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Is Freedom of Expression a Human Right?

Yes. Freedom of Expression is a human right. This means that it is a right that every individual possesses as a human being. Everyone regardless of race, sex, nationality, ethnicity, language, status, sex, religion or color has the right to express his or her opinions. This implies that the law protects the right of all Nigerians to Freedom of Expression – no Nigerian is exempted.

Under International law, there are a few definitions of Freedom of Expression; however, one globally accepted definition is the provision of the International Covenant on Civil and Political Rights (ICCPR). The definition is as follows:

Article 19 of ICCPR: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in, in the form of art, or through other any media of his choice

The following section explains that above definition.

1

What are the classes of right under freedom of expression?

As the International Covenant on Civil and Political Rights (ICCPR) definition states, freedom of expression covers:

  • the right to hold opinions;
  • the right to seek, receive and share information;
  • the right to express opinion in form and through all platforms including speech, art, music and other forms of creative communication.

The right to hold opinions.

Everyone (every human being) has the right to hold ideas about topics or issues based on the information they have or their imaginations. For example, a person has the right to support one football club or political party over another because his brother or mother supports that political party or football club. The freedom to prefer something to another is a part of freedom of expression. This implies that the government or other people should not compel or force others to dump their opinions or thoughts except in the situations that the law permits such limitations.

The right to seek, receive and share information.

As part of the right to freedom of expression, every person has the right to request certain classes of information in the custody of the government and to share such information with others without any form of intimidation. Freedom of Information laws all over the world, including in Nigeria, describe how this right operates. In Nigeria, for example, the law permits people to request information on the amount of taxes that the federal government collected in 2019. Government bodies such as the National Assembly and the Federal Ministry of Education has a responsibility to prepare and publish information about their activities for the benefit of the people in Nigeria.

The right to express opinion in all form and through all platforms including speech, art, music and other forms of creative communication.

People express themselves in different ways (speech, music, arts etc.) and on different platforms, (social media, newspapers, billboards etc.). The right to Freedom of Expression covers all forms of expressions and platforms.

The right to free speech

Speech refers to personal communication or sharing personal opinion about anything – serious or unserious. Freedom of Expression covers personal speech. One example of personal speech include discussing a football match with a friend on the street. Another example is talking about the economy of Nigeria in school, in the market or at work. Therefore, as a part of the right to Freedom of Expression, the government has the responsibility to protect personal speech including speeches at protests that criticize the government.

The right to freedom of the Press

The term “press” refers to television stations such as the African Independent Television, Newspapers companies such as Punch Newspaper and online news outlets including blogs, news websites and vlogs. Freedom of the press strengthens Freedom of Expression because people learn about things happening in their society or the world through the publications of the press and investigation by journalists. To ensure that people have the right information, the press should be free to publish information on things happening in the country without fear of harassment by the government. This means that the government unlawfully attacks Freedom of Expression when they punish the press for publishing information about corruption or crimes committed by government officials. For example, the Nigerian government fine against Arise News for sharing information on the #ENDSARS protest is a breach of Freedom of Expression.

The right to Online Expression

Online expression refers to sharing information, opinions or ideas through the internet. This includes using social media platforms like Facebook, WhatsApp, and Twitter.

  • People share their opinions and advocate for causes through the internet especially the various social media channels.
  • People gain quick access to information on the internet without needing to leave the comfort of their homes.

There are many ways that online platforms could serve as outlets for expression. For example, posting poems about Nigeria on Facebook, hosting an Instagram live event or posting a video of protests on a website or a blog are all examples of online expression. The government has a responsibility to protect access to the internet and the freedom to share opinion on social media without illegal restrictions.

The right to Artistic Expression

Artistic expression refers to sharing opinions, ideas or through art – drawing, singing, drama, spoken words etc. Freedom of expression covers the use of art to convey thoughts and ideas. Writers, poets, musicians and actors among other artists play an important role in contributing to public discussion. Protecting their rights to produce music, poems and plays is therefore a important part of ensuring freedom of expression. One great example of artistic expression is the release of the song “This is Nigeria” by Folarin Falana and the book Things Fall Apart by Chinua Achebe.

2

What is the duty of government with respect to Freedom of Expression?

 

  • Government have a duty to respect, promote, protect and fulfil human rights.
  • They have a duty to ensure people enjoy their rights without any interference from them.
  • They have duty to protect their citizens from any intimidation or harassment.
  • They have the duty to ensure the comply with other international laws as regards to human rights
  • They have a duty to ensure to respect these international laws.

The Governments are duty bearers who have the responsibility to provide a conducive environment through the laws that promote, protect and fulfil human rights. This means that the Nigerian government has the responsibility to protect her citizens while they express themselves on any public issue without any form of intimidation or harassment.

Furthermore, the Government must ensure that the laws which have been made to protect the right to freedom of expression must conform with international laws and standards; such as the three-part test. International laws here, refer international agreements which the Nigerian Government have signed, that these foreign laws would be applied in Nigeria and included in our local laws.

For Example: Nigeria has signed the International Covenant on Civil and Political Rights (ICCPR) which provides for the right to freedom of expression, among other human rights, it also stipulated the standard for protecting the right. Nigeria, therefore, has a duty of making her laws in line with those standards. They also have the duty of providing laws that enable the citizens to express themselves especially concerning the activities of the government, while also protecting the citizens especially in times of peaceful protest; which is a form of expression.

3

Do Citizens have duties with respect to Freedom Expression?

Yes, citizens have duties with respect to enjoying the right to freedom of expression. These duties come in the form of limitations to the right to freedom of expression. Citizens have the duty of respecting the right and dignity of other citizens while exercising their right to freedom of expression.

For example, while you’re free to share your ideas and opinion, you have the duty to ensure that you do not share a false opinion about another person which destroys their reputation.

Citizens have a duty of ensuring that they do not share information which will be harmful to national security, such as sharing sensitive information about the plans of the army to fight boko haram.

The citizens have a duty not to make an expression that will affect public health or public morals, or which may incite violence or discrimination.

For example; it will be against public health for Mr. Olu to publicly say that there is nothing like Corona Virus and people should go about their activities without observing any of the preventive measures.

Therefore, while citizens have the right to freedom of expression, they also have the attending duty to ensure that the exercise of the right is not against national security or national health or morality, and that such expression does not affect the right of others.

4

Are there limitations to the exercise of Freedom of Expression?

Yes, there are limitations to the exercise of freedom of expression. This is because Freedom of Expression is a non-absolute right. A right is non-absolute if there are some situations when the law permits the government to limit the enjoyment of the right.

This means that the government could step in to restrict the full enjoyment of freedom of expression. On the other hand, the laws also provide that people cannot intentionally share lies about other people as part of freedom of Expression. In addition, freedom of expression does not cover disclosing personal information or sensitive information in order to protect others. Examples of non-absolute rights are the right to life, the right to freedom of movement and the right to freedom of assembly.

For example: the government can restrict or terminate a radio program hosted by Mr. Abdul in one of the privately owned radio stations in Ibadan, if such programs promote racial segregation or encourages hateful speech against a particular person or group.

The section on the legal framework on freedom of expression of this guidebook further discusses the limitations in detail.

5

How does the law protect citizens from excessive limitations? What is the three-part test?

There are international standards that governments are encouraged to use when restricting the right to Freedom of Expression and other non-absolute rights. These standards work to ensure that government do not abuse the limitation in ways that defeat the importance of the right to freedom of expression. As part of these standards, there is one concept called the three-part test of legality, legitimacy and necessity/proportionality. It is called the three-past test because every government action that limits the right to freedom of expression must pass these three tests to be acceptable and legal.

What is the meaning of legality?

The legality test ensures that every restriction must be legal. This means that a law in the country must create the restrictions to the right to freedom of expression. This means that the government cannot enforce a restriction if the law does not create the restriction. In addition, the law creating the restriction must identify the circumstances when the restriction should be applied.  The legality test ensures that people are aware of the restrictions and to prevent circumstances where government create restrictions without the input of the legislature.

For example: A State government cannot ban peaceful protests because it is uncomfortable with what people would say at the protests. There must be a law permitting the government to ban protests.

Hint: This means, when the government makes a statement that limits freedom of expression, a good response from the citizens should be: what law permits the government to do this?

What is the meaning of Legitimacy?

The legitimacy test ensures that the purpose for which the government restricts the right to freedom of expression is real and important. This means that the government cannot restrict freedom of expression to just to prevent the opposition political party criticizing the government’s performance. The ICCPR states that there are only three purposes for limiting freedom of expression. They include:

  • Respect of the rights or reputation of others
  • Protection of national security or of public order
  • Protection of public health or morals.

An example of legitimate restriction of the right to freedom of expression could be a government restriction on officers of the Nigerian military from sharing information about the plans and strategies of the government for fighting Boko Haram.

What is the meaning of Necessity/Proportionality?

Restrictions must be applied only when necessary and in a way that does not overregulate the right in a way that makes citizens fearful of free expression. This means that restrictions must be used in special cases as a last resort. The importance of upholding the right to freedom of expression as much as possible requires that restrictions should only be applied when absolutely necessary; and such restrictions must be proportionate to the goal they are set to achieve.

For instance, issuing a death sentence in a case of defamation; which should be a civil matter requiring an apology, retraction of the defamatory statement and award of reasonable damages, will not be proportionate.

Hint: one should always ask if restriction is the least possible way that can be applied to the situation, and will the wrong and the prescribed punishment weight equally on the scale?

6

How often does the government restrict or abuse Freedom of Expression?

We discussed that the government are duty bearers who have the responsibility of promoting, protecting and fulfilling the right to freedom of expression. However, it is an unfortunate reality that there are more incidences of government abuse of the freedom of expression in Nigeria than its promotion, protection, and fulfilment.

In October 2020, Nigerian youths took to the street and online to express their displeasure about police brutality and demanded for changes by the government. However, the government made several attempts to restrict the exercise of their freedom of expression by declaring an impromptu curfew and sending the Military against the protesters. The government went further to freeze the bank accounts of some protesters, seized the international passport of some, arrested some, while accusing some protesters of terrorism and trying to overthrow the government.

These and many more daily occurrences, show the disposition of the government towards the promotion and protection of the right to freedom of expression, which leaves little to be desired.

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