Femi Aborisade

By Femi Aborisade, Esq.

Femi Aborisade

The detention of Mr. Tony Ezimakor, the Abuja Bureau Chief of Daily Independent newspaper since Wednesday, 28th February 2018, allegedly by the State Security Service (SSS) without being charged to court is not only a sad reminder of brutal suppression of press freedom under Decree No 4 of 1984, it is an unacceptable violation of Sections 35(1) & (5) and 39(1), which provide constitutional guarantees for personal liberty, being brought before a court within a reasonable time defined as one day where there is a court of competent jurisdiction within a radius of forty kilometers and freedom of expression and the press, including protection against disclosure of source of information.

Indeed, within the context of Section 22 of the Constitution, which imposes a constitutional mandate on the mass media to make those who hold reins of power responsible and accountable to the people, Tony Ezimakor ought to be celebrated for his investigative journalism rather than being persecuted.

It is an irony that a government that claims to be fighting corruption now detains a journalist who carried out investigative journalism with findings suggesting that whereas the Federal Government claims no ransom is being paid to Boko Haram insurgents for the release of abducted victims, the contrary is likely to be the truth and that the Boko Haram phenomenon might have been turned into a business venture by which some public officers are milking the country dry. A government that is serious about fighting corruption ought to have partnered a journalist like Tony Ezimakor to identify and expose those alleged public officials who might be unlawfully deriving pecuniary benefits from efforts to free abducted Boko Haram victims and confer on Tony Ezimakor one of the highest national honours in recognition of his courage, skills and sacrifices in helping to facilitate the attainment of the goal of fighting corruption, which is the central plank of the program that brought the APC into power in 2015.

While we do not support irresponsible and false publications, it should be made abundantly clear that constitutionally and statutorily, by the state of the law on press freedom as interpreted by the courts, Tony Ezimakor cannot be compelled to disclose the source of his information.

Section 39(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended guarantees freedom of expression and the press, and the courts have interpreted this to include protection against disclosure of source of information by a journalist. Similarly, Article 4 of the Code of Ethics for Nigerian Journalists stipulates that “a journalist should observe the universally accepted principle of confidentiality and should not disclose the source of information obtained in confidence”. The Code of Ethics for Nigerian Journalists is made pursuant to Section 9 of the Nigerian Press Council Act. Therefore, the Code of Ethics for Nigerian Journalists has the force of law.

We therefore condemn as not only unlawful but unconstitutional, the alleged demand by the State Security Service (SSS) that Tony Ezimakor should disclose the source of his information as the condition for his release.

As the Code of Ethics for Nigerian Journalists prescribes, the right against disclosure of source of information is a universally guaranteed right and the Courts, nationally and internationally have upheld the right against disclosure of source of information.

In British Steel Corporation v. Granada TelevisionLtd (981) 1 All ER 417 at 441, Lord Denning held as follows:

“The public has a right of access to information, which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information. Neither by means of discovery before trial. Nor by questions or cross-examination at the trial. Nor by subpoena. The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information, which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power, in companies or in government departments would never be known. Investigative journalism has proved itself as a valuable adjunct of the freedom of the press.”

The Courts in Nigeria have equally upheld the right against disclosure of source of information. In Tony Momoh v. Senate of the National Assembly & Ors (1981) 1 NCLR 105, it was held, inter alia, within the context of constitutional guarantees of freedom of expression and the press, that:

“… How else is a dissemination of information to operate if those who supply …such information are not assured of protection from identification and/or disclosure”

Similarly, in Innocent Adikwu (Editor, Sunday Punch Newspaper) & Ors v. Federal House of Representatives of the National Assembly & Ors (1982) 3 NCLR 394, it was held, inter alia, that:

“It must be remembered at all times that a free press is one of the pillars of freedom in this country as indeed in any democratic society. A free press reports matters of general public importance, and cannot, in law be under an obligation, save in exceptional circumstances to disclose the identity of the persons who supply it with the information appearing in its report. Section 36 [now section 39] of the Constitution which guarantees freedom of speech and expression (and press freedom) does provide a constitutional protection of free flow of information. In respect of the press, the editor’s or reporter’s constitutional right to a confidential relationship with his source stems from that constitutional guarantee of freedom of speech and expression. If this right does not exist or is not protected by the courts when contravened or when there is a likelihood of its being contravened, the press’s sources of information would dry up and the public would be deprived of being informed of many matters of great public importance. This must not be allowed to happen in a free and democratic society. In a country with a written Constitution which establishes a constitutional structure involving a tripartite allocation of power to the legislature, the executive and the Judiciary as coordinate organs of government, the judiciary as the guardian of the fundamental law of the land has the role of passing on the validity of the exercise of powers by the Legislature and Executive and to require them to observe the Constitution of the land.”

Indeed, by section 379 of the Criminal Code, the publication by Tony Ezimakor can be categorized as conditionally privileged, being a fair comment on issues of public interest and morality, which has not been established to be false or made in bad faith.

On the grounds of the foregoing argument and restatement of the law, we call on the SSS to either charge Tony Ezimakor to court (if the authorities believe they can successfully press charges against him) or release him unconditionally and immediately, without any further delay.

We shall resist, within the bounds of the law, any attempt by any regime to take us back to the dark days of military dictatorship under the repressive and obnoxious Decree No. 4 of 1984, which PMB used to viciously suppress press freedom as the then military dictator.

Femi Aborisade, Esq.

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