Civic Expression, Media Freedom, Law and the Fight Against Impunity

Femi Falana, SAN

Femi Falana

 

I am honoured to be in the midst of such a distinguished assembly of media practitioners and legal practitioners in West Africa. The reasons for this gathering which include upholding, defending and advancing freedom of expression are quite noble. Needless to add, I feel personally elated for the privilege to present the Keynote Address in this forum.

The West African region was colonized by Britain, France, Portugal and Germany. The colonialists had the same motives of exploitation and domination. To be able to do this, they used force, brute and employed cruelty.  After the Berlin Conference of 1884/1885, European troops invaded, killed people and looted the resources and imposed colonial regimes in many countries. Thereafter, the European invaders set up governments to protect the interests of imperialism.

The exposure of brutal British colonialism was led mainly by the media.  The press became the main opposition to colonial rule, and the British set out to quash it by the promulgation of anti-press laws, the most repressive being the law on sedition. The sedition law derived from a similar law crafted in 13th Century Britain to repress the print media. In 1661, The British Sedition  Act which states that anyone   who in speech or writing called the King a heretic or papist, or who incited “hatred or dislike of the Person of His Majesty or the established Government” was to be disqualified from holding any public, military or ecclesiastical office…”

This was introduced into Nigeria as the Newspaper Ordinance No 10 of 1903 and the Seditious Offences Ordinance of 1909, which criminalized the publication of any statement that that might bring the British authorities to disrepute or excite disaffection against the Crown or government.  Thus began brutal colonial rule across West Africa. The repression was such that any form of opposition to the anti-people’s policies of the colonial authorities was met with brutality and violence. Unarmed protesters were killed while ‘agitators’ were banned and banished to remote areas.

Lord Fredrick Lugard, who in 1914, became the first Governor General of Nigeria described the nationalists and the journalists operating from Lagos as being: “seditious and rotten to the core. They are masters of intrigue and have been plotting against the Government ceaselessly … But after 29 years as Governor here, I am free to say that the people of Lagos are the lowest, most seditious and disloyal, the most prompted by purely self-seeking motives of any people I have ever met.”

Under the Sedition Ordinance of 1934 in Ghana, two nationalists, Nnamdi Azikiwe and I.T.A Wellace-Johnson were convicted on charges of sedition. Kwame Nkrumah was arrested for leading a disturbing ‘positive action’ campaign in Ghana against British rule in 1950. He was released to lead the newly formed government a year later on 12 February 1951, after his party, the Convention People’s Party (CPP), won the 1951 elections.

The laws were primarily to censor the press which was acting as check on colonial authoritarianism.  Political Scientist, Ahmed Aminu-Ramatu Yusuf explained that the Nigerian Press in colonial times: “…challenged British colonialism, ventilated popular grievances and demanded for independence. The popularity of newspapers were, in fact, determined by the extent  they exposed colonial exploitation, oppression and injustices and,  how pungently they  criticized European imperialism in general. They were also measured by how they challenged the colonial forces, defended African rights, promoted African nationalism and demanded fair-play, liberty, and justice for Africans.”

So, in colonial Africa, to be a journalist was like being in a criminal profession as the road to jail was always wide open.  Journalists were tried for publishing and circulating seditious statements.

But the colonialists were defeated as they were forced to relinquish power. In the immediate post-colonial period and, despite what was touted as the dawn of a new era, the new governments retained the colonial anti-press laws such as the sections of the Criminal Code prohibiting the importation of publications as well as Criminal Defamation.

The situation became worse under military regimes that removed civilian regimes in the early 1960s. The military rulers promulgated more anti media laws in order to silence the people. Once again, the media played a leading role in the struggle that culminated in the exit of military rulers from the political scene. Under the civilian administrations, each country has a Constitution which protects human rights including freedom of expression, to hold opinions and to receive and impact ideas and information without interference.

Every country in West Africa has equally ratified the Universal Declaration of Human Rights. Section 19 thereof states that: “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, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” In addition, every country has ratified the African Charter on Human and Peoples Rights whose article 9 provides that: 1. Every individual shall have the right to receive information, and 2. Every individual shall have the right to express and disseminate his opinions within the law.”

While taking cognizance of these national and international provisions on press freedom and freedom of expression, it is fundamental to note that these rights are products of struggles against the tyranny of the governments. They were not given willingly, but won by the people across the ages. Many governments are opposed to these rights and would therefore not hesitate to exploit any situation to abridge them. In many cases, leaders and ruling cabals are given to impunity which cannot thrive where press freedom exists. The ruling political class is a jealous one that does not share its powers with anyone or group.

On account of constitutional provisions and relevant media laws, many countries in the West African sub-region, particularly in Francophone countries, have decriminalized freedom of expression.  Regrettably, the democratic gains in the area of press freedom are being systematically undermined by liberticidal laws and policies under the pretext of fighting cybercrime. In other words, cybercrime laws are being used to intimidate journalists and muffle freedom of expression online and digital rights.

While the obnoxious provisions of the cybercrime laws have been upheld by domestic courts in West Africa, the Ecowas Court has risen to the occasion by upholding the right to freedom of expression. In Amnesty International v Republic of Togo the ECOWAS Court declared that Togo, by shutting down the Internet in 2017, violated the rights of the plaintiffs – seven Togolese NGOs and a journalist. The Court awarded damages to the plaintiffs, and ordered Togo to put in place a legal framework protecting freedom of expression that is consistent with international human rights law standards. The Court also ordered Togo not to shut the Internet down again.

In another suit filed by a number of Nigerian civil society organizations, including the Socio-Economic Rights and Accountability Project (SERAP) and Paradigm Initiative. Access Now, along with Electronic Frontier Foundation, and Open Net Association intervened with an amicus brief, the ECOWAS Court found the Twitter ban by Nigeria to violate both the African Charter on Human and Peoples’ Rights and the UN Charter, and ordered the Nigerian government to take legislative steps to guarantee the rights of the plaintiffs and to pay their litigation fees. The Court requires the government to take steps to ensure it does not repeat similar acts of censorship in the future.

The cybercrime laws in West Africa have reinforced sedition, criminal libel and other anti-media laws. For instance, section 24 of the Cybercrime Act of Nigeria criminalised insult, cyber stalking, causing annoyance, sending offensive messages, and criminal intimidation. The repressive law was challenged in two cases filed by Laws and Rights Awareness Initiative and Socio-Economic Rights and Accountability Project. In both cases, the ECOWAS Court declared section 24 of the Cybercrime Act 2015 illegal and directed Nigeria to amend the section to make it conform with the fundamental rights of Nigerian citizens to freedom of expression guaranteed by section 39 orf the Constitution of Nigeria, 1999 and article 9 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria 2004.

In line with both judgments, the Government of Nigeria has repealed section 24 of the Cybercrime Act by and replaced same with Section 5 of the Cybercrime Amendment Act which provides as follows: Any person who knowingly or intentionally sends a message or other matter using computer systems that is pornographic or false, for the purpose of causing a breakdown of law and order, or posing a threat to life.

In spite of the decriminalisation of media law that took place in Ghana in 2001, the government has continued the harassment of journalists and other citizens under Criminal and Offences Act 1960, Act 29, and section 76 of the Electronic Communications Act (Act 775). In Nigeria, the police and other security agencies have continued to harass journalists under the repealed provisions of the Cybercrime Act of 2015.

Instead of gaining political and economic independence from the former colonial regimes, African states entered into a stage of neocolonialism. Up till now, the African states remain under the firm grip and control of imperialism. No doubt, the human rights debate in Africa has concentrated on the legal and philosophical. But Professor Shijvi has rightly called on Africans to move the debate to the social and political planes. We can only do so by ending the artificial dichotomy between political and civil rights, and socio-economic economic rights as well as right to sustainable development, to peace and to a healthy environment.

To that extent, in defending freedom of expression and press freedom in Africa, it must be realised that the majority of the African people are unable to express themselves due to lack of education. To enable all citizens to enjoy the human right to freedom of expression, we should join the campaign for demand for the actualization of right to education guaranteed by article 17 of the African Charter on Human and Peoples Rights.

Other socioeconomic rights guaranteed by the African Charter include the right to participate in the government of one’s country either directly or indirectly through accredited representatives, the right  to work under equitable and satisfactory conditions and equal pay for equal work, the right to health, the right of women and the children to protection, the right to a general satisfactory environment, the right to development, the right to popular control of the natural resources of each country and right to self-determination.

In several cases, the aforesaid human and peoples’ rights have been upheld by the African Commission on Human and Peoples’ Rights; the Community Court of Justice and the African Court on Human and Peoples Rights.  A few domestic courts have equally recognised the socio-economic rights of the people.  Based on the success recorded so far, I am compelled to call on the media to educate and enlighten the people about their socio-economic rights and prevail on governments to carry out the duty to protect the socio-economic rights of the people of Africa.

We must appreciate that the struggle that ended violent colonial and military regimes in Africa was not won by NGOs but by an alliance of workers, women, youths, and the progressive extraction of journalists, lawyers and other professionals. Such an alliance must be forged in each country for the purpose of defeating the repressive governments that are involved in the recolonisation of the African people with the support of imperialism.

It would be recalled that the struggle that ended the violent colonial and military regimes in Africa was not won by NGOs but by an alliance of workers, women, youths, and the progressive extraction of journalists, lawyers and other professionals. It is high time such an alliance was forged in each country for the purpose of defeating the repressive governments that are involved in the recolonisation of the African people with the support of imperialism.

Permit me to end the keynote address by making the following recommendations and suggestions:

 

  1. The defence of human rights should no longer be limited to political and civil rights. The defence of socioeconomic rights should be prioritized in the campaign for human rights enforcement.
  2. Governments must be made to respect the human right to freedom of expression and press freedom to enable journalists to discharge the duty of promoting public accountability and transparency.
  3. The provisions of Cybercrime Act which restrict press freedom and other political and civil rights of the people should be challenged in domestic courts and regional courts.
  4. The media should engage in a rigorous campaign to prevent parliaments from enacting anti media laws.

 

  1. The media and citizens should make use of the internet and social media in a very responsible manner. To check abuse of the use of the social media, a law should provide for the appointments of an independent body in every country to speedily attend to online defamation and sanction erring journalists and other persons.
  2. The constitutional validity of the criminal code relating to sedition and criminal libel should be tested in courts.

Finally, I wish all participants overall success in holding this forum, launching the West African Network of Activists and Media Defence, WANAMDEL and the struggle to build a world based on equality and social justice.