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Sedition:
Government’s Tool for Media Repression
The Nigerian government is increasingly relying on the law of sedition
for repressing the media at both the federal and state levels. The trend
is to arrest and detain journalists with the understanding that bail
will be a very long shot away. Journalists and media workers accused of
sedition or seditious publication are usually arrested, detained and
arraigned and are not easily granted bail but where bail is granted, it
is sometimes done at a high premium and condition, almost impossible for
the media to fulfill. The trend is troubling because sedition as an
offence has been declared inconsistent with the Nigerian Constitution
and therefore dead in Nigeria, a competent court having pronounced it
so, yet judges who should know better, still allow themselves to be used
to suppress media freedom with the illegality.
Governments’ intention in cases of sedition is usually to punish
journalists by detaining them using the instrumentality of the law
courts knowing fully well that these cases can hardly be prosecuted.
In recent times, no less than three cases were reported of a number of
journalists who were arrested, detained, arraigned for sedition with the
judges refusing to grant them bail at the first and oftentimes
subsequent sittings. In one of these cases, the journalists were
incarcerated for two month on accusation of sedition. Media Rights
Monitor has documented a few cases reproduced here.
On June 27, 2006, Mr. Rotimi Durojaiye, Senior Aviation Correspondent of
Independent newspapers and Mr. Mike Aruleba, an Assistant General
Manager with Daar Communications Ltd, owners of Raypower FM and Africa
Independent Television (AIT) were arraigned before a Federal High Court
in Abuja on a six-count charge of alleged conspiracy to commit a
seditious act against President Olusegun Obasanjo.
They both pleaded not guilty to the charges and filed an oral
application for bail through their counsels.
The presiding judge Justice Babs Kuewumi refused them bail, ordering
that they be remanded in SSS custody in Abuja till hearing on July 29
and asking their counsels to file formal application for their bail. He
adjourned the matter to July 29.
On July 29, the judge granted them bail in the sum of N500,000 (five
hundred thousand Naira) each and one surety resident in Abuja who must
produce affidavit of means.
On October 10, 2006, the Federal government of Nigeria withdrew the
charges of sedition preferred against Daar Communications Ltd and Mr.
Mike Gbenga Aruleba. It however retained that against Independent
Newspapers Limited (INL) and Durojaiye. The case was however not
prosecuted beyond this point.
Earlier this year, precisely on January 28, 2008, Mr. Samuel Asowata,
the Chairman, Editorial Board of ‘Fresh Facts’ newspaper was ordered to
be remanded in prison custody by a Magistrate Court in Uyo, the Akwa
Ibom State capital in South-south Nigeria following his arrest,
detention, and arraignment for alleged sedition. He was refused bail by
the Magistrate on the grounds of the seriousness of the offence for
which Asowata was accused and the fact that he is not from Akwa Ibom
State
‘Fresh Facts’ newspaper had on January 21, 2008 published a promotional
item titled, “Akpabio in N5.5bn Housing Scam?” and asked its readers to
expect details of the story in the next edition. This led to his arrest
and detention on January 26, 2008 at Garki Police station in Abuja,
Nigeria’s Federal Capital Territory. He was later flown to Uyo.
Mr. Bright Essien Ewoh, a newspaper distributor was earlier on arrested
in Uyo on January 24 for selling copies of the ‘Fresh Facts’ that
published the promotion. He was detained and subsequently arraigned on
January 25 before an Uyo Magistrate Court, for alleged sedition and
conspiracy.
Though Counsel to Mr. Ewoh, Alfred Edem, applied for bail, saying that
Ewoh had a constitutional right to get bail, the Judge denied him bail,
according to him, “due to the nature of the matter and because of the
need to prevent further damage”.
On January 28, the Magistrate discharged and acquitted Mr. Ewoh while he
asked that Asewota be remanded in prison custody
Mr. Samuel Asowata was initially denied bail by the magistrate, Nkeruwem
Obot who ordered that he be remanded in prison custody till February 1
when the bail application would be considered. Asowata was however
released on January 29.
In one case, two journalists were detained for over two months for
alleged sedition. On June 14, 2006, Messrs Imo Eze, director and
publisher of the daily "Ebonyi Voice" and Oluwole Elenyinmi, a
journalist with the daily were arraigned before an Abakiliki Magistrate
Court by the Ebonyin State (South east Nigeria) Commissioner of Police
on three-count charge of conspiracy, sedition and libelling the then
Ebonyi State governor, Dr. Sam Ominyi Egwu.
They were accused of defamatory publication in an article published on
April 16, 2006 edition of the tabloid titled” "Is Ebonyi A Failed
State?", which accused the state government of mismanagement and
corruption.
Although the presiding Magistrate, Justice J.U. Orude granted them bail,
based on applications by the two journalists, the conditions were so
stringent they were unable to meet them and had to be remanded in prison
custody.
In granting them bail, the presiding Magistrate asked the journalists
produce N50,000 each and a surety who is to be Permanent Secretary or
his equivalent who must reside within the jurisdiction of the court.
The journalists could not meet all the conditions particularly that of
getting persons in the rank of permanent secretary serving in Abakiliki,
apparently because no permanent secretary would stake his job to stand
surety for the journalists who were tagged enemies of Governor Egwu by
those in government. Permanent Secretaries in Nigeria are more or less
political appointees of the government.
The case was adjourned to June 20, and later July 25 and on both
occasions, the Counsel could not get the court to relax the bail
conditions in order to effect their bail and they remained in custody.
Messrs. Eze and Elenyinmi remained in detention till August 25, 2006
when they were released in accordance with an agreement reached
previously between Sam Egwu and the Nigeria Union of Journalists (NUJ).
Edward Jenks, in ‘The Book of English Law’ defines sedition and
gives further insight into what it was originally meant to achieve. He
says sedition is perhaps the very vaguest of all offence known to the
Criminal Law. He defined sedition as: “the speaking or writing of words
calculated to excite disaffection against the Constitution as by the
established, to procure the alteration of it by other than lawful means,
or to incite any person to commit a crime to the disturbance of the
peace, or to raise discontent or disaffection, or to promote ill-feeling
between different classes of the community.
Giving further insight into the offence, he explained that: “A charge of
sedition is, historically, one of the chief means by which Government,
especially at the tenth century, strove to put down hostile critics. It
is evident that the vagueness of the charge is a danger to the liberty
of the subject, especially if the Courts of Justice can be induced to
take a view favourable to the Government.”
In Nigeria’s statute books, sedition is an offence dealt with in
Sections 50 and 51 of the Criminal Code Act of ‘The Laws of the
Federation of Nigeria 1990’.
In Section 50, a seditious intention is defined as an intention: “(a) to
bring into hatred or contempt or excite disaffection against the person
of the President or of the Governor of a State or the Government of the
Federation; or (b) to excite the citizens or other inhabitants of
Nigeria to attempt to procure the alteration, otherwise than by lawful
means, of any other matter in Nigeria as by law established; or (c) to
raise discontent or disaffection amongst the citizens or other
inhabitants of Nigeria; or (d) to promote feelings of ill-will
and hostility between different classes of the population of Nigeria.”
Section 51 prescribes a penalty, on conviction, of a prison term of
between one year or N100 or both, or to two or three years imprisonment
for subsequent offence, and the forfeiture of the publications to the
state.
However, the law of sedition was declared inconsistent with the Nigerian
Constitution by the Federal Court of Appeal, Enugu in its judgment in
the case of Chief Arthur Nwankwo vs. the State given on July 27, 1983
and no court of coordinate or higher jurisdiction has overturned that
judgment.
Making his pronouncement on the sedition laws
in light of the Constitution, Chief Justice Alfa Belgore declared it
inconsistent with the constitution saying:
“The whole idea of sedition is the protection
of the person of the sovereign ... The present President is a politician
and was elected after canvassing for universal votes of the electorate;
so is the present State Governor. They are not wearing constitutional
protective cloaks of their predecessors in 1963 Constitution ... There
is no ban in the Constitution 1979 against publication of truth except
for the provisos and security necessities embodied in those sections.”
Concurring with Justice Belgore, Justice
Olajide Olatawura declared:
“It is my view that the law of sedition ...
is inconsistent with the 1979 Constitution more so when this cannot lead
to a public disorder as envisaged under S.41(a) of the 1979
Constitution. We are no longer the illiterates or the mob society our
colonial masters had in mind when the law was promulgated ... The
decision of the founding fathers of this present constitution to
guarantee freedom of speech, which must include the freedom to
criticize, should be praised, and any attempt to derogate from it except
as provided by the constitution must be resisted ... Criticism is
indispensable in a free society.”
Justice Olatawura added “criticism is healthy
in a democracy, that if government officials felt personally attacked
they could take this up by launching a defamation suit rather than use
the machinery of government to suppress freedom of expression:
“Those who occupy sensitive posts must be
prepared to face public criticisms in respect of their office so as to
ensure that they are accountable to the electorate ... They are within
their constitutional rights to sue for defamation but they should not
use the machinery of government to invoke criminal proceedings to gag
their opponents as the freedom of speech guaranteed by our constitution
will be meaningless. As long as the constitution is not suspended, and
this is not done in democratic society, freedom of expression should be
protected ... It should not be misunderstood that the freedom under this
constitution is a license for defamation as it is equally guaranteed
that those who run foul of the law of defamation cannot call in aid this
freedom.”
In the case of Chief Gani Fawehinmi Vs Inspector General of Police and
five others, the Magistrate Court in Gwagwalada, Abuja presided over by
Chief Magistrate Nwada Balami delivered a ruling on bail on 29th June
1992. Chief Fawehinmen and the others were charged with treason.
In the ruling for bail, Chief Magistrate Balami said “ This is a Court
of common law and equity, and I cannot afford to keep the said accused
persons perpetually in detention, in the guise that this court is
conducting investigation …, without the police telling this court when
they are ready to conclude investigations into the case. To allow the
said to happen will be inimical to smooth administration of justice.
Based on the principles stated in the cases of Ikomi vs State Supra and
Eyu Vs State Supra, that bail should not be refused as a means of
punishment and that an allegation remains an allegation unless proved to
the contrary, coupled with the facts of the weak health of the 1st and
5th accused persons, I know this is not a case try-able by this court if
established, but since I can at the same time entertain or conduct P.I..
in the case, I see no reason why this court cannot entertain the issue
of bail, and I hold that the accused persons are entitled to bail”.
Freedom of expression, by international standards and practice, is
regarded as a key human right because of its fundamental role in
underpinning democracy. Article 19 of the Universal Declaration on Human
Rights (UDHR), Article 19 of the International Covenant on Civil and
Political Rights (ICCPR) article 9 of the African Charter on Human and
Peoples’ Right and several other international human rights covenants
and instruments guarantee freedom of expression in clear terms.
Article 19 of the ICCPR provides for limited restrictions on the right
to freedom of expression in order to protect certain interests in
paragraph 3 as follows: “The exercise of the rights provided for in
paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
“(a) For respect of the rights or reputations of others; (b) For the
protection of national security or of public order (ordre public), or of
public health or morals.”
The Human Rights Committee, the body of independent experts responsible
for overseeing States’ implementation of the ICCPR, requires that any
restriction on the right to freedom of expression must meet a strict
three-part test, namely: (1) provided by law; (2) for the purpose of
safeguarding a legitimate interest; and (3) necessary to secure this
interest.
Article 19(3) of the ICCPR as quoted above provides an exclusive list of
aims in pursuit of which the exercise of the right to freedom of
expression may be restricted.
The law of Sedition and its penalty therefore runs contrary to these
global standards in the practice of the right to freedom of expression.
ARTICLE
19, the London-based Global Campaign for Free Expression, in a statement
issued in September 2005 declared that the law of sedition is
fundamentally incompatible with freedom of expression and a democratic
form of government, adding “The ability to criticize public figures or
institutions is a sine qua non for informed democratic choice, as a
result, in many jurisdictions, sedition is today either formally or
effectively a dead letter.”
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