CONSTITUTIONAL LAW – CONSTITUTIONAL VALIDITY OF LEGISLATION – Constitutional validity of Sections 391-395 of the Penal Code Law, FCT creating the offence of criminal defamation

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“Let me add my views on the constitutionality of the provisions of Sections 391 to 395 of the Penal Code Law creating the offences of defamation. Learned counsel for the appellant argued that these provisions are in conflict with the provisions of Section 39(1) of the Constitution of the Federal Republic of Nigeria which provides thusly – (1) “Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and import ideas and information without interference.” Section 391 of the Penal Code Law provides that: (1) “Whoever by words, either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning a person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, save in the cases hereinafter excepted, to defame that person.” (2) It is not defamation – (i) to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published; whether or not it is for the public good is a question of fact; (ii) to express in good faith any opinion whatever, respecting the conduct of a public servant in the discharge of his public functions or respecting his character so far as his character appears in that conduct and no further: (iii) to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character so far as his character appears in that conduct and no further; (iv) to publish a substantially true report of the proceedings of a Court of Justice or of the result of any such proceedings; (v) to express in good faith any opinion whatever respecting the merits of any cay civil or criminal which has been decided by a Court of Justice or respecting the conduct of any person as a party, witness or agent in any such case or respecting the character of such person as far as his character appears in that conduct and no further; (vi) to express in good faith any opinion respecting the merits of any performance which its author has submitted for the judgment of the public or respecting the character of the author so far as his character appears in such performance and no further; (vii) in a person having over another any authority either conferred by law or arising out of a lawful contract made with that other to pass in good faith any censure on the conduct of that other in matters to which lawful authority relates; (viii) to prefer in good faith an accusation against any person of those who have lawful authority over that person with respect to the subject matter of the accusation; (ix) to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interests of the person making it or of any other person or for the public good; (x) to convey a caution in good faith to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed or of some person in whom that person is interested or for the public good. Section 392, 393, 394 and 395 of the Penal Code Law provide as follows- 392- “Whoever defames another shall be punished with imprisonment for a term which may extend to two years or with fine or with both. 393(1) Whoever, save as hereinafter excepted, by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any false statement of fact, intending to harm or knowing or having reason to believe that such false statement of fact will harm the reputation of any person or class of persons or of the Government authority in the Northern Region shall be punished with imprisonment for a term which may extend to two years or with fine or with both. (2) It is not an offence under this section to make or publish in good faith a false statement of fact which the accused had reasonable grounds for believing to be substantially true and proof that he had such reasonable grounds shall lie on the accused. 394 – Whoever prints or engraves any matter or prepares or causes to be prepared any record for the purpose of mechanical reproduction of any matter, knowing or having good reason to believe that such matter is defamatory of any person shall be punished with imprisonment for a term which may extend to two years or with fine or with both. Whoever sells or offers for sale any printed or engraved substance containing defamatory matter or any record prepared for the purpose of the mechanical reproduction of defamatory matter, knowing that such substance or record contains such matter, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.” Section 391 defines what constitute defamation and what is not defamation. It is obvious that the above provisions of the Penal Code Law interfere with, curtail or restrict the exercise of the fundamental right to freedom of expression given to every person by Section 39(1) the 1999 Constitution. By virtue of Section 45(1) of the 1999 Constitution, Sections 391 to 395 of the Penal Code Law can survive its clash with Section 39(1) of the 1999 Constitution and not be rendered void, if they are in the interest of the public or for the purpose of protecting the rights and freedom of other persons. Section 45(1) of the 1999 Constitution reads thusly: “(1) Nothing in Sections 37, 38, 39, 40, and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society- (a) In the interest of defence, public safety, public order, public morality or public health; or (b) For the purpose of protecting the rights and freedom of other persons. So the question to be determined at this point is if Sections 391 to 395 of the Penal Code Law are in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons. It is obvious from those provisions that their legislative intention or objective is to ensure that the freedom of expression is exercised in good faith and in the interest of the public. Section 391 of the Penal Code Law that defines the offence of defamation in Sub-section (1) expressly lists in Subsection (2) publications that do not constitute the offence of defamation. These publications include publication of the truth for the public benefit, criticism of public servants, opinion on the conduct of any person touching on a public question and respecting his character so far as his character appears in that conduct and no further publication of substantially true report of a judicial proceeding, comments on cases already decided in Court, opinions on literacy and dramatic works, censure passed by a person in authority, accusation preferred to a person who has lawful authority over the person accused with respect to the subject matter of the accusation, imputation on the character of a person in self defence or defence of another, caution in good faith for the good of the person cautioned or of another in whom that person is interested or for public good. Section 393 of the Penal Code Law provides under Subsection (2) that it is not an offence under the section to make or publish in good faith a false statement of fact which accused had reasonable grounds for believing to be substantially true and proof that he had such reasonable grounds shall lie on the accused. What the Penal Code Law has done is to attach to the right of freedom of expression, the duty or responsibility to exercise the right in good faith, reasonably and for the public good. It has not eroded the right to freedom of expression. It has merely prevented the unbridled exercise of the right maliciously, unreasonably and to the detriment of the public good or interest. I think that such a restriction on the exercise of that right is reasonably justified in a democratic society. There is no country in the world that has not made some law placing some restriction on the exercise of the right to freedom of expression within constitutionally permitted limits for the well-being of the country. Even international conventions on human rights accept the need for some justifiable restrictions. Example Article 19(3) of the ICCPR provides that freedom of expression may be limited where those limitations can be demonstrated to be necessary for ensuring respect for the rights and reputations of others. That is why Section 45(1) of the 1999 Constitution prescribes that such a restriction would be allowed, if it is reasonably justified in democratic society in the sense that it protects the proper functioning of the society democratically. S.45(1) of the 1999 Constitution operates to exclude the operation of S.1(3) of the Constitution where the restriction and resulting inconsistency is reasonably justified in democratic society in the sense that it is in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of others. Another effect of S. 45(1) of the Constitution is that the rights in Sections 37, 38, 39, 40, and 41 are not absolute and can be restricted by law so far as the restriction is reasonably justified in a democratic society in the public interest and for the protection of the rights of other persons. See Osawe & Ors v Registrar of Trade Union (1985) 5 SC. 343. Only the Courts have the power to determine if a restriction is reasonably justified in a democratic society.” Per AKOMAYE AGIM, JSC in AVIOMOH v. C.O.P & ANOR (2021-LCER-40461-SC) (Pp 45 – 54 Paras F – C)

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