Femi Falana

Femi Falana

I thank the Socio-Economic Rights and Accountability Project (SERAP) for organising this all-important meeting aimed at reviewing the state of civic space and developing recommendations for a thriving civic space and improved respect for media freedom and the right to freedom of expression in Nigeria.

The  Nigerian Constitution expressly guarantees the protection of the public space. Specifically, the fundamental rights of freedoms of expression, assembly, and association are guaranteed by sections 39 and 40 of the Constitution as well as articles 9 and 10 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004. Section 22 of the Constitution has imposed a duty on the media to promote accountability and transparency in government.

In order not to be held accountable the  Nigerian government has adopted anti democratic measures to constrict the civic space. Despite constitutional protections, the police and security agencies have continued to intimidate journalists, activists and trade unionists for exposing corruption and abuse of office. In consolidating official impunity in the land, both executive and legislative branches of government are determined to enact anti-media laws. Hence, they have continued to threaten to regulate social media to shield public officers from embarrassment.

Indeed, official impunity, abuse of human rights, grand and systemic corruption, flagrant disregard for the rule of law and grinding poverty arising from economic mismanagement have for many years been pervasive in the country. Despite the award of damages running to billions of Nara for illegal arrest and detention of citizens the police and security agencies have continued to detain and charge journalists with various offences under the Cybercrime Act 2015. The Companies and Allied Matters Act 2020 contain many provisions that are designed to regulate, control and undermine civil society organisations. In particular, the Corporate Affairs Commission is empowered to dissolve and appoint trustees to manage the affairs of civil society organisations.

Notwithstanding the coordinated plan of the government to shrink the civic space, Civil Society Organizations  (CSOs) are fighting back. For instance,

on June 4, 2021, the federal government suspended the micro-blogging App Twitter across Nigeria, stating that Twitter’s operations constituted threats to the stability of Nigeria.  The SERAP and a number of CSOs and 176 individuals challenged the suspension in the ECOWAS Court of Justice in Abuja. As the government could not justify the action the Court  concluded that the Nigerian government had violated Article 9 of the African Charter on Human and People’s Rights (ACHPR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

Before then, SERAP had dragged the federal government to the Ecowas Court of Justice over the validity of section 24 of the Cybercrime Act 2015 which is applied by the police and other security agencies to prosecute journalists and other citizens for allegedly exposing public officers to ridicule. The Court held that  section 24 of Nigeria’s Cybercrime (Prohibition) Act of 2015 contradicted the African Charter on Human and Peoples’ Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR) ratified by Nigeria.  Consequently, the court ordered the Federal Government to expunge the obnoxious provision from the law. But the federal government has not complied with the judgment.

Recently, the Nigeria Labour Congress announced its plan to hold public rallies from February 27-28, 2024 to protest against the rising cost of living in the country. The Attorney-General of the Federation and Minister of Justice, Mr. Lateef Fagbemi SAN said that the rallies were illegal and contemptuous. As Counsel to the NLC, our law firm pointed out that in the case of the Court of Appeal had upheld the fundamental right of Nigerians to protest peacefully. See Inspector-General of Police v All Nigeria PeoplesParty (2008) 12 WRN 68. Of course, the NLC held the rallies and the police provided adequate security for the participants in line with the provisions of Section 83(4) of the Police Establishment Act.

In a suit filed against certain provisions of the CAMA, by Emmanuel Ekpenyong, an Abuja-based lawyer, Justice James Omotosho nullified nine sections of CAMA for infringing on freedom of conscience and religion as well as freedom of peaceful assembly and association enshrined under sections 38 and 40 of the Constitution. In a similar suit, the Christian Association Nigeria (CAN) had challenged some sections of the CAMA  Justice Inyang Ekwo restrained the CAC from suspending or appointing trustees of religious bodies and struck down the provisions of the CAMA over rights violations.

From time to time, the Nigeria Broadcasting Corporation closes down media houses and imposes fines for alleged breaches of the provisions of the Nigeria Broadcasting Code. The Media Rights Agenda sued the NBC following the commission’s imposition of fines of N5m each on Multichoice Nigeria, owners of DSTV; Trust TV; NTA-Startimes Limited and TelcCom Satellite Limited for airing documentaries on bandits in 2022 which allegedly undermined Nigeria’s national security. In a judgement delivered on January 17, 2024, the Federal High Court declared null and void the code authorising the NBC to impose fines on broadcast stations on the ground that administrative and regulatory bodies cannot exercise judicial powers.

The presiding judge, Justice Rita Ofili-Ajumogobia held that the NBC acted above its powers by imposing such fines, thereby setting aside the fines imposed and declaring the regulator’s action as wrong and unjustifiable in a democratic society. The Judgeissued an order of perpetual injunction restraining the NBC or anyone acting on its behalf from further imposing any fine on any media platform or broadcast station in Nigeria for any alleged offence committed under the NBC code. The Judge commended the Media Rights Agenda for filing the case.

Apart from harassing journalists the government does not spare public officers who expose corruption or abuse of power.  Although the courts have ruled that elected legislators cannot be suspended or dismissed from the parliament, members who expose budget padding are placed or indefinite or three months’ suspension. For daring to disclose to Nigerians that the 2024 federal government budget was padded to the tune of N3.7 trillion, Senator Ahmed Ningi has been placed on suspension for 3 months. In defending the National Assembly, the Presidency claimed that the budget was only padded with the sum of N1.2 trillion! But a non-governmental accounting firm has confirmed the padding figure of N3.7 trillion.

The Senate had believed that the suspension of Senator Ningi would end the controversy surrounding the scandal. The Senate should be informed that the matter will not end so soon as it will not be swept under the carpet. Once the 2024 Appropriation Act is published, SERAP and other progressive CSOs should challenge the provisions that cannot be justified in law and in fact. In particular, the Senate President, Senator Godswill Akpabio ought to be called to justify the approval of N212 Billion to Install 1,150 streetlights at N184 million each,  ₦193M for 1 borehole and N2.5 billion to procure deep freezers, generators and other items as empowerment projects for the people of his constituency.

From the foregoing, it is undoubtedly clear that a number of progressive CSOs are determined to defend and expand the democratic space in the interests of the Nigerian people. Since civic space is sacrosanct in promoting democracy, human rights and public accountability, the CSOs should collaborate with mass organisations to challenge the forces that are shrinking the civic space.  Happily, the National Human Rights Commission (NHRC) says it will continue to work with stakeholders to ensure the nation’s civic space is expanded.  Chief Tony Ojukwu SAN, NHRC Executive Secretary, gave the assurance in May 2023 during a dialogue series with media practitioners.

Permit me to call on Nigerian lawyers to constantly use public interest litigation to counter restriction on civic space and to hold governments at all levels to account for the resulting violations of human rights.

President Bola Tinubu should direct the Attorney General of the Federation and Minister of Justice to ensure that the judgments of all competent courts are complied with in accordance with Section 287 of the Nigerian Constitution 1999 [as amended] and Article 24 of the Amended Protocol of the ECOWAS Court of Justice. In addition, the Federal Government should without further delay make a Declaration to enable aggrieved citizens to access the African Court after exhausting domestic remedies.

Finally, while commending SERAP for challenging us to review the state of civic space in Nigeria, I wish you fruitful deliberations.

*Being the keynote address delivered by Femi Falana SAN at the interactive session organized by the Socio-Economic Rights and Accountability Project (SERAP) in collaboration with the National Endowment for Democracy (NED) held in Lagos on Tuesday, March 26, 2024