By Bamidele Kolawole

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The right to freedom of expression is a fundamental human right guaranteed by the Nigerian Constitution. However, this right is not absolute, as it must be balanced against other competing interests, such as the protection of reputation. This is particularly relevant in cases involving public figures, where the line between freedom of expression and defamation can become blurred.

The Nigerian Laws had made several efforts to balance freedom of expression with protection of certain entities through Legal Frame works and the direct effort of the Court via interpretation of the Provisions in the available Laws.                  

For instance, the Nigerian Constitution and other relevant laws provide for the protection of freedom of speech, as a fundamental human right. The key provisions include:

The Section 39(1) of the Nigerian Constitution Provide that;”Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

 In Section 39(2) of the same Constitution says that, “Without prejudice to the generality of subsection (1) of this section 39, every person shall be entitled to own, establish and operate any medium of information.”

Likewise in the “African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act”: Nigeria ratified the African Charter in 1983, which guarantees freedom of expression in Article 9.

Also, the “Universal Declaration of Human Rights (UDHR)”, Although not directly enforceable in Nigerian courts, the UDHR is widely recognized as a foundational document for human rights, including freedom of expression, precisely:; the Article 19 therein.

In same vein, the “Nigerian Press Council Act” which established the Nigerian Press Council, that ís promoting and protecting press freedom.

However, there are equally Limitations to Freedom of Speech, to act as check and balances.

Just as the Nigerian Constitution and other relevant laws, protect freedom of speech, these Laws also limit this right in other to protect entities when necessary. 

 The reasons for the limitations include but not limited to ;

(a)National security: the government at times can restrict freedom of speech in the interest of national security, public order, or public morality.

 (b) to Prevent Defamation and Slander: The law on defamation restricts freedom of speech to protect individuals’ images and reputations.

(c) To Prevent Hate Speech and it’s spread.         

(d) to checkmate Social Media Crimes: the Cybercrime (Prohibition, Prevention, etc.) Act 2015 prohibits hate speech and other forms of online harassment.

(e) To Prevent Sedition: The Criminal Code Act prohibits seditious publications, which I consider to be a limitation to freedom of expression.

There is also limitation to the Freedom of expression through the instrument of Judicial Interpretation of the Laws.

The Nigerian Courts have interpreted the freedom of expression provisions in the Constitution and other laws.                  

For instance; In the case of “Attorney-General of Kaduna State v. Hassan (2001)”. The Court of Appeal held that the freedom of expression guaranteed by Section 39 of the Constitution is not absolute and may be restricted in certain circumstances.

Also in the case of Nwankwo v. Commissioner of Police (2014)”. The Federal High Court held, that the police cannot arrest or detain someone for exercising their right to freedom of expression.

In nutshell, the Nigerian Constitution and other relevant laws protect freedom of speech, but with limitations. The Laws also through the Courts, have interpreted these provisions to balance individual rights with national security, public order, and other interests.

In my opinion and going by the decided cases, the NIGERIAN POLICE must never be used to victimize or torture anyone who feels his or her personality has been smeared, instead the Court through a Law Suit is the most appropriate avenue to put things straight and reprimand the offender via necessary penalty that is available under the Law.

The Nigerian Constitution attempts to balance the right to freedom of expression with the protection of reputation through a legal framework that includes both the constitutional guarantees and specific statutes addressing defamation. While freedom of speech and expression has its limits, it remains a God-given right and not a privilege.

Section 39 of the 1999 Constitution of Nigeria guarantees every person the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart ideas and information without interference. This right is foundational for democracy but is not absolute.

The Nigerian law distinguishes between criminal and civil defamation. The Criminal Code and Penal Code criminalize defamation, providing legal avenues for individuals, including public figures, to seek redress against harmful false statements that damage their reputation.

On the civil side, individuals can sue for damages under common law principles of defamation. These laws aim to protect reputations while recognizing the importance of free speech. It has been argued in numerous decided cases at the Supreme Court like Abalaka v. Akinsete (2023) where it clarified that in defamation suits, the claimant must prove not only that the statements were defamatory but also their falsity.

This decision indicates a judicial effort to ensure that defamation laws are not used indiscriminately to suppress free speech, by placing a burden of proof on the claimant to show the statements were untrue and harmful to their reputation.

There’s a nuanced approach where public figures or officials might have a higher burden of proof to demonstrate actual malice when claiming defamation, akin to the U.S. legal standard but less formally established in Nigerian jurisprudence.

While freedom of expression is guaranteed, it must be exercised responsibly, especially when it comes to statements about public officials or figures; although it is understood that public figures are expected to tolerate more scrutiny than private individuals.

Be that as it may, the law recognizes defences such as truth, fair comment, and privilege, which allow for the expression of opinions on matters of public interest or in certain official capacities, thereby providing some leeway for free speech while still protecting reputations.

Despite these constitutional protections, the practice often reveals a tendency towards suppression. Laws like the Cybercrime Act and the National Broadcasting Code have been criticized for potentially stifling free speech, with mechanisms sometimes used to target critics or journalists.

There’s also the issue of self-censorship due to fear of legal action, criminal witch-hunt or reprisals from powerful entities like the conundrum leading to Dele Farotimi’s detention for his book titled “Nigeria and it’s Criminal Justice System”.

Social media and public discourse have increasingly highlighted cases where free speech might be curtailed, prompting debates and calls for reforms. It remains to be seen if the judiciary would let rule of law lead in interpreting these laws to balance the rights of citizens by considering the context, intent, and impact of speech to prevent abuse by prominent figures with respect to both criminal and civil defamation.

In conclusion, while Nigerian law provides a legal framework for protecting freedom of expression, the practical application, especially concerning public figures, sometimes leans towards protecting reputation over speech. This balance is continuously tested and contested, reflecting both the country’s democratic aspirations and the challenges posed by its legal and political environment.

However, the application of these principles can vary widely, reflecting broader societal and political dynamics influencing judicial decisions.

Nigerian laws navigate the complex terrain of balancing freedom of expression with the protection of reputation, particularly concerning public figures.

This balance is primarily governed by the 1999 Constitution and various legal statutes, including the Cybercrime Act and defamation laws.

The right to freedom of expression is enshrined in Section 39 of the 1999 Constitution, which guarantees individuals the freedom to hold opinions, share information, and express themselves without interference.

However, this right is not absolute and is subject to certain limitations aimed at protecting public order, morality, national security, and the rights and reputations of others.

Defamation laws in Nigeria are significant in this context. Under both the Criminal Code Act and the Penal Code Act, defamation can be prosecuted as a criminal offense.

Specifically, these laws make it illegal to publish false statements that harm another’s reputation with intent to harm or with reckless disregard for the truth.

The penalties for such offenses can include imprisonment and fines, which raises concerns about potential abuse of these laws to suppress free speech.

The Cybercrime Act of 2015 further complicates this balance by criminalizing the intentional dissemination of false information online.

Section 24(b) specifically targets individuals who knowingly spread false information that could cause harm or distress to others. This provision seeks to mitigate misinformation but may also infringe upon individuals’ rights to express their opinions freely.

Judicial interpretation plays a crucial role in how these laws are applied. Nigerian courts have acknowledged the importance of protecting freedom of expression while also recognizing that it must be balanced against reputational rights.

For instance, in cases like Nwankwo v. State, courts have emphasized that while freedom of expression is fundamental, it should not be lightly interfered with, especially when it comes to defamation claims.

The courts have also indicated that criminalizing defamation may violate constitutional protections if it leads to undue restrictions on free speech.

In summary, Nigerian law attempts to strike a balance between safeguarding freedom of expression and protecting individual reputations through a combination of constitutional provisions, statutory laws, and judicial interpretations.

While freedom of expression is a fundamental right, its exercise is constrained by laws designed to prevent defamation and misinformation.

This legal landscape reflects ongoing tensions between upholding democratic values and protecting individuals from reputational harm, particularly for public figures who are often at the center of such disputes.

Nigerian laws navigate the delicate balance between freedom of expression and the protection of individual reputation, particularly when public figures are involved. This interplay is rooted in the 1999 Constitution and reinforced by statutory provisions such as the Cybercrime Act of 2015 and defamation laws.

 Constitutional Basis for Freedom of Expression

Section 39 of the 1999 Constitution guarantees every citizen the right to freedom of expression. This includes the liberty to hold opinions, receive and disseminate information, and communicate without interference. However, this right is not absolute. It is subject to limitations aimed at preserving public order, morality, national security, and the rights of others, including their reputation.

Defamation Laws and Reputation Protection

Defamation laws in Nigeria address the wrongful publication of false statements that damage an individual’s reputation. Both the Criminal Code Act (applicable in the southern states) and the Penal Code Act (applicable in the northern states) criminalize defamation. A defamatory act, whether libel (written) or slander (spoken), is punishable if it is proven to have been done with malicious intent or reckless disregard for the truth. Penalties for criminal defamation include fines and imprisonment, which critics argue can discourage legitimate criticism and suppress free speech.

Cybercrime Act and Online Expression

The Cybercrime (Prohibition, Prevention, Etc.) Act of 2015 extends defamation laws to the digital space. Section 24(b) specifically criminalizes the intentional dissemination of false information online that causes harm or distress. While this aims to combat misinformation and cyber harassment, it has raised concerns about its potential misuse to stifle dissent and curb digital freedom of expression.

Judicial Balancing of Rights

Nigerian courts have played a pivotal role in balancing freedom of expression with the need to protect reputations. In landmark cases such as Nwankwo v. State, the judiciary has emphasized the significance of free expression in a democratic society. However, courts have also affirmed that reputational harm, especially when inflicted maliciously or recklessly, cannot be overlooked. Importantly, courts often evaluate whether criminalizing defamation violates constitutional rights, warning against excessive restrictions that could undermine freedom of speech.

Challenges and Tensions

While Nigerian law strives for balance, tensions persist between democratic values and reputational rights. Public figures, by virtue of their prominence, are often subjected to greater scrutiny and criticism. The judiciary recognizes that public figures must tolerate higher levels of criticism than private individuals. Nonetheless, legal protections exist to shield them from baseless attacks that could harm their dignity and professional standing.

Conclusion

The legal framework in Nigeria reflects an ongoing effort to harmonize freedom of expression with the protection of reputations. While constitutional and statutory provisions uphold these principles, their application must be carefully calibrated to avoid suppressing dissent or enabling abuse. As society evolves and the digital space expands, the courts will remain critical in interpreting and refining the balance between these competing rights.

The right to freedom of expression is a fundamental human right guaranteed by the Nigerian Constitution. However, this right is not absolute, as it must be balanced against other competing interests, such as the protection of reputation. This is particularly relevant in cases involving public figures, where the line between freedom of expression and defamation can become blurred.

Section 39 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) guarantees the right to freedom of expression, stating that “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” However, this right is subject to the limitations imposed by law, including the law of defamation.

The law of defamation in Nigeria is primarily governed by the Defamation Law of various states, as well as the Libel and Slander Act (Cap. L12, Laws of the Federation of Nigeria, 2004).

 Defamation is defined as the publication of a false and damaging statement about someone, which lowers their reputation in the eyes of right-thinking members of society.

In balancing freedom of expression with protecting reputation, Nigerian courts have adopted a nuanced approach. On one hand, the courts recognize the importance of freedom of expression in a democratic society, particularly in cases involving public figures.

On the other hand, the courts also acknowledge the need to protect the reputation of individuals, including public figures, from false and damaging statements.

Several Nigerian cases illustrate the balancing act between freedom of expression and protecting reputation.

For instance in the case of Attorney-General of Kaduna State v. The Herald Newspapers Ltd. (2001) 6 NWLR (Pt. 658) 462,, the Court of Appeal held that the publication of a defamatory article about a public figure (the Governor of Kaduna State) was not protected by the freedom of expression guarantee in the Constitution. The court emphasised that the publication was not only false but also malicious.

The Supreme Court in Newswatch Communications Ltd. v. Atiku Abubakar (2005) 11 NWLR (Pt. 936) 367 also held that a publication that was critical of a public figure (the Vice President of Nigeria) was protected by the freedom of expression guarantee, as long as it was not false or malicious.

The court emphasised the importance of freedom of expression in a democratic society, particularly in cases involving public figures. Nigerian laws balance freedom of expression with protecting reputation by adopting a nuanced approach that takes into account the context of each case.

While the courts recognize the importance of freedom of expression in a democratic society, they also acknowledge the need to protect the reputation of individuals, including public figures, from false and damaging statements.

Ultimately, the courts will weigh the competing interests of freedom of expression and reputation protection on a case-by-case basis. Citizens are encouraged to be reasonable and responsible while exercising their guaranteed by the Constitution. That is what morality and human demands.

Freedom of expression is one of the inalienable rights recognized globally and adequately protected. Indeed, the constitutions of most countries, including Nigeria, expressly provide for the protection of this right due to its importance and relevance to the sustenance of democracy.

However, this right is not absolute, as it is curtailed to prevent the dissemination or propagation of information aimed at tarnishing the image of others with the intent to lower their dignity in the eyes of right-thinking members of the public or incite a breach of public peace. Such acts constitute defamation, which is both a criminal offense and a tort.

LEGAL FRAMEWORK FOR THE PROTECTION OF FREEDOM OF EXPRESSION

Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended):

This section guarantees the right of every citizen in the following terms:

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

Sub-section 2 further provides:

> “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 the fulfillment of a condition laid down by an Act of the National Assembly, shall own, establish, or operate a television or wireless broadcasting station for any purpose whatsoever.”

Similarly, Article 19 of the Universal Declaration of Human Rights states:

> “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.”

Furthermore, Article 9 of the African Charter on Human and Peoples’ Rights provides:

> “1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinion within the law.”

LIMITATIONS TO THE RIGHT TO FREEDOM OF EXPRESSION

As earlier stated, the right to freedom of expression, like some other rights, is not absolute. The Nigerian Constitution, as well as international statutes, provides for restrictions on this right.

Section 39(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended):

This section stipulates that the right to freedom of expression can be restricted by a law reasonably justifiable in a democratic society.

Section 45(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended):

This section outlines factors that justify restrictions on freedom of expression, including:

Defense, public safety, public order, public morality, and public health.

Protecting the rights and freedoms of others.

Similarly, the African Charter on Human and Peoples’ Rights reinforces the exercise of this right within the confines of the law.

The determination of whether a particular restriction is justifiable in a democratic society is a question of fact reserved for the courts. In Nigeria, some laws restricting freedom of expression include the Criminal Code and the Official Secrets Act (1962)

DEFAMATION AND FREEDOM OF EXPRESSION

In Nigeria, defamation is both a criminal and civil matter. Civil defamation, regulated by common law, seeks to protect a person’s reputation from unjustified attacks through written or spoken words.

The Supreme Court defines defamation as:

> “Any imputation which may lower the plaintiff in the estimation of right-thinking members of society, cut them off from society, or expose them to hatred, contempt, or ridicule.”

The plaintiff must prove the following to succeed in a defamation claim:

1. That the words complained of are defamatory.

2. That the words referred to the plaintiff.

3. That the words were published to a third party.

4. In the case of slander, special or actual damage must be proven unless the slander is actionable per se.

A defendant may raise defenses such as justification, absolute privilege, qualified privilege, or fair comment to avoid liability.

Criminal defamation, provided for in Section 375 of the Criminal Code, states:

> “Subject to the provisions of this chapter, any person who publishes any defamatory matter is guilty of a misdemeanor and is liable to imprisonment for one year, and any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years.”

Similar to civil defamation, defenses to criminal defamation include justification, absolute privilege, and qualified privilege. However, in criminal cases, the defendant must also prove that the publication was for the public benefit.

Sedition, closely related to criminal defamation, involves publications intended to bring into hatred or contempt, or to excite disaffection against, public officials or institutions. This is akin to treasonable felony.

CONCLUSION AND RECOMMENDATIONS

The courts have a duty to protect citizens’ fundamental rights while striking a balance between the right to freedom of expression and the protection of individual reputations.

It is vital to educate Nigerians about their fundamental rights and responsibilities. Government and non-governmental organizations should collaborate to enlighten citizens on how to exercise their rights without infringing on the rights by other person.