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An Opportunity to Protect Free Speech in Nigeria

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Chidi Odinkalu v Kaduna State: An Opportunity to Protect Free Speech in Nigeria

Joint Civil Society Statement in the Case of Professor Chidi Anselm Odinkalu v Kaduna State:

On October 22, 2020, an important case comes for decision before the Federal High Court sitting in Kaduna, north-west Nigeria.

The case – brought by Professor Chidi Anselm Odinkalu – will have an important impact on the rights of people in Nigeria to voice their opinions in matters of public interest and question those in authority.

We, the undersigned organisations and individuals, see this upcoming case as an opportunity for Nigeria’s judiciary to ensure that the protection of human rights in the country aligns with the Federal Republic of Nigeria’s constitutional, regional and international human rights obligations.

In particular, this case provides an opportunity for the judiciary to reinforce the fundamental rights to freedom of expression, access to information, and civic participation.

The case before the Federal High Court challenges the constitutionality of criminal charges against Professor Odinkalu, a renowned Nigerian human rights lawyer and former Chairperson of Nigeria’s National Human Rights Commission, following a televised interview he gave in February 2019 in Abuja, the Federal Capital.

In the interview, Professor Odinkalu challenged claims by the Governor of Kaduna State Mallam Nasir El-Rufai – made a day before scheduled elections in the State – that 66 members of the Fulani ethnic group had been killed in Kajuru, Kaduna State.

Professor Odinkalu stated that the Governor’s statement appeared to have no basis in reality and could not be verified by the relevant state agents. He further expressed concern that the statement could cause ethnic tensions leading to electoral violence.

Following the televised interview, on March 18, 2019, Prof. Odinkalu was charged by the Director of Public Prosecution (DPP) of Kaduna State with inciting disturbance, injurious falsehood, public nuisance, and furnishing false information.

The case, which was initiated before the Magistrate Court in Kaduna, was fraught with numerous procedural irregularities including an undated case file with no file number; closed hearings from the public; and the continuation of the case in the absence of Prof. Odinkalu despite an order from the High Court staying proceedings in the case. On October 26, 2020, the State High Court of Kaduna will preside over the judicial review of the criminal proceedings in the Magistrate Court of Kaduna.

The judgment of the Federal High Court on October 22, 2020 presents a monumental opportunity for the court to recognise the right to freedom of expression and ensure that it is enforced in Kaduna State in accordance with the country’s human rights obligations.

Government officials and people in authority are not exempt or protected from criticism. United Nations special experts and mechanisms have specifically highlighted in reference to Nigeria, which includes all its Federal States, that public officials are required to tolerate greater criticism than the rest of society and that actions taken by them should not stifle public debate.

While the right to freedom of expression may be restricted for public health and public security reasons, such restrictions – even when provided for by law – must be justifiable in a democratic society and must be necessary to achieve the stated purpose. Furthermore, any limitations must be the least restrictive means to achieve the objective.

The African Court on Human and Peoples’ Rights has held that seeking to impose a prison sentence, let alone corporal punishments such as lashings, for criticism of a public authority – whether true or otherwise – can never be necessary or proportional.

Regional and international bodies have further called on all States to repeal criminal defamation laws, as well as all laws which effectively criminalise defamation, sedition, insult and false news. Where necessary, such infractions can and should be dealt with through civil proceedings, which should also be adequately proportionate and provide appropriate defences.

Given Nigeria’s regional and international obligations, as a signatory to several treaties including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, we are concerned that the Kaduna State government chose to undertake a criminal prosecution against Prof. Odinkalu for what is clearly protected speech. The undersigned organisations and individuals thus look forward to the decision of the Federal High Court of Nigeria in this important case.

Organisations
African Centre for Media & Information Literacy (AFRICMIL)
African Defenders (Pan African HRDs Network)
African Freedom of Expression Exchange (AFEX)
Africa Judges and Jurists Forum
AJPD – Angola
Amnesty International
Center for Democracy and Development (CDD)
Centre for Human Rights Education, Advice and Assistance (CHREAA)
Chapter One Foundation
DefendDefenders (East and Horn of Africa Human Rights Defenders Project)
DITSHWANELO – The Botswana Centre for Human Rights
Friends of Angola (FoA)
Gender Centre for Empowering Development (GenCED)
Global Rights
Human Rights Defenders Network-SL
Human Rights Institute of Southern Africa (HURISA)
International Commission of Jurists- Kenya
International Refugee Rights Initiative
Kenya Human Rights Commission
Media Rights Agenda
MOSAIKO-Angola
Mouvement Inamohoro, Femmes et Filles pour la paix et la sécurité
Open Bar Initiative, Nigeria
Open Society Initiative for Southern Africa (OSISA)
Pan African Lawyers Union (PALU)
Public Interest Lawyers League (PILL) Nigeria
Robert F. Kennedy Human Rights
SADC Lawyers Association
Southern Africa Human Rights Defenders Network
Tanzania Human Rights Defenders Coalition
Tap Nitiative for Citizens Development
The Association of Concerned Africa Scholars (ACAS-USA)
Torture Abolition and Survivors Support Coalition International (TASSC)
Zimbabwe Human Rights NGO Forum
Zimbabwe Lawyers for Human Rights
Individuals
Delma Monteiro Angola
Lúcia da Silveira Angola
Garcia Mvemba Angola
Godinho Cristóvão Angola
Julio Candieiro Angola
Fortunato Paixão Angola
Cristina Gouveia Angola
Alice Mogwe Botswana
Marie Louise Baricaco Burundi
Star Rugori Burundi
Joseph Bikanda Cameroon
Ady Namaran Coulibaly Cote d’Ivoire
Hannah Forster Gambia
Edmund Amarkwei Foley Ghana
Abdul Noormohamed Kenya
Andrew Songa Kenya
Crystal Simeoni Kenya
Diana Gichengo Kenya
Donald Deya Kenya
Irene Soila Kenya
James Gondi Kenya
Maureen Achieng Akena Kenya
Patricia Nyaundi Kenya
Roland Ebole Kenya
Charles Kajoloweka Malawi
Happy Mhango Malawi
Nikiwe Kaunda Malawi
Tiseke Kasambala Malawi
Victor Mhango Malawi
Professor Adriano Nuvunga Mozambique
Custodio Duma Mozambique
Vicente Manjate Mozambique
Norman Tjombe Namibia
Abdul Mahmud Nigeria
Abiodun Baiyewu Nigeria
Ariyo-Dare Atoye Nigeria
Cheta Nwanze Nigeria
Chido Onumah Nigeria
Edet Ojo Nigeria
Mbasekei Martin Obono Nigeria
Nana Nwachukwu Nigeria
Ohimai Amaize Nigeria
Omoyele Sowore Nigeria
Steven Kefason Nigeria
Valnora Edwin Sierra Leone
Annah Moyo South Africa
Corlett Letlojane South Africa
Hakima Haithar South Africa
Nomsa Sizane South Africa
Samkelo Mokhine South Africa
Simphiwe Sidu South Africa
Shuvai Nyoni South Africa
Sufiya Bray South Africa
Vusumuzi Sifile South Africa
Abdel-Moniem El Jak Sudan
Mary Pais Swaziland
Muzi Masuku Swaziland
Thulani Maseko Swaziland
Vera Mshana Tanzania
Dismas Nkunda Uganda
Jackson Odong Uganda
Lamunu Lamunu Prossy Uganda
Nelly Badaru Uganda
Salima Namusobya Uganda
Sharon Nakandha Uganda
Linda Kasonde Zambia
Professor Michelo Hansungule Zambia
Muleya Mwananyanda Zambia
Muluka Miti-Drummond Zambia
Vusumuzi Sifile Zambia
Justice Alfred Mavedzenge Zimbabwe
Arnold Tsunga Zimbabwe
Brian Tamuka Kagoro Zimbabwe
Makanatsa Makonese Zimbabwe
Charles Clint Chimedza Zimbabwe
Deprose Muchena Zimbabwe
Fungisayi Patricia Mwanyisa Zimbabwe
Hardlife Mudzingwa Zimbabwe
Janah Ncube Zimbabwe
Janet Zhou Zimbabwe
Kelvin Kabaya Zimbabwe
Lloyd Kuveya Zimbabwe
Mamukeleni Tsunga Zimbabwe
Memory Zonde-Kachambwa Zimbabwe
Mooya Nyaundi Zimbabwe
Muchengeti Hwacha Zimbabwe
Munjodzi Mutandiri Zimbabwe
Musa Kika Zimbabwe
Otto Saki Zimbabwe
Passmore Nyakureba Zimbabwe
Siphosami Malunga Zimbabwe
Stanely Nyamanindi Zimbabwe
Professor Carl LeVan American University
Desiree Cormier Smith Open Society Foundations

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