Case Summary and Outcome

A High Court in Nigeria held that the killing of journalists and media practitioners was a violation of their rights to freedom of expression and to life and represented the state’s failure to adhere to its statutory and treaty obligations to protect journalists. The Incorporated Trustees of Media Rights Agenda, a media rights non-governmental organization (NGO) had approached the Court with a list of journalists killed extra-judicially, seeking declarations of the rights and obligation violations. The Court noted that the government had failed to demonstrate that it had taken sufficient action in respect of the specific killings mentioned by the NGO, and found that the killings constituted a violation of the journalists’ rights. The Court ordered the Nigerian government to take measures to prevent attacks on journalists and to ensure effective investigation and prosecution of the perpetrators.

Facts

On October 26, 2021, The Media Rights Agenda (The Incorporated Trustees of Media Rights Agenda/MRA), a Nigerian not-for-profit non-governmental organization working to promote and defend freedom of expression and media freedom, instituted a lawsuit against the Nigerian government. The lawsuit was brought against the Attorney General as the Chief Law Officer for the government’s failure to prevent killings of journalists and media practitioners and investigate, prosecute and punish perpetrators of killings of journalists and media practitioners in the country. The MRA provided the names of journalists who had been killed extra-judicially in Nigeria and the dates of their killings.

The MRA sought a declaration that the killing of the journalists was a violation of their rights to life and to freedom of expression, protected by the Nigerian Constitution and regional and international treaties. It also sought a declaration that the failure of the Nigerian government to guarantee journalists’ safety; to prevent attacks; to take measures to increase the capacity to ensure journalists’ safety; and to take effective “legal and other measures to investigate, prosecute and punish perpetrators of attacks against journalists” was a breach of their statutory and treaty obligations. [p. 3] The MRA sought an order that the government take “measures to prevent attacks on journalists”, to “investigate, prosecute and punish” perpetrators to “raise awareness and build the capacities of various stakeholders, particularly journalists and other media practitioners, policy makers, law enforcement, security, intelligence, military as well as other officials and relevant stakeholders on the laws and standards for ensuring the safety of journalists and media practitioners”. [p. 4]

The MRA relied on relevant provisions of statutes and international treaties already ratified by Nigeria, including the protection of the right to life in section 33 of the Constitution, article 4 of the African Charter on Human and Peoples Rights, article 3 of the Universal Declaration of Human Rights and article 6 of the International Covenant on Civil and Political Rights; and the protection of the right to freedom of expression in section 39 of the Constitution, article 9 of the African Charter, principle 20 of the Principles of Freedom of Expression and Access to Information in Africa, and article 66(2)(c) of the ECOWAS Revised treaty where states undertook to “ensure respect for the rights of journalists”.

Section 39 of the Constitution states: “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. Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions: Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever. 3. Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society a. for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or b. imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.”

Decision Overview

Judge I.E. Ekwo delivered the judgment of the Federal High Court of Nigeria in Abuja. The central issues for the Court’s determination was whether there was proof of a violation of the right to freedom of expression.

The MRA argued that extra-judicial killings of journalists and media practitioners in Nigeria was a violation of the rights to freedom of expression and life, and that the Nigerian state is obligated to prevent the killings and to investigate, prosecute and punish perpetrators and ensure access to effective remedies.

The Attorney General submitted that the government did discharge its responsibility of protecting all citizens, including media practioners, and cited the creation of various institutions – the Citizens Rights Department in the Ministry of Justice, the National Human Rights Commission – which serve to protect citizens rights. It added that the National Orientation Agency, the Federal Ministry of Information and Culture, the Nigeria Television Agency and the News Agency of Nigeria work to disseminate information on preventing rights violations. The Attorney General also maintained that the “Government was pro-active in carrying out thorough investigation, arrest and prosecution” of the cases mentioned by the MRA. [p. 8] It described the MRA’s application as “highly unpatriotic” in alleging that the government is “nonchalant towards the protection of the rights of its citizens”. [p. 9]

The Court described those represented by the MRA as “journalists, Bloggers, and media practitioners [who] express themselves through any media platforms including but not limited to print media, electronic media and social media discussing any subjects of interest ranging from rule of law, economy and good governance”. [p. 6]

The Court accepted that the Nigerian Constitution and the African Charter are binding on Nigeria, and then examined the enforceability of the ICCPR, the UDHR and the ECOWAS Revised treaty. The Court noted that “[w]here a country is only a signatory to a treaty, the signing therefore creates an obligation on the part of the signatory [who] accepts thereby, an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty, in the period between signature and ratification, acceptance and approval.” [p.16] It reiterated that “[w]here a country has ratified a treaty, it becomes legally bound” [p.16]. Accordingly, the Court noted that Nigeria ratified the ICCPR in 1993 and the UDHR in 1985 and is bound by those treaties and it is “obligated to enforce them within its territory” and concluded that any person affected by breach of those treaties can apply to court to enforce their rights under those treaties. [p. 16]

The Court recognized that the MRA’s case on freedom of expression was based on sections 39(1) and (2) of the Constitution but noted that permissible restrictions to freedom of expression are provided for in sections 39(3) and 45. The Court discussed the role of journalism and stated that “journalism and media practice are constitutional professions in their respective rights and the practice thereof imposes a duty to source, gather and in most cases, visit the locus in quo for information which they are obligated to disseminate.” [p. 18] It added that society “is better informed, educated, enlightened and properly guided where there is effective press”. [p. 18] Accordingly, the Court held that journalists and media practitioners should be protected and failure to protect them from attack is be tantamount to breach of the constitution, finding that “[i]t is therefore a breach of constitutional right of journalists and media practitioners where they are attacked, tortured, maimed or killed in the course of doing their duty”. [p. 18]

The Court described the actions that the Attorney General said had been done by the Nigerian government as “too generic in nature to address the issue of specific response of the government to each killing”. [p. 19] It stressed that “[t]he taking of lives by extra-judicial killing is an unconstitutional act” and that it would have expected the government to have been able to provide details on its investigations and findings for each of the killings. [p. 19] The Court also noted that, although the Attorney General had argued that there had been arrests, it could not find any evidence that the arrests were linked to the killings of the journalists mentioned in the MRA’s affidavit. Similarly, the Court also rejected the Attorney General’s argument that the government had established various institutions, holding that the mere existence of these institutions without effective performance of these institutions to ensure safety of journalists and media practitioners was not sufficient.

In emphasizing the constitutional protection available to journalists, the Court noted that the phrase “without interference” in Section 39 of the Constitution confers “immunity of a very large degree” on journalists and media practitioners, and held that “the law forbids whatever act that might amount to assassination, bodily harm or any other impediment in the course of journalist or media practitioner carrying out his/her professional duty”. [p. 19-20]   

Accordingly, the Court held that the MRA had proven its case and granted the relief sought. It held that killings of journalists and media practitioners while carrying out their journalistic duty is a violation of their rights to freedom of expression and the press and declared that the failure of the Nigerian government to guarantee safety of journalists and media practitioners is a breach of its obligations under international treaties with respect to freedom of expression and access to information. The Court directed the government to take measures to prevent attacks on journalists and media practitioners and ordered the investigation, prosecution and punishment of perpetrators of all attacks against journalists and media practitioners and ensure facilitation of access to effective remedies for victims of such attacks.