A bill was recently sponsored by Senator Bala Ibn Na’Allah in the Nigerian Senate titled the Frivolous Petitions (Prohibition, etc.) Bill 2015. The bill immediately provoked the ire of the Nigerian public who considered it as an attempt by the legislators to tamper with the freedom of expression of Nigerians and their use of social media platforms to expose the wrong-doings of government officials.
Human rights institutions, like the Socio-Economic Rights and Accountability Project immediately petitioned to the United Nations to prevail on the government to retract the intended legislation, while an online publisher dragged the government to court to obtain a declaration that the proposed law is unconstitutional. The Nigerian president also distanced himself from the proposed law, recognising that even though he was in support of any lawful regulation of free speech, he will not assent to any law that denies the citizens their freedom of expression.
The senate quickly responded to the concerns of the people, assuring that the Bill was not intended to cut down on the freedom of expression of the citizens but was intended to make people responsible for what they publish and that any provision that was in violation of the human right to freedom of expression will not be contained in the final Act.
In this opinion piece, we attempt a brief analysis of the content of this Bill in the light of international law, standards and best practices on the right of freedom of expression. We recognise that international law provides strict rules that any restrictions on the right of freedom of expression must comply with and these are also recognised in the African Charter on Human and People’s Rights and our 1999 Constitution.
Provisions of the Frivolous Petitions (Prohibition, etc.) Bill 2015
The petition makes it unlawful for any person to submit a petition or statement intended to report the conduct of any person for the purpose of an investigation, inquiry and or inquest without a duly sworn affidavit in the High Court of a State or the Federal High Court confirming the content to be true and correct in accordance with the Oaths Act (Section 1). Any such petition and or complaint not accompanied by the aforesaid affidavit is rendered incompetent and shall not be used by any government institution, agency or bodies established by law in force in Nigeria (Section 2).
It is an offence to use, publish or cause to be published any petition or complaint not supported by a duly sworn affidavit and upon conviction, the culprit is liable to imprisonment for six months without an option of fine (Section 3(1)). It is equally an offence for a person to act, use or cause to be used any petition or complaint not accompanied by a duly sworn affidavit, and on conviction such a person is liable to imprisonment for a term of two years or a fine of 2,000,000.00, or both.
In a further twist, the law goes ahead to provide that where any person, in an attempt to circumvent the law, makes any allegation and or publishes any statement or petition in any paper, radio or any medium of whatever description, with malicious intent to discredit or set the published against any person or group of persons, or institutions of government, such a person is guilty of an offence and upon conviction shall be liable to imprisonment for a term of two years or a fine of four million naira (Section 3(3)).
The most controversial provision of the law is undeniably the provision of section 3(4) which provides that any person who through text messages, Tweets, WhatsApp, or any social media posts any abusive statement, knowing same to be false with the intent to set the public against any person and/or group of persons, or an institution of government or such other bodies established by law, is guilty of an offence and upon conviction shall be liable to imprisonment for a term of two years or a fine of two million Naira.
The explanatory memorandum of the Bill sates that the Bill seeks to prohibit frivolous petitions intended to report the conduct of any person for the purpose of an investigation, inquiry or inquest without a duly sworn affidavit.
Restrictions on the Right To Freedom of Speech and Opinion
The freedom of expression is regarded as a cornerstone of democracy which ensures the consolidation and development of democracy. It is also deemed as essential for the development of knowledge and understanding among peoples, which will lead to true tolerance and co-operation among nations.
According to the Human Rights Committee of the UN, the freedom of opinion and freedom of expression are essential for any society as they are indispensable conditions for the full development of the person. They are necessary conditions for the realisation of the principles of transparency and accountability.
Freedom of expression is guaranteed for all persons under article 19 of the International Covenant on Civil and Political Rights, article of the African charter on Human and People’s Rights and section 39 of the 1999 Constitution of the Federal Republic of Nigeria.
The 1999 Constitution recognises that every person shall be entitled to freedom of expression, including the freedom to hold opinion and to receive and impart ideas and information “without interference”.
Freedom of expression is, however, not an absolute right and government may restrict it in the light of other interests of greater immediate concern. The ICCPR thus states that this right also carries duties and responsibilities. However, international law narrowly defines the grounds for imposing such restrictions as can be found in international human rights conventions and in the jurisprudence of international tribunals. These restrictions are also contained in National Constitutions like the 1999 Constitution of the FRN. Thus every lawful restrictions on freedom of expression must comply with the following conditions as contained in article 19(3) of ICCPR:
1. The restriction must be provided by law;
2. The grounds on which the restriction may be based are:
i. Public order, morality or health
ii. Respect for the right and reputation of others
3. The restriction must be necessary and proportionate
The Canadian Supreme Court formulated the Oakes Test for determining whether a restriction is justifiable. The test is as follows:
“To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high… It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial… Second… the party invoking [the limitation] must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”: R. v. Big M Drug Mart Ltd., supra, at p. 352… There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. 13.
The European Court of Human right further held, in relation to law norms, that:
“[A] norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”
Any prohibitions on false statements should not have the effect of inhibiting processes by which public opinion is formed. 54 BverfGE 208 (1980).
Where false allegations are made, the government can substantially mitigate any potentially negative effect by simply refuting them and providing appropriate evidence to the contrary. In Die Spoorbond v. South African Railways, the South African Court of Appeal, holding that South African Railways, as a State enterprise, could not sue in defamation, noted:
The normal means by which the Crown protects itself against attacks upon its management of the country’s affairs is political action and not litigation, and it would, I think, be unfortunate if that practice were altered. 66.
[T]he dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to unjustified attacks and criticisms. 67.
The US Supreme Court has emphasised the problem of overbreadth:
Even though the Government’s purpose may be legitimate and substantial, that purpose cannot be pursued by means that stifle fundamental personal liberties when the end can be more narrowly achieved. 68.
Noting that it would be: “a grave impediment to the freedom of the press” if one could publish only after having verified the accuracy of all statements of fact. 70.
The Supreme Court of India has held that there must be a very close link between an expression and the threat of a disturbance:
Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have proximate and direct nexus with the expression. The expression should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.73. S. Rangarajan v. P.J. Ram (2) SCR 204, p. 226.
It is thus well-established that a number of conditions must be met before restrictions on freedom of expression for reasons of public order or national security may be legitimate. First, the risk of harm must be high, not remote or conjectural. Second, the risk must be of imminent harm, not a distant occurrence to which many factors might contribute. Third, the risk of harm must flow directly from the expression. It is not legitimate to restrict expression where tense underlying social circumstances are the real cause of the risk. Fourth, the risk must be of serious harm, that is to say violence or other unlawful action; minor or insignificant harm cannot justify restrictions on a fundamental right. Finally, some sort of intention must be present, at least where sanctions are to be applied.
The proportionality part of the Oakes test involves comparing two considerations: (a) the importance of the right and the likely effect of the restriction on the exercise of that right; and (b) the importance of the goal or legitimate aim which is sought to be protected.
The “chilling effect” refers to the fact that restrictions of this nature affect expression well beyond the actual scope of the prohibition. Citizens will be deterred from publishing anything they could not prove to be true in a court of law, taking into account the strict rules governing admissibility of evidence.
[I]t would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based. 85. hector  2 AC 312 (PC), p. 318.
[F]reedom of the press would be extremely limited if it were considered to apply only to information which could be proved to be true. The working conditions of journalists and editors would be seriously impaired if they were limited to publishing such information. 87. Tromsø and Stensås v. Norway, App. No. 21980/93, Report of 9 July 1998, para. 80.
The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech… What has been described as ‘the chilling effect’… is very important. Quite often the facts which would justify a defamatory publication are know to be true, but admissible evidence capable of proving those facts is not available. 88. Derbyshire County Council v. Times Newspapers Ltd  1 All ER 1011 (HL), pp. 1017-1018.
Similarly, the US Supreme Court has stated: “Allowance of the defense of truth … does not mean that only false speech will be deterred… Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” New York Times v. Sullivan, op cit., pp. 278-9.
The chilling effect of false news provisions becomes even more serious when, as is often the case in reporting on sensitive matters of public interest, journalists have relied on confidential sources which they do not wish to reveal, thereby inhibiting their ability to defend themselves against allegations of false publication. Protection of the confidentiality of sources is both a matter of professional ethics and guaranteed under international law.
The term ‘necessary’ includes a number of specific requirements:
• Pressing need: Minor threats to protected interests do not pass a threshold test for restricting freedom of expression; there must be a pressing need to protect the interest;
• Least intrusive: The government should choose the measures that are most conducive to freedom of expression achieving its goals. For example, licensing of newspapers would prevent undue concentration of ownership but this objective can be achieved in ways that are far less harmful to freedom of expression;
• Not overbroad: Only the harmful expression should be caught by the restriction, and not also legitimate expression. For example, a law which prohibits criticism of officials would protect reputation, but would be overbroad because a narrower law could achieve the same effect;
• Proportionate: Limitations should not be proportionate in the sense of not causing more harm than good. Sometimes discussion of a certain subject poses risks to society, but the discussion is so important that it should take place anyway. This also applies to sanctions, which may be disproportionate even if some sanction is warranted.
In New York Times v. Sullivan, 376 U.S. 254 (1964), the plaintiff questioned the constitutionality of an Alabama defamation statute as applied to limit criticism of local officials. The statute in question provided that the only defence to defamation was that the defaming statement was true “in all its particulars.” The Supreme Court accepted that the State of Alabama, through its defamation law, had a compelling state interest in protecting citizens from defamation; nonetheless, it held that the statute was not the least restrictive means of achieving that interest, particularly as applied to news and discussion involving public figures. It said that the requirement that a defendant to a charge of defamation brought by a public figure show that a statement about the public figure was true in all its particulars had the impact of chilling press and other public comment about those figures.
Satisfying the burden of proof that a statement is true in all its particulars is difficult under most circumstances. Thus, if the press and other citizens were required to take the necessary efforts to be assured that they could satisfy that burden every time they published news about public officials, the free flow of information about those public officials would dry up. That would be prejudicial to democratic governance, which relies on the free flow of information on public officials for the purpose of holding them accountable, and for evaluating the suitability of candidates for public office. It held that such a statute should not place the burden of showing the truth of a defamatory statement about a public official on the defendant commentator or media. Rather, it should require the plaintiff public figure to show that the statement was issued with malice. Malice, for purposes of such a statute, is defined as acting with the intent to harm, or with reckless abandonment as to whether the statement is true or false.
Evaluation of the Bill
The Bill provides for the following limitations on the freedom of expression (to complain and lay a petition):
a. A person’s right to complain or petition against a public officer for the purpose of initiating an investigation can only be exercised after swearing to a duly sworn affidavit. Without such an affidavit the complaint is incompetent and cannot be acted upon by any institution of government;
b. Before one can act on, use or cause to be used, publish or cause to be published any petition or complaint, the petition or complaint must be supported by a duly sworn affidavit. Failure to do so will constitute a punishable offence;
c. Making an allegation or publishing any statement or petition in any paper, radio or any medium of whatever description with malicious intent to discredit or set the public against any person or group of persons, or institutions of government is criminalised;
d. Use of social media platforms to post any abusive statement which one knows to be false with intent to set the public against any person and/or group of persons, or an institution of government or such other bodies established by law is also outlawed as a crime.
The relevant questions then are:
1. Are these restrictions provided for by a clear unambiguous legislation?
2. Are the grounds for applying these restrictions among the narrow grounds recognised by international and municipal law for restricting freedom of expression?
3. Are these restrictions necessary in a democratic society?
4. Are these restrictions proportionate to the interest sought to be protected?
1. The answer to the first question is pretty straightforward. If the Bill scales through the legislative process, the restrictions would then operate by virtue of a validly passed legislation and would then have satisfied partially the first condition. However, looking at the provisions, one may question the proper definition of “abusive statement” and would say that this is quite ambiguous and leaves too much discretion in the hands of the person who would interpret and apply this legislation, thereby ailing the first condition laid down in international law.
2. The grounds recognised in international law and our municipal law have already been outlined earlier. The explanatory memorandum of the Bill does not exactly set out the public interest sought to be protected by the Bill, but only states that it sets to prohibit frivolous petitions without a duly sworn affidavit. In an ex-cathedra statement attributed to the senate president, the Bill seeks to make everyone accountable for what they publish.
However, one may visit the lead debate on the Bill to garner the real intention behind it. From the lead debate one can distill the following motivations for the Bill:
a. To protect the right of public servants against frivolous complaints and consequent investigations;
b. Saving the time and resources for good governance that go into investigating frivolous petitions by making sure that only verifiable and credible petitions are presented for public use;
We must immediately remark that none of the above stated grounds is among the recognised or permissible grounds for limiting freedom of expression in both international and municipal law. We may by a strained interpretation argue that making people accountable may fall into the category of maintaining public order, but this will raise further questions. We may also argue that one of the recognised grounds is protecting the rights and reputation of others.
3. Is the Bill necessary?
Nonso Robert Attoh is a law lecturer in the Faculty of Law, University of Nigeria, Enugu Campus.