Is Criminalisation Of Defamation Reasonably Justifiable In Democracy?

The guarantee of free speech is essential because it is fundamental to the fulfillment of some basic human rights which include the right to freedom of religion, political rights and the protection of minorities’ rights to mention a few…

Freedom of expression is the vehicle upon which individuals express their opinions without undue restraints by governments. The guarantee of free speech is essential because it is fundamental to the fulfillment of some basic human rights which include the right to freedom of religion, political rights and the protection of minorities’ rights to mention a few.

Also, Section 39 of the Nigerian Constitution guarantees the protection of the right to expression of individuals and the press. However, this right is not absolute, as Section 45 of the same Constitution has provided that the right can be restricted by any law enacted in the country to regulate the exercise of freedom of expression, provided it is ‘reasonably justifiable’ in a democratic society, this type of law shall not be a breach of Section 39 of the Constitution. These grounds include:

1. In the interest of defence, public safety, public order, public morality or public health; and
2. For the purpose of protecting the rights and freedom of other persons.

These are the grounds on which the right to freedom of expression can be restricted, hence, the criminalisation of defamation.

Defamation is a malicious public statement that results in the injury to the good reputation of an individual, which could be by word of mouth (slander) or publication (libel). The route to seeking redress for defamation can be through civil action, in which the claimant seeks damages for an injured reputation, or criminal proceedings (criminal defamation) in which the defendant is liable upon conviction to imprisonment which could extend up to three years, depending on the state in the Federation and with or without an option of fine.

The ingredients needed to establish the two forms of defamation are similar.

The objective of criminal defamation is to serve as a deterrent and to also protect the reputations of individuals from being damaged; however, it appears that persons holding public office and the upper class in the society invoke the law to silence members of the public and the press, where information unfavorable to them is disseminated.

This year alone, a number of individuals were arbitrarily detained on account of allegedly committing criminal defamation. For instance, on May 13, 2022, the founder of the news website EaglesForeSight, Bashiru  Hammed Adewale Olamilekan popularly known as Prince Lahbash was arrested and detained for republishing a story that the Ogun State governor found offensive.

He was detained for more than four months, and was only released on 27 September 2022. Also, the Wikki Times publisher and his reporter were detained on account of criminal defamation for also republishing a story, which displeased a member of the House of Representatives. It is alleged that the duo was assaulted while in the custody of the police.

The arrest of a student of the Federal University, Dutse, Jigawa State on account of body shaming the wife of the President of the Federal Republic of Nigeria, has again brought to the forefront the question of whether criminal defamation is serving the purpose for which it is meant to serve. The student is said to have been arrested in Dutse on 8 November 2022, and then moved to Abuja, where he was  detained, tortured and was only arraigned following widespread public condemnation of his arrest before an FCT High Court on a single charge of criminal defamation on the 30 November 2022.

He was subsequently remanded in the custody of the Nigerian Correctional Service, two days later, after the expression of public outrage from all over the country, the charge was withdrawn and the student was released. These are just some of the cases.

From the foregoing, it can be argued that the criminalisation of defamation is causing more harm than good, as there is a high incidence of infringement of constitutionally guaranteed rights of those alleged to have committed the offence, which includes the right to personal liberty which safeguards individuals from arbitrary arrest and detention, which also curtail the right to freedom of movement.

The fear of these violations can prevent journalists and other Nigerians from expressing their opinions freely and this will result in increased censorship in the country. To remedy this problem, criminal defamation should be repealed from our laws, as its deployment in the society violates other constitutional human rights guarantees as pointed out earlier.

There are two options that can be explored to remove the provisions that penalised defamation, the first one is for all the 36 states and the FCT to initiate a review of their penal laws, and decriminalise defamation. On November 3, 2022, Edo State took the lead when its governor signed into law the Criminal Code Law 2022. In the revised law, criminal defamation as an offence was repealed. Other states should be encouraged to follow suit. In the alternative, the courts can be approached to declare the provisions that criminalised defamation as unconstitutional, this will be a faster route, especially if it reaches the appellate courts, once it is declared incompatible with Section 39, all the states in the Federation will have no choice but to abide by the judgement and repeal the relevant provisions from their penal laws.

Where criminal defamation is repealed, will civil action provide adequate remedy for an injured reputation? Yes, it will and has more effect where the party accused of the defamation is made to not only pay punitive damages, but issue a public retraction of the defamatory statements. An instance of this is the case of Asiwaju Bola Tinubu and AIT TV Station, where the station aired a documentary repeatedly in a prelude to the 2015 general elections titled “ Lion of Bourdillon”. The documentary alleged that Tinubu corruptly enriched himself while in public office. Tinubu instituted a N150 billion suit for defamation against DAAR communications the company that owned the TV station. Later, the matter was settled out of court, and DAAR issued a letter of apology to Tinubu for the defamatory statements contained in the documentary. The company was also ordered by the court to publish a public apology to Tinubu three times, in a national daily, which it did. The Tinubu suit seems to have had the desired effect, as despite being the presidential candidate of the ruling party in the upcoming 2023 general elections, his opponents have not made any reference to the allegations in the documentary, which is the essence of any law, to act as a deterrent.

Laws are established to promote equality among all citizens, where any law is deployed to protect the interest of a few and suppress the rights of the majority, it should be repealed.

Ibrahim, Ph.D, can be reached via aliyudanmusa@gmail.com