How do I take legal action to protect against breaches 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 protect and enforce such right. This means ensuring respect for the laws, regulations and standards for 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 think that their rights could be breached to take steps before to enforce their rights.

Which options are there available to people in Nigeria?

There are two main option for those available to people in Nigeria who seek to enforce their right to freedom of expression, 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.

There are non-judicial enforcement options available. Some of these options include:

Petitions: which can be written to the National Human Rights Commission, The African Union or United Nations, requesting for intervention.

Letters: can be written to authorities within a country or a State 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’s life is under threat.

Social Media Advocacy/Campaigns:It is recommended to seek support from a human rights organisation that could help you with these strategies. 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.

The National Human Rights Commission is established for the promotion and protection of human rights in Nigeria. If you feel your rights have been violated, you can file a complaint to the Commission.

Functions of the Human Rights Commission: 

1. Investigation of all matters relating to the promotion and protection of human rights.
2. Monitoring and investigating all alleged cases of human rights violation in Nigeria and make appropriate recommendations to the federal government for prosecution and such other actions as it may deem expedient in each circumstance.
3. Assisting victims of human rights violations and seeking appropriate redress and remedies on their behalf.

What is required to complete a human rights complaint form 

• Name, address, email, and telephone of the complainant. Note: “Complainant” is a person who brings a claim.
• In the body of the complaint, include a story of what happened and the name of the violator (individual/ institution).
• Alongside the complaint, you are advised to include necessary documents that will serve as evidence of the violation.
• You are required to provide the contact details (Name, address, telephone) of any witnesses.
• At the end of the complaint, you must state certain things you want the Commission to do and ensure your signature is attached.

To know more about the format of a formal complaint, visit https://nhrc.gov.ng/index.php/complaint-form. You can also visit the State branches of the National Human Rights Commission to lodge the complaint. 

The Commission has quasi-judicial powers. This means to help with your complaint it can:

• summon persons and evidence.
• visit any place of detention with a view to ensuring that detainees’ rights are not violated.
• award compensation and enforce its decisions.

The decisions of the commission are enforced by taking that decision to the High Court and asking for it to be enforced.

The Fundamental Rights Enforcement Procedure is a special procedure to protect fundamental or human rights, including the right to freedom of expression.

At what point can I start a process to ensure enforcement of my rights? You don’t have to wait until after an actual violation of the right to freedom of expression. If there is a threat to violate or likelihood of violating the right is enough reason to go to court. It is advisable to begin enforcement processes as soon as possible. 

Is there a time limit to seek justice at the courts on human rights violations? No. However, it is advisable you bring a lawsuit as early as possible, to preserve the necessary evidence that may support a decision in your favour (such as death of witnesses, missing records, loss of memory to remember crucial events, etc).

Who can start a Fundamental Rights claim?

Based on the provisions in the Fundamental Rights Enforcement Rules, Section 3(e), the followings persons or organizations can take legal action:

• Anyone acting in his own interest.
• Anyone acting on behalf of another.
• Anyone acting as a member of, or in the interest of a group or class of persons.
• Anyone acting in the public interest.
• Association acting in the interests of its members or other individuals or groups. This includes human rights activists, advocates, or groups as well as any non-governmental organisations, acting on behalf of a potential applicant.

Who can I take legal action against? It is important to identify who you can take legal action against because suing the wrong party (person) could make you lose your case.

It is only the government and its agents that can be taken to court on human rights violations. Individuals and private companies cannot be taken to court under this procedure. 

If your rights are violated by private individuals and companies, you report these violations to the relevant government authorities.  Where the government fails to do its work, they have failed in their duty to enforce human rights protection and you can take legal action against these authorities for their failure. This means that, for example, legal action can be taken against the Nigerian Communications Commission, the Nigerian Broadcasting Corporation or the Federal government for violating the right to freedom of expression resulting from twitter ban, but not the organizations such as Internet providers and Networks.

TIP: when you think freedom of expression is being breached or will be breached, try to identify which public body is responsible. Examples of such bodies include the Nigerian Communications Commission, the Nigerian Broadcasting Corporation, the Federal government, a local authority, the Ministry of Education or any other public body that is responsible.  

Where can I take legal action?  

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. However, in a matter in which the Federal Government or any of its agencies is involved, the Federal High Court will be the right court at which to start your action.

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.

How do I take legal action?

• Get a lawyer first. 
• Your lawyer will file an application.  The application shall be supported by a statement setting out the: 

1. Name, description of the applicant, the relief(s) sought, in other words, what you are asking the court to give you, and
2.  the grounds upon which the reliefs are sought, in other words what are the rights that have been violated and the laws that allow you to seek the court’s help.

• The application must be supported by an affidavit or statement setting out the facts upon which the application is made. This means explaining what the facts were that lead to your human rights being violated.
• The application should be accompanied by a written address which shall contain a brief argument in support of the grounds, or reasons as to how the facts amount to the violation of your rights and which rights.
• The other party will be served with your application, which means the other party will be made aware of the application. They will be given 5 days from receiving your application to oppose and submit a written address and a counter affidavit stating his facts and grounds to oppose your application.
• You will then be served or informed by the court about the other party’s response and will be given 5 days to respond to their arguments by submitting another written address and affidavit.

What happens if my legal action is not successful in court? You can appeal to the Court of Appeal against the decision of the High Court. Bear in mind that appeals are complex and subject to specific rules. This will require you to discuss this with a lawyer to determine together if to appeal or not.

For more information, please see the Access to justice in Nigeria: The Fundamental Rights Enforcement Procedure and other means of defending human rights guide.

When preparing for judicial enforcement, here are some steps that you as an individual who is not a lawyer could still take to assist your lawyer in your case:

• 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.

There are other courts available, which include:

ECOWAS Community Court of Justice: The ECOWAS Court is a viable option for any person who wants to complain of any violation of his right to freedom of expression. 

• It is located in Abuja, Nigeria.
• You don’t need to have gone through national courts before going to the ECOWAS Court.
• The procedure for application is not overly complex.
• The ECOWAS court can attend to issues of human right violations. This is provided in section 9 (4) of the 2005 Supplementary Protocol of the Court.

Things to Know about Going to the ECOWAS Court of Justice: The application must not be anonymous; nor be made whilst the same matter has been started before another international court. This means that such an application must be signed and should not be pending before any other international court at the time of submission.

TIP: It is worthy to note that you can go directly to ECOWAS court. Even if the human right violation case is still ongoing at a Nigerian court.

Individuals, corporations and associations can submit applications detailing alleged human right violations suffered by them within their home countries and local communities.

National Industrial Court: If the rights to freedom of expression were violated during employment relations or trade union action, consider taking legal action before the National Industrial Court. This is regulated in Section 254C of the Constitution. 

This means that, if, for example, an individual, or a trade union is already involved in an employment dispute or any dispute related to employment, labour, industrial relations, trade unionism, employer’s association before the National Industrial Court, and there is a violation of their freedom of expression, these violations can be raised at the trial before the National Industrial Court.  

Lagos State arbitration centre: 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.

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.

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?

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:

• 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. 

Examples include:

Monetary Compensation: This refers to material compensation given to a party once the court has found that the fundamental rights of an applicant have been violated by the conduct of the respondent, and if the person has suffered injury, depending on the circumstances. 

Injunctions: An injunction is a court order requiring a party to do or cease from doing a specific action. This is commonly asked in cases of freedom of expression where for example, expression is banned or censored. 

Declaratory reliefs: This is a declaration by the court stating out the rights of the individual/group. They serve to state the existence of certain rights when these rights have been infringed by the government or other state actors.  

Apologies: In certain situations, the court may order an erring party (usually the government) to make a public apology to the victim in conjunction with other remedies.