Onyeisi Chukwudi Kingsley Igbokwe*


The Constitution of Nigeria, 1999 in section 39(1) recognises and guarantees
the freedom of expression as a fundamental right. In the same vein, other
international treaties and conventions recognise the right of the press as
fundamental to the existence of democracy. However, the Constitution and the
respective international instruments provide for the restriction and derogation
from those rights. Nevertheless, for the freedom of the press to be felt, nay
manifested, the legal environment needs to be relaxed, acknowledging that the
press ensures political stability in democratic societies, and recognising that
section 22 of the Constitution has placed the burden on the press to uphold the
responsibility and accountability of the Government to the people. Moreover,
for the rights and obligations on the press to be manifested, a high sense of
journalism and professional ethics is expected from members of the press to
assure the existence of the freedom of the press. This article reviews the
fundamental recognised freedom of the press and its implication to


The beacon of democracy is in fact a free and fair press. Respect for the freedom of

expression and the right of the public to access and receive information are the

yardsticks to evaluate the existence of the rule of law and ultimately, popular

democracy. Independence of the press from the shackles of the State is nonetheless an

essential factor in any democratic environment. Freedom of the press is accorded

respected status because it is indeed the ultimate value of any democratic society.

More so, the press is regarded as instructions of self-government by the people who

are under this right informed and educated about the affairs of the government and

thus enabling them to form or express opinions on such matters.1 The Press remains

an invaluable tool in sharpening and deepening democracy. Without the press, there

*OCK IGBOKWE, SMCIArb. (UK) is currently a Third Year Law student at the University of Nigeria,
Enugu Campus and a Judge of the LAWSA High Court for the 2016/2017 academic session; can be
contacted via Tel.: +2348032238828. Email:
Mariam Anozie, Notes on Constitutional Law (Enugu: Victojo Productions, 2nd edn 2005) p. 210
cannot be any meaningful achievement in the democratic process. Hence, the need to

create a more enabling environment for the press to thrive is germane to the existence

of a stable political atmosphere. The controversial questions surrounding the freedom

of the press have been whether to a great extent any measure of consideration should

be given to the press in the exercise of their right or whether the press should be

granted any special freedom different from the freedom of expression already

guaranteed to everyone having in view the nature and peculiarity of the work. On the

one hand, it can be argued that although freedom of expression is a universal

individual right; it is a special collective right for the journalist. In a democracy, for

instance, if the journalist is denied this right, which is exercised through freedom of

the press, the entire electorate is denied their right to information on the happenings in

their constituencies. The Controversy on whether or not freedom of the press should

be distinct from the general freedom of speech or expression remains unabated. In

Nigeria apparently, the paradigm is that press freedom is derived from the freedom of

expression, and, therefore, the press does not need any special protection. This belief

or legal position might then be the plausible explanation for why the Press continues

to operate in dangerous environments without any sense of safety and with fear of

extra- judicial repercussions and great impunity.


The modern roots of the origin of the right to freedom of expression can be traced

from seventeenth century when documents such as the 1968 English Bill of Rights

provided for freedom of speech and debated within the Parliament. 2 It was later

expanded gradually by the United States Bill of Rights (added to the Constitution in

Gudmundur Alfredsson and Asbjon Eide The Universal Declaration of Human Rights: A Common
Standard of Achievement (The Hague: Martinus Nijhoff Publishers, 1999) p. 393
1791) and the French Declaration of the Rights of Man and the Citizen (1789).3 These

two declarations reshaped the principle of freedom of expression in the era of United

Nation from 1946 till 1948 when finally it was agreed and the provision of Freedom

of Expression was included in the United Nations’ Declarations on Human Rights of

1948. Freedom of the press may be said to be of the Liberal School of thought, and

the idea evolved after the 1688 revolution in England4. However, the first notion of a

declaration of rights of man in the history of the world was adopted in Virginia on

June 12, 1776. The declaration proclaimed that men by nature are free and have a

right to the enjoyment of life and liberty, own property and to pursue happiness. It

also stated that the sum of powers rest with the people and it is from them that power

is derived. It proclaims that freedom of the press is one of the bulwarks of liberty.5

Blackstone6, a renowned English legal jurist described the concept of press liberty as


The liberty of the press is indeed essential to the nature of the Free State, but
this consists in laying no previous restraints upon publications, and not in
freedom from censure or from criminal matter when published. Everyman has
an undoubted right to lay what sentiment he pleases before the public; to
forbid this is to destroy the freedom of the press, but if he publishes what is
improper, mischievous or illegal, he must take the consequences of his own
The International Convention on Civil and Political Right (ICCPR) in recognising the

freedom of expression and the press states in very strong words "Everyone shall have

the right to freedom of expression, this right shall include freedom to seek, receive

Ibid., p. 394.
Williams Fatoba, Media Law & Ethics in Nigeria, Analysis. (Ibadan: Printstarts Ltd., 2011) p. 1.
Alessandra Luini Del Russo: International Protection of Human Rights (Lerner Law Book Co., Inc.
1971) 11 as quoted in The Right to Know: The Need for a Freedom of Information Law in Nigeria and
Beyond by Olarewaju Fagbohun "Administration of Justice and Good Government in Nigeria" Essays
in Honour of Hon. Justice A. I. Kastina-Alu, GCON Chief Justice of Nigeria ed. Epiphany Azinge &
Adedji Adekunle (Nigerian Institute of Advanced Studies Abuja Press, 2011) p. 253
Blackstone, Commentaries on the Laws of England Vol. 4 pp151-152.
and impart information and ideas of all kinds, regardless of frontiers, either orally, in

writing or in print, in the form of art, or through any other media of his choice."7

The duties and obligation of the press are to inform the citizens and make appropriate

criticisms of the government. People are to be informed about the social, political,

economic and legal issues affecting them or are likely to affect them. The press could

be basically understood as an organisation for the collection, transmission and

distribution of newspapers, periodicals, television, radio and other journalistic and

mass communication media. In this regard, it is important to note that freedom of the

press is different from freedom of the owners of the press.8


Political responsibility is a major concept of democracy and one of the major ways to

hold the government responsible is through the press. The actions of any government

in democratic dispensation are formed by public opinion. This presupposes that the

free discussion of the actions of the government is indispensible to the discovery of

political truth. Corruption, abuse of public offices and mismanagement are exposed

through the freedom of the press. Freedom of the press is the freedom of

communication and expression through mediums including various electronic media

and published materials. It is construed as the absence of interference by outside

entities such as governments. Hence, freedom of information that is freedom to access

information is inseparable from the freedom of the press. If the press has freedom to

access information, in that regard it can be authoritatively said that the press enjoys

considerable level of freedom, hence freedom of the press. In highlighting the

Article 19(2) of the ICCPR
The owner’s right which is freedom of expression is distinct from the freedom of the press, in wider
perspective. Although, most often than not, it is through the press that freedom of expression is
manifested; nevertheless, the coverage is not the same. Limitations attached to the freedom of
expression is different from that in freedom of the press.
importance of freedom of information, Abid Hussain, the United Nations’ special

Rapporteur on Freedom of Opinion and Expression in a 1995 Report to the UN

Commission on Human rights has this to say: “Freedom will be bereft of all

effectiveness if the people have no access to information; access to information is

basic to the democratic way of life. The tendency to withhold information from the

people at large is therefore to be strongly checked.”9

The United Nations Development Programme (UNDP) says that addressing poverty

requires not just a transfer of economic resources to the needy but also making

information available to the poor so that they can participate more meaningfully in

political and social life. 10 Military coups and transitions to civilian administration

affected the press freedom as every government in power has its unique relations with

the press. Sustainability of democracy could be a myth in the absence of complete

press freedom. Democracy is not only about rights; it is also about participation and,

interest representation.11


Under the fundamental objectives and directive principles of state policy, the press

has a duty conferred on it thus: "the Press, Radio, Television and other agencies of the

mass media shall at all times be free to uphold the fundamental objectives contained

in this Chapter and uphold the responsibility and accountability of the Government to

the people." 12 In order to enable the press carry out this constitutional obligation, the

UN Doc. E/CN.4/1995/32, para. 35
“Corruption and Good Governance: Discussion Paper 3,” published by the Management
Development and Governance Division, Bureau for Policy and Programme Support, United Nations
Development Programme, 1997.
Almansur Ado, “Press Freedom: Analyzing the Portrayal of Nigerian-State on National Dailies
Cover-page Headlines”. E-Journal of Yasar University, 2014 9(35) 6099-6260.
<> Accessed 20 April 2017.
Section 22 of the Constitution of the Federal Republic of Nigeria 1999
Constitution provides for the freedom of expression including freedom to hold

opinions and to receive and impart ideas and information without interference of any

sort.13 The provisions of Chapter 2 of the Constitution under which we have Section

22 is not justiciable as journalists or lawyers cannot cite any provisions of that chapter

as a defence in litigations on matters pertaining to publications or broadcast. Section

22 undoubtably gives the press the responsibility of holding the government

accountable to the people. It neither empowers nor protects the media to discharge its

duty.14 However, the constitutional provision for the freedom of the press is limited

under the law. The constitution allows for derogation from the freedom in the interest

of defence, public safety and order, public morality or public health or for the purpose

of protecting the rights and freedom of other persons.15 More so, Section 19 of the

United Nations’ 16 Universal Declaration of Human Rights (UDHR) 17 provides that

“Everyone has the right to freedom of opinion and expression; this right includes

freedom to hold opinions without interference and to seek, receive and impart

information and ideas through any media and regardless of frontiers” Also, in

determining the extent of a person’s right to freedom of expression, Ademola, CJ in

the case of Director of Public Prosecution v Obi18 stated that:

A person has every right to discuss any grievance or criticise, canvass and
censor the act of government and their public policy. He may even do this
with a view to effecting a change to the party in power or to call attention to
some of the weaknesses of the government so long as he keeps within the
limits of fair criticism. It is clearly legitimate and constitutional, by means of

Section 39 of the Constitution.
Ifeyinwa Nwanulue & Chinelo Ude-Akpe, "Freedom of the Press in the Eyes of the Nigerian Law"
Being a paper delivered at the 4th international conference on information law (ICIL) in Thessaloniki
city, Greece 2011.
Section 45 (1)(a) & (b).
May 3 of every year is always set aside by the United Nations’ to celebrate Press Freedom, ‘World
Press Freedom Day’
United Nations’ General Assembly Resolution 217 (III) A of 1948
(1961) 1 All NLR 186
fair argument, to criticise the government of the day. What is not allowed is to
criticise the government in a malignant manner as described in this case. For
such attacks, by their nature, tend to affect the public peace.19

The United Nations Convention against Corruption20 (adopted by Resolution 58/4 of

the General Assembly of the United Nations in October 2003) requires governments

to ensure citizen participation in anti-corruption measures through: (a) enhancing the

transparency of and promoting the contribution of the public to decision-making

processes; and (b) ensuring that the public has effective access to information.

The right to freedom of expression is explained under the African Charter on Human

and People’s Rights 21 thus: “Every individual shall have the right to receive

information as well as the right to disseminate opinion within the law.” The

implication is that it recognizes a law that is not infringed upon by any domestic law.

In the case of Media Rights Agenda and Others v. Nigeria, the Commission of the

ACPHR said that the right what be limited in accordance with law should be

understood to require such limitations to be done in term of domestic legal provisions

which comply with international human rights standard. 22 The developmental

function and roles of the media include gathering and dissemination of information,

verification of news, education and enlightenment of the people, shaping of public

opinion, setting of national agenda, safeguarding of right of individuals, interests,

Moreover, it is pertinent to add here that once the criticism of the government goes beyond
expectations, then the act may be sedition as covered under Section 50(2) of the Criminal Code of
Nigeria and punishable under Section 51 of the same Code. See also Section 391(1) of the Penal Code
for Northern Nigeria; Section 24 of Cybercrime (Prohibition, Prevention, Etc.) Act, 2015.
Article 13
Article 9 of the ACHPR 1982; Available in: <>Acces
sed 20 April 2017.
Available in: <
96.html> accessed 22 April 2017.
groups, advertisement of goods and services etc. saddled with this responsibility, the

media cannot function effectively without proper legal backing.


For any nation’s press to be truly free, there must be the right mix of the legal,

political and economic environments. A deficiency of any of these setting will

impinge the total and true freedom of the press. The cornerstone for a free press and a

free society is possible when the right laws are in place in a suitable environment with

assured political stability. Therefore, the interplay of these environments guarantees

actual freedom of the press. The legal environment encompasses an examination of

both the laws and regulations that could influence media content and the

government’s inclination to use these laws and legal institutions to restrict the media’s

ability to operate. Under political environment, Nigeria has one of the most vibrant

and varied media landscapes in Africa, and the print sector in particular is generally

outspoken in its criticism of unpopular government policies. However, the media

sometimes face politicised interference from public officials and regulators over their

criticism of the government or coverage of sensitive issues, such as high-level

corruption and national security. 23 Economic environment includes the structure of

media ownership; transparency and concentration of ownership; cost of establishing

and running a viable press. The press repression in Nigeria aside having some legal

encumbrances has to some extent political hinges. Due to political instability, the

press has considerably suffered harassment from the police, military and thugs that

were politically motivated.

As a result of these threats, as well as a reluctance to displease media owners and sponsors, some
journalists practice self-censorship and refrain from covering sensitive political, social, ethnic, or
religious issues.

In spite of the abundance of different viewpoints emanating from mass media outlets,

Nigerian society is not yet free and open. The lack of complete freedom especially in

broadcast due to censorship, multiple power centres and rapid changes in political

institutions jeopardize free press in Nigeria.24 With all the constitutional provisions,

there is no clear indication of strong and special forms of protection for the press to

carry out its constitutional obligations without interference, threats to life, or extra-

judicial repercussions. Nigerian press has faced several challenges since 1960 but no

challenge has been more of a problem than the menace of military rule and threats to

the freedom of the press and the capacity of the press to fulfill its mission as the voice

of the voiceless and defender of the oppressed. So serious is press censorship in

Nigeria that between 1903 and 1998, there have been 29 anti-press legislations in the

books. No other industry has been confronted with such a degree of official

antagonism.25 Perhaps, this is why many media professionals believe that there is no

absolute freedom for the Nigerian press because there have been many instances of

brutalization of journalists and impunity against the press in Nigeria. Even the

Freedom of Information Act that supposedly gives the press and individuals the

freedom to gather information does not enhance absolute freedom of the press

because some sections of the Act indirectly curtail free access to information.26

The United Nations Special Rapporteur on freedom of expression, David Kaye on the

3rd May 2016, in a speech to commemorate the World Press Freedom Day, said:

Adigun Agbaje. The Nigerian Press, Hegemony, and the Social Construction of Legitimacy: 1960-
1983. (Lewiston, NY: The Edwin Mellon Press, 1992) p. 32.
Abati, Reuben 1998. Press Freedom in Nigeria. Lagos: Bolaji and Associates.
Chinyere Okunna & Muyiwa Popoola “Freedom Of The Press: Setting The Scene”
<> accessed 22 April
Some governments target journalists, bloggers, political dissidents, activists
and human rights defenders as ‘extremists’ or ‘terrorists’, criminalizing and
detaining them, using legal systems to counter broad and unclear offences.
The harm is felt not only by journalists but also by their audiences, the public
that deserves the right to know and to access information of public interest.
Freedom of expression plays a critical role in promoting equality and in
combating intolerance, and the role the media, the Internet and other digital
technologies play in keeping society informed is essential.


Before the promulgation of the Act, Nigeria had no law that guaranteed access to

public records and information. On the contrary, many Nigerian laws have secrecy

clauses prohibiting the disclosure of information, for example, the Official Secrets

Act27, the Criminal Code28, the Penal Code, the Evidence Act, etc. The purpose of the

Freedom of Information Act is to make public records and information more freely

available, provide for public access to public records and information, protect public

records and information to the extent consistent with the public interest and the

protection of personal privacy, protect serving public officers from adverse

consequences of disclosing certain kinds of official information without authorization

and established procedures for the achievement of those purposes and; for related

matters. The 2011 Freedom of Information Act guarantees citizens’ right to public

information and has put pressure on government agencies to release records in

response to petitions by media and activist groups. Some state governors have balked

at complying with the law, arguing that the federal legislation is not applicable to the

states. The Freedom of Information Act guarantees a right of access to information to

everyone in the country and as such, it places enormous responsibility on those who

Cap. O3 LFN 2010
Cap. C38 LFN 2010
hold information. It will further assist various government agencies such as the

National Human Rights Commission (NHRC), the Independent Corrupt Practices and

Other Related Offences Commission (ICPC), the Economic and Financial Crimes

Commission (EFCC), the Code of Conduct Bureau and other law enforcement

agencies in the performance of their duties. It will also enhance the speedy

dispensation of justice, especially when one considers that it will make it easier to get

public officers as cooperative witnesses unlike in the past when they were protected

for divulging information in court cases. The right of any person to access or request

information which is in the custody or possession of any public official, agency or

institution, whether or not such information is contained in written form, is recognised

and established by the Act.29 This right is not to be prejudiced by the existence of

other contrary laws or regulation.30 In order to facilitate the unimpeded exercise of

this right, all public institutions are required to keep records of all their activities,

operations and businesses,31 in such a manner as to enable the public to gain access to

it should the need arise. 32 In addition, certain categories of information in the

possession of the public institutions are to be widely disseminated and made readily

available to members of the public through various means, including print, electronic

online sources and physically at the offices of such institutions.33 The Act provides a

veritable framework for the civil struggle against corruption, incidents of abuse of

government power and facilitates the establishment of a responsible government, as it

enables Nigerian citizens to exert some degree of control over the actions of national

leaders and monitor the use of public resources.

section 1(1).
Ibid, section 2(1).
Ibid, section 2(3); see also section 9.

Freedom of expression and the press as enshrined in the Constitution as one of the

fundamental human rights should not only be respected but also be protected. It is

only in a democratic atmosphere where the rule of law is enshrined that freedom of

the press can thrive; a democratic government that is accountable to the people will

respect the rule of law and fundamental rights of the citizenry including the rights of

the press to gather, process and disseminate information without hindrance. However,

it is expected that the press practise in line with the ethics of the profession. Core

professional values in ensuring more objective, investigative, informative and

educative journalism. As the nation seeks to achieve a true freedom of the press, there

is a need to terminate the culture of secrecy that has become endemic in government

circle, a situation where activities of the government are not known to the press.

However disclosure of information that may affect national interest, confidential

business information, personal information and the internal deliberative process of

government agencies before final decisions on them are reached.

However, the accompanying problem to actualize these fundamental goals to ensure

freedom of the press as enshrined in Section 22 is that, there are limitations

assessments of government held information. These limitations arise from

government argument that not all government activities should be made public. The

government through the Official Secret Act and Criminal Code Act34 limits the extent

to which the press or public officer representing the interest of government could

divulge or reveal information received in confidence on the excuse that such matter is

classified or confidential.35

in addition, see also Sections 190 and 191 of the Evidence Act, 2011.
Odunayo Bankole, “Press Freedom and the Nigerian Constitution: a Vague Provision”
<> last
accessed 24 April 2017