Freedom of Speech Is Not a License to Defame: A Rebuttal to Femi Falana’s Misplaced Reliance on Nwankwo v. State

Freedom of Speech Is Not a License to Defame: A Rebuttal to Femi Falana’s Misplaced Reliance on Nwankwo v. State

By Nnamdi Ikechi

In the wake of the criminal defamation charges filed against Senator Natasha Akpoti-Uduaghan, human rights lawyer Femi Falana, SAN, offered a spirited defence rooted in constitutional liberty. Citing the Court of Appeal’s decision in Arthur Nwankwo v. The State (1985) 6 NCLR 228, Falana urged the Attorney-General of the Federation to withdraw the charges, suggesting that they amount to a violation of the right to freedom of expression. While the intentions behind his intervention may be noble, the legal reasoning is flawed, outdated, and ultimately unconvincing in the context of the current case.

1. Falana’s Misapplication of Nwankwo v. State

In Nwankwo v. State, the Court of Appeal declared certain provisions of the Criminal Code relating to sedition as unconstitutional for infringing upon the right to freedom of expression under the 1979 Constitution. The court emphasized that public officers must tolerate criticism, even if it is harsh or unflattering.

However, the charges preferred against Senator Natasha are not for sedition. Rather, they are for criminal defamation under Sections 391 and 392 of the Penal Code, applicable in the Federal Capital Territory. Section 391 criminalizes the making of false imputations intended to harm another’s reputation, while Section 392 prescribes punishment of up to two years' imprisonment or a fine, or both.

The Nwankwo judgment never invalidated these defamation provisions, and Falana’s reliance on that case is a clear misapplication. Criminal defamation remains valid and enforceable law in Nigeria, distinct from the sedition laws that were struck down decades ago.

2. Ignoring the Modern Legal Context: Cybercrime and Media Transmission

Falana’s position overlooks the evolution of criminal jurisprudence in Nigeria. Today’s legal ecosystem includes the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015, which explicitly addresses offences committed through electronic and digital platforms.

The defamatory allegations made by Senator Natasha concerning assassination plots and organ trafficking allegedly involving Senate President Akpabio and former Governor Yahaya Bello, were not whispered in private. They were made during a live broadcast on Channels Television and repeated in digital correspondence, amplifying their impact and legal ramifications.

Digital publication introduces additional layers of liability and wider jurisdictional reach. These are not mere political criticisms; they are allegations of grave criminal conduct made without substantiated evidence, well within the scope of criminal defamation under extant Nigerian laws.

3. Free Speech is Not Absolute Under Nigerian Law

It is important to affirm that freedom of speech is a cornerstone of democracy. But, as with all rights, it has boundaries. Section 39(3) of the 1999 Constitution (as amended) provides that freedom of expression may be restricted “in the interest of defence, public safety, public order, public morality or for the purpose of protecting the rights and freedom of other persons.”

The right to protect one’s reputation is a legitimate legal interest recognized globally. In the United Kingdom, the United States, and other democracies, defamation laws - civil and criminal - coexist with freedom of expression to create a balanced legal framework.

In this case, Senator Natasha is not being prosecuted for critiquing government policy or challenging official actions. She is being prosecuted for making specific, defamatory, and criminal accusations against named individuals, which, if proven to be false and malicious, clearly breach the law.

4. The Attorney-General’s Actions Are Lawful and Justifiable

The prosecution initiated by the Attorney-General of the Federation is backed by a police investigation that reportedly found prima facie evidence suggesting that Senator Natasha's statements were not only false but made with reckless disregard for the truth.

This is not akin to the Nwankwo scenario, where no investigation established malice or falsehood. Here, the law has taken its course, starting from a petition to police investigation, to prosecutorial review, consistent with due process.

The idea that this prosecution is an attempt to gag dissent is speculative at best and deceptive at worst. The focus should be on the truthfulness and intent behind Senator Natasha’s statements, not an abstract invocation of constitutional rights divorced from factual realities.

Conclusion

Femi Falana, SAN, deserves respect for his longstanding contributions to constitutional law and human rights in Nigeria. However, on this matter, his interpretation is both legally and contextually misplaced.

The charges against Senator Natasha Akpoti-Uduaghan are not about silencing criticism or dissent. They concern the responsible use of free speech, especially in an era where reputations can be destroyed in minutes through digital platforms. The law cannot and should not- stand idly by when false and injurious allegations are made against citizens, public figures, or not.

Falana’s invocation of Nwankwo v. State may serve as a powerful soundbite, but it does little to shield defamatory speech from lawful accountability. The courtroom, not the court of public opinion is the proper forum for Senator Natasha to defend her statements.

Let the law take its course.

Mr. Nnamdi Ikechi writes from Lagos. He is a public affairs analyst and Political commentator.