The Right To Freedom Of Expression And The Press As The Nemesis Of Absolutism By Ogbu, Blessing Ekpere Esq.

As the world marks World Human Rights Day, it is imperative we sit down and reflect on the significance of this day, the relevance of these freedoms, their roles in the entrenchment and sustenance of constitutional democracy and how to preserve both the freedoms and this constitutional democracy.

The right to freedom of expression and the press has had a rather distinguished history. This right predates modern international and national protocols on its protection. For example, Smith, David in “Timeline: a History of Free Speech” argues that this right was present in the ancient Athenian democracy in the 5^th and 6^th century BC. Similarly, Raaflaub, Kurt; Ober, Josiah; Wallace, Robert in “Orgins of Democracy in Ancient Greece” espouse similar view.  On the other hand, M. P. Charlesworth in “Freedom of Speech in Republican Rome.” identified this right in the practices of the governments of the ancient Roman Republic and argued that this right appeared in conjunction with the right to freedom of religion. In the course of evolution of modern governments, this right found expression in several instruments. Some of those instruments include the English Bill of Rights of 1689, the Declaration of the Rights of Man and of the Citizen following the French Revolution of 1789, and the American Bill of Rights of 1791.

The Black’s Law Dictionary 6^th edition defines the right to freedom of expression in the context of freedom of speech as the ‘right guaranteed by the First Amendment of the U.S. Constitution to express one’s thoughts and views without governmental restrictions.’ The other half of this right, the freedom of press, is defined ibidem as the ‘right to publish and distribute one’s thoughts and views without governmental restriction as guaranteed by First Amendment of U.S. Constitution. Such right includes freedom from prior restraint of publication. There is little difference between “freedom of speech” and “freedom of press.”’

Perhaps, the best characterisation of this right can be found in the instruments themselves. Article XIX of the Universal Declaration of Human Rights 1948 states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”  The African Charter of Human and People’s Rights 1981 in Article IX provides that “(1) Every individual shall have the right to receive information. (2) Every individual shall have the right to express and disseminate his opinions within the law.” In Nigeria, the Constitution of the Federal Republic of Nigeria 1999 as amended (hereafter refer to as the CFRN 1999 as amended) encapsulates this right in section 39 where it is stated that:

“(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.

(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions;

Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever.

(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society –

(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of Courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or

(b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigerian Police Force or other Government security services or agencies established by law.”

Inherent in this right are four sub-denominations, videlicet: the right to hold an opinion, the right to seek ideas and information, the right to receive ideas and information, and the right to impart or disseminate these ideas and information.  These four components are inviolable as long as such are exercised within the perimeters of the law. While this right is exercisable without any interference, the proviso of this section ensures that the right to freedom of press as it relates to owning, establishing or operating a television or wireless broadcasting station must be done only upon the issuance of a licence to that effect by the President upon the fulfilment of the conditions laid down by an Act of the National Assembly. The Nigerian Brooadcasting Corporation is the agency of government through which the President exercises this power.

Of all the fundamental rights enshrined in the Constitution, the right to freedom of expression and the press is, arguably, the only right that has direct implications in a democracy, especially, in a constitutional democracy. As far back as 1787, Edmund Burke recognised the importance of the press in a modern government when, looking up at the press gallery in the House of Commons, he exclaimed: “Yonder sits the Fourth Estate, and they are more important than them all.” In the days of Burke, the known Estates of the Realm were the Lords Spiritual, the Lords Temporal, and the Commons. Today, the Estates of the Realm are the legislature, the executive, and the judiciary.

Commenting on this Burkian categorisation, the Court in Bulus v. Suleiman (HJ/136/1981 delivered on 28^th July, 1982) held that “But as was remarked by Edmund Burke in his own days, the press had become a political institution in its own right. It has assumed the status of the fourth estate of the realm in the hierarchy of governmental power structure, a posture which now dictates its view point in the characterisation of event.” Underlining the sublime and solemn obligations of the mass media as enshrined in section 22 of the CFRN 1999 as amended, the Court in Nigerian Textile Mills Ltd. v. Punch (ID/768/84) held in its Judgment delivered on 13^th June, 1986 that “The Press has social obligation and duty to write on public issues that would affect the economy of the country.” In Tarka v Sketch (1978) 2 CCHCJ 263, the Court held that “the issue of corruption by a public office holder is a matter of public concern and interest and any publication by a newspaper exposing such corrupt public officer is a service to the public and as long as the facts on which comments are based are correctly stated substantially by the Newspaper there is a complete defence of fair comment to a libel brought by such public office holder.”

This right is of vital significance to us as we mark the World Human Rights Day for a number of reasons. In Nigeria, the principles and hallmarks of a constitutional democracy have been attacked stridently by the executive. The judiciary has been subdued. The legislature has been compromised. The Press and citizen journalism, like a sturdy bulwark, stand between Nigeria and absolute tyranny. Allied with the press in this task are the citizens performing the role of citizen journalism in the exercise of their right to freedom of expression. As the conscience of the society, the exercise of this right makes the government uneasy. A government that detests responsibility and accountability to the electorates will always find the exercise of this right a threat to its legitimacy.

Why, then, would the government want to criminalise the right to freedom of expression and the press? One, as Shawn Boyne observes in “The Criminalisation of Speech in an Age of Terror”, the right to freedom of expression and the press is a central right of citizens in democratic states. Two, this is the right which, by its very nature, seeks to hold the government accountable to the citizens. Section 22 of the CFRN 1999 as amended provides that “the press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the people.” Three, a government that seeks to exercise absolute powers begins by constricting the civil space. Drawing inspiration from the American war on terror in the era of George Bush Jr, Boyne further observes ibidem that “while the process of labelling some organisations as terrorist organisations is in itself contentious, government actions that seek to inhibit individual freedom of expression also pose an even stronger threat to the role that free speech plays in democratic societies.” Predictably, the Nigerian government has consistently used the war on terror as a legitimate excuse to abridge these constitutionally guaranteed liberties.

In Nigeria, the onslaught by the government against private citizens, journalists and media houses that have exercised this right has been unrelenting. From citizens arrested for views expressed on social media platforms to journalists arrested for reports which the government, both at the Federal and the State levels, considered censorious, the roll call is frightening. The government’s determination to emasculate free speech is also seen in its fixation on what it calls the regulation of social media. To this end, two Bills, Protection from Internet Falsehood and Manipulations Bill 2019 sponsored by Senator Mohammed Sani Musa from Niger East and the Prohibition of Hate Speech Bill sponsored by Senator Aliyu Sabi Abdullahi representing Niger North, seeking to limit the use of the internet and the social media are before the National Assembly. Nigerians and civil societies have risen up to condemn the two Bills, arguing that the extant Nigerian criminal law is robust enough to punish infractions incidental or arising from the exercise of the right to freedom of expression and the press. In addition to the criminal sanctions imposed under the criminal law, the CFRN 1999 as amended makes provision for derogation from the fundamental rights enshrined in the Constitution. It is our submission that the two Bills do not meet the test of objectivity contained in the expression “any law that is reasonably justifiable in a democratic society,” especially the Prohibition of Hate Speech Bill which provides for the death sentence for speech considered hate speech.

I have always maintained that, contrary to the argument of the government that the exercise of this right may be detrimental to national cohesion, this right ensures that the citizens, like active volcanoes, let out stem. This process of political catharsis has a two-fold advantage: it gives the citizens a sense of participation in the formation of public policy; and it enables the citizens to express their displeasure with the government, thereby dissipating negative and destructive emotions. Thomas I. Emerson supports this position when he argued that this right provides a ‘balance between stability and change, as it acts as a “safety valve” to let off steam when people might otherwise be bent on revolution.’ Thus, attempts to criminalise speech and constrict the constitutional obligations of the mass media can only be counter-productive as such moves certainly will engender resentment against the government among the citizens.

What is the way forward? First, the mass media must be accorded unhindered freedom to fulfil their constitutional obligation under section 22 of the CFRN 1999 as amended. Citizens, too, must be allowed to exercise their right to freedom of expression and the press ‘without interference’ as enshrined under section 39(1) of the CFRN 1999 as amended. Second, we submit that it is an invitation to absolutism to enact laws that seek to criminalise political dissent and contrary views. In a democracy, especially a constitutional democracy, this is an anachronism. Sadly, that is what the two social media Bills seek to achieve. That these noxious Bills are receiving serious attention in the Senate is alarming. As Orji Sunday asked in “Nigeria’s Harsh Hate Speech and Social Media Bills are making Ordinary Citizens Nervous – and this is why,” published in Independent (UK), what is liberty without freedom of speech? Nigerians should stand up against this budding tyranny. Third, and as a corollary to the preceding recommendation, we submit that Nigeria has a robust criminal law corpus juris that can deal with unlawful – if such exists – exercise of the right to freedom of expression and the press. Further, the Constitution itself has an inherent mechanism for dealing with abuse of the exercise of these rights. Section 45(1) of the CFRN 1999 which provides for derogation from these rights provides that “nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invaliate 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.”  We submit that the two Social Media Bills are not reasonably justifiable in a democratic society. Moreover, section 6(6)(c) of the same Constitution allows any person, persons, group of persons or authority who believes their civil rights and obligations have been violated to approach the Courts for redress. Enacting dystopian legislations is antithetical to the democratic spirit Nigeria has nurtured and nourished since 1999.

As the world marks the World Human Rights Day, Nigerians should be vigilant and ensure that the right to freedom of expression and the press, the watchdog of the nation’s democracy and the conscience of the nation, is not eroded by the government. It is this conscious vigilance that can save Nigeria from this emergent absolutism and a recrudescence of dystopian totalitarianism.

Ogbu, Blessing Ekpere Esq. writes in from Abuja

legalmindogbu@gmail.com, sir_ideology@yahoo.com