By Akpandem James
Our people need basic education on rights and limitations. And the government must lead this charge in its own overriding interest. There are critical truths the people must grasp, but they obviously do not. Mercantilists and vested interests thrive on this void, reaping monumental profits from the people’s deficiency. The Holy Book declares in Hosea 4: 6: “My people perish for lack of knowledge.” Spiritually, this warns of monumental destruction that results from defying God’s laws, delving into unfaithfulness, and divine rejection and ruin, as folly blurs wisdom.
In simple terms, ignorance is like an atomic bomb clutched by a reckless child. With one ignorant flick entire communities can disappear in a self-inflicted tragedy. Economies can be ruined by scams. Lives can be destroyed by deceitful schemes. Futures can be wiped out by mercantilists who prey on the ignorant.
There is an issue that is quietly gaining undue traction with capacity for monumental destruction. It is called “freedom of expression”. Some persons see it as a holy sacrament that must not only be imbibed sumptuously, but guarded and absolutely executed with holy fanaticism.
But, is it really absolute under the law, any law? Freedom of expression under the Nigerian Constitution is not absolute. It does not seem to be. Not here, not even in the freest of worlds, be it spiritual or temporal. In the ecclesiastical domain, in Christendom, for instance, the Holy Bible repeatedly enjoins the bridling of tongues.
It strongly cautions against its reckless, careless or unbridled deployment. It does so because speech has the power to destroy or build. The Bible warns in Matthew 12: 36-37 that individuals will be held accountable for their words.
The Quran also cautions against the reckless or harmful use of the tongue. It advises the faithful to speak carefully, truthfully and kindly. Quran 49:11 says, “Let not one group ridicule another…nor insult one another, nor call each other by offensive nicknames.”
Just like the Bible, the Quran teaches that the tongue is powerful and its misuse can lead to moral and spiritual consequences. If the holy writs admonish and caution against the use of that powerful instrument in manners not generally approved, temporal institutions that take it for granted risk annihilation.
Just as the statutes, spiritual and temporal, caution against reckless use of the tongue and other instruments of expression, it also celebrates wise deployment and forbids gagging of individuals and entities. Freedom of expression not only allows for the plurality of ideas, especially in multidimensional situations, but it also contributes to the growth and advancement of society.
That is why, for instance, Section 39(1) of the 1999 Constitution (as amended) guarantees freedom of expression, including the right to hold opinions and impart information.
However, even as the Constitution provides for that freedom, it nonetheless subjects it to limitations under other laws, such as those on defamation and incitement. It restricts expression in the interest of public order, public safety, public morality and protection of the rights and reputations of others.
The statute’s provision for freedom of expression has, unfortunately, been misconstrued by some as a license to express their views any way they want and in any manner they choose.
It is increasingly concerning that there is a growing trend of simplifying this provision, which restricts the extent of the freedom it guarantees. It is even more troubling that those who should be at the forefront of educating the people about this are themselves creating fertile grounds for abuse.
They are the ones who would mouth persecution when caution is advised or action contemplated. They are the ones who would label accusations of abuse of the Constitution against prosecutorial entities. The elite with vested interests deploy it to further their cause.
In the process, they mislead otherwise innocent persons into assuming they have a constitutional right to commit blue murder.
Surprisingly, this condition is not limited to ordinary people; it has also infiltrated the professional realms of fields such as journalism and even law.
Some practitioners, particularly those with activist fixation, engage in unethical violations and then use the principle of freedom of expression as justification. Rights activists and civil society organisations blow the trumpet of such freedoms and overstep legal boundaries, cuddling masses with ingratiation.
They preach it as a sacred creed. In the process, they mislead those who do not know and have never learnt of the boundaries. They see crossing the line as bravery, being outspoken, daring the authorities and speaking truth to power.
Quite a number of journalists and activists have run into troubled waters on this score. When it happens, they blame the prosecutors for breaching the law. Unknown to many, only very few of those accusations are followed through legally. They eventually seek Nicodemus interventions. But that does not stop them from further preaching the gospel of no-holds-barred freedom.
It is doubly unfortunate that lawyers who should lead the charge in properly educating the public on the limitations of that provision, or intervening knowledgeably on matters concerning it, seem tepid in their approach, because it seems to serve them better at the end of the day.
Interestingly, the courts have consistently held that an individual’s constitutional rights stop where those of others begin. Freedom of expression does not translate into a license to injure reputations, incite disorder or endanger public peace. This has consistently been drummed by the courts, whenever the occasion demands.
But there does not seem to be a reasonable appreciation of this intervention among the community of rights activists. Just as it has become the order of the day in this digital media era, conspiracy theorists and vested interests have swarmed the social media space, deliberately infecting the gullible throng with the illiteracy virus just so they can boost their enterprise.
One does not need to be a lawyer to appreciate the intent of the provisions of the Constitution. I am not one, but I have enough professional knowledge about defamation and its implications. It is a fact that has been repeatedly highlighted in relevant institutions: Nigerians do not enjoy unrestricted liberty to just say anything, anyhow, anywhere.
For the professionals, there are ethical boundaries and legal considerations. For ordinary people, there is an extension of the golden rule. Freedom of expression does not permit foul language or shield unsubstantiated allegations.
Within the Nigerian legal provisions, there are clear lines between legitimate criticism and defamatory, abusive or inciting expression. Even if it is related to public officials, while they may and should be constructively criticised, such criticism must be factual, fair, measured and capable of proof. Statements that are reckless, abusive, laced with foul language, based on speculation or falsehood or likely to provoke hostility or unrest, fall outside constitutional protection.
These are not merely conjectures, they are candid provisions, and the courts have repeatedly ruled that freedom of speech is not freedom to defame, insult or incite.
And to be clear, there does not seem to be any law shielding citizens from arrest or prosecution for abusive or inciting speech. If anything, some provisions expressly criminalise such conduct. These include the Criminal Code/Penal Code (depending on jurisdiction), Cybercrimes (Prohibition, Prevention, etc.) Act, Defamation laws (civil and criminal) and the Public Order laws.
Where statements are capable of defamation, incitement, breach of peace and threats to public order, law enforcement agencies are constitutionally obligated to investigate, arrest and prosecute. It is important to note that arrest and prosecution do not infringe upon freedom of expression when conducted in accordance with the law.
Often, those caught on the wrong side plead personal or group injury or anger as a trigger of action, but anger might not serve as a defense in law. Even provocation, a variant of anger, cannot be pushed as a full defense; it depends on the case and jurisdiction. It can reduce liability or punishment in certain areas of law, like in a case of murder, which could be reduced to manslaughter. But it could also undermine defense, depending on the direction from whence it comes. The bottom line is that anger does not excuse inflammatory or unsubstantiated allegations, as intent or recklessness suffices for liability under defamation laws.
It is worthy of note that the Nigerian criminal jurisprudence recognises only limited defenses, which include insanity, provocation (under strict conditions) and self-defense. Anger, emotion or perceived injustice does not excuse defamatory, inciting or reckless speech. Therefore, the law, and in fact, courts, expect citizens, especially those speaking repeatedly and publicly, to verify claims, use lawful channels and exercise restraint in their interventions.
Repeated allegations made knowingly or recklessly can be seen as malicious and negate any claim of innocent emotional outburst.
Those who seek the protection of the Constitution when caught in the web of defamation might be disappointed because no constitutional provision offers blanket immunity in such circumstances. Often, the authorities exercise discretion in allowing such situations to pass, not necessarily because it is constitutional but because of underground interventions for leniency.
The Constitution protects expression,not recklessness; opinion, not falsehood; and dissent, not disorder. The moment an expression crosses into repeated unsubstantiated allegations, personal attacks, incitement and statements capable of unsettling public peace, constitutional protection is forfeited and the person involved becomes subject to lawful restraint and prosecution.
At this point, the “innocent citizen exercising free speech” argument falls flat. Such pleadings can even be regarded as a misleading or obstructing gambit. No specific constitutional clause protects repeated defamatory or inciting claims; prosecution follows standard legal processes.
Within prosecutorial circles, freedom of expression does not equate freedom from consequences, does not suspend criminal or civil liability, and does not override public order or reputational rights. The apex court in Nigeria, the Supreme Court, has consistently held that rights under Chapter IV of the Constitution, which is devoted to the fundamental rights of citizens, are subject to law, order and responsibility.
It could be said, therefore, that the arrest and prosecution of a citizen for alleged defamatory and inciting statements cannot be dismissed automatically as a violation of free speech. Each case should be evaluated based on evidence, intent, repetition and public impact, rather than emotional or political narratives.
Our people, therefore, need better education on their rights and limitations. They should be shielded from those who trade with their ignorance. Rights literacy is urgently required. It would be good for the people, the authorities and the preservation of the larger society. It would be a grave deception to assume that the same law which grants freedoms, while expressly imposing limits on their exercise, can be relied upon to shield a person who is being prosecuted for clearly violating those very limits.
James, a Fellow of the Nigerian Guild of Editors, is a member of the International Press Institute.
