May 8, 2019

The Nigerian media, constraining laws and justiciability of statute by Femi Falana

Femi Falana(SAN)

By Femi Falana
IT is always difficult to talk of rule of law in Nigeria. While senior public officers continue to give the impression that the country is operated under the rule of law their actions and utterances suggest otherwise. It is so worrisome that provisions of the Constitution are conveniently sacrificed for political expediency or self-aggrandisement of highly placed public officers. In the process, the country is reduced to a banana republic where the rule of law is substituted for the rule of the rulers. Recent developments in the country call for a review of the understanding of the concept of the rule of law by public officers at all levels of the State. In this presentation, we shall examine the concept of the rule of law and review some actions and pronouncements of public officers which have made a mockery of the rule of law and thereby expose the country to ridicule before the comity of nations.

Buhari, Falana

Femi Falana

The rule of law: The rule of law or the principle that refers especially to government under law is the cornerstone of bourgeois constitutional democracy. It ensures that the state, or a set of institutions that possesses the means of legitimate coercion, exercised over a defined territory and its population, exercises its power in a reasonable and not an arbitrary fashion. Proper checks and balances are in place to minimize the opportunities for the abuse of state power. However, given the centrality of the powers of legitimate coercion in its definition, a state can intervene effectively in all aspects of the life of every citizen within its boundaries.

This means also that people in government, and particularly those in the executive arm, can abuse their powers and positions to promote their own interests or those of their friends and allies at the expense of public interest, through arbitrary acts and corruption, or through inconsistent application of laws. For instance, the anti-corruption campaign of the Buhari administration has been discredited through the selective prosecution of corrupt elements in the society. Worse still, corrupt members of the executive are currently using the police and anti-graft agencies to settle scores with corrupt opposition figures. It thus seems that politicians and associates of those close to the seat of power in Abuja are protected, despite strong evidence of corruption and money laundering against them. Such abuse of the rule of law is subversive of law and order in a democratic society.

Given these types of examples on the part of the leadership, and the poor working conditions of most government workers, it is not surprising that government workers lower down the ranks have turned to “petty corruption”, often simply to survive. The net impact of this systemic corruption is a serious erosion of the rule of law, by a government that is supposedly committed to good governance, transparency, accountability and anti-corruption.

Duty of the media to promote public accountability: In order to promote public accountability in Nigeria, the Constitution has imposed a duty on the press, radio, television and other agencies of the mass media to uphold the fundamental objectives contained in Chapter Two of the Constitution and uphold the responsibility and accountability of the Government to the people(section 22 of the Constitution). To underscore the significance of the fundamental objectives the programme as well as the aims and objectives of a political party shall conform with the provisions of Chapter II of the Constitution. But what are the fundamental objectives?

Since the republic is a State based on the principles of democracy and social justice, the security and welfare of the people shall be the primary purpose of government(Section 14(2)(b) of the Constitution). To promote the welfare of the people the State is obligated to secure full residence rights for every citizen in all parts of the country, ensure the control of the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen and the distribution of the material resources of the nation to serve the common good.

In furtherance of the social order the State shall direct its policy towards ensuring employment opportunities for all citizens, adequate medical and health facilities for all persons, equal pay for equal work, protection of children, young persons and the aged, public assistance in deserving cases, provisions of adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and provisions, sick benefits and welfare of the disabled. To eradicate illiteracy and enhance national development there shall be free education at all levels, including free adult literacy programme.


Citizens’ power and access to information in Nigeria – by Femi Falana

No doubt, the aforesaid objectives cannot be achieved by politicians who are interested in public office for the sole aim of enriching themselves.

Manifestoes of political parties based on market fundamentalism, privatisation of the economy, etc., are in conflict with the fundamental objectives. Every political party or elected official should disclose to the people, through the media, how they intend to achieve the fundamental objectives. To promote public accountability the media should ensure that the assets and liabilities of all elected leaders are declared and made available to the public by the Code of Conduct Bureau.

Right to freedom of expression: Out of sheer ignorance, it is often said that the Nigerian press is the freest in Africa. In fact, the Federal Government boasts about it to demand gratitude for tolerating the “excesses” of the critical section of the press. Pray, which Africa are we talking about? Since 2001, Ghana had joined many African countries in decriminalising the law of defamation. The Liberian government has just forwarded a bill to the senate to decriminalise media law. Yet, in Nigeria, no attempt has been made to repeal any of the repressive media laws while the National Assembly has been trying frantically to censor the media and use the pending press council to gag the media. Even the Buhari administration was so embarrassed that it had to dissociate itself from the retrogressive anti-media bill.

Apart from the plan over regulation of the media by the National Assembly, the ownership of the media is in the hands of the bourgeoisie. To the extent that the Nigerian society is not free from the bourgeoisie and imperialism the press cannot be free. In Nigeria, media owners determine the contents of the news and reports. In order not to embarrass their friends in government, slanted reports are published while the atrocities of some companies are covered up for fear that they may not advertise in the media. So, a society that is not free cannot talk of press freedom. The Constitution has deliberately provided for the freedom of expression, free education and access to information.

No good governance without press freedom — Saraki

The fundamental right to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference has been guaranteed by the Constitution (Section 39 of the Constitution). Any media house or reporter who engages in reckless publications may run foul of the law of defamation. If the publication cannot be justified a court may award colossal damages to the person who may have been defamed. But the law of defamation should not lead to self censorship on the part of the media. Given the crisis of underdevelopment, the press should not allow reactionary politicians to divert attention from the hydra-headed problems of comatose economy, unemployment, infrastructural decay, insecurity, looting of the treasury, armed robbery, kidnapping, terrorism, etc.

All elected public officers should be made to proffer solutions to the crisis of underdevelopment and stop the irrelevant debate on the educational qualification of any candidate. Because adult illiteracy rate in the country is 60 percent, section 318 of the Constitution has prescribed education up to junior secondary level or primary six and 10 years working experience as the minimum qualification for contesting elections in Nigeria. Therefore, the media should stop giving undue attention to the educational qualifications of a former military President and a former civilian Vice President to contest a presidential election in the country. More so, that both politicians had risen to the apogee of their professional carriers in the public service before contesting the last presidential election.

Regrettably, the press has left the serious crisis of insecurity in all parts of the country to join the ruling party in questioning the citizenship of a former elected state governor and former Vice President of the country. During the presidential election, the All Progressive Congress celebrated the fact that President Buhari defeated Atiku Abubakar in his own ward in Adamawa State. If President Atiku is a now Cameroonian doesn’t that suggest that those who voted for President Buhari in his ward for the candidate are Cameroonian citizens too?

Unconstitutional deportation

Just a couple of weeks ago, the Federal High Court declared illegal and unconstitutional the deportation of 56 Cameroonian refugees and asylum seekers from Nigeria. All persons living in Nigeria, including citizens by birth or naturalisation, dual citizens, foreigners, refugees and asylum seekers are entitled to adequate security and protection.

Since the 2019 elections have been concluded the duty imposed on the media is to ensure that political parties and elected officials are held accountable. A leading journalist, Mr. Dele Sobowale, a columnist in the Vanguard newspapers has said that what we are witnessing in the Northern parts of the country is the much awaited revolution of the poor against the ruling class. With respect, what we are witnessing is far from the revolution. It is not the revolution but anarchy and collapse of the neo-colonial state. It is time President Buhari and all state governors who are abroad returned to the country to attend to the urgent crisis of insecurity. With the virtual take-over of the country by armed bandits, terrorists and kidnappers the President and all top public officers should be barred by Nigerians from embarking on foreign private or official visits to other countries until further notice.

Access to Information: To facilitate access to information from public institutions the Freedom of Information Act has imposed a duty on all public officers to make information available upon demand. Instead of publishing stories that are based on rumours and speculations the media should demand information from public institutions, including political parties and elected officials. Apart from Premium Times and Cable News, the   other media houses in Nigeria have not taken advantage of the Act to promote public accountability from public officers.

Finally, during the last electioneering campaign, the political parties and their candidates assured the nation that they were going to solve the nation’s economic crisis. But the newly elected governors   have suddenly turned round to ask the Nigerian people to prepare for another economic recession. Even though the Central Bank has pleaded with Nigerians to reject such message of doom the masses are not deceived as the recession imposed on them by the Structural Adjustment Programme has increased mass illiteracy, unemployment and poverty in the midst of suffocating corruption and official impunity. Since it is clear that the bankrupt ruling class cannot solve the political, social and economic problems plaguing the nation it is high time that genuine patriots commenced the process of mobilising the masses to shake off the yoke of unending exploitation and take their destiny in their own hands.

*(Being the paper presented by Femi Falana SAN at the Press Freedom Conference in Nigeria on Violent extremism, Rule of Law and the Media held at Abuja on May 3, 2019).