Nigerian Journalists Trial: Rotimi Urges Common Sense To Prevail
Is it the law now in Nigeria that the newspaper reporter who makes a mistake in reporting the address of an Imam or Bishop on the subject of truth is liable to be convicted of an offence and to be imprisoned for two years without the option of a fine?Quite often the excuse given for setting up military tribunals to try cases is that in the normal courts, there is a lot of legal mumbo jumbo which makes nonsense of commonsense.
Chief Rotimi Williams who is defending the two journalists from The Guardian newspaper currently on trial before the tribunal, a fortnight ago made preliminary objections on the grounds that the charges laid against the journalists were defective.
The tribunal is trying Tunde Thompson, Senior diplomatic correspondent and Nduka Irabor, assistant news editor and the Guardian newspaper Limited, all of whom are accused of false publication under Decree No.4.
We reproduce below excerpts from the submissions made by Chief Williams to the Tribunal on the fundamental question: 'Can publication of a true statement be an offence?' The excerpts from Chief Williams' submission show that the basis of the law is commonsense:
I now propose to look more closely at each of the two types of offence with which one is landed if the word "or" is read disjunctively.
Publishing False Statement: A few illustrations will demonstrate beyond any doubt that if the Decree is to be construed in a way that a person can be prosecuted for publishing a statement which is false in any material particular, then you are going to get a whole series of offences such that one is left wondering how it could have occurred to anyone in his sense to make them punishable offences. Let me start by writing out the full text of the relevant disjunctive part of the Decree:
Any person who publishes in any form, whether written or otherwise, any message, rumour, report or statement, being a message, rumour, statement or report which is false in any material particular shall be guilty of an offence under this Decree.
Note that if this is one of the offences created by the enactment, it follows that the essential ingredient of the offence is the publication of any message, rumour, report or statement. which is false. We can consider a few samples. A chief imam or bishop who has absolutely nothing to do with the government addresses the jamat or the congregation on TRUTH. A newspaper reporter published a report of the address making serious and material mistakes about what the imam or the bishop had said. Is it the law now in Nigeria that the newspaper reporter is liable to be convicted of an offence and to be imprisoned for two years without the option of a fine?
Take another example from a true story. One day I boarded a Nigeria Airways flight to Kaduna. At that time, Mr Justice Fatayi-Williams was still Chief Justice of Nigeria. Soon after the plane took off the chief steward announced to the passengers: "We welcome on board the Chief Justice of Nigeria and all other passengers." As the Chief Justice of Nigeria was not on board, the chief steward had published to all of us a statement which was false in every material particular. Does it make sense to enact a law that a chief steward who commits this type of faux pas is to be imprisoned for two years without the option of a fine?
Take one more example. Let us imagine that the winner of the 1984 Nobel Prize for medicine has the same name as a Nigerian doctor. A newspaper reporter, thinking that the Nigerian doctor had won the prize, writes a long article praising the Nigerian doctor and congratulating him for bringing our beloved country into the limelight. Everyone will agree that it flouts common sense and ordinary notions of justice to suggest that if the erring newspaper reporter were brought before this Tribunal, your hands will be tied and you will have no choice to send him to jail for two years without the option of a fine.
I very humbly and respectfully submit to the Tribunal that it cannot be right to suppose that it is the intention of the Federal Military Government that every time a newspaper writer or reporter publishes something which turns out to be untrue without more, he stands the risk of being sent to prison. This is drastic enough where what is published can be described or classified as narrative journalism. It is monstrous and disastrous to the profession of journalism where what is published can be described or classified as speculative journalism. Take the recent past when the office of the Chief Justice of Nigeria was about to be vacant. Many lawyers and non-lawyers must have enjoyed or at least must have amused themselves reading newspaper speculations about who and who are the likely successors. Is it to be supposed that if Decree No.4 had been backdated to that period, practically all the national newspaper publishers would have been liable to pay fines of N10,000 for the enjoyment or amusement they gave to all of us during that period?
Publishing Statement Derogatory of the Government or of a Public Officer: Up to this point, I have been dealing with only one of the two offences which a literal reading of Section 1 (10) of the Decree would produce. It is now time to look at the other offence. Again, I start by setting out the full text of the relevant disjunctive part of the decree:
ANY person who publishes in any form, whether written or otherwise, any message, rumour, report of statement, being a message, rumour, statement or report.. which brings or is calculated to bring the Federal Military Government or the Government of a State or public officer to ridicule or disrepute shall be guilty of an offence under this Decree.
Note that if this is one of the offences created by the enactment, it follows that the essential ingredient of the offence is the publication of any message, rumour, report or statement (whether true or false) which brings or is calculated to bring the Federal Military Government or the Government of a State or a public officer into ridicule or disrepute. Hence on that interpretation the person accused can be convicted and punished even if he proves that what is published is true. For the reasons which I need not elaborate upon at this stage, it may well be that no court of law will come to the conclusion that an interpretation which results in making it an offence to pub- lish something which brings or is calculated to bring a military government to ridicule or disrepute is absurd or flouts common sense. This would be so even where the enactment does not require that the publication for which the accused is to be punished must be proved to be false. But the portion of the Decree under consideration is not limited to publications concerning the military government. It clearly includes publications concerning a public officer.
It is my respectful submission to the Tribunal that this is what makes it clear beyond doubt that the Federal Military Government could not possibly have intended that the portion of Decree No.4 now under consideration should bear the meaning which would make it an offence to publish something which can be proved to be true. Why do I say this? A few illustrations will demon- strate my reasons.
First, take a case where a newspaper reporter happened to be around when there is commotion in a ministry and there is a general rush to the room of a permanent secretary. Let us imagine that the permanent secretary was openly caught having sex with his female secretary. The reporter takes photographs showing the permanent secretary in an embarrassing state of nature. There can be no doubt that a publication of the news or the photograph or both will most certainly and deservedly bring the permanent secretary to ridicule and disrepute. It follows that if the literal interpretation is to be followed, the newspaper reporter would have committed an offence under the portion of the Decree now under consideration. I ask: is it reasonable to suppose that this is the intention of the Federal Military Government in these days of War Against Indiscipline? The answer must be emphatically No!
Anyone who argues that your Tribunal is set up for the purpose of punishing the type of disclosure involved in such a scandal makes the grievous mistake of regarding your Tribunal as Press Gag Tribunal which you have rightly assured the nation that you are not. You ought not to presume that the Federal Military Government intends that the law it enacts should produce such result.
Let us imagine that the permanent secretary was openly caught having sex with his female secretary. . .
I take a second example. For reasons best known to him, a chief magistrate decides to go to the middle of the road on the Eko Bridge in the midst of heavy traffic and to stand on his head. Is it to be lightly assumed that a publication of this bizzare performance amounts to a crime?
Take a third illustration which concerns us all as Nigerian citizens. A newspaper is conducting an investigation into corrupt practices so as to expose them as part of the responsibility in the WAI campaign. It collects cogent, accurate and incontrovertible evidence against a number of public officers. If the evidence is published, it is patent that the newspaper publishers and the writer or writers of the particular publication would have brought the public officers concerned into ridicule or disrepute. They can therefore be prosecuted and convicted under the portion of the Decree now being considered. Everyone will agree that this result flouts common sense and justice."
IN AN 18-minute ruling, Mr Justice Olalere Ayinde said the tribunal was a creation of Decree No 4 and that it had no jurisdiction to enquire into the validity of the decree.
"We are bound to accept the decree as we find it by giving literal meaning to it. It's only the Federal Military Government that can rectify an absurdity in the Decree. This tribunal is expected to function within the framework under which it was created."
He held that the proper forum to challenge the validity of the tribunal is at the High Court.
Immediately after the ruling, the three-count charge was read to Mr Thompson and Mr Irabor and they both pleaded not guilty to the charges. One of the first questions Chief Rotimi Williams (SAN) defending, asked the tribunal was whether it was an offence if a true statement puts the Federal Military Government into disrepute and Mr Justice Ayinde's reply was: "I am not competent to answer that".
Chief Ofodile, the Attorney-General on behalf of the prosecution maintained that the provision of Decree I of 1984 placed all decrees promulgated by the military government over and above all parts of the 1979 constitution. He said the tribunal was not bound to follow the normal procedure.
As a result, he said, the tribunal "has powers to compel the accused persons to enter their pleas before putting up a defence to the charges preferred against them."
Mr Ofodile noted that the tribunal had gone outside its laid-down procedure by allowing the defence to be heard when pleas had not been taken.
Stressing that Decree No 4 under which the two journalists were charged did not give room for the manner in which the tribunal was currently conducting its trial, Mr Ofodile declared:
"It is wrong for the tribunal to have predicated further proceedings in the trial to the plea of the accused persons."
FOR OPINIONS THAT CHALLENGE YOUR BELIEFS WHERE ELSE BUT IN TALKING DRUMS
