Freedom Of Association And Free Press

In a constitutional democracy, every one is entitled to express his views, sentiments and opinions on every matter of public interest either privately or publicly.

The liberty of expression, in its legal acceptation, therefore, means the right to make know one’s views, convictions and sentiments on all matter of public interest either orally or by way of writing, printing or pointing.         It is the God’s given right of the people not to lay bare whatever sentiments, view and convictions they hold, but also do so freely and without undue interference.

Given that the word ‘expression’ imports a state of communication of ideas between two or more persons, a person who is restricted to keeping his thoughts to himself would have communicated nothing. The substance of the freedom, therefore, lies in the right to communicate ideas and information freely with others within the social and political society.

Expression can be oral, written or symbolic. Oral expression is the uttering of words; written  expression is putting one’s views in writing and symbolic expression is a person’s show of approval, disapproval or grievance through one form of action or another. In the words of a learned writer, “whatever the form taken .. he (the Nigerian) is entitled further to use all the ordinary means of publication to make his views known. He may publish them as a book or pamphlet or in a newspaper; he may give them in the form of a lecture; he may announce them at a public meeting. To be able to do any or all of these things with the full protection of the state in so doing is a right that lies as the basis of freedom.”

Freedom of expression, as it exists in Nigeria, extends beyond the bare right to make known one’s view and convictions. It embraces in a wider sense, a right in the public to be informed of the accountability and responsibility of the government to the people, more conveniently called the constitutional right to know, see so 14 & 22 of 1999 constitution.

It cannot be disputed that every Nigerian has a constitutional right to be informed of the day to day management of the affairs of the state and of the responsibility and accountability of the government to the people. This right flows directly from the constitutional guarantee of freedom of expression under S. 39 (1) of the 1979 Constitution which secures to every Nigeria a public interest in a free flow of information. Since government is nothing but a trust and all officers trustees, the Nigerian beneficiaries are entitled to be informed of the state of the trust. The right to be informed of the state of the trust necessarily connotes a right to be informed of every matter concerning the management and organisation of the affairs of the state.

The ‘press,’ in its legal acceptation, to constituted by the newspaper magazines, journals or electronic media which afford a means of communication and the protection needed is not for the publishers nor for the printing organisation but for access to the medium by any person for the dissemination of information and ideas.

Furthermore, the press is not confined to newspapers, magazines and journals but necessarily embraces all publication which affords a means of dissemination of information, ideas and opinions. Thus pamphlets, leaflets, circulars, books, handbills as well as the electronic media have been held to be included.

It stands to reason, therefore, that freedom of the press avails any person engaged in the dissemination of information, ideas, and opinions to the public through the medium of the printed word or electronic broadcast. Thus newsmen, lecturers, political essayists, novelists, pamphleteers and academic researchers are covered under the protective umbrella of press freedom.

Freedom of the press has been variously defined, according to Justice Best in King V. Burnet, “my opinion of the liberty of the press is that every man ought to be permitted to instruct his fellow subjects; that every man may fearlessly advance any new doctrines, provided he does so with proper respect to the religion and government of the country…

Justice Wilberforce defined press freedom as ‘importing, generally, freedom to publish without precensorship subject always to the law relating to libel, official secrets, seditions and other recognised inhibition.

Professor Nwabueze conceived of press freedom as connoting “the right of every person to own a printing press, to publish what information or ideas he pleases, to decide the editorial policy of the publication and to enforce it upon the staff and to distribute or circulate it freely without having to obtain a licence from the authorities or to face suppression or proscription.”

Perhaps, the most authoritative definition of press freedom under the common law is that of Sir William Blackstone, who, writing in the 18th Century, defined it as consisting in:

“laying no previous restraint upon publication and not in freedom from censure for criminal matters when published. Every free man has an undoubted right to lay what sentiments 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 temerity.

While this definition is generally regarded as the most authoritative, the point must be made that the Blackstonian formulation represented a narrow conception of the freedom of the press in so far as it lays emphasis only on freedom from prior censorship. Clearly, press freedom becomes largely superfluous if all it consists in is freedom from censorship. To be the matrix of all other liberties, press freedom must consist also of freedom from unreasonable punishment, suppression or ban of publication for what is published. For if newsmen are to be liable to punishment for every piece of publication which the government finds unpalatable, than freedom from prior censorship will be worth nothing.

It is submitted, therefore, that freedom from prior censorship, while forming the basis of the traditional conception of the liberty of the press, must be complemented by the equally important freedom from unreasonable punishment for what is published.

Conceived from this wider perspective, freedom of the press, therefore, consists in the right to publish any information, ideas, sentiments and opinions without prior censorship or restraints from the authorities and without unreasonable punishment in the form of molestation, suppression or proscription for what is published. “It is this freedom from all prior restraints,’ writes Professor Nwabueze,’ complemented by that of freedom from unreasonable punishment for what is published that lies at the basis of all legal definitions of press freedom.

Freedom from prior restraints and unreasonable punishment for what is published, while forming the twin pillars of the liberty of the press, are by no means exhaustive of that freedom.

It seems settled now, that press freedom embraces further, not only a constitutional right to gather information but also a constitutional immunity against compelled disclosure of source of information.

Granted that the press has a constitutional right to publish and circulate news and information, it would seem to follow by sheer logic of progression, that there avails it, a correlative right of access to information. The right of access to information seems indeed to add sinew to the ‘bare bones’ of the right to publish and circulate thus the latter cannot be enjoyed without the former.

Consistently, therefore, with the spirit of the constitutional guarantee, Alal Balogun, J, observed with admirable judicial boldness that “the purpose of S. 36 of the constitution is not to erect the press into a privileged institution, but is to protect all persons including the press to write and print as they will and gather news for such publication without interference.

The constitutional immunity of the press against compelled disclosure of its source of information has been sustained in a plethora of cases. In Tony Momoh V. Senate of the National Assembly, it was held that an invitation to the applicant editor to appear before the legislative committee of the senate to disclose the source of certain publication contained in the Daily Times was an unconstitutional interference with the constitutional guarantee of press freedom under S. 36. Similarly in Olushola Oyegbemi & Ors V. Attorney-General of the Federation & Ors, it was held that having regard to the provisions of S.36 of the 1979 Constitution, no person or authority (not even a court of law) in Nigeria may require any individual, editor, reporter or other publisher of a newspaper to disclose his source of information of any matter published by that individual or other person or publisher and the individual or reporter or publisher cannot be guilty of contempt of court for refusing to disclose the source of his information unless it is established to the satisfaction of the court that disclosure is necessary in the interest of justice, national security, public safety, public order or public morality.

It is clear from the above legal analysis that freedom of expression and the press are really wide in their scope and horizon.

And the press under the 1979 Constitution

Section 39(1) of the 1999 Constitution, guarantees freedom of expression and the press to every Nigerian. It provides that “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and import ideas and information without interference”.

Without straining words, Section 39(1) guarantees to every person (including the press) the right, not only to hold and express ideas and information freely but also to publish and circulate same without interference. Implied in this constitutional guarantee, is freedom from all prior censorship and restraints on publication. The phrase, “without interference,” secures for all disseminators of information and ideas a constitutional guarantee against unreasonable punishment for what is published. Censorship of publication, unreasonable punishment for what is published and undue interference with the exercise of the right to freedom of expression and the press are thus, constitutionally prohibited. Freedom of expression and the press are thus fully entrenched in the constitution.

There has been, however, a wide-spread belief that S.39(1) of the 1999 constitution does not guarantee ‘press freedom’. This belief would have predicated on the the non  specification of the word ‘press freedom’ within the provision of S.39(1).

It is submitted, that this belief cannot be correct. While the obvious point is conceded that section 36(1) does not expressly mention ‘press freedom’, there is no doubt whatsoever that freedom of expression mentioned uder S. 36(1) relate to both individuals and the ‘press’. Indeed, freedom of the press is no more than the exercise of freedom of expression through the medium of the printed word and sound broadcasting. Freedom of the press, therefore, is a species of the wider freedom of expression. The indecapable conclusion, would thus seem to follow that a constitutional guarantee of freedom of expression is perse a guarantee of press freedom in so far as the latter flows naturally and directly from the former.

To be continued.

Chidi Enyie