On December 4, 2024, news filtered out that Dr. Dele Farotimi, a frontline activist and lawyer was arrested in Lagos the previous day, and subsequently whisked away to Ekiti State where he was arraigned before a Magistrates Court in Ado Ekiti, allegedly for defamation.
It was implausible that the police will arrest a person, much less a lawyer, for defamation which is widely believed to be a civil matter.
The implausible turned out to be real when Nigerians soon learnt from the media that Dr. Farotimi was indeed charged with 16 counts of defamation pursuant to section 373 of the Criminal Code Act for allegedly making damaging statements about Afe Babalola SAN, a very senior lawyer. It beggars belief that defamation for reputational injuries, involving two private individuals can amount to a criminal offence! Hence the avalanche of opinions and commentaries. Although the matter is s currently sub judice, this article seeks to examine the continued viability of the law of criminal defamation in a democracy, especially a nascent and evolving democracy like Nigeria.
Defamation is essentially saying or publishing untruthful things about someone that tends to bring disrepute to the defamed. Criminal defamation is the counterpart to civil defamation. It is widely accepted that freedom of speech and expression is a fundamental civil right in all democratic nations. Thus, there has been a growing global movement against criminalizing speech and opinion. As a consequence, many modern governments have outrightly abolished criminal defamation because it is an impediment to freedom of speech and opinion.
In October 2024, the Federal Government empaneled a committee of law experts to review, update and consolidate archaic Nigerian laws. The experts are charged to complete their assignment within six months. Given the above charge and the fact that criminal defamation has been in the books and rarely used for more than 60 years, certainly, the law is overripe for reform.
Accordingly, the following imperious questions should form the focal point of the law reform committee’s scrutiny:
First, of what use is criminal defamation in our current political dispensation; a law that is obviously outdated, and out of line with contemporary needs and value? Second, given the fact that criminal defamation has been in our books, albeit neglected, and arguably has gone into Desuetude, should it not be abrogated? Desuetude is a legal doctrine holding that a statute may be abrogated because of its long disuse. Third, as presently constituted, the criminal defamation law is prima facie, susceptible to arbitrary and capricious abuse and application for malicious persecution of ordinary citizens by the powerful and government to unfairly silence dissent and oppress. It lends itself as a tool for vendetta by the powerful and connected. The pre-trial incarceration and discretionary bail process for an alleged offence of reputational injuries only, violates the principles of due process, fair hearing, presumption of innocence, and free speech which guarantees that accused persons are not deprived of their liberty without trial. It creates fear among the citizens, with the consequential chilling effect on free speech which is protected by the constitution. Do we really need a law that can punish before trial?
When the pros and cons of the continued viability of the law of criminal defamation is viewed through the prism of the above nagging questions, that it is a nonviolent misdemeanor and the aggrieved has adequate remedy at law via the tort of defamation (civil defamation), criminal defamation should be abrogated completely.
If the goal is to remove and/or reform archaic laws in our books, then no archaic law deserves more attention than our criminal defamation law as it currently exists in the laws of the federation. Pursuant to Section 375 of the Criminal Code Act of Nigeria, the prison sentence for criminal defamation is imprisonment for one year, and anyone who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years. Given the above draconian penalty for a law that ordinarily calls for monetary damages in other civilized and/or democratic climes, the continued viability of the law of criminal defamation is repugnant to natural justice, equity and good conscience.
History of Criminal Defamation
As stated earlier, many nations are moving away from criminal defamation laws which, as in the case of in Nigeria, descended from English defamation law, a legacy of common laws of Great Britain.
The crime of scandalum magnatum (insulting the peers of the realm through slander or libel) was established by the Statute of Westminster 1275, c. 34, but the first instance of criminal libel is generally agreed to be the De Libellis Famosis case, tried in the Star Chamber in the reign of James I by Edward Coke who, in his judgement on the case, said that a person’s “good name … ought to be more precious to him than his life”.
The case centred around an “infamous” libel about John Whitgift, the late Archbishop of Canterbury and it was held that libel against a private person could be considered a crime if it could provoke revenge that would threaten a breach of the peace; that libel against the monarch or government could be illegal, even if true, because “it concerns not only the breach of the peace, but also the scandal of government”. That a libel against a public figure was a more serious offence than one against a private person.
This English defamation law puts the burden of proof on the defendant, and does not require the plaintiff to prove falsehood. For that reason, it has been considered an impediment to free speech in much of the developed world and in 2010, the United States enacted the Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH Act), that bars U.S. courts from recognizing or enforcing foreign defamation judgments if they don’t comply with U.S. protections for freedom of speech and due process.
Abolition of Criminal Defamation in UK
Even the country of origin has ended this anathema. The common law crimes of criminal libel and seditious libel were abolished for UK citizens by the Coroners and Justice Act 2009, and the crime of blasphemous libel was abolished by the Criminal Justice and Immigration Act 2008.Many believed that the existence of these offences in UK statute, even if not enforced, would continue to legitimize its use by foreign governments, such as Nigeria, as in this case.
As aptly stated by the UK Justice Minister Claire Ward:
“Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today.
“Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom.”
Also, in 2013, Britain enacted the Defamation Act, designed to strike a balance between the protection of reputation and freedom of expression. It replaced the previous common law rules on defamation and introduced the defence of honest opinion.
African Nations
And in Africa, a Kenya High court in the case of Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR, ruled that criminal defamation is unconstitutional.
The presiding judge stated in part that:
“.. I take the view that the harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect and unjustifiable in a modern democratic society like ours. Above all, I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation…, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of Article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by Article 33 of that Constitution.”
Other countries have also repealed the laws. In 2001, Ghana repealed criminal libel from its statutes; in 2018, Gambia Supreme Court declared criminal defamation unconstitutional; Liberia reformed its criminal libel laws in 2019; and, Sierra Leone followed suit in 2022.
Although criminal defamation laws may still exist in the laws of some other countries, they are moribund and are extremely rarely enforced. The offences have largely and effectively fallen into Desuetude just like in Nigeria until it was resurrected in Farotimi’s case. This makes a compelling case why it should be abolished outright. A modern and reformed criminal code, together with an effective justice system that will serve the ends of justice better in a free society, should be our collective pursuit.
In the words of Frances Wright, “persecution for opinion is the master vice of society”.
Chuma Uwechia is admitted to practice in both the United States Supreme Court and the Nigerian Supreme Court.
