Académique Documents
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INTRODUCTION
Human rights are moral principles that set out certain standards of human behavior,
and are regularly protected as legal rights in national and international law.1
Human right goes to the root of human civilization and enlightenment. The concept
of human rights has its philosophical ancestry in the natural law school.2 That is
why the expression human rights had been used synonymously with natural law
and natural rights. Thus Professor Maurice Cranston defines human rights as a
twentieth century name for what has been traditionally known as natural rights or
in a more exhilarating phrase right of man.3 The theory of natural law draws its
nature according to which tenets and principles all things including man himself
ought to behave.
The concept of human rights was introduced into the international community due
to the outbreak of the Second World War. Consequently, the war strengthened the
conviction that the international recognition and protection of human right was
1
Nickel 2000
2
Ricoeur, P. (ed) Philosophical Foundations of Human Rights (Paris UNESCO, 1986); Karel Vasak
(Ed), International Dimensions of Human Rights (Paris: Pendone, 1981).
3
Cranston, M. What are Human Rights? (New York: Taplings Publishers, 1973) p. 1.
essential for international peace. However, this led to the San Francisco
conference4 which produced the United Nations Charter which ushered in a new
was ushered in to promote and protect rights of man everywhere in the world.
question now becomes what is the difference between human rights and
fundamental human rights. Human rights are universal rights, whereas fundamental
human rights are those rights that are guaranteed by the constitution of a state. 6
Right of expression as part of the fundamental human rights was first entrenched in
followed it. The independence constitution of 1960 and the republic constitution of
1963 have provisions for the protection of fundamental human rights. The 1979
constitution 7 where it is stated that every citizen has the fundamental right of
4
San Francisco conference of 1945
5
Universal Declaration of Human Rights (1948), Interna tional Covenant on Civil and Political Rights (1966),
International Covenant on Economic, Social and Cultural Rights (1966)
6
Ibid
7
Hereinafter referred to as the Constitution
information, ideas, and opinions, including the right to own, establish and operate
Section 22 of the Constitution clearly out-lines the role thus, the press, radio,
television and other agencies of the mass media shall at time be free to uphold the
that freedom of press and expression are so fundamental that any law that tend to
Every person is accorded the freedom of expression including the freedom to hold
opinion and to receive and impact ideas and information without any interference.
For impacting ideas, holding opinion and information, it is necessary that the
the print as well as electronic media. For the proper exercise of the rights, section
operation of any medium for the dissemination of information, ideas, and opinion
to the public.
8
Section 39(1) CFRN 1999 as ammended
9
S. 39(1) CFRN 1999 as ammended
However by the provision of section 45 of the constitution, it is noted that the right
of expression can be curtailed. The implication of this is that this section permits
possible that on account of defence, safety, public order, and public health the right
Section 45 however states that the law invalidating the right so guaranteed should
constitution, basic fundamental human rights have been created and which should
be respected by all men in the Nigerian society. Unfortunately some of these rights
are not absolute reason being that it can be derogated from. In this respect, this
research seeks to examine the scope of its important, evaluate the challenges posed
by other legal and institutional framework. To what extent is the guaranteed right
available to citizens, are there challenges in redressing breach of this right. What is
10
Section 37, 38, 39, 40 and 41 CFRN 1999 as ammended
1.2 STATEMENT OF PROBLEM
Right of expression as part of the fundamental human rights was first entrenched in
challenges for the realization of human rights in the country. Nigerias human right
government. But this will be practically difficult because the government has been
which afflicts all echelons of governance, including those charged with ensuring
What are the impediments to the full realization of this right? Are the citizens
aware of the scope and limitations of this right? It is observed that there is need to
chart a new course to enhance the full potentials of this right, a need for reform of
justice administration, greater sanction for those responsible for breach, greater
polity
expression is enhanced;
This study will put to periscope the various concepts, sources and development of
right of expression in Nigerian nationhood and how the mechanism and purveyors
order to show that right of expression was at its lowest ebb during regimes, whose
policy thrust was anti-freedom of expression and the press. This is primary focus
on the constitutional provision on right to expression. This research work will
examine institution and legal framework; it will also consider all relevant agencies
associated with promoting and enhancing this right and also appraise the
impediments. Reference will be made to other countries like USA and Britain. The
This research work is based on primary and secondary sourced materials. The
primary sources include the Constitution of the Federal Republic of Nigeria, statute
books, law reports, journals relevant to the subject matter. While the secondary
juristic articles and other materials necessary for the achievement of the aims of
this study.
CHAPTER TWO
better the theories and terms involved in this work. These theories and terms
include;
RIGHT OF EXPRESSION
This provision is not confined to the press as it talks of every person. Thus any
one, not only citizens of Nigeria but aliens alike, have the right to express
themselves without any interference or censure subject only to the provis ion of the
Constitution. The idea is in-line with the Declaration of Human Rights that
guarantee the right of expression. Article 9 of the African Charter on Human and
11
Blackstone Commentaries (1959) p15- 159
Peoples Right also provides that every individual shall have the right to receive
information and every individual shall have the right to express and disseminate
According to B.O. Nwabueze,12 free speech and free press are instruments of self
government by the people because they enable the people to be informed and
democracy requires that public opinion shall be one of the factors informing the
actions of government. Free speech and free press enable corruption, abuse of
office and other official wrongdoings by public officers to be publicly exposed. For
established views with the hope that all items contained therein will lead to a
1. The liberty to say or speak on any item without hindrance except by law.
12
Nwabueze, B. O., Presidential Constitution of Nigeria (London: c. Hurst & Company, 1981) p. 458.
13
1944 332 U.S 78
The price of freedom of religion, or of speech or of
the press is that we must put up with or even pay
for a good deal of rubbish.
not have any direct connection with the press. It is worthy to note that the
any issue of his choice subject, the provisions of law through Radio,
he said that freedom of the press is the right to publish with good motives for
foregoing. Therefore, right of expression is the input of the mind relayed to the
14
(1981) 1 NCLR 105
15
In Ballards case at 95
CONSTITUTION
The term constitution was coined from the Latin word constitutio, used for
as prescribing the extent of its sovereign power and the matter of its exercise. It is
also a written instrument embodying the fundamental laws of the society. 16 These
rules together make up what the entity is. When these principles are written down
into a single document or set of legal documents, those documents may be said to
international organization is also its constitution, in that it would define how that
which the state is based, the procedure in which laws are made and by whom.
power, by establishing lines which a states ruler cannot cross, such as fundamental
16 th
8 Edition of Blacks Law Dictionary. P330
human rights. An example is the constitution of the Federal Republic of Nigeria
CLAW-BACK
A Claw-back clause refers to those provisions of the Constitution that tends to limit
some of the rights guaranteed under the Constitution. They qualify the enjoyment
of the right as contingent upon other notions of state prescription. For example,
Article 8 of the African Charter 17 grants the freedom of conscience, profession and
free practice of religion, subject to law and order. Under Article 10 of the
Charter, an individual has the right to free association provided that he abides by
12 of the Charter provided he abides by the law. Citizens have the right to
law. Article 14 of the Charter provides for the right to property, but that property
may be encroached upon in accordance with the provision of the appropriate law.
17
Hereinafter referred to as the Charter
18
S.45(1) 1999 Constitution
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.
SEDITION
This, perhaps is the vaguest of all offences known to Criminal Law, is defined as
lawful means, or to incite any person to commit a crime to the disturbance of the
that of treason and it frequently precedes treason by a short interval. Apart from
that Justice Fitzgerald provided for an inventory of the contents of sedition when in
the same Sullivans case he explained that sedition is a comprehensive term and it
embraces all those practices, whether by word, deed or writing which is calculated
by sign, tapes, caricature etc, that has the effect of producing any of the above,
sedition. The author of such publication cannot claim immunity from prosecution
At the same time, the author must be prepared to face the evil consequences of his
act.22
DEFAMATION
21
Mukete v Broadcasting Corporation and D.S. Ebake (1961) 1 All N.L.R. 482
22
Queen v Amalgamated Press of Nigeria Ltd and Fatogun (1991) 1 All N.L.R 186
23
Ibid
I. To lower the plaintiff in the estimation of right-thinking members of society
generally; or
The words complained of must tend to injure the plaintiffs reputation in the minds
of the public. To write or say of a man something that will disparage him in the
eyes of a particular section of the community, but will not affect his reputation in
the eyes of the average right-thinking man, is not actionable within the law of
defamation 25
Any written or spoken words which fall within one or more of the five definitions
listed above may be defamatory. The following are examples of statements held
defamatory by the Nigerian courts; to state that a medical practitioner has a fake
24 th
See generally Parkes R., Gatley on Libel and Slander (7 ed., London, Sweet & Maxwell, 2013) Chap.2
25
Tolley v Fry (1930) 1 K.B.467 at p.479, per Green L.J. cited with approval by Brett
J.S.C. in Egbuna v. Amalgamated Press of Nigeria Ltd (1967) 1All N.L.R. 25 at p.29
degree and that he exploited the public,26 that a legal practitioner had defrauded his
client. 27
Finally, it may be noted at this point that there is an initial presumption that a
defamatory statement is untrue; but if the defendant can prove that the statement is
SLANDER
addressed to the eye, whilst slander is addressed to the ear. It is doubtful whether
cassettes are libel or slander, for they are in permanent form and yet addressed to
the ear. Most commentators consider such statements to be libel, 28 but there
LIBEL
26
African Press Ltd. V. Ikejiani (1953) 14 W.A.C.A 386
27
Lardner v. The Sketch Publishing Co. Ltd. (1979) 3 L.R.N. 276.
28
E.g. Salmond op. cit. para47
being written or printed words contained in, for example a newspaper, a book, a
broadcast are also within the ambit of the sections, which define words as
meaning. 30
the simplest logic that the individual is continuously tempted to pass a remark of
29
See Gatley, op. cit. para. 81-85
30
Cap. 34, Laws of Lagos State (1973). This section is identical to s.1 of the English
Defamation Act 1952
Ademola Yakubu reflected on the classification that it is fundamental in any
civilized society for a person to have the right to express himself in respect of
public interest. It is worthy to mention here that these species of right of expression
expression, we are able to criticize or give our opinion on others, or other persons
view, action or the policies and programmes of the government. These may be via
The third category of right of expression namely the corporate right of expression
31
Yakubu J.A. Press Law in Nigeria (Malthouse Press Ltd. 1999)p.33
32
Ibid at p.5
advertisement and information. It can take the form of jingles, riddles, posters,
except that the expressive matters are attuned to specialty aimed at the fore which
Okogie V. A.G Lagos State33 where the Court of Appeal held that school must be
NIGERIA
As an erudite scholar once canvassed, the issues connected to Human Rights in the
last couple of decades perpetually radiate charm to stake holders in Africa and
33
1981) 1 NCLR 105
beyond. He opined that human right issues have bedeviled the academic industry in
the last 54 years. This works on human rights in African has become enormous in
size 34
Human right goes to the root of human civilization and enlightenment. The
concept of human rights has its philosophical ancestry in the natural law
school37.That is why the expression human rights had been used synonymously
with natural law and natural rights. Thus, Cranston Maurice, an English
philosopher, and author defines human rights as a twentieth century name for
what has been traditionally known as natural rights or in a more exhilarating phrase
right of man 38. The theory of natural law draws its inspiration from nature, it is
predicated on the assumption that there is a law of nature according to which tenets
34
Shlvin Issa. The Concept of Human Rights in Africa, (Codesrl Book Series, 1989) p 9
35
S. 3 CFRN, 1990
36
Article 19 of the Universal Declaration of Human Rights 1948. See also Article 19 of the In ternational Covenants
on Civil and Political Rights, 1966
37
Ricoeur, P. (ed) Philosophical Foundations of Human Rights (Paris UNESCO, 1986); Karel Vasak
(Ed), International Dimensions of Human Rights (Paris: Pendone, 1981).
38
Cranston, M. What are Human Rights? (New York: Taplings Publishers, 1973) p. 1.
The concept of human rights was introduced into the international community due
to the outbreak of the Second World War. Consequently, the war strengthened the
conviction that the international recognition and protection of human right was
essential for international peace. However, this led to the San Francisco
conference39 which produced the United Nations Charter which ushered in a new
was ushered in to promote and protect rights of man everywhere in the world.
Right of expression as part of the fundamental human rights was first entrenched in
Henry Willinks Commission which was set up to look into the fears of the
minority and to allay such fears by providing a legal frame work for protecting the
minority from the majority and those other Constitutions that followed it. The
provisions for the protection of fundamental human rights. The 1979 and 1999
39
San Francisco conference of 1945
40
Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966),
International Covenant on Economic, Social and Cultural Rights (1966)
Without being graphic, the Military in Nigeria have had the largest chunk of
governance in our corporate national existence. Of our fifty four years nationhood,
they inundated the seat of power six times, which spanned more than six decades.
One thing appeared to characterize the length and breadth of these military
regimes. It is their inability to allow free flow of information and therefore ensured
draconian legislations 41. At various times therefore journalist were tied down to
unscrupulous strings in their pursuit for right of expression. Each of the military
regimes in differentials (or even the same) mutatis mutandis was characterized
with decrees such as State Security (Detention of Persons) Decree42, Nigerian Press
Council Decree 43
In Addition, right of expression has formed the nucleus of many National and
right of expression has attracted not less a mighty organization than the United
Nations to declare every 3rd May of our Calendar year as World Press Freedom
41
For example Decree No. 6 , 7 and 8 of 1994, proscribing and prohibiting the circulation of the following
Newspaper: National Concord, the Punch and Guardian Newspaper consequently offenders to these draconian
Laws were either instantly brutalized
42
State Security (Detention of Persons) Decree. No.2 of 1984
43
Nigerian Press Council Decree. No. 38 of 1992
44
See Recommendation of a workshop aimed at enhancing conflicts resolution vide right of expression hosted in
th th
Accra. Ghana from 26 27 April, 1999 and reported in the West African Bulletin No October 1999 pp 43 - 44
day45. Moreover, right of expression unlike other Human rights, is not only
palatable with divine scriptures but ranked as old as human history. In robust
approval of its ancient origin and affinity to holy books, the Holy Quran 46 reserved
rudiments of rights of expression therefore revealing that believers should read the
In another token, the Holy Bible 48 also maintained a similitude when it takes that:
Let your speech be always with grace, seasoned with salt, that ye may
In our present day, the ancient origin of right of expression was re-enacted by
Justice M.B. Belgore49 when he observed that, the concept of human right and
45 th rd
The United Nation General Assembly by resolution 48/432 of 20 December, 1993 declared 3 May of every
year as World Press Freedom Day
46
Quran 96. 4-6
47
Quran 9: 22
48
The Holy Bible. Colossian 4:6 published by Watchtower Bible and Trust Society Incorporated
Brooklyn. New York
49
Hon. Justice Balgore, M.B; A Journal of Contemporary Legal Problem (October 1990 No 6
Federal Ministry of Justice, Nigeria) p. 73
social justice has been abused and given different interpretations under different
political concepts at various time. Yet most people believe that human happiness
The United States of America in lending credence to the age long concept of right
of expression had cause to glorify the right in one of her earliest constitutional
amendments in 1791. The amendment is to the effect that Congress shall enact no
In England, the idea of right of expression was muted in order to tame and gags the
radical citizenry. This could be seen from an Ancient English statute which
provided that the object of the statute is to preserve the realm of England. And the
50
Cited by Mohammed Bala What Role for the Journalist Democracy Advocate or Non Participant Watchdog?
In Mass Media and Democracy. Civil Liberties Organization Lagos 1996 p.47
51
First Amendment of the Constitution of the United State 1791
52
De Scandelis Magnatum, 3 Edward I, Statute of W estminster; 1(c) 34, 12741
The provision of this statute was concerned with restraining and sanctioning the
Form the foregoing, one can easily hazard to conclude that right of expression
scriptures. In fact, J.F. Kennedy, the 35th President of the United States of America
affirmed that right of man comes not from generosity of the government but from
divinity. 54
linked to the applied common law 55 and the constitutional warranty over time for
the citizens to express their minds and convictions on matter within their
intellectual range and capability. Indeed it becomes pertinent to say that the
juncture. He said that it is rational for people to inquire after the truth 56
Beside, since Nigeria operates a Common Law Legal System, the ancillary
Court argued further that the rule of law in Anglo Saxon and Common Law
countries had their origin from Magna Carta of June 15th 1215, perimeters of Right
academic freedom57
CHAPTER THREE
RIGHT TO EXPRESSION
57
See National Action Plan for the Promotion and Protection of Human Rights in Nigeria.
November 2002. Pg 27
58
S 39(1) & (2) CFRN 1999 as amended
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 a state, or any other
person or body authorized by the President on fulfillment of a condition laid
down by an Act of National Assembly, shall own, establish or operate a
television or wireless broadcasting station for any purpose whatsoever.
Under the constitution, the obligations of the press in the context of the
fundamental objectives and directive principles of state policy are stated in the
following terms:
the people.
provision for freedom of expression and the press. It is equally remarkable that
the section 45(1) of the 1999 constitution of the Federal Republic of Nigeria. What
has escaped remark by commentators on the issue is whether or not the same
subsection (1) did not rob the beauty of that freedom under subsection (2) to
personnel, machines, real property acquisition, etc. it is evident even without being
graphic that acquisition of these terms requires a lot of expenditure. Very few
Nigerians can afford it. Sadly, if only a handful can own and disseminate
information and ideas through our schools including radio and television houses,
especially bearing in mind expenses involved, then one can safely aver that the
section (2) to section 39 of the 1999 Constitution. That is the intent. It allows right
There is therefore, deprivation and denial of right of expression when only the
privilege few can acquire and control the means of information dissemination. The
situation was aptly summarized in the words of Justice Matthew of the Indian
It is equally undeniable that if only the few ideas and information received comes
from few wealthy members of the society who are the only privilege to own media
houses, then it means that there is no room for equal access to freedom of
expression the society is thus opened up to few dominating ideas and opinions.
59
(1972) 2 SCC 788
60
See UNDP Human Development Repor t 1999 (p.53)
However, Bernard Shaw 61 made the point of the dominance of the rich in
ownership and access to the media even clearer when he opined that our entire
theory of freedom of speech rest not on the assumption that every person is right
although if everybody is free to express his ideas there will be struggle between the
truth and falsehood and truth will eventually prevail.
Invariably, if only few ideas are heard and disseminated, the rights of the majority
to canvass an affirming reply or otherwise are denied. Hence, the theory of
freedom speech propounded by Bernard Shaw is rendered senseless. Holmes 62
levied an inequality in the inner chambers of freedom. The direction of Justice
Holmes is no doubt imperative even though untenable in the context of Nigeria
since media houses are owned by the rich. The poor masses who cannot bid an
access to the media because of their abject poverty are denied the gateway to
freedom of expression. The second effect that is produced into the polity by the
provision of subsection (2) to section 39 of the Constitution of the federal republic
of Nigeria apart from the above is that even practicing journalist in flagrant
violation of etiquette have the propensity of shifting their production of ideas and
opinions.
61
An Irish playwright and a Co-founder of the London School of Economics
62
An American jurist who served as an Associate Justice of the Supreme Court
of the United States from (1902-1932)
63
Abiola M.K.O., cited by Clement Okwankwo Et al in The Crises of Press Freedom published by
Constitutional Rights Project, Lagos, 1993 at p.6
Apart from obvious restrictions (aforementioned) to right of expression as might
flow from the stream of sub-section 2 to section 39 of the 1999 Constitution, there
are other legislations that are primarily gazette to allow freedom of expression but
unfortunately are not justifiable in a free and democratic society 64. Most of these
legislations are founded on the provisions of the Constitution that stated that no
individual other than the government or persons acting under its authority shall
own, establish or operate a television or wireless broadcasting station for any
purpose whatsoever.
A similar provision can be found under section 36(2) of the 1979 Constitution of
the Federal Republic of Nigeria. In recognition of and compliance with that, the
following statutes were inherited and afterwards passed into law, so that one way
or the other they will regulate ownership and operation of television, newspaper
and radio houses.
These are:
a. Newspaper Act
b. Nigerian Television Authority Act
c. National Broadcasting Commission Act
d. News Agency of Nigerian Act
65
Section 39(1) 1999 Constitution
The idea of having a News Agency enshrined in our law is civilized. It is a
glowing tribute to the status of our democracy and freedom of expression.
However, the element of monopoly66 by News Agency of Nigeria in obtaining
news and marketing it is rather unpleasant to both democracy and right of
expression. It is prejudicial to the liberty of dissemination of information
sanctioned by the constitution. The reference portion of monopoly for is
stipulated in section 2 of the News Agency of Nigerian Act.
In view of the foregoing, one wish to observe that the business relating to news
should not be left to monopoly of one agency instead competition should be
encouraged by allowing all to participate so that the right of those buying and
receiving the news items are not limited. This will add a score to the dictum of
Inter-American Court of Human Rights on a similar issue when it observed
that:
The Newspaper Act is the regulatory statute providing guidance for floating
newspaper including their circulation, distribution and general management.
The Act was one of the earliest laws promulgated during the pre-colonial
66
Cap 85, Vol. 11 Laws of the Federation 2004
67 th
Stephen Schmit case Inter-American Court of Human Rights o/c 5/85, 13 November 1985paper
Nigeria in 1917. This Act is characterized with provisions that are not palatable
to right of expression largely because the colonial authorities of that time had an
avowed commitment in checking articles and write-ups that are anti-colonial. A
synopsis of the situation was provided in these words:
paper. However, the more he got involved in the interest and affairs
In order to check the anti-colonial stance of this newspaper, the Newspaper Act
1903 was passed by the colonial government. It later transform into the
Newspaper Act of 1917. The Newspaper act does not qualify as legislation that
is justifiable in a democratic setting because it contained provisions that are
inconsistent with tenets of right of expression.
Section 3 and 4 of the Act apparently meant to vouch for control of Newspaper,
made it mandatory for newspaper proprietors to enter a bond and affidavit to be
endorse by sureties wherein they are expected to disclose their names, place of
abode, business office of the paper etc to the full knowledge of Attorney of the
Federation or the state as the case may be.
68
Nwankwo, C. et al, Crises of Press Freedom in Nigeria (Constitutional Rights Project, 1992) p.43
Section 19 of the Act. The contents of Section 3, 14 and 19 paraphrased are
substantially democratic.
Further to that, they are not positive deposition to right of expression under
Section 39 of the 1999 Constitution. Is it not a denial of freedom of speech to
warrant a newspaper proprietor to compulsorily open a business office in
Abuja? What if he intends circulation in his hometown or state? Again
considering the right cost of rents in Abuja, what if the company does not have
sufficient resources to comply? If the proprietor cannot operate in more than
one pace for any reason, he is thus compelled to operate in Abuja even though
contrary to his wish and the circulation of newspaper is also limited to Abuja.
This act is a gross violation of freedom of expression and was evident in the
decision of People Star Press v Adebayo, where it was held that:
on its carelessness70
69
(1971) U.I.L.R. 269
Therefore, the citizenry against who rumors or false news peddled as per
Section 22 of the Newspaper Act can use it for redress as was decided recently.
The court said:
A democratic society.
70
Blackstone Commentaries (1959) p. 4
71
Olatawuara J.C.A in Nwankwo v the State (1985) N.C.L.R. 288
provision in the Constitution made no reference to specific remedies. Section 46
(1) of the Constitution provides-
Constitutionally, enforcement of all forms of rights, remedies, duties etc are vested
with Nigerian Judiciary 72. Therefore, the Nigerian Judiciary comprising of various
courts at the center 73 and the State level74 are obliged to determine disputes
between persons or between government and individual citizens respectively.
Thus, the courts are levied with judicial powers 75 to pass judgment in any dispute
between litigants. On that note, it behoves that judicial power exercised by the
judiciary also import penalties from judgment, decrees, orders conviction,
sentence, etc. Expatiating further on the scope of judicial powers Professor
Akande 76 while banking on the case of Mukstrat v. United States77 poised that it
is the power of a court to decide and pronounce a judgment and carry it into effect
between persons and parties who bring a case before it for decision.
72
Chapter VII of the Nigerian Constitution which makes elaborate provisions on powers and
Functions of the Judiciary is relevant to expatiate on this point
73
Such Courts include the Supreme Court, Cour t of Appeal and Federal High Court
74
Such courts particularly include the State High Court and Magistrate Court
75
See section 6 of the 1999 constitution on powers of superior courts of record
76
Akande J. Introduction to the Nigerian Constitution (Sweets and Maxwell, London. 1982) p. 6
77
U.S 346 at 361 (1911)
Consequently, a judgment of a court can either be declaratory or executor in form.
The difference in the two was well made per excellence by Idigbe J.S.C (of the
blessed memory) in Akunnia V Attorney General Anambra State78.
78
(1977) 5 S.C 161
79
Police Act, Cap P19 LFN 2004
80
Section 104, 109 Cap.6.Vol 14 LFN 2004
81
In Balley v President of Nigeria (1982) 3 N.C.L.R 658, it was held that the scope of violation
Extend to rights already violated or would be violated.
82
Umaru Abba Tukur v Government of Gongola State (1989) 4 N.W.L.R (Pt.117) 617
(Enforcement Procedure Rules) 1979 was also marshaled into law 83 to regulate
rules of practice and procedure applicable to enforcement of human rights, and by
the authority of Ladejobi v A.G of the Federation84 any attendant inadequacy of
the Fundamental Human Rights Enforcement Procedure Rules can be
supplemented by the Rules of practice and procedures State High Court.
In the same year and on the same question of right of expression, a similar posture
was maintained by the court in the case of Queen v the Amalgamated Press of
Nigeria Ltd86.
83
It should be noted that legislative competenc e on matters affecting the Act are settled on the Chief
Justice of Nigeria.
84
(1982) 3 N.C.L.R. 563
85
(1961) 1 All N.L.R. 186
86
(1961) 1 All N.L.R. 199
87
See the decision in State V Ivory Trumpet Co Ltd (1964) 5 NCLR 736
that right of expression subject to constitutional limit is at large. Honorable Justice
Olatawura J.C.A, (as he then was) opined the same when he said that those who
occupy sensitive positions must be prepared to face the public crit icism in respect
of their office so as to ensure that they are accountable to the electorate. They
should not be made to feel that they live in an ivory tower and therefore belong to a
different class. They are within their constitutional rights to sue for defamation.
But they should not use the machinery of government to invoke criminal
proceedings 88 .
Whereas these cases were decided in the escapade of our nations second republic
i.e. from 1979 to 1983, the quality of the law is still the same under our current
dispensation mutatis mutandis. So ebullient and charming are the courage of
present day judges that compliments trail their boldness in construing the nature
and character of right of expression provided in the constitution 89
On the whole, it is hoped that our judges will continue to civilize all tenet of right
of expression for greater democracy in Nigeria 90
The Universal Declaration of Human Rights (1948) sets out a list of over two
dozen specific human rights that countries should respect and protect. These
specific rights can be divided into six or more families: security rights that protect
people against crimes such as murder , massacre, torture, and rape; due process
rights that protect against abuses of the legal system such as imprisonment without
trial, secret trials, and excessive punishments; liberty rights that protect freedoms
in such areas such as belief, expression , association, assembly, and movement;
political rights that protect the liberty to participate in politics through actions such
as communicating, assembling, protesting, voting, and serving in public office;
equality rights that guarantee equal citizenship, equality before the law, and non-
discrimination; and social (or welfare) rights that require provision of education
to all children and protections against severe poverty and starvation. Another
family that might be included in group rights, but subsequent treaties does. Group
rights includes include protections of ethnic groups against genocide and the
ownership by countries of their national territories and resources.
The Universal Declaration of Human Rights (UDHR) is a resolution of the UN
General Assembly and was adopted in 1948. As a resolution, it is not itself
formally legally binding despite common assumptions to the contrary. However,
the UDHR did establish important principles and values which were later
elaborated in legally binding UN treaties. Moreover, a number of its provisions
have become part of customary international law. Article 19 provides 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 ICCPR is part of the International Bill of Human Rights along with the
Universal Declaration of Human Rights (UDHR) and the International Covenant
on Economic, Social and Cultural Rights (ICESCR)92
91
UN Treaty Collection: International Covenant on Civil and Political Rights. UN. 2009-02-24
92
Fact Sheet No.2 (Rev.1), the International Bill of Human Rights. UN O HCHR. June 1996.
http://www.unhchr.ch/html/menu6/2/fs2.htm. Retrieved 2008-06-02
The International Covenant on Civil and Political Rights is monitored by the
Human Rights Committee (a separate body to the Human Rights Council which
replaced the Commission on Human Rights, under the UN charter in 2006) with
permanent standing, to consider periodic reports submitted by member States on
their compliance with the treaty. Members of the Human Rights Committee are
elected by member states, but do not represent any State.
The main international treaty on civil and political rights, also known as ICCPR, is
very specific about the right to freedom of expression
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regard less
of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with
it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:
(b) For the protection of national security or of public order (ordre public), or of
public health or morals.
The European Convention on Human Rights (ECHR) (long title: Convention for
the Protection of Human Rights and Fundamental Freedoms) is an international
treaty to protect human rights and fundamental freedoms in Europe. Drafted in
1950 by the then newly formed Council of Europe,93 the convention entered into
force on 3 September 1953. All Council of Europe member states are party to the
Convention and new members are expected to ratify the convention at the earliest
opportunity. 94
Article 10 protects the right of every person to their expression. This right shall
include freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. In the case of
Lingens V Austria the European Court of Human Rights placed restrictions on
libel laws because of the freedom of expression provisions of Article 10 of the
European Conventions of Human Rights. 95 The first paragraph further provides
that the Article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises. The provision about licensing of
broadcasting, television or cinema enterprises, i.e. the states right to license the
media companies, was included because of the limited number of available
frequencies and the fact that, at that time, most European states had a monopoly of
broadcasting and television. Later Court decision held that due to the technical
progress in the last decades, the justification of these restrictions cannot be made
93
The Council of Europe should not be confused with the Council of the European Union or
The European Council. The European Union is not a party to the Convention and has no role
In the administration of the European Court of Human Rights.
94
Resolution 1031 (1994), on the honoring of commitments entered into by members states
When joining the Council of Europe.
95
(1986) 8 EHRR 407
by reference to the number of available frequencies and channels. The public
monopolies within the audiovisual media were seen by the Court as contrary to
Article 10, primarily because they cannot provide a plurality of sources of
information 96. The Court also held that devices for receiving broadcasting
information, such as satellite dishes, do not fall under the restriction provided for in
the last sentence of the first paragraph 97.
Everyone has the right to freedom of thought and expression. The right includes
the freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing, in print, in the front of the art, or
through any other medium of ones choice. Paragraph 2 of this article provides that
the exercise of the right provided for in paragraph 1 shall not be subject to prior
censorship but shall be subject to subsequent imposition of liability, which shall be
expressly established by law to the extent necessary to ensure:
96
Monica Macovei A guide to the implementation of Article 10 of the European Convention on
Human Rights, Human Rights Handbooks, No.2, January 2014.
97
Ibid
1. Respect for the rights or reputation of others; or
2. The protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means,
such as the abuse of government or private controls over newsprint, radio
broadcasting frequencies, or equipment used in the dissemination of
information, or by any other means tending to impede the communication
and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2, public entertainments may
be subject by law to prior censorship for the sole purpose of regulating
access to them for the moral protection of childhood and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or religious
hatred that constitute incitements to lawless violence or to any other similar
action against any person or group of persons on any grounds including
those of race, color, religion, language, or national origin shall be considered
as offenses punishable by law.
It emerged under the aegis of the Organization of African Unity since replaced by
the African Union) which, at its 1979 Assembly of Heads State and Government,
adopted a resolution calling for the creation of a committee of experts to draft a
continent-wide human rights instrument, similar to those that already existed in
Europe (European Convention on Human Rights) and the Americas (American
Convention on Human Rights). This committee was duly set up, and it produced a
draft that was unanimously approved at the OAUs 1981 Assembly. Pursuant to its
Article 63 (whereby it was to come into force three months after the reception by
the Secretary General of the instruments of ratification or adherence of a simple
majority of the OAUs member states), the African Charter on Human and
Peoples Rights came into effect on 21 October 1896- in honour of which 21
October was declared African Human Rights Day.
The main African human rights instrument protects the right to freedom of
expression. The African Charter in Artic le 9 guarantees the right to freedom of
expression as follows:
The Charter also provides that No one shall be subject to arbitrary interference
with his or her freedom of expression. And that any restrictions on freedom of
expression shall be provided by law, serve a legitimate interest and be necessary in
a democratic society.
The freedom of expression under the African Charter is still not absolute, but it is
important to note that the only restrictions permitted on freedom of expression
shall be that provided by the law and not by any person. And that such restriction
provided by law must serve a legitimate interest and be necessary in a democratic
society.
CHAPTER FOUR
4.1 INTRODUCTION
This chapter will focus on the judicial attitude towards the right to freedom of
expression by reviewing past cases of the Nigerian Judiciary so as to ascertain if
truly this right has been protected and promoted by the Nigerian judiciary, and also
recourse will be made to the available limitations of the right to freedom of
expression in Nigeria.
On the 30th Day of March, 2004, In the case of IFEANYI UKEGBU V N.B.C.98
the Director-General of the 1st respondent did a press briefing on the re-
announced that in keeping with the mandate of monitoring and regulating the
Nigerian airwaves, the 1st respondent has directed all terrestrial broadcast stations
in Nigeria who re-transmit live foreign news and news programmes to put an end
98
(2007) NWLR 14
Broadcasting Commission Act99. The order was to take effect from 1st April, 2004.
According to the 1st respondent, the directive become necessary because of the
perspective the news and news magazines convey and the danger the broadcast
In the press briefing, the 1st respondent also noted the persistent issue of unverified
claims of miraculous healings on radio and television stations. The 1st respondent
insisted that all stations should ensure that their religious programmes conform
with the requirements of the Broadcasting Code and ordered that an advert
promoting religion in any form must present its claim especially those relating to
The appellant was very uncomfortable with the stance of the 1st respondent in the
press briefing. Consequently, he filed a motion on notice at the Feral High Court
under the Fundamental Rights (Enforcement Procedure) rules seeking inter alia a
declaration that the directive issued by the 1st respondent stopping the relay of
news and news magazine broadcasts from foreign stations by Nigerian terrestrial
stations effective from 1st April, 2004 is illegal, unconstitutional and a breach of
1999 Constitution and Article 9(1) of the African Charter on Humans and Peoples
99
CAP N11 LFN 2004
the 2nd respondent with the directive of the 1st respondent is illegal, and
After hearing arguments on the motion on notice, the trial court dismissed the
application on the ground that it lacked merit. The trial Court held that the banning
of direct relay of foreign news in the National Broadcasting Code was justifiable
In determining the appeal, the Court of Appeal considered the provision of Section
39 (1) and S46 (1) of the 1999 Constitution which state thus:
46(1) Any person who alleges that any of the provisions of this
for redress.
The Court of Appeal unanimously dismissed the appeal. It was further stated
under S. 39 of the Constitution are not absolute rights. The rights can be
In Tony v Senate 100, the plaintiff, editor of Daily Times, was summoned by the
Senate of the National Assembly to come and disclose the source of his
information of an article about how senators lobby for contracts from the executive
branch of government. The High Court held that any attempt to force the plaintiff
Section 36(1) of the 1979 Constitution (now S.39 of the 1999 Constitution).
100
(1984) 4 NCLR
On appeal by the Senate to the Court of Appeal, the court held that mere invitation
by the Senate did not infringe the fundamental right of the Respondent and that,
the press or any other medium of information cannot claim any right to
house of the National Assembly or the police and the appeal was upheld.
journalists who had published an article entitled Fraud- legislators claim salaries
and allowances for fictitious staff in a publication of Sunday Punch of 5th April
1981. The publications resulted in significant interest and charges were made that
the journalists had obtained their information illegally. The applicants denied this,
saying that the information on which they had based their article had been
volunteered by an unpaid source and that a firm promise was made to the source
101
(1982) 3 NWLR
interference with their rights to freedom of expression and claimed an absolute
It was held by the Court that the right to freedom of expression can be relied on by
journalists not to reveal their source save in exceptional circumstances for example
safety, public order, public morality, public health and for the purpose of
The Court emphasized the delicacy of the matter given that it was called upon to
resolve the conflicting claims of legislative power and of press freedom. The Court
fundamental right that belongs to all. Furthermore the Court stated that the right
the right to freedom of expression entitles every person to own establish and
operate a newspaper or other medium for the dissemination of opinions and ideas.
It was the Courts duty to protect press freedom, and this included a freedom, and
The Court quoted with approval parts of the US Supreme Court case of Branzburg
V. Hayes102, which held the Court went on to declare that The Court considered
102
(1972) US 665, 408
legislative body shall make laws abridging freedom of speech or press. It would be
wrong simply to assume that every legislative inquiry is justified by a public need
that legislative bodies did not unjustifiably encroach upon fundamental rights
In the case at hand, the Court saw no exceptional circumstances that would justify
For purposes of defamation effectuated under the guise of right of expression, the
above and in that regard, the ordinary and natural meaning of the words is to be
general knowledge and not from the eyes of a person who is fettered by legal rules
103
Per Ounmola JCA in African Newspaper of Nig. Ltd vv Adamu Ciroma (1996) NWLR (pt. 432) 156
right of expression; is the fundamental question- what really constitutes
In moulding the rudimental indices of defamation as per the above poser, a rough
and sketchy formula was established in the dual cases of Nigerian Textile Mills v
whom they are published or the statement exposes him to public hatred, odium,
court held that any action of defamation to succeed, the burden of proof lies on the
published
104
Unreported
105
CCHCJ/573 at p.54
106
(1989)1 NWLW (pt.100)
Having said that, a brief explanation on the ingrediential value of the above
As for (a) above, the requirement of the law was succinctly laid in the case of
Joseph Mangtup Din v African Newspaper of Nig. Ltd 107. In this case, the court
observed that the basis of complain in an action of defamation is that the plaintiff
must have been injured in his reputation, trade, business or profession in the
estimation of right thinking members of the society he belongs. The rule was also
extended to refer to the reputation of the plaintiff may unilaterally think of himself.
that is the requirement that the statement must refer to the plaintiff, it was
elaborated to include any reference to the plaintiff not necessarily by the name; it is
enough and sufficient if those who knows him understood the defamatory
Eva Anike Akomolafe & Anor .V. Guardian Press Ltd. &.3 Ors 109 for instance,
107
(1990) 3. NWLR (pt.139) at 392
108
A relevant authority for purpose of this point is the case of Nsirim (1999) 3 NWLR pt. 38 at 285
109
(2010) 1 SC (Pt 1) 74 1525
However, the rule does not extend to those defamatory statements made to whole
class of people because of the difficulty in narrowing the effects of the defamatory
words to an individual member of that class. Judicially, a rule to that effect was
Similarly, a writer 111 ventured to scheme the same principle when he argued that
identified either because the group is so small that the accusation can
because the circumstances of the publication permit the conclusion that it was
110
Per Lord Atkin in Knuffer v London Express (1944) A.C.116 at 122
111 th
Fleming, The Law Of Torts, (6 Ed, The Law Book Publishing Company Limited, London. 1983)
The only exception is where the group is so small and reference to an individual
It needs to be observed there that the liability should be stretched to cover class
of people who can be identified in whole and thus a defamatory matter directed
referring to the group. For instance, would it not be defamatory to say the
TYPES OF DEFAMATION
being made: the extent of their coverage and consumption by the society; and
the medium used to refer to the words complained of by the plaintiff can
Consensus of opinion by jurist and text writers has classified defamation into
a. Libel; and
b. Slander
It should be pointed out that a rather loose class has also emerged out of
Vulgar abuse per se does not constitute slander. Whether or not it amounts to
uttered on the heat of quarrel or brawl does not amount to vulgar abuse unless
the hearers of the speaker who in their opinion construes the vulgar abuse to be
defamatory orientation.
they were first mediated and released before uttered. It is also pertinent at this
intention may have been while slander on the other hand was described as a
112
Compare and contrast the judgment of Bakare V Ishola (1959) ESCLR 194106 and the decision
Ubeanu V Uba (1972) 2 ESCLR 194 in order to appreciate how circumstances determine vulgar abuse
113
(1846) 15 M & W 435
false and defamatory statement concerning a person made by word of mouth or
Whereas:
picture
A defendant who was alleged by the plaintiff to have defamed his character
defamatory matter complained of and hence render nugatory and hollow the
114 nd
Burke, J.Dictionary of English Law (Sweet & Maxwell 1977) 2 Edition Vol 2
substance of the action against the defendant. Either or all of these defenses
a. Absolute privilege
b. Fair comment
c. Justification; and
d. Qualified privilege
Apart from the above defenses that are more popular and easily enforced,
innocence115
innocence.
i. They are ignorant of the libelous matter at the time of the business.
115
Ibid
ii. They are not ordinarily negligent in not discovering the alleged libelous
prove his ignorance of the libel and lack of negligence in not discovering the
libel.
This defense is usually in order not to inhibit free discussion without fear or
houses. Where therefore the defendant was alleged to have defamed the
The same view was held in the case of Ojeme V Punch (Nig) Ltd. Where the
privilege 116
In the case of Mrs. Eva Anike & Anor.v. Guardian Press Ltd it was held that
The defence of fair comment is very important for the press who daily
plea is for everyone generally and is based on the important need to preserve
For the defence of fair comment to succeed, the statement must meet the
following requirements;
116
(1996) NWLR (Pt. 427)701
117
(2010) 1 SC (Pt 1) 74 1525
1. The matter must be a matter of public interest. For example, a matter is
3. The comment must be based upon facts truly stated. That is, it must be
The law is that you cannot invent untrue facts about a man and then
prove that the facts upon which he commented are true, and therefore
4. The comment must be honestly made. A comment may be fair for the
118
Ibid
violent, exaggerated, biased or clearly wrong, provided it was honestly
made.
The determinant factor is not whether a reasonable man would hold such an
The two are pivoted on facts and truth and for the same reason, overlap
maintains that the defendant is true and justifiable in that regard. This
119
Ibid
120
(1996) 2 NWLR (Pt. 429) 321
A plea of justification means that the words were true and
the plea covers not only the bear statements of facts in the
alleged libel but also any imputation which the word in their
and reinforce sanity in the society that the defense of qualified privilege
committed defamation.
effect almost akin to the defenses proper. They jointly or severally support
the defendant in that the action for defamation against him is either not
They include:
121
Yakubu L.A, Press Law in Nigeria.Ikeja: Malthouse Press Ltd, 1999 Pg.9
4. Delay in bringing the action before the court of competent jurisdiction
NIGERIA
and the crown. Coupled to that, the law was oriented to nib the militant
was to incite revolt and stir disorder against white colonial rule.
Hence it was provided under section 50(2) (a) of the Criminal Code
122
Ibid
seriously, it would appear as if the constitutional right of expression
provided for in the 1999 Constitution under section 39 has been limited by
guarantees, hold opinions and receive and impart ideas and information
within the purview of the penal sections earlier mentioned without the
123
5 WACA 56 at p.60
view that the intention was no more that to point out errors
or defects in government
In adopting this view, Araka J. in the case of Ivory Trumpet Towers Ltd
v The State124, dismissed a charge of sedition when the held that Sedition
law does not punish someone who makes a publication that merely
His Lordship was also resolute in holding that the law of sedition does not
that has the tendency to create disorder or disturbance of law and order or
of the right of free speech guaranteed the citizen under section 36(1) of
sedition because it was clear from the publication of the accused that he
124
Ibid
125
Ibid
126
(1987) 1 All N.L.R. 186
Sometimes the court will be left to grapple for a rule that is sandwiched
between the laid down principles in the State v Ivory Trumpet Tower 127 supra
and the principles in Chike Obis case128. In simple terms, it means how will
words that amounts to fair comment as dictated by the right of expression and
article does contain parts which are not seditious, these parts do not excuse
In the line with the spirit of the above decision, sedition law has been a
Nigerian press who unfortunately are acting under the exercise of the
constitutional right to speech. One cannot but cite a few instances 130
127
Ibid
128
Ibid
129
(1954) 21 NLR 26t
130
These acts to Imprisonment wer e reported by the committee for the defense of Human Right
In their 1995 annual report on the human right situation in Nigeria.
Name of Newspaper/Magazine Terms of
imprisonment
Journalists s
Obi
etc
CHAPTER 5
SUMMARY, CONCLUSION AND RECOMMENDDATION
5.1 SUMMARY
Right to freedom of expression as part of Human rights goes to the root of human
civilization and enlightenment. The concept of human rights was introduced into
the international community due to the outbreak of the Second World War.
Consequently, the war strengthened the conviction that the international
recognition and protection of human right was essential for international peace and
order. However, this led to the San Francisco conference 131 which produced the
United Nations Charter which ushered in a new international law of human rights.
Subsequently, the international bill of rights 132 was ushered in to promote and
protect rights of man everywhere in the world. These international law instruments
Right of expression as part of the fundamental human rights was first entrenched in
followed it. The independence constitution of 1960 and the republic constitution of
1963 have provisions for the protection of fundamental human rights. The 1979
constitution 133 where it is stated that every citizen has the fundamental right of
information, ideas, and opinions, including the right to own, establish and operate
The findings in the foregoing chapters had revealed that the penal provisions on
sedition particularly section 50 of the Criminal Code as well as sections 416, 417,
418 and 419 of the penal code are couched in such a general language that portends
Legislation like the Public Order Act, National Broadcasting Commission Act,
Nigerian Television Authority Act, News Agency Act, etc are manifest with rubric
of right of expression. For instance, it has been found that that only News Agency
of Nigeria has been empowered in he polity to retail news. This monopoly negative
constitution.
Punishing a newspaper with fine for peddling rumors and false news as constrained
under section 22 of the news as contained under section 22 of the Newspaper Act
has outlived realities of our time. Instead, we observed that person aggrieved by
The supervisory powers given to the Minister of Information under section 6 of the
National Broadcasting Commission Act are too wide and are capable of being
to the government of the federation. Consequently, we found that the said minister
may, at his wish, either refuse or revoke licenses of those companies he dislike
under one pretence or the other and this is tantamount to violation of her right of
expression.
In order to erect right of expression to the desired height, the various government
rights of expression.
Rights as well also under the African Commission on Human Rights left much to
be desired.
5.3 RECOMMENDATIONS
especially in our drive towards a free and democratic society becomes necessary
2. The offence of sedition which has been sanctioned by both criminal and
penal codes should be amended in such clear terms as to indicate when does
and religion. On this score, morality plays key role in synthesizing the
National Film and Publication Board should ensure that all broadcasting
matters in films, audio and visual reduction are well censored in accordance
speech. This could be easily attained if the NGOs enter into partnership
honorable and responsible profession, one cannot escape to make a call for
Arts or Social services. In addition to that, the Press Council Act should be