National Assembly Should Repeal Criminal Libel Now

 By Tonnie Iredia

The handling of the on-going defamation case between legal giant, Afe Babalola and social activist, Dele Farotimi has provided strong evidence that Nigeria has probably lost its fight against media trial. Many years back, there was the well-articulated viewpoint that because the word “trial” is associated with the process of justice, trial by the media constitutes an undue interference in the process of justice delivery.

The argument has since been overtaken by the nature of social media which has made public communication exceedingly rampant, just as lawyers have themselves contributed to the development by engaging in the new wave of minute-by-minute commentary on cases already before a court of justice. Apart from publicity-seeking lawyers, some others with scanty briefs are too anxious to let the public know that they are learned.

Unfortunately, the Nigerian public has not been well served by the trend in which both parties in the case have already found one another guilty. In the process, the parties have also made it easy to identify the bias of each commentator while establishing that Nigerian law was in a state of confusion. The original point made was that Farotimi was smuggled into Ekiti from Lagos for trial because libel had been decriminalized in Lagos state.

Another version said Lagos and Edo states were the only two states where libel had been downgraded to civil wrong before it was realized that Ekiti itself had done same in 2021. Those who were thus unable to comprehend why the charge was read in Ekiti were later informed that it was still a crime as a federal offence. So, how can anyone pacify the social media mob with the gossip that a federal crime was being happily prosecuted in Ekiti which had decriminalized same offence in her own territory? 

Here, one can say that the irrepressible prolific writer Chidi Odinkalu may have greatly influenced some of the views of the social media activists. Odinkalu had recalled the story of Paul Anyebe a judge in Benue state who was once prosecuted on a-two count charge of attempted murder and illegal possession of firearms. On the latter, he was convicted in the lower courts but freed at the Supreme Court.

What the apex court established was that the illegal possession of firearms being a federal offence could only be prosecuted by the Attorney General of the Federation. Expectedly, the public may not have understood why Dele Farotimi was being tried in Ekiti state for criminal libel which is a federal offence. In the circumstance, any person was free to believe that the trial of Farotimi in Ado Ekiti was influenced by some big personality.

The views of a few conservative intellectuals on Babalola’s side did not convince some ‘diehards.’ As one commentator on social media observed, the write-up with the title “Dele Farotimi: When activism is no licence to defame” gave an impression that the accused had already been found guilty hence the conclusion that activism was no licence to defame others. No one could have defamed anybody yet until after judgment.

As a matter of fact, with a few people already volunteering to testify in favour of Farotimi, the presumption of guilt is shaken. At the same time, writers on the side of the complainant have spent ample time telling us about the great achievements of Babalola as if the man’s career and feat were in doubt. There is nothing strange about people seeking to bring down a great character because it is only those on top that can be brought down. One commentator was so incensed that he reduced the issue to how African culture expects young people to respect elders.

Those who were unable to immediately comprehend the overwhelming public interest in the matter were wrongly thinking of Babalola and Farotimi. They greatly missed the point because what attracted everyone to the subject was the common public pain of judicial corruption in the country. Nigerians are not pleased with the judiciary. 

The other day when Chief Justice Kekere Ekun tried to explain the problem of conflicting judgments, one critic on radio merely reminded listeners that the ugly trend was a recent phenomenon. To be honest, too many inexplicable things have happened in Nigeria of recent; a good example being the case of a governorship election petition in which the oral judgment was the opposite of the certified true copy of the same judgment.

Again, although criminal libel is a written law that can be located and read, it still did not make sense to many people. On the other hand, it is easy to appreciate civil defamation where anyone who was defamed could sue and be compensated for whatever damage was done. It is truly hard to convince people that Farotimi’s alleged defamation against Babalola should be punished as if he defamed every other person whose names he never mentioned in his book. Consequently, social media mob can never understand how the attack on a particular person’s reputation can adversely affect the reputation of another person who was not referred to in the statement that was considered to be defamatory.  For as long as it exists, criminal libel will always be perceived more as bad law.

From the above, it is obvious that decriminalizing libel in Nigeria is overdue. It is indeed one of the failings of our national assembly that obsolete colonial laws of sedition and criminal libel are still in our law books more than half a century after the colonialists who originated them had left Nigeria. The obsolete laws are no doubt an affront on free speech provided for by Section 39 of the Constitution of the Federal Republic 1999 and Article 9 of the African Charter on Human and People’s Rights Act. 

Each time this argument is presented, it is countered by the purpose of Section 45 of our constitution which recognizes that certain laws are reasonably justifiable in a democracy. Is it justifiably reasonable to take aspects of the law of sedition and incorporate them into the Cybercrimes act to harass citizens? Is it not repugnant to criminalize libel and equate an attack on a person’s reputation to an attack on government and the entire society? 

To make matters worse the procedure attached to criminal libel can hardly meet the course of justice making it clearly undesirable. What usually happens is that when a person files a petition, accusing someone of making a false or damaging statement against him or her, the accused is usually brutalized even before the case is determined or indeed before getting to the point of saying anything. In the case of Farotimi for example, he was placed on handcuffs, denied bail and imprisoned for no less than two weeks without any opportunity to even show that he can prove the truth of his allegation.  Yet, the law accepts truth as an absolute defence. Such a procedure can only be forcefully justified in a dictatorship and not a democracy.

Since we are no longer under colonial or military rule, it is important to repeal criminal libel so that a party that can win a case at the end is not first brutalized before the case starts just as the loser’s sanction comes only after conviction. Nigeria would certainly be better off if sufficient attention is paid to law reforms. 

One of the advantages of such is that it produces a uniform system of laws and justice delivery. The situation of a few states decriminalizing libel while the federal system remains stagnant is ill advisable. Besides, it is not in the interest of the nation to focus on yearly review of electoral act while obsolete colonial laws remain in our books. 

We have had ample time to change the situation. As far back as 1985 when former governor Jim Nwobodo sued one writer, Arthur Nwankwo over an article he wrote criticising the governor, Hon Justice Olatawura JCA made the following profound statements: “we are no longer the illiterates or the mob society our colonial masters had in mind when certain laws were promulgated. Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.”

Instead, let us enjoy the freedom of democracy that at the same time abhors reckless statements that can hurt the reputation that some citizens have built over the years.

*Dr. Iredia is a commentator on public issues