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Legal framework on freedom of expression

What does the Nigerian Constitution say about Freedom of Expression?

It is important to know what the Nigerian constitution says about the right to freedom of expression because the Constitution is the highest law in Nigeria. As the highest law in Nigeria;

  • Whatever the Constitutions states about any issue, including Freedom Expression is final,
  • No other law can change the words of the Constitution except the Constitution permits it, and
  • If any law in Nigeria contradicts (or opposes) anything in the constitution, the law has no power, and the courts would not respect it.

The Constitution states in Section 39 that:

“(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.

(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:

Provided that no person, other than the Government of the Federation or of a State or any other person or body authorized by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.

(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society –

(a) for the purpose of preventing the disclosure. of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or

(b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.”

In addition to the classes of the right to freedom of expression as stated in Section 2.2 , the Constitution extends the right to include the right “to own, establish and operate any medium for the sharing of information, ideas and opinion” This means that, in addition to the right to hold information, the freedom of the press, the freedom to seek and obtain information, the Nigerian Constitution also includes the freedom to own and establish platforms that seek and share ideas and opinions which includes the right to own and manage a radio or television station, schools, etc.

The Nigerian Constitution, while recognizing that the right to freedom of expression is not an absolute right and can be restricted given certain circumstances; provides in sections 39(3) and 45 that the right to freedom of can be limited by law:

  • For the purpose of preventing the disclosure of information received in confidence
  • For the purpose of maintaining the authority and independence of the courts
  • As a result of occupying certain office in the government
  • For belonging to the military, police or any other security agencies
  • In the interest of security, public safety, public order, public morality, and public health
  • For the purpose of protecting the rights and freedom of other people.

The Nigerian Constitution while bearing in mind the three part on the restriction of the right to freedom of expression, provided for the legitimate reasons for any limitation in section 45. These restrictions must be by means of a valid law to protect the freedom of others, public safety, public order, public health, or public morality.

Some laws have been made in Nigeria in order to protect National security such as the Cybercrimes Act and the Quarantine Laws made during the COVID-19 outbreak. However, these laws must also fulfil the two other parts of the three-part tests of legitimacy and proportionality. As such, the use of the Cybercrimes Act to punish political opponents will amount to an abuse of freedom of expression.

Example: Nigerian youth took to the street to demand for an end to SARS and police brutality. The Nigerian government reportedly arresting some protesters in relation to their expressions during the protest, while charging some of them with terrorism. This is an illegal restriction on the right to freedom of expression.

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Are there Other Laws that affect Freedom of Expression in Nigeria?

Yes. There are other laws that affect the exercise of freedom of expression in Nigeria. Some of those laws are:

Freedom of Information Act (2011)

The Freedom of Information (FOI) Act protects the right to access, receive and share information which is an important part of the right to freedom of expression. The Act ensures that public information can be accessed from public officers without any hindrance.

The National Film and Video Censor Board Act

The National Film and Video Censor Board Act established the National Film and Video Censor Board, which has the duty of checking all films and videos put out for public consumption in order to ensure that they do not violate public peace or public morality.

The National Broadcasting Commission Act

The National Broadcasting Commission Act established the National Broadcasting Commission which is charged with the duty of performing advisory duties and processing applications for licensing media houses in Nigeria. The Commission has the responsibility of advising the Federal government on the best and innovative way of gathering information and also to make recommendation to the President through the Ministry of information for the granting of the license to own and manage a media house in Nigeria, while making sure that the information put out by various media houses in Nigeria are correct and not meant to cause any harm in the society.

African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act

Nigeria, like every other country, is duty bound to uphold international laws that it has signed. However, while the system in some countries allow such international law to have force within their territory by the mere signing of such law, the system in Nigeria requires that such international law has to be remade into law by the National Assembly for such law to have legal effect within Nigeria.

The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act gives legal effect to the African Charter in Nigeria. This guidebook discusses the African Charter in the following section.

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Regional Laws

Treaties, which are international agreement between two or more countries, are referred to a regional law if they only apply within a certain continent (Africa). Also, there are laws called sub-regional laws – these are laws that apply within a sub region (West Africa). Regional and sub-regional laws that provide for the right to freedom of expression include:

African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights which is the regional law in Africa protecting the various human rights protects the right to freedom of expression. Article 9 of the Charter states that:

Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law.

The African Charter has been domesticated in Nigeria as the African Charter on Human and Peoples’ Rights (ratification and enforcement) Act. This means that the Nigerian Courts must respect the African Charter in Nigeria.

African Charter on the Rights and Welfare of a Child

The African Charter on the Rights and Welfare of a Child protects the rights of children in Africa and amongst them is the child’s right to freedom of expression. This law has been enacted as the Child’s Rights Act in Nigeria, giving it legal effect in Nigerian Courts. While the right to freedom of expression of the child was explicitly provided in the African Charter on the Rights and Welfare of a Child, the right was incorporated together with all the fundamental rights, in the Child’s Right Act.

Revised Economic Community of West African States (ECOWAS) Treaty

The ECOWAS Treaty though it did not make provision specifically on freedom of expression, it has provisions on information, radio and television (Article 65) and the press (Article 66), which are relevant to aspects of freedom of expression.

Persons whose right to freedom of expression has been abused or violated the government can use the regional laws to seek justice by going to the ECOWAS Community Court or the African Commission on Human and Peoples’ Right.

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Soft Laws (Freedom of Expression Principles and Standards)

Soft laws are documents produced by international organizations such as the United Nations to guide countries on how to protect human rights. Unlike the regional and international laws (treaties), these international documents are merely suggestions to countries on how they can protect the rights. These documents are called soft laws because countries are not free to decide if they want to adopt them or not.  They are sometimes referred to as Guidelines, Recommendations, Principles or Declarations.

Some Soft laws regarding the exercise of the right to freedom of expression include:

African Commission Principle on Freedom of Expression

The African Commission on Human and Peoples’ Rights in recognizing the need to ensure the right to freedom of expression in Africa, laid down guiding principles which will enable state parties to promote and protect the right to freedom of expression within their territories. Read the Principles here.

General Comments by the United Nations Human Rights Committee

The United Nations Human Rights Committee’s general comments on the right to freedom of expression also provides various principles for the promotion and protection of the right which can be readily accessed here.

African Commission on Human and Peoples’ Rights Resolution on Repealing Criminal defamation laws in Africa.

The African Commission on Human  and Peoples’ Rights in its resolution on repealing criminal defamation laws in Africa, while noting that criminal defamation laws constitute a serious interference with freedom of expression, made a number of recommendations to countries who are parties to the African Charter which can be found here.

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