By Bamidele Aturu
We shall return to this question subsequently. It suffices however to state that even section 39 which is in Chapter 4 of the Constitution is not an absolute right as section 45 of the Constitution permits its derogation by laws reasonably justifiable in a democracy in defence of….The point is that even if section 22 had been placed under Chapter 4, that would not be the end of the matter. But the derogation from section 39 compels an examination of judicial attitude to Press freedom.
Press Laws and Press freedom
The question of what law is or is not remains a matter of serious controversy among jurists and philosophers. Yet its understanding is crucial to our present purpose. Law has been defined as ‘the regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society’ It appears that this and many of the other well_known definitions of law bear the imprints of either positivism or natural law. Austin, the leading positivist of all times, regarded law as a body of command laid down by a sovereign with an obligation for obedience on the part of those to whom the command was issued. Positivists tend to exclude the Sovereign from the obligation to obey the command and also invariably separate the issue of legality from that of morality. For them once a law can be traced to any of the accepted sources it is law whether or not it is a bad law.
On the other hand, natural law adherents believe that it is impossible to understand what the law is unless one understands what the law ought to be. The question of morality is inseparable from the search for what the law is. Law according to naturalists must be aimed at the common good.
A notable variant of this is that natural law is the law of God that must be obeyed by all persons and authority.
For me, I conceive of Law as no more than the domination of an inferior class by a superior class in a given society. That the superior class also controls the economic power in such a society is an inescapable conclusion supported by a cursory study of the history of all legal systems, advanced or primitive. We see therefore that law is at once an instrument of domination and ‘legitimation’. When serving its role of domination it is necessarily coercive; but in its legitimating or ideological role it justifies the existence of the existing social order by conceding what I choose to call certain ‘order-preserving rights’ and this has often led some analysts to commit the error of celebrating certain mainstream jurists or laws as friendly to the poor or the dominated class. Failure to elaborate on the interests of the Sovereign or the dominating class and its motive force for law making leads to gross obfuscation which is the eternal failing of both positivism and natural law.
The argument here basically is that the dominating class cannot make its law to serve the interest of the dominated. Put differently, it is wishful thinking to expect the dominating class to make laws that would confer benefits on the dominated except to the extent that the collateral benefits and law are to keep the oil of domination functioning and effective.
It should be obvious now that this paper is not concerned with analyzing specific laws inhibiting press freedom in Nigeria. All the laws, whether it was the colonial Seditious Offences Ordinance of 1909, the precursor of the notorious Public Officers (Protection Against False Accusation) Decree No 4 of 1984 or even the Nigerian Press Council Act recently nullified by the Federal High Court, these laws were enacted to repress the press and prevent criticism of the government in power. That is the connecting thread. While one must commend some of our judges who have handed down courageous judgments in favour of press freedom, such as Nwankwo v The State (which held that sections 50 and 51 of the Criminal Code are unconstitutional), it must never be forgotten that the repressive laws are still being used by the state to harass and intimidate journalists. Under our so called democracy in the fourth republic journalists were charged with criminal sedition for publishing story indicating that presidential jets were not new but refurbished. Media houses have been shut down by our democratic governments on account of publishing news that embarrassed governments. The closure of Channels Television and Insider Magazine recently demonstrated the fact that qualitatively there is little difference between the so called democratic governments and the undemocratic regimes.
One can go on and on. The point is that the project for the abolition of press repression is not simply a legal project but a political project as well. It is not reformism but revolutionary reconstitution of society. In societies such as ours, that political project will include changing the electoral system to ensure that votes count and of course de-monetising the electoral process in such a way that to win votes one does not have to steal public funds to capture power.
Ownership of the Press, Self-censorship and hegemony
When we argue for freedom of the press we need to be careful that we are not merely asking for freedom of the owners of the press, for if we examine the matter more carefully we shall see that freedom of the press does not necessarily translate into freedom for journalists to practice their profession. This is not a matter on which I can claim any expertise, but it appears that there are enough hues and cries even among the journalists themselves that the payers of the pipers are the ones dictating the tunes.
In our polity where owning a newspaper is often more in furtherance of political ends than of business, the hands of the journalists more often than not are tied. Some may argue that if politicians own media outfits that in itself may help to deepen democracy as opposition may blossom on that account. But that argument would seem to gloss over the fact that divisions among the politicians are really never on issues concerning the common welfare of the people but on how one faction of the ruling elite may gain the upper hand in the control and sharing of offices and booties of those offices. That sort of fight can never deepen but destroy democracy. The challenge then is to ensure that we would be able to ensure in our laws that the journalists are free to practice their profession freely and that their employments would be protected against unfair dismissals.
For there to be true press freedom in Nigeria groups Nigerian lawyers in general but LIM in particular would have to be proactive. It should come out with suggestions on law reforms aimed at guaranteeing access to information and freedom of he press. But it must be recognised that freedom of the press cannot exist in isolation of other rights. In a situation where other rights are trampled upon needlessly, we cannot press freedom to be enjoyed without the traditional hostility from the powers that be.