By Bamidele Aturu
I do believe that the law as it appears is most deviously praetorian; it clearly has the potential to restrict
the expression of opinion of individual members of the press, and on the other hand to stall the growth and development of ideas that have universally characterised the development of civilised nations.
Societies have all owed their development to the robustness, the dynamism of free speech which, though has its limitation, but has continued to provide the motive force and the direction of the intellectual development of societies.Â These free expressions can only be possible where individuals are allowed not only to articulate them, but also to express them, impart them in the freest atmosphere and where the diffusion of such views permittedâ€™.
The importance of the press for any democratic society or society aspiring to be democratic is no longer debatable. In our recent history as a people we can easily point to the patriotic role played by the press in scuttling the inglorious agenda at self-perpetuation in office and in power by certain military and civilian Presidents.
It is therefore apt that Lawyers in the Media has chosen for discussion at this Conference the issue of the freedom of this important segment of our society also known as the Fourth Estate of the Realm to carry out its constitutional and historic functions. I feel delighted and honoured to have been requested, though at a brutally short notice, to lead the discussion on this important issue.
Freedom of the press and freedom of speech are related components or subsets of the wider freedom of expression which is one of the fundamental ingredients of liberal democracy. Indeed, scholars like Henrik Berglund rightly see liberal rights as integral part of liberal democracy.
It is therefore useful to examine freedom of the press in the context of the promise and problems of liberal democracy. But this discussion would be unhelpful without posing the practical question ultimately whether countries like Nigeria are moving towards liberal democracy in spite of the problems of the latter. My central argument here is that although freedom of the press may not necessarily lead to equality and indeed may exacerbate inequality in society, equality and social justice would be impossible without it.
Overcoming the Contradictions of Liberal Democracy?
Liberal democracy essentially promises equality of citizenship and civil or individual freedoms. These promises are supposed to be realised through the mediation of the state and its institutions or agencies by organising periodic elections and affording mechanisms for the enjoyment of civil freedoms. Over time direct participation, in the Athenian sense, has come to be replaced with indirect representation with the result that citizens become less equal or lose their autonomy.
The tendency is for the majority of the citizens who are represented in decision making or law making institutions of state by a tiny fraction of the population to be reduced to periodic voters. But that also leads to the problem of marginalisation and poverty in prebendal societies such as Nigeria where representation is reduced to personalization of state resources. We see therefore that liberal democracy which promises equality can create and has actually been creating conditions for inequality. As observed, again by Berglund, â€˜the main problem is not that the citizenâ€™s activity is limited to voting but that opportunities for further engagement in politics are decided by access to resources, which are unevenly distributed.
In a democratic society, the impact of these inequalities must be moderated, both by limiting the resources of the powerful and by improving access to them for the less powerful. The second constraint is the limited state, which gives too much room for unrestrained capitalism, leading to inequality and the lack of real democracyâ€™
Liberal democracy is therefore at a crossroads, in spite of the misplaced triumphalism of the Fukuyamas that it is the end of history. While its leading proponents insist that the best way to guarantee democracy is by limiting the role of the state, particularly by privatising public corporations, the result has been that the untrammelled dominance of those who have access to the unevenly distributed resources of society lead to greater inequality which makes civil and political freedoms illusory. Can liberal democracy be redeemed? Are the freedoms, such as freedom of the press, which form an integral part of it useful and relevant?
Of course there are alternatives to liberal democracy. One obvious way to overcome the limitations of liberal democracy is to do away with the artificial dichotomy between civil and political rights on the one hand and economic, social and cultural rights on the other. As has been argued extensively elsewhere without the economic, social and cultural rights which ensure access to societal resources, civil and political rights lack any real content. However, this distinction will not be abolished by merely wishing or decreeing it. There has to be a fundamental change in the way liberal societies are ordered.
That fundamental change cannot take place without the full exercise of the civil and political rights such as freedom of the press which is one of the promises of liberal democracy. These freedoms are necessary handmaidens in transforming liberal democracy. We can only argue for the deepening and not the rejection of those rights regardless of the fundamental problems or contradictions of liberal democracy .
Freedom of the Press without Freedom of Information: Freedom without content
Dissemination of information is the universally acknowledged principal function of the press. It is therefore not difficult to see that without civilized access to information which a Freedom of Information Act facilitates, it really does not make sense to talk of freedom of the press in any country or polity (even though freedom of information is not meant for the journalists alone). The first draft of the Freedom of Information Bill entered our political discourse 16 years ago. Since then and in spite of the clamour for its passing by the people, members of the National Assembly and the ruling elite have remained implacably hostile to the Bill.
Many reasons and justifications have been proffered for the hostility of the ruling elite to the FOI Bill. The main argument against the Bill is that granting access to public information to citizens would jeopardise national security. The unacceptable paternalism of this self-serving argument has been poignantly pointed out. The point that has to be made is that the issue of whether it is desirable to pass the Bill or not is not a moral issue but a serious political and economic issue. Unequal access to information generates political and economic inequality which in turn leads to the domination of one class of people over another.