Engaging Nigeria’s democracy and anti-free speech laws, By Opeyemi Owolabi

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In the 2020 World Press Freedom Index, Nigeria is ranked 120th of 180 countries, much worse than Benin, Niger, Haiti, Mongolia, Malawi and Sierra Leone.

It is advised that Nigeria fulfills its international obligations to ensure respect, protection and fulfillment of the right to free speech. The optics are on the downside for the country among the comity of nations with regard to free speech and human rights. Nigeria government should immediately release all its prisoners of conscience and ensure that all organs of government work optimally in the overall interest of Nigerians.

The advent of the  Fourth Republic had heralded hopes of transition to a democratic era of free speech, rule of law and respect for human rights. However, events unfolding thereafter have rather been one of an anti-climax.

Between 1999 and 2015, several journalists were arrested and unlawfully detained by state agents. In 2001, Dayo Omotosho, the state bureau chief for The Comet newspaper, was barred from covering the government of Oyo State. On April 23, 2001, Okon Sam, a reporter for Pioneer newspaper was assaulted by security guards on President Olusegun Obasanjo’s entourage. On June 28, Namdi Onyenua of Glamour Trends was arrested in his office by security agents, who fired into the air to disperse other employees. He was later arraigned in court for allegedly publishing false stories under section 392 of the Penal Code. In June 2014, squads of soldiers seized and, in some cases destroyed, thousands of copies of several newspaper publications, including those of Leadership, The Nation, and The PUNCH. The general distribution centre for all newspapers in Area 1, Abuja, was also sealed. In none of these incidents did the government obtain a court order prior to the oppressive acts.

The period since 2015 has been a more hostile one for journalists and free speech, generally, in Nigeria, in a manner reminiscent of the years of successive military juntas. In 2020, the Minister of Information, Alhaji Lai Muhammed repealed and re-enacted the National Broadcasting Commission (NBC)’s Code to include ‘hate speech’. In June this year, the bill to Amend the NBC Code was presented before the National Assembly to include regulation of media houses and social media, with punitive measures attached for infringement of the Code. Already, section 2 (n) of the NBC Act gives the NBC power to impose sanctions. Under the repressive provisions of the Code and Act, the Commission imposed fines on the Africa Independent Television (AIT), Arise TV and Channels Television in October 2020 for alleged “unprofessional coverage” of the EndSARS protests and the Lekki Shooting. Prior to that time, the NBC had imposed fines on Naija info Fm for comments by one of its studio guests, Dr Obadiah Mailafia, that some reformed terrorists had confessed that some northern governors funded the activities of Boko Haram. In July, the NBC also issued a caution to broadcasting stations on their reportage of banditry and terrorism, in what appears to be censorship of news broadcasts. The constitutional propriety or otherwise of the unilateral imposition of these punishments by the NBC is being challenged in courts by the Socio-Economic Rights and Accountability Project (SERAP), Premium Times Centre for Investigative Journalism (PTCIJ), and other human rights groups.

As at December 2019, not less than 11 journalists were undergoing prosecution for criticising government or exposing corruption in government. According to the wife of the journalist, Agba Jalingo, publisher of Crossriver Watch, he was slammed with charges of terrorism and treason, which are ordinarily unbailable, for reporting the alleged diversion of N500 million by the Cross River State governor. Recently, in a suit brought by SERAP, the ECOWAS Community Court slammed damages of N30 million on the Nigerian government for violating Mr. Agba Jalingo’s rights to freedom of expression, dignity of the human person, and liberty. There was journalist Jones Abiri, editor of Weekly Source, who was arrested and detained by the State Security Service (SSS) for two years without trial, for allegedly threatening oil companies. He was eventually charged for terrorism and economic sabotage. The same happened to Seun Oloketuyi of Naijahottestgist for publishing, in his blog, an alleged extra-marital affair by a top executive of one of Nigeria’s banks. Chris Nnwandu, publisher of Evening Whisper newspaper, was arraigned in court for sharing the story on his Facebook page. Kaduna social media critic, Abubakar Idris, better known as Dadiyata, has remained missing since August 2019, when unidentified men whisked him away from his residence in Barnawa. Kano State governor, Umar Ganduje and the Police have denied their involvement in his disappearance. Publisher of New York based online newspaper, Sahara Reporters, Omoyele Sowore, was arrested by the SSS in August 2019 and slammed with charges bordering on treason for being critical of government and pre-coordinating a protest code-named, ‘RevolutionNow’.

In what appears to be a resuscitation of the defeated social media and fake news bills through the back door, the National Assembly is currently considering the amendment of the NBC Act to criminalise fake news and regulate the activities of broadcasting stations on the social media. The National Assembly also seeks to amend the Press Council Act to ensure that Nigerians obtain licenses before establishing press organisations.

Former Chairman of the governing council of the National Human Rights Commission, Dr Chidi Odinkalu and music producer and Chairman of Chocolate City, Audu Maikori, were arrested by the Police and transferred to Kaduna for trial on what Governor El-Rufai dubbed “fake news likely to cause ethnic uprising.” Odinkalu was arrested for his comment on the ethnic crisis in Kajuru, Kaduna State, while being a guest on Channels TV prior to the 2019 general elections. Audu Maikori was apprehended and transferred to Kaduna in 2017 for publishing about the purported killing of five College of Education students in Southern Kaduna on his Twitter handle. The court later ordered Kaduna State government to pay Maikori damages to the tune of N40 Million for the breach of his rights.

Many journalists and critics of government are currently being harassed, intimidated and undergoing trials for such offences as criminal defamation, under section 291 of the Penal Code and section 373 of the Criminal Code; cyberstalking, under section 24 of the Cybercrime Act; terrorism under sections 1 & 2 of the Terrorism (Prevention & Prohibition) Act; and treason under section 37 of the Criminal Code. In 2020, the National Assembly proposed to enact the ‘Social Media Bill’ to allow the Police determine who posts and what should be posted on the internet. It proposed to empower the Police to arrest and detain anyone for posting what it unilaterally believes to be fake, improper and offensive. The bill also aimed to empower the Police or the regulator to block internet access. The bill was abandoned midway after vehement opposition by civil society groups, journalists, individual activists and Nigerians, during the public hearing stage.

The ‘fake news’ bill was also sponsored at the National Assembly to award penalties for the publication of fake news or stories. The bill, just like the social media bill, was hugely perceived to be an oppressive tool and capable of leading to the abuse of power and authority by the state, given the antecedents of Nigerian government. In what appears to be a resuscitation of the defeated social media and fake news bills through the back door, the National Assembly is currently considering the amendment of the NBC Act to criminalise fake news and regulate the activities of broadcasting stations on the social media. The National Assembly also seeks to amend the Press Council Act to ensure that Nigerians obtain licenses before establishing press organisations.

The recent attempts to gag free speech has been tagged as the replica of decree 4 of 1984, which empowered the government to unilaterally shut down newspapers, radio and television stations for publishing or reporting news perceived to be detrimental to its interest.

There might be merits in ensuring sanity in the Nigerian social media space, however the penalties being touted are incompatible with right to freedom of expression. Nigeria is a state party to article 9 of the African Charter on Human and Peoples’ Rights (1981); article 19 (2) of the International Covenant on Civil and Political Rights; and other relevant international legal instruments that guarantee free speech.

There might be merits in ensuring sanity in the Nigerian social media space, however the penalties being touted are incompatible with right to freedom of expression. Nigeria is a state party to article 9 of the African Charter on Human and Peoples’ Rights (1981); article 19 (2) of the International Covenant on Civil and Political Rights; and other relevant international legal instruments that guarantee free speech. Nigeria has the mandate to ensure that this right is respected, protected and fulfilled. Experts and several international mechanisms have recommended the de-criminalisation of free speech and defamation from the national laws by countries. Of course, penal laws have chilling effects on freedom of expression.

Recently, the popular microblogging platform, Twitter was suspended in Nigeria by the Nigerian government, with this act generating global condemnation and the ranking of the country in the same category with North Korea, China, Iran and Turkmenistan, which all engage in draconian restrictions of the freedom of expression in their territories.

In the 2020 World Press Freedom Index, Nigeria is ranked 120th of 180 countries, much worse than Benin, Niger, Haiti, Mongolia, Malawi and Sierra Leone. Interestingly, Nigeria was ranked 119th in the earlier index. According to Amnesty International, there are concerns over the arrest of journalists by armed men suspected to be members of the country’s secret police, the SSS, in Nigeria.

It is advised that Nigeria fulfills its international obligations to ensure respect, protection and fulfillment of the right to free speech. The optics are on the down side for the country among the comity of nations with regard to free speech and human rights. Nigeria government should immediately release all its prisoners of conscience and ensure that all organs of government work optimally in the overall interest of Nigerians.

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