By Benedicta Akpede

“..Every law that constrains democracy, freedom and liberty cannot be sought to be morally legitimate even if they have notional political legitimacy”

– Dapo Olorunyomi, Publisher, Premium Times  

In every civilised society, especially a democratic one, an individual’s freedom to express an opinion to others is fundamental. However, serious damage or injury would occur if the freedom to express one’s view is allowed to run loose without any restraint or check.

Legal injuries are not limited to physical injuries. They also include emotional, economic and reputation. There is no doubt that the right to Freedom of Expression, like most other rights guaranteed in the constitution, is not absolute. 

Nigeria 

The Defamation matter is defined in Section 373 of the Criminal Code Act as a matter likely to injure the reputation of any person by exposing him or her to hatred, contempt or ridicule or likely to damage any person in his profession or trade by injury to his or her reputation. Such manner may be expressed in spoken words or in words legibly marked on any substance whatever or by any sign or object signifying such matter otherwise than by words and maybe expressed either directly or by insinuation or irony.

In 1961, the Federal Government of Nigeria passed the Federal Defamation Act, and under this Act, both Libel and Slander were actionable in law. Broadcast defamation was slander when addressed to the ears, and Libel was addressed if read from a script. 

This meant that the necessary damage did not have to be proved. Believe it or not, this law has not been amended or adjusted to fit the current reality of government administration in Nigeria, which is democratic. 

See cases 

• May 13, 2022- The Department of State Services (DSS) arrested blogger and publisher of Eagles Foresight, Ahmed Olamilekan, for publishing a story on Ogun State Governor Dapo Abiodun’s alleged criminal records in the United States. 
• July 5, 2022- Mr Ikenna Ezenekwe, the publisher of online news platform 247uReports, was arrested by security operatives over a report filed by Mr Primus Odili. He served as the Chief Staff to the immediate past governor of Anambra state, Mr Willie Obiano. Mr Odili petitioned the police claiming that the journalist published a defamatory article about him hence his arrest. 
• Cruelly and unacceptably, on August 19 2022, Agba Jalingo, publisher of Cross River Watch Newspaper, was arrested and detained over a defamation and cyberattack complaint filed on behalf of Elizabeth Frank Ayade, sister-in-law of Cross River Governor Benedict Ayade. 

Nigeria continues to rank poorly on the Global Press Freedom Index, which is not surprising as several laws, including the Defamation Law, are still being used to victimise, and gag journalists and individuals.

Ghana

One would bet that Ghana has more edge over Nigeria in this matter, but dear reader, this is not a “Jollof War.” 

In 2001, Ghana repealed most of its draconian provisions in Act 29, including those relating to criminal libel but “False publication” was left out. You might say this was deliberate or an oversight, either way, this is unclear.

Criminal Libel and Seditious libel laws, like in Nigeria, have existed both under the military regime and the constitutional rule in Ghana. The only difference is that Ghana repealed the law but left some. 

These sections of the law were inherited from the British Colonial rule draft in 1893. It imposes criminal liability on almost any kind of speech that, in the opinion of the enforcer, “…can cause fear and alarm.”

Journalists are being targeted through criminal laws, Section 208 of the Criminal Offences Act and  Act 29 as amended. This relates to the publication of false news intended to cause fear and alarm. 

Ghana’s Electronic Communication Act (Act 775) section 76 also makes false communications a criminal offence, but it is in line with modern democratic laws. 

See cases like

• Mr Bobie Ansah, an Accra FM presenter, who was arrested on February  10 2022, over an alleged publication of false news and offensive conduct. The charges relate to a video the journalist posted on social media claiming that President Nana Akufo-Addo’s wife had illegally obtained a parcel of state land. 
• On May 28 2022, Deputy Station Coordinator, Community Radio station, Noah Dameh, was arrested and harassed by the police over false publication charges. The charges relate to a Facebook post by the journalist on May 8, 2022, and a subsequent complaint by Electrochem Ghana Limited. This company granted a controversial concession to mine salt in Ada.
• On November 1, 2021, the police arrested and detained a radio presenter, Paa Kwesi Simpson, on charges of publishing false news. The arrest followed a false kidnapping claim by a listener who called into Simpson’s programme.

Sierra Leone, Liberia and The Gambia

After 55 years of struggling to reform the laws, Sierra Leone repealed its Criminal Libel laws in 2022. Before 2022, criminal libel law was used by regimes to target, intimidate, harass and imprison journalists. 

This repeal was an improvement to Freedom of the Press and Expression. Ahmed Sahid Nasralla, the president of the Sierra Leone Association of Journalists (SLAJ), said, “This law was a weapon for politicians. From our records, it was used by 99 per cent of politicians, and 99 per cent of the victims have been journalists.” 

In Liberia, President George Weah signed into law on February 28, 2019, a bill to amend sections 11:11, 11.12 and 11.14 of the criminal code, which prescribed prison terms for a range of speech offences. The Senate endorsed the bill on February 7, 2019, after the House of Representatives of the Liberian parliament had approved it on July 3, 2018, paving the way for President Weah’s eventual signature.

In May 2018, the Gambia Supreme court declared defamation unconstitutional meanwhile, segments of the country’s criminal code on Sedition and false news are still upheld.

Section 181A of the Criminal Code provides for the offence of ‘false publication and broadcasting.’ According to this law, this offence is punishable by a minimum of one-year imprisonment or a fine between 50,000 and 250,000 Dalasis.  In this case, lack of knowledge is not even a defence unless it is proven that adequate measures were taken to verify the accuracy of the information. 

It seems that for every step taken ahead to improve freedom of the press and expression, two steps are taken back.

See cases

• Sierra Leone, May 26, 2022: Mr Sorie Saio Sesay, a reporter with privately-owned Okentuhun RadioFM, was arrested, detained and released on bail after 6 days for publishing alleged ‘’False information’’. 
• Sierra Leone: February 7, 2022: Head of news at the privately owned Radio BO Kiss 104fm, Mr Maada Joe, was arrested for discussing a local businessman Alhaji Mohammed Jalloh’s alleged debt to another businessman during its weekly programme. 
•  Liberia, April 15 2019:  A $500,000 civil defamation lawsuit was filed against the Roots 102.7 FM radio station and two of its hosts by the Liberian minister of state for presidential affairs, Nathaniel McGill.
• Liberia, October 7, 2016, Philipbert Browne, publisher of Liberia’s Hot Pepper newspaper, was arrested and jailed for libel on the orders of a civil Law court which alleged that a lawmaker Prince Moye raped a teenage girl in 2013. 
• The Gambia, January 2, 2012: Momodou Jallow of the privately owned Daily News was arrested and charged with Libel. This arrest was in connection with a report in which a woman alleged that a local district chief abused his office in order to reward a lover. 
• The Gambia: July 17, 2015: Alhagie Abdoulie Ceesay, Manager, Community station Taranga FM was arrested and charged with sedition for sharing a picture of Gambian President Yahya Jammeh. 

More Context 

The provision of the Defamation Law over the years has been used as a tool of oppression by the government after the government. One reason anyone would suspect is the ‘fear of criticism’. 

The question is, ‘are these charges legitimate? Can a journalist be accused of defamation, and in what context?’

On this matter, Mr Richard Akinnola, Executive Director, Media Law Centre, explained that some West African Countries, including Nigeria, imbibed the British common law with the law of defamation inclusive. He further ascertains that “Defamation is both a civil and criminal liability.”

“While individuals and entities can file civil suits for defamation, there are also provisions for criminal defamation in our statute books. However, in the case of Ghana, the state had repealed the provision of criminal defamation, unlike Nigeria, where it is still part of our laws.”

As far as democracy is concerned, the Defamation Law has not been favourable to the media. We believe it is unethical and illegal to arrest a journalist over civil issues. 

Although some West African countries have repealed their Defamation Acts, the report reflects the media is still persecuted with other more repressive laws than the defamation act itself. 

Mr Dapo Olorunyomi, Publisher, Premium Times, explained that most West African countries that repealed their Defamation Act did so but ‘marked it in other forms of more authoritarian laws like the now famous Anti-terrorism act as well as the CyberCrime Act which goes on to target free press.’

Additionally, he said Hate Speech should not be removed from this conversation as Nigeria tried to pass it into law even with the Defamation law in vogue. 

“What we are seeing is some retreat from democratic progress/development, which is a real concern. It is important that we continue to argue against this law and ensure that they are being reformed,” he said.

Defamation law is a carryover from the colonial era, and if the law should be continued, it has to be amended to fit a democratic setting. In order to advance the fundamental tenets of democracy and nationhood, processes must be deployed to guarantee a reasonable degree of freedom of expression. 

This law does not allow constructive criticism, a key factor that fosters accountability and facilitates proactive response to developmental needs.

“It is also the responsibility of a democratic society to seek the repealing of these laws and encourage passage of more democratic laws that strengthen accountability on the one hand and also restore supremacy and freedom of citizens on the other hand,” Mr Olorunyomi said.