Criminal Defamation and Cyberstalking

Around August, 2021, a Youtube blogger/vlogger (Mr. Israel Balogun) was invited by the Nigeria Police, arrested and detained on account of his video criticising a renowned religious leader (Apostle Johnson Suelman of Omega Fire Ministry) over payment of miracle money by ‘angels’ to church members’ bank accounts (no pun intended). This video criticism was however characterized as defamatory, hate speech and cyberbullying against the person of the religious leader to which a petition was received and acted upon by the Police.

The reality of the above scenario takes root from the provisions of the Criminal Code Act and the Cybercrimes Act, 2015. By virtue of section 373 of the Criminal Code, any matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule or likely to damage any person in his trade is defamatory and is punishable with imprisonment. It still remains baffling to appreciate the continued retention of criminal defamation in our statute books today as an attack on a person’s reputation is a civil matter which can be adequately redressed under the tort of defamation. On the other hand, Section 24 of the Cybercrime Act prohibits offensive, indecent and annoying statements on the internet. In this way, several social media users and journalists have been harassed, arrested and charged for cybercrimes and other related offences. The dangers of the vagueness of the foregoing statutory provisions lie in the authoritarian attribute of the present Administration which favours arbitrary interpretation and use of ambiguous statutes against dissenting critics of the Government.

Conduct likely to cause public disorder/Breach of Peace

In August, 2016, a man named Joachim Iroko was charged before a Magistrate Court, Ota on the alleged offence of conducting himself in a manner likely to cause breach of public peace contrary to Section 249(d) of the Criminal Code Law when he christened and named his pet dog ‘Buhari’. Following his arrest and prosecution which sparked a nationwide outrage, I took up his defence pro bono upon which the matter was eventually dismissed against him. Just some days ago in the last week of October, 2021, I am now startled to the findings that in this age and time the Police command in Ogun state has charged a man for the offence of conduct likely to cause the breach of the peace for using/sending the word “Good morning Babe” on WhatsApp platform to a married woman. This depicts a classic example of the weaponization of statutory laws against free speech and expression whereby incitement or expression likely to cause public disorder is measured by the indiscretion of the Executives.

Renewed Muzzle on Freedom of Expression – Gains and Losses

It would seem that the present administration has not been satisfied with the use of extant statutory offences and criminal charges to checkmate free speech and the press. Under the Buhari-led administration, the Nigerian Broadcasting Commission (NBC) has commenced a crackdown on many broadcasting stations, sanctioning several stations for airing “inflammatory, divisive, inciting broadcasts, and media propaganda against the government.” In another nostalgic feeling of the militarized times in Nigeria, on the 26th of April, 2021, Channels TV station without any charge, trial or findings by any competent tribunal or court of law, was convicted by NBC for hosting a spokesperson of the Indigenous People of Biafra (IPOB) and slammed it with a fine. In its latest show of disregard for the rule of law the NBC has admonished media houses to refrain from reporting too much details and information on terrorist and insurgent-activities. It would appear that the extant Administration, despite enjoying the dividends of democracy, does not fully grasp the essence of true Democracy. Democracy is about the people and the people are at the very centre of democracy. Nigerian democracy, as we have it today, is however about the government. It is thus not a hard nut to imagine that in June, 2021, the Federal Government, seemingly responding to the deletion of the President’s statement on Twitter micro-blogging platform, suspended indefinitely the use of Twitter in Nigeria.

The aim of the present administration, as it is in the character of past administrations, is not necessarily to destroy free speech and the independence of the press, but rather to tame it. While it will be to the credit of the Government that hate speech, fake news and other harmful activities to one’s reputation would be reduced to the barest minimum, the seemingly long-term institutional and legal framework to regulate and control the right to free speech and expression will continue to have a far adverse impact and on the nation. The three main losses suffered under the stifling of free speech cannot be far-fetched. They are as follows:

i. Outright end/stoppage of Information

The immediate effect of curtailing the aforesaid right is the end to all forms of opinions, ideas, inspirations and information. Though fake, false and harmful expressions will be restricted, all other positive, innovative and most especially true statements/facts would be arrested. Hence the gains of criminalizing free speech will not be commensurate with the consequential loss of mankind-improving solutions, ideas and information. The outright ban of the operation of Twitter micro-blogging platform in Nigeria is apposite in this regard.

ii. Reinforces a state of Totalitarianism and Dictatorship

On Monday, July 26, 2021, the Department of State Services (DSS) supervised a guided media coverage of the trial of Nnamdi Kanu (leader of IPOB), who is facing terrorism and treasonable felony charges brought against him by the Federal Government at the Federal High Court, Abuja. The Security forces restricted the number of media houses by accreditation of few media organisations to cover the trial. About three months later, the same DSS did not only restrict media men but lawyers and the general public from gaining entrance into the Court pending the hearing of the criminal proceedings against Nnamdi Kanu. The above scenario is a rehearsal of a regime of military rule and dictatorship wherein the government of the day is a law unto itself. Not ending there, the Government, being in control and regulation of the press and free speech, has the sole monopoly of the ingress and egress of information in the polity.

iii. Violation of all other basic human rights

The end-result of the limitation of freedom of expression is the adverse interference of the enjoyment of other forms of human rights whereby one is stripped of the enjoyment of other corollary rights, such as the right to freedom of thought, conscience and religion. The collapse of freedom of expression, which is the foundation for the enforcement of other rights, spells the beginning of the end to true humanity and purposefulness of living.

The Role of the Court and the Criminalization of Freedom of Expression

As it could be gleaned from the constitutional and legal backings of the limitation of the right to freedom of expression, the aforesaid right can be curtailed by any law that is reasonably justifiable in a democratic society. However such law must pass the test of being reasonably justifiable to curtail the freedom of expression in the circumstance. Hence, as far back as the case of D.P.P v. Obi (1961) 1 All NLR 182, a court of law is not merely to rubber stamp the acts of the legislature, the court must be the arbiter of whether or not any particular law is reasonably justifiable. Hence, as held in the case of Olawoyin v Attorney of Northern Nigeria (1961) All Nigeria Law Report (NLR) 269, it is duty of the Court as sentinels to watch and ensure the protection of the fundamental rights of the citizens, and, in appropriate cases, guard against the infringement of those rights. The Judiciary is therefore the last resort empowered to strike down any statutory legislation/instrument which negates and is not consistent with the limited circumstances whereby the freedom of expression can be derogated from. In recent times, the Judiciary has lived up to its expectation in checkmating the excesses of weaponized statutory instruments against the aforesaid right.

An opportunity for the court to uphold the rule of law and secure the freedom of expression came up when a Katsina-born crusader, Mr. Mahdi Shehu was arrested and incarcerated by the Nigeria Police Force in December 2020 on account of the former’s petition alleging corruption and misappropriation of N52 Billion worth of funds by Governor Aminu Bello Masari. In an application before the High Court for the enforcement of his fundamental rights, a High Court of the FCT found the Nigeria Police Force liable for the infringement of Mr Mahdi’s fundamental right and awarded the sum of five million naira against the Police.

In the case of Incorporated Trustees of Laws and Right Awareness Initiatives v. Nigeria (Suit No. ECW/CCJ/APP/53/2018), the ECOWAS Court was faced with the legality of the provisions of Section 24 of the Nigerian Cybercrime Act, 2015. While the Applicants had argued that the said provision of the Cybercrime Act had been used on various occasions in violation of their right to freedom of expression, the court noted that the African Court on Human and People's Rights has held that the term “within the law” must be interpreted about “international norms which can provide grounds of limitations on freedom of expression”. The court, upon referring to relevant international standards concluded that the assessment of whether Section 24 was law required three necessary factors to wit:

(i) whether the provisions of the law was clear and predictable;

(ii) whether it pursued legitimate objectives, and

(iii) whether the law was of a necessity and proportionate to achieve those objectives.

In reaching its findings, the Court opined that “there was a strong precedent in Europe and the Americas for the proposition that criminal laws restricting freedom of expression should only be used as a last resort, and that restriction based on civil law was generally preferable”. Thus the Court wasted no time in concluding that “section 24 violated the right to freedom of expression under both Article 9(2) of the ACHPR and Article 19(3) of the ICCPR, and ordered Nigeria to repeal or amend the provision.”

Similarly, the ECOWAS Court has further recognized access to Twitter as a medium for the exercise of the right to freedom of expression and information. This was expressed in the on-going matter filed by Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria in the light of the Twitter ban.

Concluding Remarks

The immortal words of Luis Brandei of the United States Supreme Court in Whitney v. California (1927) 274 US 357, on the essence and value of freedom of expression in a given society should always guide the actions of executive institutions and government. I quote thus:

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed that freedom to think as you will and to speak as you think are indispensable to the discovery and spread of political truth… they recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment, that it is hazardous to discourage thought, hopes and imagination; that fear breeds repression, that repression breeds hate; that hate menaces stable government… and that the fitting remedy for evil counsels is good ones.”

•Ebun-Olu Adegboruwa (SAN) writes from Lekki Lagos.

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