PROVOCATION AS A DEFENCE TO CRIMINAL LIABILTY

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

Whenever and wherever the question of human rights is discussed, there is always a clear disagreement as to its actual meaning. The only measure of agreement, however, lies in the understanding of those rights which are recognized and protected by a particular legal system. In this regard, it has also become apparent that there are other rights some prefer to call the privileges which are not recognized and protected. It is this approach that has led to the distinction between fundamental human rights on the one hand, directive principles of state policy on the other. The one is guaranteed by the constitution and enforceable while the other is essentially non-justifiable and unenforceable.

Freedom of expression as fundamental human right goes to the root of human civilization and enlightenment. This has been affirmed universally that, every person has the right to seek, receive and impact information without interference

Today, virtually every social covenant1 acknowledges the fundamental nature of this right and asserts the right to freedom of speech. It is well known that even state

1 See Article 19 of the Universal Declaration of Human Rights.

with the most widely political, economics, and social policies find it necessary to recognize the right.

The fact that the rights of expression can neither be trample upon nor truncated either by persons or authorities shows that it is so fundamental to existence. As an author put it, whoever must over throw the liberty of a nation just begin by

subduing the freeness of speech2

Constitutionally, section 36 of the 1979 constitution (now section 39 of the (1999 constitution), stated that every citizen has the fundamental of information, ideas,

and opinions, including the right to own, iestablish and operate any school or institution for imparting information, ideas and opinion.

Section 223 of the constitution clearly out-lines the role the press thus, the radio, television and other agencies of the mass media shall at all time be free to uphold the responsibility and accountability of the government to the people. The role of a responsible press should play in any policy, irrespective of the ideological foundation on which it is based, or the ownership structure of the universal conception that freedom of press and expression are so fundamental that the law tends to obstruct any of the two ideas, cannot be properly so called.

1. Benjamine, Franklin, “Freedom of Speech’’ (Textbook Company, Skokies, illonis, 1981.)

1. CFRN, 1999

1.1.0: BACKGROUND OF STUDY

Every person is accorded the freedom of expression including the freedom to hold opinion and to receive and impact ideas and information without my interference. For impacting ideas, holding opinion and information, it is necessary that the

individual should be have the right to any media of his choice4.

The freedom of expression can therefore be exercised orally of in writing through the print as well as electronic media. For the proper exercise of the right subsection

(1) of section 39 of the 1999 constitution has extended to the ownership or the establishment and operation of any medium for the dissemination of information, ideas, and opinion to the public,

This right can be exercised through several ways. A person may chose to express his ideas and opinion or conceal the information he obtained by any means available to him. The constitution has remained salient over the issues to the means to obtain any information, it does not place any restriction or the acquisition of any information either with respect to the concept “expression” used in the section 39 of the constitution. Expression can be effected through variety of ways; it can be done through sign or gesture

4 Section 39(1) CFRN, 199

The right to receive information generally is a negative one in that, it is difficult to prevent people from receiving particular ideas. As far as the functions of government is concerned, this right become a cornerstone of a positive form of obligation in the part of the public informed about the true state of affairs as well as the working of government and everything which is considered necessary to keep the public informed. This is considered necessary for the functioning of democracy as to render the government accountable to the people.

The ideas and opinion which permitted any person to hold may relate or touch or any subject matter or the society, it may border or immoral, political ethical, moral or immoral religious or ethnical issues.

By the above background it can be discerned that there is no separate right of the press from that of private individuals. It is in respect of the above that the right to owe and establish any media for the dissemination of ideas and information is accorded.

1.2.0: OBJECTIVES OF THE STUDY

The aims and objectives of this research are:

1. To examine the practical application of the right of expression in Nigerian polity

1. To examine the constitutional and statutory framework within which right of expression is enhanced;
2. To bring to the fore various remedies available to aggrieved person in enforcing their right of expression; and
3. To proffer solutions to the impediments of right of expression.

1.3.0: FOCUS OF STUDY

This research is intended to concentrate on the Nigeria. It will not be restricted to any particular government agency but cover all government agencies established for the preemption and regulation of right of expression. To this end the research will review generally the provision of the constitution and other subordinate legislation on right of expression and the attitude of the government towards this right. The work gives a general over view of the practice of the right of expression within the Nigerian jurisdiction with emphasis on various challenges through this research references to other judicial decisions on the topic cutting across other jurisdictions.

1.4.0: SCOPE OF THE STUDY

This study will put to periscope the various concepts, sources and development of right of expression in Nigerian nationhood and how the mechanism and purveyors of right of expression fared during military regimes. This will be fine-tuned in

order to show that right of expression was at its lowest ebb during regimes, whose policy thrust was anti-freedom of expression and the press.

Although, right of expression is entrenched in Nigerian status, a highlight will be made in this study to show that it is not at large, neither is it absolute. An exposition on limits right of expression from the pedestals of common law be constitution will be canvassed.

1.5.0: RESEARCH METHODOLOGY

This research work is based on primary and secondary sourced materials. The primary sources include the 1999 Constitution of the Federal Republic of Nigeria, statute books, law reports, journals relevant to the subject matter. While the secondary sources, include textbooks written by foreign and Nigeria authors, dictionaries, juristic articles and other materials necessary for the achievement of aims of this study.

1.6.0: LITERATURE REVIEW

This study beams on the scholarly views which have evolved over time in respect of the right of expression. Indeed it becomes pertinent to state that the adoption of

right of expression makes the impressive dictum of Lord Denning M.R5  on in

alienable right of man to speech while Dr. J. Ademola Yakubu6 reflects on the right

5Denning M.R. Freedom under the Law ( Butterworths, London,1949) pg. 75 6 Yakubu J.A Press Law Nigeria ( Malthhouse Press Ltd ,1999) pg. 3

of expression without a clear cut classification on right of expression. To fill the vacuum created by this scholarly revelation, this work has extended to create broad classification along the boundaries of individual right of expression, general right

of expression and cooperate right of expression. Sulaiman Nch7 harnessed various definitions on right of expression, this work went further to pinpoint a definition in a suitable context without significant reliance on ambiguous views.

Furthermore, the Imprecision of relevant provisions on right of expression in the 1960 and 1963 constitutions of the federal republic of Nigeria id pointed out and

the precise innovation of the 1979 constitution is noted by Aduba J.N8 when he stated that under the 1979 constitution, Nigerian reaffirmed more positively and more forcefully her commitment to a comprehensive and enforceable body of rights. However this work has given recognition not just to the 1999 constitution of the Federal Republic of Nigeria but also to the sister legislations like the newspaper act and news agency of Nigeria act.

More so, Blackstone’s9 opinion sparked to hold that there is also a danger of ignitions pandemonium and likely breach of peace if right of expression particularly as is affect the press is allowed to be enforced without qualification. Analytically therefore, this essay dwells on some aspects where common law

1. Nchi, S.S. The Nigerian Law Dictionary, (Tamaanza, Publishing Co. Ltd , 1996)

1. Aduba J.N. The Impact of poverty on the Realization of Human Right in Nigeria, 1993 J.H. R.L.P. Vol.3, Nos. 1,2,&3.
2. Blackstone Commentaries (1959) 101 at 152

qualifications appeared to serve as limitations. Under the doctrines of common law, qualifications are placed on right of expression by torts of criminal act of sedition and content of court.

Clement Nwankwo10, discuss the Nigerian cases on constitutionality of media regulation he agreed that in as much as the goals of freedom of expression would be thoroughly frustrated by complete avoidance of government regulation, the same will apply if there is complete government control. Further on this, a propose strict scrutiny test for laws to regulate media be considered constitutional.

Akinfeleye11 on the other hand, examines a wide range of issues in respect right of expression, including journalistic standards, citizenship education, newspaper freedom, media responsibility, the constitutional provisions on the media and freedom of expression, tensions of national interest and public right to know, the constitutional provision of right of expression that which gives the media the right to monitor the government. However, the shortfall of his work lies in his failure to recognized how effective these issues can galvanized the improvement of right of expression.

In its entirely, the research and conclusions thereof are based on unbiased evaluation of the projection of renowned legal luminaries, judicial and statutory

1. Nwankwo, C. et al, Crises of Press Freedom in Nigeria (Constitutional Rights Project, 1993)

1. Akinfeleye, R. & Okoye, I. (Eds.) (2003). Issues in Nigeria Media History: 1900-2000AD Lagos: Malthouse Press.

authorities on the issues not disregarding significant juristic contributions from other sources.

1.7.0: CONCLUSION

The entire chapter gives the reader the necessary prologue before the discourse proper, taking a cursory look at the elementary idea of right of expression. This in effect equips the mind of the reader on this study, giving an unambiguous clue of the gist.

To this end, a comprehensive searchlight on the basis of light of expression are not left out, these include; freedom of expression as recognized and protected by our legal system, the jurisdictional boundary of the work, the scholarly works that this study has endeared, and the adopted method of scouting materials. Built on these preliminaries, this work is properly set to rely on the subsequent chapters.