Enforcement of freedom of expression

Whenever there is breach or a threat to breach the exercise of the right to freedom of expression, any citizen can take steps to enforce the right. Enforcement in this sense refers to the process of ensuring respect for the laws, regulations and standards for Freedom of Expression. It is important to note that, a person does not need to wait until a breach occurs to take enforcement steps. The law allows people who feel that their rights could be breached to take steps to enforce their rights.

There are two main form of enforcement options available to Nigerians who seek to enforce their right to freedom of expression.

These two options are judicial enforcement and non-judicial enforcement.

Judicial enforcement refers to the process of using the courts to ensure that the government or others respect the provisions of the law on freedom of expression.

Non-judicial enforcement refers to other non-court-based steps to ensure respect for freedom of expression. Examples of non-judicial enforcement are writing letters of complaint, petitions, online campaigns etc.

For instance, a petition or complaint letter may be written to notify the authorities about any violation such as the Public Complaints Commission or the Human Rights Commission.

When preparing for judicial enforcement, here are some steps that you could take.

• Prepare a record of the event or series of events that describes the breach of your right or a threat of breach of your right.
• Gather documents, information including videos, audio recording and pictures and /or accounts from other people who are aware of the abuse or breach of your right. These items could serve as evidence in court.
• Reach out to a lawyer, law firm or any Non-Governmental Organization (NGO) that works on human rights as soon as possible to share your experience and plan the enforcement process. This guide provides a list of organizations that could support enforcement process.

Federal High Court/High Court of a State

The Federal High Court and the High Court of a State are the courts that have the legal power to accept freedom of expression  enforcement cases.

Every State has a High Court with divisions at different parts of the State. The list and location of the Federal High Court in Nigeria can be found here.

ECOWAS Community Court of Justice

The above provision of the Constitution notwithstanding, an individual whose right to freedom of expression has been violated can bring an action in the ECOWAS Community Court of Justice.

The ECOWAS Court has the mandate of ensuring the observance of the law and the interpretation and promotion of the provisions of the ECOWAS Treaty.

The ECOWAS Court is a viable option for any person who wants to complain of any violation of his right to freedom of expression for the following reasons:

• It is located in Abuja, Nigeria.

• There is no need for the exhaustion of domestic remedies before applying to Community Court of Justice. As such, you don’t need to have gone through National courts before going to the ECOWAS Court.

• The procedure for application is not a difficult or complicated one.

The jurisdiction of the court to attend to issues of human right violation is provided in section 9 (4) of the 2005 Supplementary Protocol of the Court which provides thus:

“The Court has jurisdiction to determine cases of violations of Human Rights that occur in any Member State.”

The jurisdiction of the court has been upheld in various cases which has gone before it.

The Protocol in article 10 (d) of the 2005 Protocol states the conditions which must be fulfilled by any individual who decides to bring an action for human rights violation before it:

“Individuals on application for relief for violations of their Human Rights; the submission of application for which shall:

(i) not be anonymous; nor

(ii) be made whilst the same matter has been instituted before another international court for adjudication”

Do I need a Lawyer?

Yes. It is advisable to get the assistance of a lawyer. It is true that the law allows you to represent yourself in court but it is important to have a lawyer to guide you through the complex court processes. This is necessary in order to avoid the unfortunate occurrence of losing the case because you have failed to follow the necessary procedures and laws while filing your case.

Some organizations such as the Nigerian Bar Association and the Legal Aid Council assist people who cannot afford lawyers to get legal assistance for human rights cases.

In preparation for judicial enforcement, here are a few pieces of evidence you could gather as soon as the infringement occurs:

• Copies of text messages, emails or social posts
• Pictures, videos and audio recordings
• Hospital reports, payment receipts or similar documents
• Letters from government agencies, acknowledgement copies of letters to government agencies or decisions of administrative bodies.
• Testimony of other persons who are eyewitnesses.

What steps can I take to make sure I gather helpful evidence?

In order to properly prove that one’s right has been violated in the court, there is need for necessary evidence to be presented. Such necessary evidence can be gathered by:

• Downloading videos, pictures and other digital information and storing them in at least 3 flash drives or hard disks.
• Ensure that the recipient acknowledges every letter to government agencies.
• Identify eyewitnesses who could make statements to support your court case.
• Get the testimony of those witnesses either in writing or by audio or video recording.
• Collect and store relevant newspaper, magazine or other publication in different safe places to avoid destruction by water or fire. In addition, take pictures of the documents.

An actual violation of the right to freedom of expression is not necessary in order to start an enforcement process. Once there is a threat to violate or likelihood of violating the right, it is enough reason to commence the process. On the other hand, it is advisable to begin enforcement processes as soon as possible. Here are a few things to note:

• Under Nigerian law, enforcement processes can begin at any time. The law does not provide a period within which the case must begin. This is unique to human right cases.
• Every wrong that is not a criminal offence has a time limit for bringing it to court, this is known as the statute of limitation.
• However, according to the Fundamental Rights Enforcement Procedure Rules there is no time limit for some to start a case concerning a breach of his right to freedom of expression.
• Similar to Nigerian law, there is no specific period within which a case should begin in the ECOWAS Court. However, it is safer to commence the case as soon as possible.
• Defamation has a time limit of six years from the day the act was committed.

Where one’s right to freedom of expression has been violated or infringed upon, the individual has the right to seek remedy through the court.

It is within the powers of the court to determine if there has been any violation and also to issue necessary orders and award appropriate compensations.

On the other hand, where an individual abuses his right to freedom of expression and makes a publication which is false and harmful to the reputation of another, he will also be liable for defamation subject to the determination of a court of competent jurisdiction.

Persons who are involved in cases of defamation matters can also settle out of court. This can also be done even if the case is already in court. If both parties reach a settlement agreement, the court will read the agreement as the judgment in the matter.

As a means of settling out of court, Lagos State has the multi-door court which is an arbitration centre where people can decide to settle their matters out of court, including matters of defamation.

Any person, both natural persons and juristic persons can be sued for violation of the right to freedom of expression. Juristic persons are entities such as government parastatals, companies and agencies recognized as persons under the law. For example; a person can sue the Inspector General of Police, the Nigerian Police Force, the Nigerian Broadcasting Corporation or the Federal government for violating her right to freedom of expression.

Yes, the social media can help in the enforcement process. In recent times, the social media has served as a means of promoting social justice and demanding for accountability from the government. Social media has served as a means of advocating for good governance and respect of human right especially the right to freedom of expression.

Social media can indeed help in the enforcement of process by:

• Creating an awareness of the occurrence of such violation as you may be suffering.
• providing an avenue for getting possible professional assistance regarding the matter
• Serving as a means of saving any possible evidence one has on the internet.
• Spurring people to look out for such violation within their environment, thereby serving preventive purposes.

As was stated in subsection B above, there are non-judicial enforcement options available for enforcing freedom of expression. Some of these options include:

• Petitions: which can be written to the United Nations, African Union or to the Human Rights Commission, requesting for intervention.
• Letters: can be written to authorities within a country or a state in order to bring to their knowledge the occurrence of a violation going on within their territory. For example, a letter could be written to the National or State Assembly, the governor or president, or the Attorney General of the State, informing them about a violation being done, especially by a public officer.
• A letter can also be written to embassies or human right organizations seeking for help and protection especially when the person life is under threat.
• One may also decide to use social media advocacy to bring to light any form violation and also seek help to prevent suffering further violation.