Criminal defamation in Nigeria. Right or Wrong?

Nigeria’s criminal defamation laws stem from two colonial statutes:

• Criminal Code Act, Cap C38 LFN 2004 (southern states) — Sections 373–375

• Penal Code Act, Cap P3 LFN 2004 (northern states) — Sections 391–395

Under Section 375 of the Criminal Code, publishing defamatory matter is a misdemeanour punishable by imprisonment up to one year, or two years if the person knew the statement was false. The Penal Code mirrors this rule in Section 392.

These provisions were originally justified on the assumption that defamatory words could provoke violence, but that logic no longer holds in a modern rule-of-law society.

Outdated Principles Still in Operation

1. Publication to the Victim Alone

Under Section 374 Criminal Code, even a private statement made only to the person defamed can amount to publication. This contradicts modern defamation principles, which require communication to a third party before reputational harm can occur.

2. “Breach of the Peace” Justification

Criminal defamation was intended to prevent violence arising from insults. But in a country with functioning courts and civil remedies, there’s no longer a justification for imprisonment to “preserve peace.”

3. Limited Defence of Truth

In civil defamation, truth is an absolute defence. In criminal defamation, it is only valid if the publication is for the public benefit. This vague standard allows selective prosecution and undermines press freedom.

4. Dual Civil and Criminal Liability

A person may face both a civil suit and a criminal charge for the same statement. This dual system creates fear and discourages public discourse.

5. Harsh and Disproportionate Punishment

Imprisonment for speech is inconsistent with Nigeria’s obligations under Article 9 of the African Charter on Human and Peoples’ Rights, domesticated through the African Charter Act Cap A9 LFN 2004.

The Digital Age Problem

When these laws were enacted in the early 1900s, “publication” referred to printed materials. They never anticipated social media, blogs, or viral posts.

Today, a single tweet can reach millions within seconds. The question of who is liable, the author, sharer, or platform, is left unanswered. Outdated references to “printing” and “engraving” make the law incompatible with digital realities.

The Cybercrimes (Prohibition, Prevention, etc.) Act 2015 has further blurred boundaries by criminalising online defamation under the guise of “cyberstalking.” This overlap creates uncertainty and misuse.

Human Rights and Global Standards

The UN Human Rights Committee and the African Commission on Human and Peoples’ Rights have both urged countries to decriminalise defamation. In Konaté v Burkina Faso (2014), the African Court ruled that imprisonment for defamation violates freedom of expression under Article 9 of the Charter.

Nigeria, however, continues to prosecute journalists and critics under these colonial laws. Several cases reported by the Media Rights Agenda and SERAP show the arrests of reporters who merely exposed corruption or misconduct, illustrating the chilling effect of criminal defamation.

Why Reform Is Necessary

1. Upholding Constitutional Rights

Section 39 of the 1999 Constitution (as amended) guarantees the right to freedom of expression. Criminal defamation, with vague definitions and prison terms, contradicts this fundamental right.

2. Proportionality and Justice

Civil remedies, damages, apologies, and retractions adequately redress reputational harm. Criminal prosecution adds stigma and violates the principle of proportionality.

3. Safeguarding the Press and Public Debate

Fear of arrest discourages investigative journalism and weakens public accountability. A democracy thrives on open discussion, not intimidation.

4. Legal Certainty

Nigeria’s overlapping codes and inconsistent judicial interpretations create confusion. Reform would harmonise defamation law and reduce misuse by law-enforcement agencies.

Pathways for Reform

A. Repeal Imprisonment Clauses

Ghana, Kenya, and Sierra Leone have already repealed prison terms for defamation. Nigeria should follow suit to align with global standards.

B. Restrict Defamation to Civil Law

Reputation disputes belong in civil courts, not criminal dockets. Criminal sanctions should be reserved for hate speech or incitement, not private injury.

C. Encourage Judicial Innovation

Courts should interpret these laws in light of the Constitution’s supremacy (Section 1(3)) and strike down prosecutions that suppress legitimate speech.

D. Create a Public-Interest Defence

A clear defence should protect journalists and citizens who publish accurate or reasonably verified information in good faith for public benefit.

Implications for Lawyers and Digital Professionals

For lawyers advising clients in media, communications, or tech sectors:

• Vet publications for factual accuracy and fair comment.

• Include retraction clauses in online terms of service.

• Educate clients on defamation risks and safe reporting.

• Support advocacy for legal reform within professional circles.

For developers and platform managers, build moderation tools that detect potentially defamatory content early, while maintaining users’ right to express themselves.

Conclusion

Nigeria’s criminal defamation law is a relic of colonial control, out of touch with modern values of free speech, democracy, and digital communication. Its principles no longer serve public peace but rather empower the powerful to silence critics.

True reform means decriminalising defamation, strengthening civil remedies, and ensuring that the law protects both reputation and expression. That balance is essential for a just and open society.