Emmanuel Onwubiko

As much restriction or qualification of the right to freedom of expression is desirable and also constitutional, the operating words for any such restriction or qualification is that it should be “reasonably justifiable in a democratic society”. And although the question of what is reasonably justifiable in a democratic society is a matter of fact depending on the circumstance of each case, it means that restriction of the right should not be arbitrary or targeted at silencing opposition or a tool of getting back at public criticism or negative perception of governance or government policies or the running of the affairs of the State which social media is perceived to be achieving but wholly about democratic ideals and practices. These were the underlying bases for which the law of sedition was introduced into our society basically to protect the so-called sovereign and her colonial government and it does appear history is about to repeat itself. 

Thus a discourse on the regularization and over regularization of the right to freedom of expression or debate on preventing “hate speech” cannot be complete without a consideration of the law of sedition which, though has been held to be inconsistent with the Constitution, still exists.

There is legal definition of sedition but Section 50(2) of the Criminal Code defines a “seditious intention” as an intention:  “to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, her heirs or successors, or the person of the Governor-General or the Governor of a Region or the Government or constitution of the United Kingdom, or of Nigeria, or of any Region thereof, as by law established or against the administration of justice in Nigeria; or to excite her Majesty’s subjects or inhabitants of Nigeria to attempt to procure the alternation, otherwise, than by lawful means, of any other matter in Nigeria as by law established; or to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Nigeria”; or to promote feelings of ill-will and hostility between different classes of the population in Nigeria.”

This law led to more turmoil than peace as evident in many trials. In D.P.P. V Chike Obi, the Defendant was convicted for sedition for the publication like a typical social media tantrum: “Down with the enemies of the people, the exploiters of the weak and oppressors of the poor” etc. directed at the Federal Government of Nigeria. In James Ogidi V Commissioner of Police (1960), a published telegram which accused the Customary Courts of a Division of being used to oppress the supporters of an opposition political party were held to be seditious. In R V Agwuna and others (1949) 12 W.A.C.A 456, the Defendant, Chief Osita Agwuna, was convicted of sedition for his lecture titled, ‘A call for Revolution’ in which he referred to the British colonial masters as “a common enemy” adding that they had a plan to continue their domination of Africa till the duration of the third world war and that “we must forget our so-called differences and direct our energy towards the common foe or else we remain like this for another fifty years.”

The law wizard, Chief FRA Williams, SAN in the Chike Obi case postulated that:   “Any law, which punishes a person for making a statement which brings a government into discredit or ridicule or creates disaffection against the government irrespective of whether the statement is true or false… is not a law which is reasonably justifiable in a democratic.”

Related News

The unconstitutionality of the law of sedition finally came to the fore in the celebrated case of Arthur Nwankwo V The State (1985)6 NCRL 228 in which the appellant was charged with sedition for publishing and distributing a book entitled, How Jim Nwobodo Rules Anambra State. The court examined the case in the light of sections (36) and (41) of the 1979 Constitution which gave all Nigerian citizens the right to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference except as stipulated by the Constitution itself. The Court of Appeal concluded that the law of sedition as contained in section 51 of the Criminal Code derogated from the constitutional provisions on freedom of speech guaranteed under the 1979 Constitution; more so when the publication could not lead to public disorder envisaged under section 41(2) of the Constitution. The Court made very far reaching pronouncement that, till date, continue to guide modern and present view of whether there is need for more regulation or restriction of the right to freedom of speech especially in the light of the advent and outburst of social media. The Court held thus:

“…While Chike Obi V D.P.P, (Supra), Wallance Johnson V the King (1940) AC, 231 were birds of their respective periods, it is my view that sections 50(2), 51 and 52 which cover them are inconsistent with the provisions of sections 36 and 41 of the 1979 Constitution and are by implication repealed from the first day of October, 1979. There is no ban in the Constitution… against publication of truth except for the provision and security necessities embodied in those sections. If a publication is false news with intent to cause fear and alarm in public, there is section 59 of criminal code to cover it. If a person feels defamed there is the civil remedy of suing for libel or slander. There are also provisions in chapter XXXIII of the criminal code law as to criminal defamation – see section 374 thereof. By looking at the constitution in the light of existing law so as to accommodate and save the provision of existing law defeats the purpose of section 274(3) of the constitution. If the existing law is inconsistent – with the constitution the existing law is null and void to the extent of that inconsistency.”

Summary and Conclusion. It is a firm view that society thrives on robust plurality of ideas and opinions and the availability of information. Freedom of speech offers that platform for the exchange of those ideas and should not be unnecessarily clogged in the name or form of laws that seek to guard against hate speech and the likes. HUMAN RIGHTS WRITERS ASSOCIATION (HURIWA) hereby ask the National Assembly to suspend ad infinitum the current attempts at introducing obnoxious legislations to curb access to social media, create a commission against the so called hate speech and the attempt at muzzling press freedoms. Democracy thrives on free speech.

Concluded

Onwubiko heads Human Rights Writers Association Of Nigeria (HURIWA).