02 Jul 2006 |
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Who Is Afraid Of Sedition? Sedition, the law under which two journalists and two media houses, Gbenga Aruleba with the African Independent Television and Rotimi Durojaiye of the Daily Independent Newspapers are currently being tried at an Abuja Federal High Court is a relic of colonial rule, a tool of tyranny, and a dead law, duly pronounced so by the courts, whose reinvention is a comment not on the practice of responsible journalism but on the growing resort of the Obasanjo administration and the ruling Peoples Democratic Party to a culture of intolerance that is completely antithetical to democratic norms. The two journalists have now been granted bail, but it is the government that is on trial not they, at least in the court of public opinion, given the manner in which the case has suddenly united civil society against the Obasanjo government. On Thursday, civil society groups and the opposition cashed in on this pointless case to express solidarity with the media and slam the government. The two reporters remained defiant. One asked for make up so he could pose for the cameras and look good. The other insisted that the President should be grateful that the media is concerned about his safety; in other words, he was more or less asking the President to apologise for putting him through undeserved stress. Other newspaper houses have been repeating the offence by publishing the details of the so- called offensive story: "Controversy over age, cost of Presidential jet" in which the two reporters had raised questions about the quality and purchase of a new Presidential jet which started developing problems almost immediately after its purchase. Sections 50-52 of the Criminal Code Act cap 77, Laws of the Federation 1990 offer the definition of sedition. It is in general a broadly phrased, loosely constructed legislation which can be put to any use by a hyper-sensitive government. But in the present case, the prosecution would have to prove that the stories about the age and cost of the new Presidential jet can lead to "hatred or contempt" against the person of President Obasanjo. The jet in question is public property. Don't the people have the right to receive information about their own property? Don't they have the right to know what is done with public funds? Is it not the sacred duty of the media as constitutionally guaranteed in Section 22 of the 1999 Constitution to monitor the governance process? The Constitution further guarantees the right of free expression in Section 39. Should government oppose that as it seems to be doing in the present case? Yet another issue that the prosecution would have to respond to is whether a man can be tried under a law that has been pronounced dead by the courts of law. So far, it is the intention of the Federal Government to disgrace the media that is bringing it so much contempt from the people. One singularly ironic aspect of this being the declaration by General Muhammadu Buhari, presidential aspirant and former Head of state, that the government's attempt in this instance is a return to Decree 4. Buhari was the author of that obnoxious Decree under which his then government muzzled the media in Nigeria. Now, democracy seems to have cured him of his contempt for the media and he too has suddenly become a defender of the same institution that he used to attack! What is also in issue, is the short-temperedness of those in the corridors of power. The origins of the law of sedition provide useful explanation. The law was introduced in September 1909 by the British colonial administration. It inherited its definition from the original phrases of the 19th Century jurist as "an intention to bring into hatred or contempt, or to excite disaffection against the person of, her Majesty, her heirs and possessors, or the government and Constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty's subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or state by law established or to raise discontent or disaffection among Her Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of subjects." (Stephen, Digest of the Criminal Law, 9th edition, Art 114.) These provisions were spelled out in the Seditious Offences Ordinance introduced by the Walter Egerton government against the background of loud protest. It was further adapted after colonial rule and codified as Section 50 of our Criminal Code. The incongruity is that Nigerians are no longer "subjects", our rulers are not overlords, and in a democratic context, it is absurd to seek to subject the will of the majority to that of an individual, "his heirs and possessors." The sedition law protected the divine rights of kings. It is based on the principle that the king can do no wrong. In a democracy, this is unarguably anachronistic. The law was applied in all the British colonies. It was introduced to India in 1870, and Ghana, then Gold Coast in 1934. It showed up in the United States in 1798, but whereas in the United States truth is a strong defence against a charge of sedition, the British insisted that the greater the truth, the greater the sedition. It was subsequently used by British authorities to suppress radical political views as in the cases of John Wilkes for writing satires in his The North Britain, and Tom Paine for The Rights of Man, and generally in the colonies to suppress any form of nationalism. In Nigeria, Governor Egerton felt compelled to introduce the law following the publication by Herbert Macaulay of a pamphlet in September 1908 entitled "Governor Egerton and the Railway" in which he accused Egerton of prejudice and corruption. However, the law was not used under Egerton but his successor, Lord Lugard simply could not stand what he described as the "scurrilous local yellow press" and its "monstrous freedom". Thus, in February 1916, James Bright Davies of the Times of Nigeria, for criticising colonial policies, was first fined 100 pounds and later sentenced to six months imprisonment for contempt - to, we are told, "the great delight of Lugard". In December 1945, Anthony Enahoro was also indicted for seditious libel for accusing Governor Bernard Bourdillon of corruption. It must be noted that the British have since relaxed the application of this law as there has been no prosecution in Britain under it since 1947. In 1990, an attempt to bring seditious charges against Salman Rushdie, the author of Satanic Verses and his publishers was rejected by the Divisional Court as a case of misconception. In the United States, the constitutionality of the sedition law never became an issue and instructively, Jsutice Brennan on behalf of the Supreme Court in 1964, laid its ghost to rest in New York Times vs Sullivan, 376 US 254, at page 276 when he declared inter alia, that "although the sedition act was never tested in this court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter which no one now doubts". Here in Nigeria, both military and civilian authorities have always found cause to use the law to repress the media, oftentimes under the guise of protecting national security. The strongest protection against such repression has been provided by the courts of law, which have ruled that sedition is unconstitutional, and that the people have the right to criticize government, point out its errors, and defend the people's right to know. The status of the law of sedition in Nigerian jurisprudence is so clear and unambiguous; it is therefore baffling that the Federal Ministry of Justice and the Attorney-General of the Federation will embark on a course of action that is bound to bring the government into further ridicule. Sadly, since 1999, the office of the Attorney General of the Federation and Minister of Justice has repeatedly misadvised the Government on issues of law. This is an issue that should engage the attention of the Nigerian Bar Association, and the Body of Benchers. In The State vs the Ivory Trumpet Publishing Coy Ltd and 3 ors, a newspaper called the Weekly Trumpet, that was allegedly associated with the National Party of Nigeria was accused of having published in its August 24 -September 7, 1980 edition a story entitled "Just Before the Battle" in which the former Anambra state Governor, Jim Nwobodo was described as "keeping and spending party money without account." The presiding judge, Emmanuel Araka, then CJ of Anambra state, dismissed the charge and held that "sedition law does not punish someone who makes a publication that merely embarrasses the Government or the Governor". He further upheld the right of every individual to the freedom of expression as provided by Section 36(1) of the 1979 Constitution. In Arthur Nwankwo vs The State, Chief Nwankwo, was charged for sedition for writing a book titled "How Jim Nwobodo Rules Anambra state" in which he allegedly accused Chief Nwobodo of tyranny and corruption. The Onitsha High Court presided over by Justice F. O. Nwokedi found Nwankwo guilty and sentenced him to 12 months imprisonment. When the case went on appeal, the Court of Appeal, Enugu, comprising Alfa Belgore, JCA (as he then was), Olajide Olatawura, JCA (as he then was) and Aikawa, JCA (as he then was) over-turned the ruling of the lower court, and made far-reaching pronouncements about the unconstitutionality of the law of sedition, to the extent of its inconsistency with Section 36 of the 1979 Constitution. This has since then been the position of the law, further upheld by Justice Musiliu Ope-Agbe of the Lagos High Court in Chief Gani Fawehinmi vs Inspector-General of Police and five others. The point has been made that Nwankwo's case was decided in a Court of Appeal and that perhaps the intention of the Federal Government in The State vs. Gbenga Aruleba and Rotimi Durojaiye and ors is to test the law on sedition at the Supreme Court. I doubt if this is so. In DPP v. Chike Obi, the defendant was charged with sedition for distributing a pamphlet titled "The People: Facts That You Must Know". He was found guilty by the High Court of Lagos, but the matter was referred to the Supreme Curt for the interpretation of Sections 50 and 51 of the Criminal Code in relation to Section 24 of the 1960 Constitution dealing with freedom of expression which is in pari materia with Section 36 of the 1979 Constitution and Section 39 of the 1999 Constitution. The Supreme Court upheld the ruling of the lower court. But the fine distinction is as pointed out by Araka, CJ in the Ivory Trumpet case when he noted that Ademola CJF, in Chike Obi's case had made a distinction between "Government as by law established" as opposed to "the person of the President or the "Governor of a state". Obi was held liable for the former not the latter. Olatawura, JCA in Nwankwo vs State, agreed with the exposition of the law by Araka, CJ in the Trumpet case, and proceeded to show the differences, the details of which have been duly reported. In the long run, the relevant position is as in Nwankwo's case. But even more important for the advice of government and the general instruction of the public are the following summative words by Olatawura:
This truly, is the gravamen of the case.
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