The Federal High Court,
Holden at Lagos, Nigeria,
On Thursday, February 25, 2010, Before the Honourable Justice A.M. Liman
Suit No: FHC/CS/1324/99
Mallam Ismaila Isa,
Chief Ajibola Ogunshola,
Lade Bonuola - (plaintiffs)
(For themselves and on behalf of other members of the Newspapers Proprietors’ Association of Nigeria) and President of the Federal Republic of Nigeria,
Attorney General of the Federation,
Minister of Information,
National Assembly of the Federal Republic of Nigeria - (defendants).
THE learned counsel to the plaintiffs, in his written address, highlighted the section of the decree, which he described as offensive. These are Section 1, 2, 3, (a) - (e), 4 (2), 15 (1) - (4), 26 (a), (1) - (3), 26B (1) (2) and in the equivalent sections in Cap 128 LFN 2004 are sections 1, 2, 3, 16, 17, 29, 30, 31, 32, 33, 34, 35 and 36.
Learned counsel to the plaintiff further contended that a cursory look at the exclusive and concurrent legislative list shows that the 'Press' upon the Press Decree, seeks to regulate, is not a matter listed in the exclusive and or concurrent legislative list upon which the National Assembly can legislate. He referred to the case of Togun vs Oputa 2 (2001) 16 NWLR (PT 740) 587 @ 667 - 668 in which Section 315 (1) of the 1999 Constitution was considered.
Learned counsel to the defendant, in his address, submitted that under Section 4(2) of the Constitution, the National Assembly has power to make laws for the peace, order and good governance of the federation or any part thereof with respect to any matter included in the exclusive legislative list set out in part one of the second schedule to the Constitution.
He further submitted that professional occupation is contained in the claim 49 of the second schedule, part one of the exclusive legislative list.
I have no problem accepting the consensual position of both counsel that under Section 315 (1) (a) & (b) of the 1999 Constitution, the Nigerian Press Council Decree, as Decree No. 60 of 1999, is an existing law deemed to be made by the National Assembly, provided it is consistent with the provision of the Constitution. See Uwaifor vs Attorney General of Bendel State.
Where, however, an existing law is not consistent with the provision of the constitution, it is liable to be struck out to the extent of its inconsistency. See Section 315 (3) of 1999 Constitution.
However, the ground on which the learned plaintiffs’ counsel is challenging the validity of Decree 60 is that the subsection alters, that is the “Press” is not included in either the exclusive or concurrent legislative list.
It seems before the decision in Attorney General of Ondo State Vs A. G. of the Federation (2002) 9 NWLR (PT 772) 222, the dominant legal opinion was that the legislative power of the National Assembly was limited to making laws with respect to matters included in both the Exclusive and Concurrent legislative list. Any matter not included in either of them, which is called residual item, is reversed for the state. See the case of Attorney General Ogun State vs Agbervasba (1985) 1 NWLR PT 3() 395 at 405.
However, the difficulty the proposition presented was its inherent stricture, its narrow interpretative perimeters that appeared to overlook the broad concept of legislative jurisdiction over general matters that could only be legislated upon by the National Assembly, because it then extends beyond the boarders of individual states.
Secondly, Sections 4 (3) and (4) of the Constitution in my view do not provide an exhaustive, limited definition of the scope of the legislative powers of the National Assembly given the fact that subsection (4), Section 4 (4) (b), which provides as follows; “any other matter with respect to which it is empowered to make laws in accordance with the provision of this constitution”.
Paragraph (b) in my respectful view, expands the legislative powers of the National Assembly to make laws in addition, with respect to matters contained in the legislative list, can legislate on any matter it is empowered by the Constitution.
The proposition is supported by the decision of the Supreme Court in the case of Attorney General of Ondo State vs Attorney General of the Federation, per Uwais. He stated as follows:
“It is submitted that ‘corruption’ is not a subject under either the exclusive legislative non-concurrent list and, therefore, being a residual matter, the National Assembly has no power to legislate upon it. This submission overlooks Section 4(4) (b) of the Constitution, which provides that the National Assembly has the power to legislate on any matter with respect to which it is empowered to make law in accordance with the provision of the Constitution”.
The case of A.G. of Ondo State (supra) lays to rest the contention as to whether the National Assembly has a broader legislative power beyond the items contained in both the exclusive and concurrent legislative lists.
At any event, I agree with the learned counsel to the defendants that item 49 of the second schedule, part one of the exclusive list, that is “professional occupation” should by literal interpretation include “journalism” as professional occupation. This submission, to me, can hardly be faulted on any strong, credible or logical argument.
I accordingly hold that the National Assembly possesses the powers under Section 4 (2) (4) (a) and (b) read together with paragraph 49 of Part 1 of Second Schedule to the Constitution of Federal Republic of Nigeria 1999. In effect, the National Assembly has the power to designate any occupation as professional and to legislate on it.
However, the question whether the exercise of such a power has a constitutional limitation is a matter that, in the cause of this judgment, will be determined. In the result, I hereby hold that the 1st arm of the plaintiffs’ issue number-two, which is similar to the defendant’s issue number-one, is resolved against the plaintiff.
The next issue argued by both counsel is the plaintiff’s second arm, which is similar to the defendants’ issue formulated in the plaintiff’s council’s argument that Decree No. 85 is inconsistent with Section 39 (1) and 92) of 1999 Constitution.
He further argued that section 39 (1) and (2) of the Constitution is self-executing, which does not require the need for an aid or a supplementary legislation to become fully operative.
Learned counsel urged the court to restrain the defendants or their agents from implementing or otherwise giving effect in any manner, whatsoever to the “Press Decrees”.
Learned counsel to the defendant, however, argued that Sections 1, 2, 3, 16, 17, 29, 30, 31, 32, 33, 35 and 36 of the Decree 60 as now contained in CAP N128 LFN 2004 have not been shown to be inconsistent with the provision of Section 39 of the 1999 Constitution.
He argued that contrary to the averment of the plaintiff’s counsel, the Nigerian Press Decree is rather complementary to the provision of Section 39 of the Constitution. They are intended to actualise and realise the goal and objective of the relevant sections of 1999 Constitution and to that extent, the Decrees are valid and constitutional.
“I think this issue presented for determination requires this court to examine in elaborate fashion, the concept of freedom of expression in all its ramifications, the protection it provides for free speech and the extent to which the provisions of the Decrees have conformed to the free speech requirements of the Constitution.
Section 39 (1) and (2) of the 1999 Constitution provides as follows:
• Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact ideas and information without interference;
• Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions;
• Provided that no person, other than the government of the federation or of a state or any other person or body authorised by the president on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever.
Let me at this stage briefly examine the concept of freedom of expression, with the historical and constitutional perspective.
No doubt, section 39 (9) (1) of the Constitution unqualifiedly preserves an inhibited unhindered freedom of expression, which includes the freedom to hold opinions, receive ideas and information and in the exercise of such a freedom, an individual shall be entitled to own, establish and operate any medium for the dissemination of views and opinion.
Section 39 is in chapter four of the Constitution, which is headed fundamental rights. The arrangement of the wordings of the chapter owes much to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed by certain members of the council for Europe in 1950.
The European Convention was itself largely based on the unilateral declaration. As it little suggests, is concerned mainly, if not exclusively, with human rights, that with rights of individual human beings, but the European Convention appears to apply also to artificial person. See Attorney General and Anor vs Angua Times Litel (1975) 3 All ER 81 in the case of Ukeagbu vs Attorney General of Imo State (1983).
The 1st amendment to the Constitution of the United States of America provides as follows: “Congress shall make no law representing establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press, or of the right of the people to Assembly, and to petition the government for a redress of grievances”.
The elegantly terse wordings of the 1st amendment covered the provisions of Sections 10, 38, 39 and 40 of the 1999 Constitution and yet, it has the same effect or even greater effect in its clarity than the similar provisions in our constitution.
However, it should be noted that the 1st amendment to the U.S. Constitution does have the provision that is similar to Sections 39 (3) and 45. I have already set out section 39 (3) above, but it is important to set out the provision of Section 45, which has the effect of derogation from the certain provision under Chapter 4.
“(1) Nothing in sections 37, 38, 39, 40 of the 1999 Constitution shall invalidate any law that is reasonably justifiable in a democratic society-
• In the interest of defence, public safety, public order, public morality or public health;
• For the purpose of protecting the rights and freedom of other persons.
Let me here observe that the constitution, by Section 45 (1) laid down an objective test for determining whether a law, which derogates from the provision of section 39 (1), must conform to the standards recognised by civilised nations. This test must also apply to a specific situation that might arise under paragraph (a) and (b) of the section 45 (1) of the constitution.
In effect, a reference to constitutional models in other countries of the world, which practise democracy and governance under the rule of law, will be consistent with the requirement of the constitutional mandate.
Idigbe JSC, in the case of Basil Ukeagbu vs A. G. Imo State in considering whether the restriction to establish a university, a centre of learning, was an abridgement of the freedom of expression recognised, the comparative for adopting a broad interpretation of the constitutional provisions, for a narrow interpretation could lead to fragrant and unwholesome abuse of the right of the subject under Section 36 of the 1999 Constitution, which is pari materia with Section 39 of the 1999 Constitution.
It is also to be noted that Section 45 of the Constitution has been adequately examined and interpreted by the court. The case of Attorney General of Ondo State vs Attorney General of the Federation (supra) and Ukeagbu vs Attorney General of Imo State clearly establishes the law that the National Assembly has the power to make laws that derogate from the right enshrined in the section.
What is still uncertain is the constitutional limit within which these powers are to be exercised. The court in Ukeagbu rather examined these limits within the context of several American authorities, which it rejected on the broad principle of constitutional incongruous and on the narrow ground of desperateness of facts. Even a closer look at the dictum will disclose a delicate indispositiveness on the point.
In my view, Ukaegbu’s case does not appear to establish a general principle of law on the question of correct scope of Section 45 of the 1999 Constitution as it applies to section 39 thereof. It is in my respectful view a decision in so far as the question of derogation is conserved, that should be applied with the narrow and peculiar facts of the case.
At this stage, I think it is important to consider whether the general scheme of the Nigerian Press Council Act, the objective for which it is established, its legal and institutional framework, and the mischief it is intended to cure; whether the law in its legislative scheme has the effect of abridging the right of the plaintiff’s and if so, whether such abridgement is within the derogatory provision of section 45 of the Constitution.
The Act was promulgated to repeal the Nigerian Media Council Act 1988, to establish Nigerian Press Council with the objective to promote high professional standards for the Nigerian Press and to deal with complaints emanating from members of the public about the conduct of journalists in their professional capacity or complaint emanating from the Press about the conduct of persons or organisations towards the Press.
Section one establishes the Press Council consisting of the chairman and other members, who ex-officio are representatives of various institutions and organisations. The chairman is to be appointed by the president and other members to be appointed by the minister.
Section three, provides for the functions of the council, which include:
• Enquiring into complaints about the conduct of the council;
• Monitoring the activities of the Press with a view to ensuring compliance with the code of professional and ethical conduct of the Nigeria Union of Journalists;
• Receiving applications from and documenting the print media and monitoring their performance to ensure that owners and publishers comply with the terms of their mission statement and objectives in liaison with Newspaper Proprietors’ Association of Nigeria.
Section 9 provides for Code of Professional and Ethical Conduct to guide the press and journalists in the performance of their duties. Section 11 empowers the Council to conduct inquiry into complaints of journalists.
Section 16 deals with complaints by person…against a journalist to the Council. Section 17 empowers the Council to direct publication of apology or corruption and to reprimand.
Section 19 makes provision for qualification for registration as a journalist. Section 20 makes provision for unprofessional misconduct. Section 21, criminal practice of journalism without registration.
Section 30 makes provision for documentation of newspapers. Section 33, criminals and penalises publication and printing and a circulation of newspaper, magazine or journals without documentation. Section 35 makes it mandatory for publishers to submit amount, performance returns and criminality default.
I have outlined the entire length of the law with a view to evaluating its consistency with both section 39 and whether it maintains the limits of the derogatory standard of Section 45 of the said Constitution.
At the core to the provision of section 39 is the protection of the freedom of expression, that is the freedom to hold opinions and to receive and impart ideas and information, without interference. The word “interference” used in the section implicitly means, generally this right shall be exercised without restriction, without hindrance, and no impediment shall be placed in the exercise of such freedom.
In addition, the right to own or operate a medium for the dissemination of information, ideas and opinions is equally protected and shall equally not be subjected to any control or inhibition except the medium involves establishment or operation of a television or wireless broadcasting station. In this case, it requires the authorisation of the president subject to conditions laid down by an Act of National Assembly.
It should, however, be clarified that the facts of this case and the relief sought are not related or connected with the proviso to section 39 (2).
The clear wording and the sprint of the Nigerian Press Council in my respectful view is, apart from professionalising the journalism practice, is also to establish a regime on how the Press in Nigeria is to conduct itself in the manner of performing its operation.
The institutional structure established has been given the power to monitor and superintend the practice of journalism. I do believe that the law, as it appears most praetorian, clearly has the potential to restrict the expression of opinions of individual members of the Press, and on the other hand, to stall the growth and development of ideas that have universally characterised development.
Societies have all owed their development to the robustness, the dynamism of free speech, which though has its limitation, has continued to provide the motive, force and of direction of the intellectual development of societies.
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 the diffusion of such views and opinions achieved. There is no doubt in my mind that the Nigerian Press Council Act Cap N 128 is potentially censorial.
Clearly, the Act is capable of being used to restrict the guaranteed right under Section 39 of the Constitution. This finding becomes most poignant if examined very closely within the context of provisions of section 39, which protects the right of an individual person to free expression of speech, which he can exercise alone or in concert with other persons or through a medium.
The Press as a medium of free speech, therefore, does not derogate from that guaranteed freedom. It does not cease to be a right of expression and neither, notwithstanding that motive behind the exercise of that right, is in pursuance of economic or political benefit.
What is important is that it should be the exercise of the right to express oneself and exchange and share views and opinions, regardless of the medium. To yank off the Press and subject it to a regime under which certain prejudicial and inhibitive conditions are laid down in the way of exercising its rights to me, seem quite obviously discriminatory.
I cannot for the purpose of this judgment formulate the criteria by which the derogatory powers of the National Assembly can be exercised under Section 45 of the Constitution, but suffice it say that its power is limited to making certain provisions reasonably for specified purposes and which on the face of it should not be intended to contravene the right of free speech.
Such a law can be permissibly derogatory. For example, where the law stipulates for payment of deposits before a newspaper or magazine is established, such a law is to the extent that it is a fiscal legislation will not amount to illicit derogation. See Attorney General vs Antegua Newspapers (supra).
In the case of ASHCROFT, the free speech coalition, the Supreme Court of America examined the constitutionality of the Child Pornography Prevention Act of 1996 (CPPA), which expended the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 USC and 2256 (8) (A), but also “any visual depiction, including any photograph, fiction, video, picture, or computer or computer-generated image or picture “that” is or appears to be, of a minor engaging in sexually explicit conduct. Justice Kennedy, in the lead judgment, held that Congress should make no law abridging the freedom of speech.
The government may violate this mandate in many ways. Example ROSENBERGER vs Rector and Visitors of UNUV of VA 515 US 819 (1995); Keller vs State Bar of CAL 496 US 1 (1990) but a law imposing criminal penalties on protected speech is a stark example of speech suppression.
As a general principle, the first amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits, it does not embrace certain categories of speech including determination, incitement of obscenity; and pornography provided with real children.
“The over breath doctrine prohibits the government from banning unprotected speech of a substantial amount of protected speech, is prohibited or chilled in the process”.
In the light of the above authority, which I find very persuasive and which I equally believe is very relevant to the fact of this case, I must hold that the total effect of the Nigerian Press Council Act, especially Section 3, 9, 11, 12, 16, 17, 19, 20, 21, 22, 25, 30, 31, 32, 33, 35 and 36, constitutes a bulwark against the free expression of opinion, ideas and views whether by individual journalist or by the Press and this in my view, constitutes a gross violation of the right guaranteed under Section 39 of the Constitution.
The Act has rather created an illicit Ombudsman in the council, which will certainly be used to define and tailor the editorial directions and policies of the media. This is not the dream of our constitutional makers.
The dream is for a free speech country where views and opinions are shared openly, freely through any medium whatsoever without threat of sanction. The laws that specifically deprive the limit of these rights of speech are quite hardy, in specific instances to deal with those who abuse the rights.
I find the Act oppressive, overbearing and grossly not compatible with a standard of a society. The plaintiffs have undoubtedly established their reliefs. Number 3, 4, 5 and 6 are accordingly granted. However, I have resolved the 1st issue against the plaintiff. Reliefs one and two are hereby dismissed.
Appearances: O. Igodo (Miss) for the plaintiffs.
B. R. Ashiru for the defendants.