In The Court: Detained Journalists Challenge Legal Framework

Journalists find themselves at the forefront, of a gripping legal battle, challenging the very fabric of press freedom.

Section 37 of the Nigerian Press Council Act provides a clear definition of a journalist, yet their rights are under siege. The section states that“Any person (not being less than eighteen years of age) engaged in the collection, processing and dissemination of information for use in the press,”

The heart of this matter lies in the discriminatory clauses of the Press Council Act of Nigeria 1992. alleged to infringe upon journalists’ rights to non-discrimination and press freedom.

Moreover, the recent arrest of journalists and detention while fulfilling their lawful duties as journalists not only violates their freedom of the press but also their fundamental rights to seek, receive, and impart information.

As they bravely confront these injustices, their struggle resonates with Article 2 of the African Charter and sets a precedent for the protection of journalistic integrity and liberties.

Mr Isaac Olamilakan and Mrs Edoghogho Ugberease filed a lawsuit against the Federal Republic of Nigeria before the ECOWAS court. 

Applicants case

The Applicants argued that certain provisions of the Nigeria Press Council Act 1992, particularly Sections 37, 19(a), and 27, are discriminatory. They claim that these sections, which set age requirements and mandate registration and accreditation for journalists and editors, fail to recognize the rights of public interest media, including online and citizen journalists.

The Applicants assert that these provisions violate their rights guaranteed under Articles 2 and 9(1) of the African Charter.  Furthermore, they alleged incidents of unlawful arrest and detention by agents of the respondent.

One of the applicants was arrested during a facility tour of the Orotogun Gas Plant in Delta State for recording facilities deemed to have national security implications. The other applicant was arrested within the court’s premises for taking a photograph without express permission and subsequently charged but later discharged and acquitted.

Both journalists maintain that these actions constitute violations of their rights under the African Charter and other international human rights instruments.

Applicant`s Pleas in law

Legal arguments and relief sought:

The applicants base their case on various legal provisions, which include;

1. Article 3 of the Rules of the ECOWAS Community Court of Justice.
2. Rule 1 of the ECOWAS Court Protocol.
3. Article 59 of the ECOWAS Revised Treaty.
4. Article 19 of the Universal Declaration of Human Rights (UDHR).
5. Sections 19(a) & 27 of the Press Council Act of Nigeria of 1992.
6. Articles 6, 7(1), (1) &(2), 13(2), 19, 29(2) &(4) of the African Charter on Human and Peoples’ Rights.
7. Article 8(1) and 10(2) of the Declaration of Principles on Freedom of Expression in Africa (2002).
8. Discrimination (Employment and Occupational) Convention of 1957.
9. Articles 2, 10, and 19 of the International Covenant on Civil and Political Rights of 1966.
10. Sections 2 and 36 of the Constitution of the Federal Republic of Nigeria 1999.

Reliefs Sought

1. Declaration of sections 19(1)(a), 27, and 37 of the Press Council Act of Nigeria of 1992 as void for failure to recognize public interest media rights.
2. Declaration that age qualifications for the job of editor and practice of journalism in Nigeria are discriminatory.
3. Declaration that the statutory obligation of attending a journalism training course is a violation of rights.
4. Declaration of breach of obligation under international treaties by enforcing certain provisions of the Press Council Act.
5. Declaration that unlawful arrest and detention violate international human rights provisions.
6. Compelling the defendant to amend certain provisions of the Press Council Act to promote professional journalism.
7. Perpetual injunction restraining the defendant from enforcing certain provisions of the Press Council Act.
8. Compensatory damages for discrimination, wrongful detention, and malicious prosecution.
9. Any other consequential orders deemed fit by the court.

Read also: Unlawful arrest: What you should know

Respondent`s Argument

The Respondent argues that the second applicant operated illegally by not attending accredited journalism courses in Nigeria as mandated by Section 19(1)(a-d) of the Nigeria Press Council Act.

Regarding the first applicant, they contend that he was deregistered as a journalist and thus does not qualify to practise journalism.

In defense of the contested sections of the Press Act, the respondent asserts that journalism is a sensitive profession requiring regulation to prevent negative effects on youth and national security.

They argue that a thorough understanding of journalism is essential, justifying the requirement for aspirants to have at least a bachelor’s degree in journalism or mass communication, and a postgraduate degree in relevant fields as stipulated in the Press Act.

Furthermore, the respondent states that like other regulated professions, journalism has eligibility criteria set by the regulatory body for admission. They emphasize that the rights to information and expression are not absolute, as limitations are imposed by law to protect the rights and reputation of others, national security, public order, public health, or morals.

The respondent denies unlawfully arresting or detaining the applicants and challenges them to provide credible evidence to substantiate their claims, arguing that the reliefs sought are unsupported by evidence.

Respondent’s pleas 

The Respondent relied on various legal provisions, including Articles 6 and 9(2) of the African Charter on Human and Peoples’ Rights, Article 31 of Protocol A/P1/7/91, and Sections 2 of the Constitution of the Federal Republic of Nigeria, among others.

They seek the dismissal of the Application with deterring costs, arguing it is frivolous, baseless, and an abuse of the court’s process.

Court`s Analysis and Findings

The court’s deliberations centre on its jurisdiction to scrutinise national legislation, particularly the Press Act of Nigeria, 1992.

The court was tasked with determining whether it has jurisdiction to review national laws, specifically the Press Act of Nigeria 1992, and whether certain provisions of the Act, namely Sections 91(1)(a)(3)(b), 27, and 37 are discriminatory.

Furthermore, the court was tasked with assessing whether the identified sections of the Press Act encroach upon the fundamental right to freedom of expression, as guaranteed by Article 9 of the African Charter.

This entailed a comprehensive examination of Sections 9(1), 27, and 73 to ascertain if they unduly restrict or impede individuals’ ability to freely express themselves through journalism.

The court’s analysis aims to determine if these legislative provisions align with the principles of freedom of expression outlined in international human rights instruments.

After taking arguments from parties in the suit, A three/member panel of the ECOWAS court led by Justice Edward Amoako Asante on November 24. 2023 delivered judgement in the application marked: ECW/CCJ/APP/31/21 with Judgment No: ECW/CCJ/JUD/43/23.

Regarding jurisdiction, the Court held that it has jurisdiction to determine cases of human rights violations occurring in any Member State, as provided in Article 9(4) of the Protocol. 

Consequently, The application was deemed admissible, complying with the Protocol’s provisions, and not anonymous or duplicative of another similar case before another international court.

Court`s Analysis

The court’s analysis addresses two key aspects concerning the alleged violations of the African Charter on Human and Peoples’ Rights.

Firstly, regarding the claim of discrimination under Article 2 of the Charter, the court dismissed the relief sought by the applicants, ruling that the allegation lacks substantiation.

However, concerning the violation of Article 9 of the Charter, the court found merit in the claim and granted the declaratory relief sought by the applicants.

Consequently, the court ordered the defendant to amend the relevant provisions of the Press Council Act of Nigeria 1992 to align with global standards and promote professional journalism.

Addressing the lawfulness of the arrest and detention of both applicants, the court concluded that the detention of the first applicant was not unlawful, while the detention of the second applicant was lawful.

“Declares that the arrest and detention of the 1st Applicant while gathering and investigating information was not unlawful and did not violate the provisions of the Universal Declaration of Human Rights, International Convention on Civil and Political Rights of 1966, African Charter on Human and Peoples’ Rights.”

“Declares that the arrest and detention of the 2nd Applicant was lawful and is not in violation of the provisions of the Universal Declaration of Human Rights, International Convention on Civil and Political Rights of 1966, African Charter on Human and Peoples’ Rights.”

Finally, the court orders the defendant to amend the relevant sections of the Press Council Act in line with its obligations under the African Charter.

“Orders the Respondent to amend the provisions of Sections 19 (1) (a) (3) (b), 27, and 7 of the Press Council Act of Nigeria of 1992 in line with its obligation under Article 1 of the African Charter and bring them in line with global practices and to promote free, pluralistic and professional journalism.”

As to the costs of the suit, the court “Orders both Parties to bear their costs.”

For details of the judgement see here