By Ope Banwo
Let me start by quoting Dapo Olorunyomi, publisher of Premium Times in his article on defamation where he said “..Every law that constrains democracy, freedom and liberty cannot be sought to be morally legitimate even if they have notional political legitimacy”.
I agree with him a 100 per cent, and its on that that I stand on these issues. see his article here.
Also, before adding my own fair comment to the ongoing national debate on criminal defamation, I will also like to quote Chief Afe Babalola himself in an article he wrote years ago on the issue of criminalizing defamation where he said “In criminal defamation, the law seeks to prevent a situation in which defamation assumes a tendency to arouse angry passion, provoke revenge and set the society ablaze in a way that public peace is endangered.” [see Chief Afe’s old article here.
The case of criminal defamation filed against Dele Farotimi continues to dominate public discourse in Nigeria, sparking critical questions about the proper boundaries between free speech, private grievances, and the misuse of state power. While defamation cases are not new, the aggressive criminal prosecution of Farotimi, involving both state and federal courts, raises serious concerns about the abuse of power and the implications for freedom of expression in Nigeria.
This article in my role as not just an Attorney but as the Founder of Naija Lives Matter, an organization with a commitment to ensuring fairness for ALL Nigerians including the accused and the accuser explores the differences between criminal and civil defamation and highlights seven reasons why this case represents a dangerous overreach.
Civil Defamation vs. Criminal Defamation: The Basics for those not conversant with the major differences
Civil Defamation is generally focused on private disputes and personal harm, often resulting in compensation or public apologies. It aims to restore the injured party’s reputation rather than punish the accused. Criminal Defamation on the other hand views defamatory statements as a crime against public order, often invoking penalties such as imprisonment. The Major elements of criminal defamation, the way I understand it from reading Chief Afe Babalola’s own previous article titled When False Publications May Amount To Criminal Libel is that the criminal defamation include It must incitement to public unrest and/or breach of peace.
I keep pointing out that Chief Afe Babalola himself has previously argued against using criminal defamation in personal disputes for a reason. He is our Daddy of the Law and he is regarded by many, myself inclusive, one of the top three consequential living attorneys in Nigeria , if not the top #1.
In his referenced article published on his own university’s website, Chief Afe also cited the renowned legal luminary, Lord Coleridge CJ, who stated: _“There ought to be some public interest concerned, something affecting the Crown or the guardians of the public peace (likely to be broken by the alleged libel), to justify the recourse by a private person to a criminal remedy by way of indictment. If, either by reason of the continued repetition or infamous character of the libel, breach of the peace is likely to ensure, then the libeler should be indicted; but, in the absence of any such conditions, a personal squabble between two private individuals ought not to be permitted…”
Dr Afe Babalola, in the same referenced article on his ABUAD Website, even went further and said this: “The above is essentially the principle that should guide the decision to institute criminal libel cases in Nigeria. As noted, personal squabbles between individuals should not find their way into the criminal docket of any court. Thus the Police should not lend themselves to an abuse of the judicial system by rushing to prosecute any journalist on account only of the fact that he has published a story which a governor or some other government official does not agree with,” per Chief Afe Bbalola, SAN.
So, one must wonder aloud: What has changed now to make Chief Afe take a whole different stance on the issue of criminal defamation? Does his position appear to have changed because now he is the alleged defamed, or because he now believes all Defamation should be charged as a crime just because it could be done, whether its private or not?
“In my considered opinion, Chief Afe Babalola’s current actions, seeking criminal prosecution of Dele Farotimi for a personal and private grievance, seem to contradict his earlier stance, especially as Farotimi’s book does not appear to meet the required threshold of ‘incitement to breach of the peace’ that he himself advocated for criminal defamation.”
In my opinion again, based on my reading of the book for myself, the book did not advocate or incite anyone to Public Unrest Or Incite anyone To Breach The Peace. In fact, until Chief Afe made the book a big deal, most who read it, simply read it and moved on and none of those ever said they were motivated to go do violence or breach of the peace because of it. Even now that 1000s have read it, nobody has said the book inspired them to go do violence or breach the peace. Even the protests being organized by some is to protest his inhumane and unjust treatment by the law over the publication of the book.
Here Are 7 Reasons Why I Sincerely Believe Charging Dele Farotimi With Criminal Defamation Based On His Book Is An Abuse of Power
1. It Appears To Contradict Chief Afe Babalola’s Own Professional Counsel and Preaching On the Matter. Chief Afe Babalola’s earlier position as articulated in his own article on his own school’s website aligns with modern legal principles that criminal defamation should be reserved for cases that threaten public order or involve infamous libel likely to incite unrest. His current approach directly contradicts this principle, as the dispute with Farotimi is a private matter.
2. It sets a Dangerous Precedent Of Criminalizing Free Speech, whether it incites breach of the peace or not.
Section 39 of the Nigerian Constitution guarantees freedom of expression. Criminal defamation charges weaponize state power to suppress dissent and silence critics, threatening this fundamental right. Civil Defamation case provides remedy for abuse of this fundamental right.
None of those who claimed that civil remedy will not be enough to restore Chief Afe’s reputation if it turned out that Dele Farotimi has no proof have been able to coherently articulate how using criminal action to jail him, having him in handcuffs while they pursue Ex Parte orders against him would restore his allegedly damaged reputation other than the satisfaction of exacting primitive revenge.
3. I Believe Civil Remedies Are Adequate. “Criminal prosecution cannot get him his damaged name back either, if civil case is considered inadequate”
Defamation, as a private dispute, is adequately addressed through civil courts. Seeking financial compensation or a public apology would have sufficed, as is standard practice in most civilized democracies.
4. Criminal Defamation Is Being Abolished Globally and Locally and this criminal action appears to me to be taking our country further backwards.
Globally, criminal defamation laws are being repealed due to their potential for abuse. Even in Nigeria, states like Lagos and Ekiti have removed criminal defamation from their statutes. In Lagos State, where Dele Farotimi lives, The Supreme Court has ruled that since Lagos amended its laws to remove defamation as a criminal offense, the federal Criminal Code no longer applies to Lagos. Similarly, Ekiti state where Dele was arrested and renditioned to trial, has amended its laws in 2021 to exclude criminal defamation.
Therefore charging Farotimi in Ekiti under outdated provisions or under the federal criminal code that the supreme court had clearly held would no longer apply once a state has changed its laws, ignores this precedent and undermines the rule of law.
Chief Afe and the Ekiti Police should have known better, especially given the Supreme Court’s ruling in the Lagos case. Yet, they chose to take the legally suspect position that federal criminal code provisions on criminal defamation will still hold in Ekiti despite the supreme court ruling on the equivalent issue in Lagos state more years ago. “This position was emphatically affirmed by the Supreme Court in Aviomoh v. Commissioner of Police & Anor (2021), where Justice Helen Ogunwumiju held that defamation ceased to be a criminal offense in Lagos State following the enactment of the Criminal Law of Lagos State 2011 (so they cant really claim ignorance of the supreme court decision, but they charged dele with criminal libel in Ekiti anyway):”
5. The Allegations Do Not Meet the Threshold for Criminal Defamation
Dele Farotimi’s book critiques systemic corruption and judiciary practices, is a public interest commentary. It does not incite violence, it does not incite breach of peace, and it my opinion does not unduly target Chief Afe with malice. Criminal prosecution for such statements is unwarranted.
6. Expansive and All Encompassing Ex Parte Orders Undermine Justice
Chief Afe Babalola recently secured sweeping ex parte orders that effectively grant judgment on the substantive issues while Farotimi remains in custody without the opportunity to defend himself. This undermines the principles of natural justice and reinforces perceptions of undue judicial influence that Dele and others like him have been complaining about for years now.
7. I Believe This Approach Will Set a Dangerous Precedent
Criminalizing speech in this manner creates a chilling effect, discouraging public commentary on matters of public interest. It also emboldens the powerful to use state resources to silence dissenters, threatening democracy and accountability.
A Questionable Appearance Of Double Standard And Other Accusations Of Disreputable Conduct/Corruption Against Chief Afe Babalola by others
Chief Afe Babalola’s actions in this case appear to contradict his past principles. In another instance, the Supreme Court fined Chief Afe and other SANs ₦10 million each for filing a frivolous motion seeking the court to reverse itself in a case involving Bayelsa State. The court castigated the senior lawyers for abusing the judicial process.( Reads more about JSC Aguiyi’s tearful sanction of Chief Afe and some other senior lawyers here.
If Chief Afe genuinely believes in upholding the integrity of the legal system, why is he now engaging in what many see as a misuse of the law to settle a personal grievance? The case also raises questions about selective enforcement, as allegations of undue influence have surfaced in relation to cases in which he was involved, including the controversial “10-hectare-for-248-hectare Slip” by the Supreme Court, which by the way triggered all the allegations made by Deel Farotimi in his book.
We also recall that Chief Afe has also been accused in documents leaked by Wikileaks, THOUGH I MUST EMPHASIZE HAS NOT BEEN PROVED YET, to have been involved in the bribing of Court of Appeal judges with over $1.25 million dollars in an Adamawa State election matter (You can Read more about the Wikileaks Report here.
To the best of my knowledge at the time of writing this article, Chief Afe is yet to sue wikileaks for libel, or report them to the Interpol for criminal prosecution, and he has not even made any public statement denying this report. That of course does not mean he is guilty as alleged but I find it very curious for a man who is apparently very zealous in protecting his reputation but one must ask why descend on Dele Farotimi for saying what others have said about him and even descend on him a ton of bricks with simultaneous action at both state, federal and civil court levels.
In my humble and respectful opinion, It is not a mark of valour to seek to kill an ant with a sledgehammer. It wont restore his name but only risks confirming him as a vengeful old man trying to muscle a small boy with all the powers at his disposal just because he could. It also risk reinforcing the perception that his very action seeks to remove in the mind of the people.
Conclusion
In my considered personal opinion, while i agree 100 per cent that Dele Farotimi should be held accountable to justify his sweeping comments against Chief Afe and all members of the Supreme Court, charging him with criminal defamation, especially in both state and federal courts, is an abuse of power that contradicts democratic principles, global trends, and even Chief Afe Babalola’s own past counsel.
I sincerely believe that this case in its present form where they are not only prosecuting him on multiple levels at the State and Federal levels, in addition to filing multiple civil cases against him in multiple state courts, PLUS getting sweeping ex parte orders againSt him before he has even been given a fair opportunity to back up his sweeping claims, threatens freedom of speech, undermines public trust in the judiciary, and sets a dangerous precedent for future abuses of state power.
“Chief Afe had the option to pursue civil remedies, which would have allowed the courts to address the issues in a fair and balanced manner. Instead, his decision to insist on criminalizing speech by filing petitions to the police has turned this case into a referendum on the misuse of state power and judicial impartiality in Nigeria.”
“While I have no way of knowing if Chief Afe Babalola is guilty of corruption as charged by the irreverent Dele Farotimi, and I am also yet to see any evidence from Dele Farotimi himself to back up his astonishing accusations, I believe that for the sake of all and our judiciary which is now inadvertently being put on trial as well, it is not too late to de-escalate this criminalization of speech move. It can all be adequately settled in an open and fair trial in a civil court like most civilized nations do in 2024.”
Afterall, Justice is not about silencing critics with handcuffs, or about locking them up in dungeons without bail, or about getting comprehensive Ex Parte judgements against the alleged traducer while he languishes in jail, but in ensuring accountability and fairness for all in a free and fair court proceedings.
Ope Banwo, writes as an Attorney, Public Commentator and Founder of Naija Lives Matter Organization” with interest in ensuring that the lives of ALL Nigerians matter, both the lives of those accused of commiting criminal offences and the powerful who accuse them of doing so.
FULL ARTICLE AND OTHER OPINIONS ON NIGERIAN AFFAIRS HERE.
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