The Director Of Public Prosecutions V Chike Obi (1961)
LawGlobal-Hub Lead Judgment Report
ADEMOLA, C.J.F
This matter was referred to this Court by the Chief Justice High Court of Lagos under section 108 of the Constitution of Nigeria which enjoins that any question as to the interpretation of the Constitution which involves a substantial question of law should be referred to the Federal Supreme Court. The defendant in the case was charged before the High Court of Lagos with sedition under section 51 (1) (c) of the Criminal Code. Section 51(1) of the Criminal Code reads as follows:-
51. (1) Any person who-
(a) does or attempts to do or makes any preparation to do, or conspires with any person to do, any act with a seditious intention;
(b) utters any seditious words;
(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication;
(d) imports any seditious publication, unless he has no reason to believe that it is seditious;
shall be guilty of an offence and liable on conviction for a first offence to imprisonment for two years or to a fine of one hundred pounds or to both such imprisonment and fine and for a subsequent offence to imprisonment for three years; and any seditious publication shall be forfeited to Her Majesty.
Section 50 (2) of the Criminal Code defines seditious intention thus:-
50. (2) A “seditious intention” is an intention-
(a) to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, her heirs or successors, or the person of the Governor General or the Governor of a Region, or the Government or Constitution of the United Kingdom, or of Nigeria, or of any Region thereof, as by law established or against the administration of justice in Nigeria; or
(b) to excite Her Majesty’s subjects or inhabitants of Nigeria to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Nigeria as by law established; or
(c) to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Nigeria; or
(d) to promote feelings of ill-will and hostility between different classes of the population of Nigeria.
But an act, speech or publication is not seditious by reason only that it intends-
(i) to show that Her Majesty has been misled or mistaken in any of Her measures; or
(ii) to point out errors or defects in the Government or Constitution of Nigeria, or of any Region thereof, as by law established or in the legislation or in the administration of justice with a view to the remedying of such errors or defects; or
(iii) to persuade Her Majesty’s subjects or inhabitants of Nigeria to attempt to procure by lawful means the alteration of any matter in Nigeria as by law established; or
(iv) to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill—will and enmity between different classes of the population of Nigeria.
The defendant Chike Obi was prosecuted on the charge that he “during the month of August 1960 at Lagos, distributed a pamphlet called “The People: Facts that you must know” containing a seditious publication to wit: “Down with the enemies of the people, the exploiters of the weak and oppressors of the poor! …. The days of those who have enriched themselves at the expense of the poor are numbered. The common man in Nigeria can to—day no longer be fooled by sweet talk at election time only to be exploited and treated like dirt after the booty of office has been shared among the politicians” which appear on pages 3 and 5 of the copy of the pamphlet…. “
The charge was found proved but no conviction has been recorded. The question referred to this Court by the learned Chief Justice of the high Court of Lagos are therefore:-
(1) Whether the provisions of the Criminal Code relating to sedition as contained in sections 50 and 51 of the Criminal Code have been invalidated by the provision of section 1 and 24 of the Constitution of Nigeria as set out in the Second Schedule of the Nigeria (Constitution) Order in Council, 1960; and
(2) If the answer to (1) is in the negative, whether those provisions of the Criminal Code have been modified by section 24 of the Constitution of Nigeria, and, if so, to what extent?
In considering these two questions we feel the question put to us under (1) is much too wide in scope for the purposes of this reference, and we limit ourselves in this judgment to section 50 (2) (a) of the Criminal Code only in so far as it relates to the Government of Nigeria. In doing this we have in mind that it is not impossible that different considerations may apply in respect of other provisions covered by the section.
Now, the provisions of sections 1 and 24 of the Constitution of the Federation of Nigeria referred to in the references are as follows:
Section 1.
1. This Constitution shall have the force of law throughout Nigeria and, subject to the provisions of section 4 of this Constitution, if any other law (including the Constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
Section 24.
24. (1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference;
(2) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society—
(a) in the interest of defence, public safety, public order, public morality or public health;
(b) for the purpose of protecting the rights, reputations and freedom of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the Courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(c) imposing restrictions upon persons holding office under the Crown, members of the armed forces of the Crown or members of a police force.
The submissions made to us by Chief Rotimi Williams on behalf of the defendant were to the effect that sections 50 and 51 of the Criminal Code so far as they relate to the Government of Nigeria are inconsistent with the provisions in section 24 of the Constitution which are provisions guaranteeing Fundamental Human Rights. At the end of his arguments, counsel summed up the grounds for his submissions in the following words:
Any law which punishes a person for making a statement which brings a Government into discredit or ridicule or creates disaffection against the Government irrespective of whether the statement is true or false and irrespective of any repercussions on public order or security is not a law which is reasonably justifiable in a democratic society.
Counsel further submitted that the Court should have regard to similar provisions relating to Fundamental Human Rights in the Constitutions of other countries.
It is undoubtedly wise to look at similar provisions made in other countries, but it is equally important that in considering such provisions, care should be taken and consideration should be given to any difference in the wordings of such provisions and ours.
A number of Indian cases on the Penal Code of India and particularly the Law of Sedition in so far as these sections of the code are affected by the provisions of Fundamental Human Rights in the Constitution of India were brought to our attention; particularly the cases of Romashi Thafpar v. The State of Madras (1950) I.A.R. 124, and Briji Bhushan and anor. v. The State of Delhi (1950) A.I.R. 129.
In these two cases, the question was whether the provisions relating to sedition in India, which are not dissimilar to the Nigeria provisions, had been abrogated or had become invalid by Article 19 (1) (a) of the Indian Constitution. Article 19 (1) (a) and (2) originally read as follows:—
19 (1) All citizens shall have the right
(a) to freedom of speech and expressions; ….
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to libel, slander, defamation, contempt of court, or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow the State.
In the two cases mentioned above, the Supreme Court of India held in 1950 that the provisions relating to sedition in the Indian Penal Code were void, as being inconsistent with Article 19 (2) of the Constitution.
This Article 19 (2) was however in 1951 repealed and replaced by a new Article 19 (2), which reads as follows:-
Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
The learned Attorney-General replying to the submissions made by Counsel for the defendant argued that the provisions in the Nigerian Criminal Code relating to the offence of sedition are not inconsistent with the Nigerian Constitution, and said that regard must be had to the text of the Nigerian Constitution rather than the Indian Constitution, as in his submission, the provisions of the two Constitutions are far from being similar. The Indian Penal Code, he submitted, is different not only in orientation but also in specific context to the Nigerian Criminal Code. Given the text of the Indian Penal Code and the Indian Constitution, and given the text of the Nigerian Criminal Code and the Nigerian Constitution, the learned Attorney-general submitted, the Court would no doubt reach different conclusions from those of the Indian Supreme Court on the effect of the Nigerian Constitution on the Criminal Law of Sedition.
I will now examine section 50 (2) of the Criminal Code, in so far as it relates to Government, to see how far it goes. It seems to me that the effect of the section is to make it an offence to use words expressive of an intention to effect the purpose of exciting a state of ill feeling against the Government, subject to the saving provisions already referred to at the end of the subsection. It provides inter alia that a statement is not seditious by reason only that it tends to point out errors or defects in the Government with a view to remedying of such errors or defects. In this respect, it is necessary to point out that an incitement to violence is not a necessary ingredient of the offence. This has been laid down in R. v. Wallace Johnson 5 W.A.C.A. 56 at page 60, and this decision has been followed in all our cases of sedition in Nigeria.
It appears to me that essential matters in section 50 (2) of the Criminal Code must be defined before an attempt to reach a decision may be made. What is meant by the following words “Government as by law established”? What is meant by hatred, or contempt or disaffection? and to what extent can truth be pleaded as a defence in a charge of sedition?
I will deal fast with the words “Government as by law established.” The word Government may connote “body of persons, or system or the act of governing.” It has different meanings.
Some of the definitions given in the Oxford English Dictionary are:
(1) The action of governing; the action of ruling and directing the affairs of state.
(2) The office or function of governing; authority to govern.
(3) Form or kind of policy.
(4) The governing power in a state; the body of persons charged with the duty of governing; in England especially the ministry or administration.
In the dictionary of English Law by Lord Jowitt, Government is defined as: —
that form of fundamental rules and principles by which a nation or state is governed; the State itself, the principal executive officers of a State.
Legal ideas of Government have grown with the years. There is the abstract conception which is called Government, which of course is not the case here. Other definitions have been considered by Judges at different times. Rai, J., in the Indian case Chanderdeo Sharma v. State of Bihar (1951) A.I.R. (Patna) at page 81 approved of the definition of Batty, J. in the case of Emperor v. Bhaskar of the words “Government established by Law” in relation to the offence of sedition under the Indian Penal Code. He said:-
What is contemplated under the section is the collective body of men—the Government defined under the Penal Code. It means the person or persons collectively, in succession, who are authorised to administer the Government for the time being. One particular set of persons may be open to objection, and to assail them and to attack them and excite hatred against them is not necessarily exciting hatred against the Government because they are only individuals and not representatives of that abstract conception which is called Government. …. The individual is transitory and may be separately criticised but that which is essentially and inseparably connected with the idea of Government established by law cannot be attacked without coming within this section.
In the Australian case Burns v. Ransley (1949) 77 Commonwealth Law Reports 101 at page 115, Dixon, J., as he then was, defined Government as follows:-
In Section 24A (1) (b), (c) and (d) I take the word “Government” to signify the established system of political rule, the governing power of the country consisting the executive and the legislature considered as an organised entity and independently of the persons of whom it consists from time to time.
In section 50 of the Criminal Code of Nigeria it appears the word “Government” will mean more than mere system of Government, and one must turn to the Constitution of Nigeria to get the effect of the words “Government as by law established.” There can be little doubt that throughout the Constitution “Government as by law established” means the body of persons who for the time being collectively exercise the executive authority of the Government of the Federation of Nigeria, considered as a collective body and independently of the persons it consists of. This body of persons may change but it remains the centre of gravity as the body administering the Government. This is clear from the wording of the Constitution and particularly on examination of sections 16 (2), 27 (1) (a), 81 and 153 of the Constitution of the Federation and also sections 3 (3) (b), 14 (4) (c) and 16 of the Nigeria Constitutional Order in Council 1960.
In section 50 (2) (a) the words used are “the Government or Constitution”; plainly “the Government” has a concrete sense, whilst “Constitution” has the abstract sense of “form or kind of policy”; “the Government” means “the body of persons charged with the duty of governing”; or “the principal officers of a state.”
I now consider the words Hatred and Contempt. These are strong words: they are akin to disaffection. I would define them as Dixon, J. defined disaffection in Burns v. Ransley (1959) Commonwealth Law Reports 101 at page 109, and borrowing his words, I would define “hatred and contempt” as “not merely the absence of affection and regard, but disloyalty, enmity, hostility.” The word “Disaffection” to my mind was aptly defined by Rich, J. in Burns v. Ransley (supra) at page 112 as follows:—
Disaffection connotes enmity and hostility, estranged allegiance, disloyalty, hostility to constituted authority or to a particular form of political Government.
The effect of this definition in considering the section, to my mind, is that a person has a right to discuss any grievance or criticise, canvass and censure the acts of Government and their public policy. He may even do this with a view to effecting a change in the party in power or to call attention to the weakness of a Government, so long as he keeps within the limits of fair criticism. It is clearly legitimate and constitutional by means of fair argument to criticise the Government of the day. What is not permitted is to criticise the Government in a malignant manner as described above, for such attacks, by their nature tend to affect the public peace.
I now have to consider whether truth can be a defence in a charge of sedition under the Criminal Code? Where the seditious intention was clear and patent truth cannot be a defence; it may however, in certain circumstances, be a relevant consideration for the purpose of ascertaining or to show the real intention of the person charged in considering the exceptions provided in section 50 (2) (ii) of the Criminal Code.
In this connection, the true meaning of section 50 (3) of the Criminal Code requires consideration. The section reads:
(3) In determining whether the intention with which any act was done, any words were spoken, or any document was published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself. In my view the purpose of this subsection is to enable the prosecution to rely on the act or the words or the document itself without calling any extrinsic evidence to prove the intent, but the subsection cannot be construed so as to deprive a person of his right to show that his only intention is one of those set out in the exceptions to section 50 (2) and for this purpose truth may be a relevant consideration. Our attention was called to the case of The Attorney-General v. Service Press Ltd., 14 W.A.C.A. 176. I do not think this case can be an authority that truth can never be a relevant consideration. As may be gathered from the last two paragraphs of the judgment in that case, that was a clear case of seditious intention in what was published in which truth could not be a defence.
It was submitted to us that no act is prohibited under the Constitution, unless it is directed to affect public order. Section 24 of the Constitution guarantees freedom of expression in these words:—
24. (1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
(2) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society-
(a) in the interest of defence, public safety, public order, public morality or public health;
(b) for the purpose of protecting the rights, reputations and freedom of other persons, preventing the disclosure of information received in confidence maintaining the authority and independence of the Courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films;
(c) imposing restrictions upon persons holding office under the Crown, members of the armed forces of the Crown or members of a police force.
Now what is the correct construction to be placed on section 24 (2) above? It was argued that a law is only valid if the acts prohibited are, in every case, likely to lead directly to disorder. It seems to me that this is taking too narrow a view of the provision, for it must be justifiable in a democratic society to take reasonable precautions to preserve public order, and this may involve the prohibition of acts which, if unchecked and unrestrained, might lead to disorder, even though those acts would not themselves do so directly. This Court must be the arbiter of whether or not any particular law is reasonably justifiable.
It is now left for me to consider whether section 50 (2) of the Criminal Code is “ultra vires” section 24 of the Constitution. Having considered the Indian cases cited to us, I have found them of no great assistance because they were decided at a time when the provisions relating to exceptions to Fundamental Human Rights in India contained no provisions, among others, with reference to “public order.” The amendment in 1951 to Article 19 (2) of the India Constitution is set out above, but, we have not been referred to any decided case or cases on the point since this amendment has been inserted in the Constitution of India, which might guide this Court as to what views the Indian Courts have adopted as a result of the amendment.
I am satisfied that in Nigeria the exceptions to section 50 (2) of the Criminal Code (which I have already referred to in this judgment) form enough protection to a charge of sedition and they offer enough freedom of expression to anybody in our democratic society. The section does not in my view prevent fair criticism of the Government and only prohibits publications made with the intention of exciting hatred and contempt, or disaffection against, inter alia, the Government.
It is the duty of the Court to decide the real intention of persons charged on the facts of each particular case. It is however for a person charged to show that his defence comes within the exception.
I would sum up by saying that the position to—day in Nigeria, in my view, is that the provision of the Constitution relating to Fundamental Human Rights has not in any way invalidated the Law of Sedition as contained in sections 50 and 51 of the Criminal Code in so far as these sections relate to the matters under consideration in this reference.
Other Citation: (1961) LCN/0927(SC)
