Right Of Expression Under The Nigerian Constitution; Issues And Challenges
The entrenchment of Right of Expression as a fundamental human right in Nigeria could be traced to the 1960 Independence Constitution and those that followed it. The Independence Constitution of 1960 and the Republican Constitution of 1963 have provisions for the protection of fundamental human rights. The 1979 and the 1999 constitutions went further by providing a bill of right.
This entrenchment of human right provisions in our constitutions was aimed at creating a society which protects political freedom as well as the social and economic well-being of Nigerians. However, despite the guarantee of fundamental rights and liberties in the Nigerian constitutions since 1960, the country has had the misfortune of military interruption in its polity. This had profound and far reaching effects on the promotion and protection of democratic values such as freedom of expression among Nigerians.
This study examines the legal framework within which freedom of expression is practiced in Nigeria due to that fact that concepts such as freedom of expression are subject to various philosophical interpretations. It gives insight into the genesis of right of expression in the modern jurisprudence and provides a proper conceptual framework of human right from which freedom of expression is derivable. The study also examines the judicial attitudes in Nigeria in interpreting the subject matter. Furthermore, some limitations to right to expression which are premised in substantive and procedural laws are also considered. The practical relevance of social justice in the enforcement of this right in Nigerian also forms part of the study.
Whenever and wherever the question of human rights is discussed, there is always a clear disagreement as to its actual meaning. The only measure of agreement, however, lies in the understanding of those rights which are recognized and protected by a particular legal system. In this regard, it has also become apparent that there are other rights some prefer to call the privileges which are not recognized and protected. It is this approach that has led to the distinction between fundamental human rights on the one hand, directive principles of state policy on the other. The one is guaranteed by the constitution and enforceable while the other is essentially non-justifiable and unenforceable.
Freedom of expression as fundamental human right goes to the root of human civilization and enlightenment. This has been affirmed universally that, every person has the right to seek, receive and impact information without interference
Today, virtually every social covenant1 acknowledges the fundamental nature of this right and asserts the right to freedom of speech. It is well known that even state with the most widely political, economics, and social policies find it necessary to recognize the right.
The fact that the rights of expression can neither be trample upon nor truncated either by persons or authorities shows that it is so fundamental to existence. As an author put it, whoever must over throw the liberty of a nation just begin by subduing the freeness of speech2
Constitutionally, section 36 of the 1979 constitution (now section 39 of the (1999 constitution), stated that every citizen has the fundamental of information, ideas, and opinions, including the right to own, iestablish and operate any school or institution for imparting information, ideas and opinion.
Section 223 of the constitution clearly out-lines the role the press thus, the radio, television and other agencies of the mass media shall at all time be free to uphold the responsibility and accountability of the government to the people. The role of a responsible press should play in any policy, irrespective of the ideological foundation on which it is based, or the ownership structure of the universal conception that freedom of press and expression are so fundamental that the law tends to obstruct any of the two ideas, cannot be properly so called.
1.1.0: Background of Study
Every person is accorded the freedom of expression including the freedom to hold opinion and to receive and impact ideas and information without my interference. For impacting ideas, holding opinion and information, it is necessary that the individual should be have the right to any media of his choice4.
The freedom of expression can therefore be exercised orally of in writing through the print as well as electronic media. For the proper exercise of the right subsection (1) of section 39 of the 1999 constitution has extended to the ownership or the establishment and operation of any medium for the dissemination of information, ideas, and opinion to the public,
This right can be exercised through several ways. A person may chose to express his ideas and opinion or conceal the information he obtained by any means available to him. The constitution has remained salient over the issues to the means to obtain any information, it does not place any restriction or the acquisition of any information either with respect to the concept “expression” used in the section 39 of the constitution. Expression can be effected through variety of ways; it can be done through sign or gesture.
The right to receive information generally is a negative one in that, it is difficult to prevent people from receiving particular ideas. As far as the functions of government is concerned, this right become a cornerstone of a positive form of obligation in the part of the public informed about the true state of affairs as well as the working of government and everything which is considered necessary to keep the public informed. This is considered necessary for the functioning of democracy as to render the government accountable to the people.
The ideas and opinion which permitted any person to hold may relate or touch or any subject matter or the society, it may border or immoral, political ethical, moral or immoral religious or ethnical issues.
By the above background it can be discerned that there is no separate right of the press from that of private individuals. It is in respect of the above that the right to owe and establish any media for the dissemination of ideas and information is accorded.
1.2.0: Objectives of the Study
The aims and objectives of this research are:
- To examine the practical application of the right of expression in Nigerian polity
- To examine the constitutional and statutory framework within which right of expression is enhanced;
- To bring to the fore various remedies available to aggrieved person in enforcing their right of expression; and
- To proffer solutions to the impediments of right of expression.
1.3.0: Focus of Study
This research is intended to concentrate on the Nigeria. It will not be restricted to any particular government agency but cover all government agencies established for the preemption and regulation of right of expression. To this end the research will review generally the provision of the constitution and other subordinate legislation on right of expression and the attitude of the government towards this right. The work gives a general over view of the practice of the right of expression within the Nigerian jurisdiction with emphasis on various challenges through this research references to other judicial decisions on the topic cutting across other jurisdictions.
1.4.0: Scope of the Study
This study will put to periscope the various concepts, sources and development of right of expression in Nigerian nationhood and how the mechanism and purveyors of right of expression fared during military regimes. This will be fine-tuned in order to show that right of expression was at its lowest ebb during regimes, whose policy thrust was anti-freedom of expression and the press.
Although, right of expression is entrenched in Nigerian status, a highlight will be made in this study to show that it is not at large, neither is it absolute. An exposition on limits right of expression from the pedestals of common law be constitution will be canvassed.
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The findings in the foregoing chapters, has revealed that:
The penal provision on sedition particularly section 50 of the Criminal Code as well as sections 416, 417, 418 and 419 of the panel code are couched in such a general language that portends the likelihood of being abused by person of authority to stifle right of expression notwithstanding its constitutional warranty.
Legislations like Public Order Act, National Broadcasting Commission Act, Nigeria Television, Authority Act, News agency of Nigeria Act, etc are manifest with rubric of right of expression, yet, compose of some provisions that muscle free exercise of right of expression. For instance, it has been found that only News Agency of Nigeria has been empowered in the polity to retail news. This monopoly negative the idea of free dissemination of information and ideas as guaranteed by the constitution.
Punishing a newspaper with fine for peddling rumors and false news as constrained under section 22 of the news as contained under section 22 of the Newspaper Act has outlived realities of our time. Instead, we observed that person aggrieved by rumors or false news of any newspaper publication should be allowed recourse to civil laws for redress.
The supervisory powers given to the Minister of Information under section 6 of the National Broadcasting Commission Act are too wide and are capable of being abuse to the extent of downplaying the right to expression of those media/communication outfits whose policies are not congruent to the government of the federation. Consequently, we found that the said minister may, at his wish, either refuse or revoke licenses of those companies he dislike under one pretence or the other and this is tantamount to violation of her right of expression.
In order to erect right of expression to the desired height, the various government we have need to package a policy that will:
- Ensure easy and affordable instruments of information dissemination.
- Encourage the citizenry through rigorous campaign and enlightenment to participate in the business of information dissemination and exercise of rights of expression
The enforcement mechanism of expression under the United Nations International Commission on Human Rights as well also under the African Commission on Human
Rights left much to be desired.
The following recommendations aimed at refining right of expression in Nigeria especially in our drive towards a free and democratic society becomes necessary for a more efficient and purposeful law reform.
The concept of right of expression should be extended to specifically cover such expressions as academic freedom as well as scientific findings. It should also include artistic endowments. Thus section 39 o the 1999 constitution of the Federal Republic of Nigeria should be couched in words to reflect and accommodate this recommendation.
The offence of sedition which has been sanctioned by both criminal and penal codes should be amended in such clear terms as to indicate when does right of expression becomes seditious in democratic practice and when it can be used especially by overzealous leaders to clog freedom of expression guaranteed by the constitution.
Right of expression partly entails dissemination of individual belief, culture and religion. On this score, morality plays key role in synthesizing the nature and character of right of expression in practice in our societies. To achieve credible right expression in Nigeria therefore, they should be in place sound regulation put in place by government to ensure entrenchment of morals in all means of information and communication. In particular, the National Film and Publication Board should ensure that all broadcasting matters in films, audio and visual reduction are well censored in accordance with our rule of morality.
The government of the federation should continue to support independence of the National Human Rights Commission in order to enable it achieve its laudable objectives, among which are promotion, protection and monitory of right of expression. Resources should be sufficiently availed to the commission to carry out the task of upgrading right of expression in tune with our democracy.
Non-government organizations with specific interest right of expression should form national formidable front in order to articulate a common position that is gingered towards championing proper exercise and control of right of expression, Ankle to this is tie need by the NGO’s to sponsor a campaign and enlightenment aimed at educating the citizenry on right to speech. This could be easily attained if the NGO’s enter into partnership with government agencies such as the citizenry in our democratic pursuit through information collection dissemination.
The practice of journalism in Nigeria accounts for the substantial percentage in the exercise of right of expression. With that in mind, particularly with near absent of regulations on the practice of journalism as an honourable and responsible profession, one cannot escape to make a call for standardization of rules with regard to academic and age qualification including training requirement of prospective journalist. It is thus recommended in favor of the above that for a person to qualify as a reporter, correspondent, columnist, editor in any medium of inform to such a person must have a first degree in mass communication its equivalent or in the alternative, shall possess a first degree from a recognized university in Arts or social sciences. In addition to that, the Press Council Act should be amended with empowerment to organize a compulsory post-degree programme of six month to be attended and passed by degree holders I Mass Communication desiring to practice as journalist in Nigeria. Other degree holders in Arts and Social Sciences who aspire to practice journalism should also undergo such a course, but of extended duration, say twelve months before they are allowed to practice journalism in Nigeria. It is also proper that the council should issue a practicing license to all those who attended and passed the prescribed course mentioned above. It is advisable that the syllabus of such a course should encompass courses that will enhance proper exercise of right of expression in our jurisdiction. Among other course, it is essential to encompass such courses as press freedom, human rights and ethics of journalism which are to be taught at compulsory level.
Further to the above, the following are commended as some of the disciplinary measures that can be enforced in order to inculcate standard and discipline. They include, withdrawal of a journalist practicing license, monetary fine and or closure of any information outfit.