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Was the N/Assembly wrong in relying on BBC broadcast? (2)

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By  Anthony Idigbe, SAN

On the second question, it seems that the use of the words “written declaration” is unduly restrictive in the midst of words like “transmit” and “otherwise” already discussed above. No doubt, the intention of the words “written declaration” was to have a permanent record of the decision of the president.

With technological development, this record can be expressed by the president in other permanent media other than writing. It has been held that an oral defamation of a person recorded and transmitted by way of broadcast was libel and not slander. The rationale for such decision was that broadcast was construed as a permanent medium of expression very much like writing which is the traditional mode of libel.

It follows that a court would consider that a BBC radio broadcast amounts to a permanent medium of broadcast and that since the purpose of written declaration in s.145 of the Constitution was to have a record of the decision of the president on a permanent medium, the words “or other permanent medium of expression” was to be added after the words “written declaration” wherever they appear in s.145.

This approach to construction of the section is to give effect to the purpose of the section and ensure that the mischief of power vacuum intended to be overcome by the section is not left existing. Further, if a word like “transmit” which includes broadcast is used two times in the section, it makes sense to read “broadcast” as well into written declaration.

In addition, internal and external aids assist interpretation of statutes. According to Cross, Bell and Engle (1987), internal aids to construction consist of looking at other parts of the statute (preamble, headings, title, etc) and applying rules of language such as ejusdem generis and nocitur a sociis to words to be interpreted. By ejusdem generis where general words follow specific words, the general words are construed as limited to the genus indicated by the specific words [see Quazi v Quazi [1980] AC 744 at 807-8 per Lord Diplock]. By noscitur a sociis words in a provision get their colouring or meaning from the surrounding words.

Bromley London Borough Council v Greater London Council [1983] 1 AC 768, [1982]1 All ER 129 (CA & HL), the word ‘economic’ to be construed under s.1(1) of the relevant statute got its colouring from s.7(3) of the same statute which required the transport authority to make up deficit at end of accounting period. Therefore, ‘economic’ was held to mean that the transport system would be “run on business principles”.

It follows that applying the nocitur a sociis rule, the word “transmit” should colour the words “written declaration” in s.145 and should be construed to mean that declaration should be “expressed on a permanent medium of expression”.

It may be argued that there is doubt as to the authenticity of a BBC broadcast but even a written declaration could have been tainted by the same challenge. We all recall the extorted Ngige resignation saga. The truth is the law has contemplated that issue in its rules of interpretation and evidence. There is the doctrine of presumption and of notorious facts.

Presumptions are those issues taken for granted in the legislative process and which the courts construe as settled unless the person contending to the contrary discharges the burden of proof that rebuts the presumption [Cross, Bell and Engle 1987]. Thus there is presumption against unclear change in the law; against failure to produce available evidence; against ouster of the jurisdiction of the courts; and, in favour of strict construction of statutes that seek to take away vested citizens rights or are penal in nature or in any way deprive individual liberty.

By this doctrine, the law presumes certain facts in the legislative process and therefore shifts the burden of proving the contrary to any disputing party. Under the presumptions allowed by our Evidence Act, we can presume that BBC is an internationally recognised broadcast company that uses best practices to obtain information and authenticate their facts and therefore that their broadcast of their interview with President Umaru Yar’Adua is true, accurate and factual particularly in the face of lack of denial from the president’s immediate family and close aides who actually facilitated it to prove that the president was still alive.

Since nobody has rebutted the presumption at all or by any contrary credible evidence, the National Assembly was entitled to rely on the undisputed facts established by way of presumptions including the physical absence of the president from the country and the notorious fact under the Evidence Act that he is ailing in a Saudi hospital.

In conclusion, I am of the view that there was absolutely no need for the National Assembly to resort to the doctrine of necessity as the basis for exercise of its power under s.145. A proper construction of the section would have been sufficient. It is important to insist that the National Assembly acted wholly within the context of s.145 and therefore acted constitutionally. Reliance on the doctrine of necessity was dangerous.

That doctrine gives the impression that the National Assembly did something wrong under the Constitution and was only seeking to justify it using as an external aid the doctrine of necessity which itself is based on the Kelsian and positive school concept of law. Positivism is dangerous. It has been used to justify dictatorship.  It does not concern itself with moral content of the law but seeks to explain law in its “pure” sense.

Attempt at explaining law in this sense means looking only at formal parameters for law such as existence of a sovereign, command by the sovereign and obedience on pain of punishment or existence of a hierarchy of norms at the apex of which there is a grund norm with minimum effectiveness maintained by the barrel of the gun.

The infamous Decree 4 under the Buhari regime which made publishing the truth criminal was a valid law under the positive school of thought. On the other hand the natural law school postulates that for a rule to amount to law it must conform to nature and as such have moral content that is universal, immutable and inalienable.

This school influenced United Nations Universal Declaration of Human Rights as well as the fundamental rights provisions in Chapter 4 of our 1999 Constitution. Under natural law school a law which criminalizes the truth is no law.

Neither school of thought is a complete explanation of law. In addition, there are other schools of thought as well such as the school of realism or social engineering. Suffice however to say that whatever school of thought you may belong to, it is now without doubt that in the long term no law is sustainable unless it has a minimum moral content. This hypothesis is confirmed by the fate of “laws” which did not meet the aspirations of the people such as those sanctioning slaves, NAZI laws, Apartheid, Decree 2, Decree 4, etc.

For us now in Nigeria, we must continue to strive to ensure that our law meets the aspiration of our people and that this aspiration be discovered not only in the words but also in the spirit of the law. Our National Assembly has acted courageously though upon the wrong premise, nevertheless they acted correctly upon a proper interpretation of the words and spirit of s.145 of the 1999 Constitution.

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