 39(1) of the Constitution. However, Section 45(1) of the Constitution is very clear in its limitations. It states thus – “Nothing in Sections 37, 38, 39, 40 and 41 of the Constitution 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.” What the above means, is that Section 39 of the 1999 Constitution as amended, which is relevant for our purposes here, cannot operate, to invalidate any law promulgated by any legislative body, when that law is made in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons. So when Section 39(1) of the Constitution entitles a person to freedom of expression and imparting ideas and information, it is not a blanket right.

It must not be utilised or invoked in such a way, that it offends public safety, order, morality and health, and it must not be injurious to the rights and freedom of other persons. Once a person lives in a community, his rights stop where the rights of the other members of the community begin. He has to behave according to the norms of that society, otherwise his conduct will be injurious to the wellbeing and continued existence of that community. He cannot, in the guise of exercising his freedom of expression or imparting information, trample upon the rights of other persons in the society. He must not act in such a way, that he defames their character or endanger their safety, health, order or morality. The Constitution recognises the fact that if such a person acts to the detriment of others, he can be liable in a civil action, but the issue goes beyond the right of an injured individual to act and the whole society has to be involved to protect itself. Hence, criminalising such conduct of the individual. That is why Section 45(1) of the Constitution was promulgated.”

I agree that it is important to protect the public interest, but some of the arrests being made and the attempts at regulating free speech take one’s mind to a time in our history that we would all rather forget. We could all sit back and fold our arms and say nothing, but the problem with that is that we are all travelling in this vehicle called Nigeria. If the driver and his conductor(s) lead us into a ditch, we will all suffer injuries. We must therefore be allowed to call out to the driver and the conductor(s) once in a while to ensure that the vehicle in still on the right course.

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