By Ufok Ibekwe Esq
Femi Falana SAN’s recent call for the discontinuation of criminal defamation charges against Senator Natasha Akpoti-Uduaghan, predicated on Arthur Nwankwo v. The State (1985) 6 NCLR 228, with due respect is an unfortunate and legally flawed intervention. Falana’s intervention is fundamentally flawed for its erroneous mischaracterization of binding legal precedent, statutory evolution, and the doctrinal distinction between sedition and defamation. This rejoinder is my humble effort to reaffirm the supremacy of the Supreme Court’s decision in Clement Aviomoh v. COP (2022) 4 NWLR (Pt. 1819) 69 and expose the jurisprudential lacunae in Falana’s argument.
Supreme Court Authority on Criminal Defamation :
At the heart of the matter lies the Supreme Court’s pronouncement in Aviomoh, where it unequivocally upheld the constitutionality of criminal defamation, stating:
“A person cannot, under the guise of exercising freedom of expression, trample upon the rights of others… Defamation is both a tort and a crime, and the defamed person has a right to pursue either civil or criminal charges. Criminal defamation laws [are] reasonably justified in a democratic society and [are] not contrary to the right of freedom of expression.”
This decision establishes the critical framework for understanding the right to free speech under Section 39(3) of the 1999 Constitution. It underscores that freedom of expression is not absolute and may be restricted for compelling reasons, such as safeguarding public safety, order, morality, or the reputational rights of others. The Court further affirmed the dual nature of defamation, allowing victims the choice of civil remedies or criminal sanctions. By recognizing the necessity of criminal defamation statutes, the Supreme Court enshrined a delicate balance between expressive rights and reputational integrity.
Falana’s failure to address this binding precedent constitutes a glaring oversight, as Aviomoh unequivocally supersedes the Nwankwo decision, which he relies upon.
Distinguishing Sedition from Defamation :
Falana’s reliance on Nwankwo is misplaced due to the material distinction between sedition and defamation. In Nwankwo, the Court of Appeal invalidated sedition laws under Sections 50–51 of the Criminal Code, which penalized political criticism as seditious. The case arose from political commentary against Governor Jim Nwobodo and was deemed an undue suppression of democratic discourse and constructive criticism.
Conversely, the current charges against Senator Akpoti-Uduaghan arise under Sections 391–392 of the Penal Code, addressing criminal defamation. They are based on allegations of grave personal misconduct, namely, assassination plots and organ trafficking leveled against Senate President Akpabio. Such accusations transcend political critique and enter the realm of defamatory falsehoods making it a crime.
Moreover, the principle of hierarchical supremacy invalidates Falana’s argument. While Nwankwo is a Court of Appeal decision, Aviomoh, as a Supreme Court ruling, constitutes binding authority under the doctrine of stare decisis, as affirmed in A.G. Lagos State v. Eko Hotels Ltd. To invoke Nwankwo in disregard of Aviomoh is to undermine the judicial hierarchy upon which the legal system is predicated.
The Digital Context and Cybercrimes Act:
Falana’s analysis also fails to account for the digital dimension of this case. Senator Akpoti-Uduaghan’s statements were nationally broadcast and widely disseminated via electronic platforms, engaging the provisions of the Cybercrimes (Prohibition) Act 2015. Sections 24 and 375 of the Act criminalize the transmission of false information through digital media, imposing enhanced penalties owing to the wider scope of harm facilitated by online communication.
The exponential reach of digital dissemination magnifies reputational damage, rendering Falana’s comparison to the print-based critique in Nwankwo inapposite. His argument neglects the legislative intent behind modern statutes addressing the unique challenges of the digital age.
Constitutional Boundaries of Free Speech :
Falana’s absolutist stance on free speech disregards the constitutional limitations enshrined in Section 45(1), which permits restrictions on fundamental rights where necessary to protect public safety, order, morality, or the rights of others. As emphasized in Aviomoh, the right to safeguard one’s reputation is a legitimate legal interest recognized globally. Criminal defamation statutes are not aberrations but integral components of democratic legal systems, mirrored in jurisdictions like the UK and India.
Where speech involves allegations of serious criminal conduct, such as organ trafficking or murder, made without evidence, it forfeits constitutional protection.
CONCLUSION
While Falana’s advocacy for free speech is laudable, his position in this case prioritizes rhetoric over the law. The Supreme Court’s Aviomoh decision affirms that criminal defamation laws remain constitutionally valid and necessary in a digital society. To withdraw charges against Senator Akpoti-Uduaghan based on Nwankwo which is a materially distinct and hierarchically subordinate case would undermine judicial authority and trivialize reputational harm.
The trial must proceed. The law, in its majesty, fears no truth.
“Fiat justitia ruat cælum” (Let justice be done, though the heavens fall)
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