MEDIA RIGHTS BULLETIN

A Focus on Free Expression Issues

Vol. 1, No. 1                                                                                                            June 11, 1995




Shutting down the Press:

The Practice of Newspaper Closure

&

Proscription in Nigeria

Contents                                                                            

1.         Introduction                                                                                         

2.         Instances of media closures and proscriptions.                          

3.        Attempts to justify Government’s closure and proscription of media outlets
4.         The requirements of international standards.                                          

5.         Conclusion.                                                                                         

6.         Appendices.

Censorship, direct or indirect, is unacceptable: thus laws and practices restricting the right of the news media freely to gather and distribute information must be abolished, and government authorities, national or local, must not interfere with the content of print or broadcast news, or restrict access to any news source" ^I

Introduction

The Nigerian Press traditionally enjoyed a culture of vibrancy and diversity with independent newspapers and magazines competing effectively with state-owned publications. But in their bid to consolidate their grip on power, successive military governments have adopted a variety of repressive measures to control the free flow of information and suppress the right of citizens to freely express their political opinions.

No other form of control has, perhaps, been more drastic than the closure of media facilities or the banning of publications. They have proved to be the most devastating assault on press freedom in the last decade leaving affected journalists and media organisations totally helpless and at the mercy of the military government while depriving millions of Nigerians of their constitutional right to receive information and ideas without interference. '

Brazen and brutal in their application, such measures have denied millions of Nigerians access to independent news sources, resulted in the deterioration of printing facilities and other equipment and has often created untold hardship for journalists and other media workers who are thereby rendered jobless. Ironically, by frequent resort to these measures, military governments have betrayed the fact that they are driven to adopt more repressive action when they are at their weakest, when their popularity has waned considerably and they feel threatened by any form of critical opinion.

2.         Instances of Media Closures and Proscriptions:

Brigadier Adeyinka Adebayo, then Military Governor of the Western State, introduced the practice of banning newspapers in Nigeria in 1968.² He not only prohibited the sale, distribution or possession of the two- weekly newspapers known as the Sunday Star and the Imole Owuro by an Edict, the governor also declared the printers and publishers to be an unlawful society. ³

The Edict made any breach of its provisions a criminal offence punishable, in the case of an individual, with a prison term of not less than two years or a fine of not less than one hundred pounds or both such imprisonment and fine, and in any other case, with a fine of not less than five hundred pounds⁴.

An Ibadan High Court declared the Edict unconstitutional and void saying its provisions were inconsistent with section 25 of the Constitution of the Federation, 1963 which provides 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".⁵

 Thereafter, such measures were not applied in any part of the country until about 10 years later when the Federal Military Government of Lieutenant General Olusegun Obasanjo promulgated a Decree banning the Newbreed magazine.⁶ Since April 6, 1987, when the Military Government of President Ibrahim Babangida reintroduced the practice, virtually every major independent newspaper and news magazine in Nigeria has been shut down by security agents at some point or proscribed by the Federal Military Government for periods ranging from four months to one year. Five state-owned newspapers published by Sketch Press Limited, Ibadan and the Bendel Newspapers Corporation in Benin City, were also affected by the Federal Military Government's proscription orders.

In the last eight years, a total of 33 newspapers published by 11 companies were either shut down or proscribed while 9 news magazines published by 6 companies were also affected. Fourteen newspapers and magazines published by Concord Press Nigeria Limited, its sister company, African Concord Limited and Punch Nigeria Limited were either shut down or proscribed three times within a period of five years. Ten other published by Guardian Newspapers Limited, Guardian Magazine Limited, Punch Nigeria Limited and Bendel Newspapers Corporation suffered either forced closures or proscriptions twice within the same period.

Although the Administration of Major-General Muhammadu Buhari (December 31, .1983 to August 27, 1985) initiated attacks on the press in a systematic manner, it stopped short of closing down or proscribing any newspaper or magazine. But the Government conferred on itself the power to prohibit the circulation of newspapers in the Public Officers (Protection Against False Accusation) Decree No:4 of 1984, of which provided that:-  

"Where the Head of the Federal Military Government is satisfied that the unrestricted circulation in Nigeria of a newspaper is or may be detrimental to the interest of the federation or of any part thereof, he may by order published in the Gazette, prohibit the circulation in the federation or in any part thereof, as the case may require, of that newspaper, and unless any other period is prescribed in the order the prohibition shall continue for a period of twelve months unless sooner revoked or extended, as the case may require" . ⁷

The regime of General Ibrahim Babangida (August 27, 1985 to August 26, 1993) has the dubious distinction of having closed down or proscribed more newspapers and magazines than any other government in Nigeria's history" Forty-one newspapers and magazines were victims of this practice under the administration, some of them closed down or proscribed on two different occasion.

General Sani Abacha's government (November 18, 1993 to date) has been responsible for the proscription of 20 newspapers and magazines published by five companies in three major newspaper groups.

The execution of the proscription order on Newswatch magazine in 1987 is typical. On April 5, 1987, about 30 heavily armed policemen led by a superintendent stormed the premises of Newswatch at"63, Oregun Road, in Ikeja, Lagos and sealed off their offices. The next day, the Federal Military Government announced that it had banned Newswatch for publishing the report of the 12 member Political Bureau submitted to the government on March 27, 1987.

Newswatch published the report in an exclusive cover story entitled "Third Republic: A New Political Agenda". The press secretary to the Chief of General Staff, Mallam Yusuf Mamman, who announced the ban, said Newswatch acted illegally and, irresponsibly in publishing the report as it would prejudice a balanced consideration of the recommendations of the Bureau and could cause confusion and disaffection among the diverse groups in the society. On April 10, 1987, the Government published the Newswatch (Proscription and Prohibition from Circulation) Decree No 6 of 1987 by which it banned the magazine for six months with effect from April 6. The ban was however lifted on August 26, 1987, less than two months to the expiration of the six month period.

Since then, the various military governments have proscribed by Decree and for varying periods all the publications by Concord Press Nigeria Limited (three times), Guardian Newspapers Limited (once), Nationhouse Press Limited (once), Sketch Press Limited (once), Punch Nigeria Limited (two times), Bendel Newspapers Corporation (once), African Concord Limited (three times), Guardian Magazines Limited (once), Independent Communications Network Limited (once), and TELL Communications Limited (once).

At other occasions, they have also forcibly closed down the premises of Guardian Newspapers Limited, Vanguard Media Limited, Champion Newspapers Limited, Punch Nigeria Limited, Bendel Newspapers Corporation, Republic Newspapers Limited, Abuja Newsday, John West Publications Limited, Newbreed Organisation Limited and Guardian Magazines Limited. The method is invariably the same. Without any previous allegation of wrongdoing against a newspaper or magazine, or any warning or notice, armed security agents invade the premises of the affected news organisation, harass the helpless workers before sending them out and sealing off the premises. On some occasions, the government would subsequently publish a proscription decree purporting that the closure was done pursuant to the provisions of the decree.

The affected publications were never given any opportunity before or after the closure to defend themselves. On two occasions, the Federal Military Government closed down and proscribed two newspaper publishing companies owned by state governments in breach of the principle of federalism in the country. During these occasions, the states were being administered by elected civilian governors complemented by the various state legislatures while the military remained in control in the central government. Having shed the erstwhile control by state military governments, the newspapers had begun to operate in an independent manner under the democratic set-up in their states.

Sketch Press Limited, publishers of Daily Sketch, Sunday Sketch and Gboungboun, a vernacular newspaper, is jointly owned by the governments of Oyo, Ogun, Ondo and Osun states. It was one of the six media organisations whose premises were closed down by security agents of the Federal Military Government on July 22, 1993. On August 16, 1993, the government of General Babangida published the Newspapers, etc (Proscription and Prohibition from Circulation) Decree No 48 of 1993 by which it banned the newspapers published by Sketch along with those of three other publishing companies for six months, with effect from July 22, 1993. The newspapers were however, re-opened by General Abacha on November 18, 1993 in his maiden nationwide broadcast a day after he took over power as Head of State. They had been closed down for 118 days.

The Bendel Newspapers Corporation, publisher of The Observer, is similarly jointly owned by the governments of Edo and Delta States. On July 23, 1993, security agents of the Federal Military Government raided the premises of the newspaper on 18, Airport Road in Benin City, Edo State and sealed it off after harassing the workers and arresting some of them. The newspapers were also proscribed by Decree 48 of 1993 on August 16 but were re-opened by General Abacha in his November 18, 1993 broadcast. But the first forced closure of The Observer in October, 1988 was effected by the then Bendel State Government. It is still not clear why the military government decided to shut down the newspaper. They were re-opened in February 1989.

Twenty-five newspapers and magazines were shut down or proscribed by the Babangida Administration in 1993 alone following public agitation for a return to civil democratic rule and the government's desire to curtail expression of discontent with General Babangida's annulment of the June 12, 1993 presidential election results and his bid to remain in power indefinitely. In many instances, several other companies operating businesses unrelated to newspaper or magazine publication but sharing premises with targeted newspaper companies were also shut down and prevented from using their offices. This has happened in the sealing off of the premises of the Newbreed Organisation, Guardian Newspapers and Concord Press.

In the height of massive media repressions in the final weeks of the Babangida Administration, security agents invaded the premises of the Ogun State Broadcasting Corporation (OGBC) in Abeokuta on July 22, 1993 and sealed off the premises putting an end to the operations of the radio and television stations run by the corporation. The security men however withdrew from the premises the next day and allowed the stations to continue their operations.

3.         Attempts to justify Government's closure and proscription of media outlets

The reasons most frequently adduced by the government for closing down a newspaper house or banning a publication are irresponsibility and threat to national security or the unity of the country on the part of the affected newspaper. Such allegations are invariably never substantiated or presented before an independent adjudicatory body. The government often never cites the stories or series of articles published by the newspaper or magazine which necessitated the measures, leaving the publishers and members of the public to conjecture. For instance, the Federal Military Government initially proscribed all the publications by Concord Press Nigeria

Limited and African Concord Limited on April 9, 1992 for six months.⁸ Although the premises were widely believed to have been sealed off following the African Concord magazines cover story in its April 13, 1992 edition entitled "Has IBB Given Up", the Minister for Information and Culture, Professor Sam Oyovbaire, said on April 15 that the government had "sufficient evidence to show that the action of the organisation undermined national security”.

He did not disclose the nature of such evidence but merely alleged that there was a consistent pattern in its publications that threatened national security and the national interest. Again in 1994 in justifying the proscription of 20 publications of Concord Press Nigeria Limited, Punch Nigeria Limited, Guardian Newspapers Limited, African Concord Limited and Guardian Magazine Limited, various government officials, including the Head of State, General Sani Abacha, accused the newspaper of irresponsibility and threatening the peace and unity of the country with their publications. None of them cited any article or series of articles published by the newspapers in support of this allegation. In fact, policemen who sealed off the premises of Punch and Concord Press had initially claimed that they had information that the premises were being used to store arms and ammunition. The claim formed the basis of the government's defence at the Federal High Court in Lagos in the suits instituted by Concord Press and African Concord Limited challenging the closure of their premises.⁹ Both in its deposition before the court and in the submissions of its lawyers, the government claimed that policemen invaded the premises of the newspapers so they could investigate the information on arms storage. The lawyers admitted that no such arms were found on the premises after an extensive search. They could, therefore, not justify the continued closure of the premise in August 1994 beyond the hollow statement that investigations were still going on. The apparent fallacy in that defence obviously led to the later allegation of irresponsibility and threat to national security. Similarly, when the Federal Military Government shut down the premises of six media organisations on July 22, 1993, the Secretary (Minister) for Information and Culture, Mr. Uche Chukwumerije, sought to justify the action by saying that the government was forced to resort to such measure because of the confirmed excesses of media institutions despite repeated warnings. He did not disclose which of their publications the government found offensive or when "the warnings" were issued. Chukwumerije merely alleged that:­ 

"The government is convinced that the media houses have completely mortgaged all professional ethics for money. The government has evidence that the businessman/politician has been using his paper for personal aggrandizement, had been funding another Lagos based newspaper, supplying it with newsprint and underwriting its salary bills"

Such "evidence" was not made public.

Another practice of the government is to shut down or proscribe all the publications by a newspaper or magazine company because of a single article published by one of the newspapers which it found unpalatable.

4.         The Requirements of International Standards:

Besides being unsubstantiated, the government's sweeping allegations of irresponsibility and threat to the peace and unity of the country fail to satisfy the requirements of international standards as its justification for imposing restrictions on freedom of expression, information and opinion. The various international instruments to which Nigeria is a party set out basically the same requirements for determining the legitimacy of restrictions on freedom of expression. The instruments require that any restriction must (i) be provided by law, (ii) serve one of the legitimate purposes expressly enumerated in the instrument; and (iii) be necessary.¹⁰

Despite the military government's protestations against international criticisms of its repressive acts as constituting an interference in its internal affairs, any evaluation of its level of compliance with human rights principles must be made on the basis of international standards. By ratifying the International Covenant on Civil and Political Rights (lCCPR), the Nigerian Government has consented to subject itself to international scrutiny by state parties to the covenant". Besides, it is now a generally accepted principle that certain matters, including those relating to human rights and communication are now issues of international interest, regulated by treaties and sometimes, by customary international law.

The view that has dominated international law for decades is that with the evolution of international relations, no state can claim that all matters affecting its citizens are within its domestic jurisdiction. The Permanent Court of International Justice, which preceded the International Court of Justice, affirmed this principle when it held that: 

"The question whether a matter is or is not solely within the jurisdiction of a state is an essentially relative question; it depends upon the development of international relations" .¹²

Although the principle of sovereignty of nations is almost sacrosanct, the international jurist, Judge Anzilotti delimited the application of the doctrine when he defined sovereignty to mean that:­

"The state has over it no other authority than that of international law" .¹³

The relevant provisions of the International Bill of Rights which guarantee freedom of expression are Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the ICCPR. Article 9 of the African Charter on Human and Peoples' Rights, ratified by Nigeria and incorporated into its municipal law¹⁴ also affords protection for freedom of expression, though in a manner slightly different from the International Bill of Rights. The instruments lay down through positive statements, the right of everyone to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers. But they also stipulate the circumstances upon which a state party to the treaties may be justified in imposing restrictions or limitations on the exercise of this rights.

The United Nations Human Rights Committee established by the ICCPR¹⁵ to monitor compliance with the covenant restated these restrictions in its authoritative statement that:

"[W]hen a state party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 lays down conditions and it is only subject to these conditions that restrictions may be imposed ... " (emphasis supplied) ¹⁶.

The UN Human Rights Committee has however consistently maintained that national governments are obliged to prove with specific evidence that restrictions on the exercise of free speech on the ground of public order or national security are necessary or accord with some of the purposes stipulated in Article 19(3) of the ICCPR¹⁷.

In the Buffo Carballal case, the Human Rights Committee said: 

 [T]he state party has never explained the scope and meaning of 'subversive activities', which constitutes a criminal offence under the relevant legislation. Such an explanation is particularly necessary in the present case, since the author of the communication contends that he has been prosecuted solely for his opinions". ¹⁸

Ruling along the same lines, the Human Rights Committee held in the A. Pietroroia case that: 

"Bare information from the state party that [the applicant] was charged with subversive association and conspiracy to violate the constitution, followed by preparatory acts thereto, is not in itself sufficient, without details of the alleged charges and copies of the court proceedings" .¹⁹

In discountenancing the defence of public order as a ground for imposing restrictions on the exercise of free speech, the Inter-American Court of Human Rights has also held in its landmark decision in the Schmidt case that:­ 

"The court also believes, however, that same concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole. Freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard" .²⁰

5.         Conclusion:

Forced closure of a press facility or the proscription of a newspaper or magazine undoubtedly constitutes a prior restraint on the exercise of the right to free speech as well as post publication censorship, both of which are generally prohibited by international human rights instruments. For any restriction to be justified, it must fall within one or more of the permissible grounds stipulated by the instruments and the burden of justifying the restriction is that of the government or authority imposing the limitation.

Where a restriction is imposed there should be available to persons whose rights are affected a judicial organ independent of the executive and capable of implementing national and international legal guarantees, where they can contest such a restriction and ensure that the government's claims are legitimate. Nigerian military leaders have tended to impose restrictions on the exercise of free speech, particularly by media closures and proscriptions, to promote some illegitimate aim such as suppressing criticisms or punishing perceived opponents.

They have usually translated criticisms of themselves or their policies to mean attacks on the security of the entire country personified in themselves. Although there have been successful legal challenges of media closure, ²¹ the proscription of newspapers and magazines have been more difficult to contest. Since every Proscription Decree usually suspends the guarantees provided by the constitution and ousts the jurisdiction of the courts to inquire into their validity or the validity of any action undertaken in pursuance of their provisions, the courts have invariably declined jurisdiction over any suit challenging the proscription of any publication.

1.             Charter of a Free Press approved by journalists at the "Voices of Freedom" World Conference on Censorship
                 Problems in London, January 16-18, 1987.

2              See The Sunday Star and Imole Owuro (Proscription) Edict No: 17 of 1968.

3              See Printers and Publishers of the Sunday Star and the Imole Owuro (Declaration as Unlawful Society) Edict No:
                19 of 1968.

4              See Section 3 of Edict No: 17 of 1968.

5              The People Star Press Limited vs. Brigadier R.A. Adebayo & Anr (1971) U.1.L.R. Page 269.

6              See Newspaper (Prohibition of Circulation) Validation Decree No. 12 of 1978

7              Section 2(1), Public Officers (Protection Against False Accusation) Decree No:4 of 1984.

8              See Concord Groups of Newspapers Publication (proscription and Prohibition from Circulation) Decree No. 14 of
                1992.

9              See Judgment of Belgore CJ, in Concord Press Nigeria Limited vs Attorney General of the Federation & Others
                (Unreported) Suit No:F1IC/L/CS/608/94, delivered on August 18, 1994.

10            See The Article 19 Freedom of Expression Manual: International and Comparative Law, Standards and Procedures,
                 Article 19 (The International Centre Against Censorship) 1993 Para 2.6.5.

11            See Article 41(1)(a) of the International Covenant on Civil and Political Rights.

12            Tunis - Morocco Nationality Decree Case, Advisory Opinion (1923) P.C.I.J. Ser B, No.4 Page 27

13            Separate Opinion of Judge Anziloui in the Austro-Gennan Customs Union Case (1931) P.C.I.J. Ser AlB, No 41
                 Page 57.

14            See African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Cap. 10 Laws of the
                 Federation of Nigeria, 1990.

15            See Article 28 of the ICCPR.

16            Report of the Human Rights Committee to the general Assembly, 38th Session, Supp No.40, 1983 (Al38/40)
                Annex VI, General Comment 10.

17            See L. Winberger Weisz vs. Uruguay, Communication No:28/1978, views adopted on 29 October 1980, 11^th
                Session, Committee Report, 1981, Annex IX; L. Buffo Carballal vs. Uruguay, Communication No:33/1978, views
                adopted on 27th March 1981, 12th Session, Committee Report, 1981, Annex XI, A. Pietroroia vs. Uruguay,
               Communication No:44/1979, views adopted on 27 March 1981, 12th Session, Committee Report, 1981, Annex
                XVI; M. Joana vs. Madagascar, Communication No: 13211982, Decision of 6 April, 1985, 24th Session, Committee
               Report, 1985, Annex IX; and N. Mpandanjila, etal vs. Zaire, Communication No. 138/1983, Decision of 26 March,
               1986, 27th Session Committee Report, 1986, Annex VIII.A.

18           L.Buffo Carballal vs. Uruguay (supra) Para 12.

19           A. Pietroroia vs. Uruguay (supra) para 17.

20           Inter-American Court of Human Rights, Advisory Opinion OC-5185, Decision of November 13, 1985 reported in
                Perspectives on Freedom Number 6, Freedom House, 1986 Page 65.

21           See for instance the judgment of Belgore, CJ in Concord Press Nigeria Limited vs. Attorney-General of the
                Federation and Others (supra) and the judgment of Odunowo J. in Punch Nigeria Limited & Anr vs. Attorney-
               General of the Federation & Ors in Suit No: FIIC/LICS/601l94, delivered on July 29, 1994.

6.  Appendices

Newspapers Proscribed by the Federal Military Government or the Military Government of a State

 

Magazines Shut down by the Federal Military Government or the Military Government of a State
 

Newspapers shut down by the Federal Military Government or the Military Government of a State
 

Magazines Proscribed by the Federal Military Government
 

The Media Rights Agenda (MRA) is an independent, non-governmental organisation having observer status with the African Commission on Human and People's Rights in Banjul. The Gambia. The MRA was established in August 1993 for the purpose of promoting and protecting press freedom and freedom of expression in Nigeria..

                              Member of its Executive Committee are:


Edetean Ojo                                                          Executive Director

Tive Denedo                                                         Campaign Co-ordinator

Tunde Fagbohunlu                                              Director, Legal Defence Committee

Morenike Ransome-Kuti                                     Director, Research

Josephine Izuagie                                                Treasurer

Austin Agbonsuremi                                          Director of Publication

Anslem Chidi                                                        Member

Eze Anaba                                                             Director of Projects

The MRA's Advisory Council consists of: Chief Gani Fawehinmi, Olisa Agbakoba, Dr. Olatunji Date, Adewale Maja-Pearce, Clement Nwankwo and Onome Osifo-Whiskey

All correspondence should be addressed to:
The Executive Director
Media Rights Agenda
P. O. Box 52113, Falomo, Ikoyi,
Lagos - Nigeria
Fax: 234-1-2632249

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