Mr Agba Jalingo, a journalist and human rights activist, is presently undergoing trial for criticising the administration of Governor Ben Ayade of Cross River State. He was arrested by operatives of the Nigeria Police Force in Lagos on August 22, 2019 and subsequently moved to Calabar where he was charged to court on September 25 on a four-count charge of treasonable felony, terrorism and attempt to topple the Cross River State Government after 34 days in custody. As if those grievous charges were not enough for a social critic, he was brought to court in handcuff like a “common criminal” whereas he is only a “prisoner of conscience”.
Before delving into the meat of the matter, it must be stated clearly that the deliberate handcuffing of journalist Agba Jalingo is unlawful, highly unconstitutional and an aberration in a democratic dispensation. By virtue of Section 5 of the Administration of Criminal Justice Act, 2015 (ACJA), an accused person has an inalienable right not to be handcuffed or otherwise bound or be subjected to unnecessary restraint, either by way of handcuffing or manacling except by order of the court or where there is reasonable fear of violence, attempt to escape or where restrain is necessary for the safety of the suspect. Obviously, none of this exception is applicable to Agba Jalingo.
To support this statutory position, Section 34(1) of the 1999 Constitution of the Federal Republic of Nigeria provides that every individual, an accused inclusive, has a right to dignity of human person and accordingly “no person shall be subjected to torture or to inhuman or degrading treatment”. See also Musa v. State (1993) 12 NWLR Pt. 277. Apparently, the Nigerian government, through her operatives, has grossly breached the right to dignity of human person accorded to Agba Jalingo by the constitution. Put simply, the handcuffing of Agba Jalingo is not only unlawful and unconstitutional, it is also evil, capricious and appears a calculated attempt to intimidate the press and subject a dissenting voice to needless ridicule.
That said, the whole circumstances surrounding this case should give an average lover of democracy a cause to worry. This is because the freedom of the press is the cornerstone upon which the existence of a constitutional democracy depends. It beats the imagination to see the persecution of a journalist happen in a democracy even when the criticised governor cannot come out clean with any higher argument or contrary position. If anything, why does the governor or the state apparatus choose to charge him for terrorism and treasonable felony when it is clear that the “crime” of Agba Jalingo was pointing at the supposed maladministration of Ben Ayade? I hold the view that it only shows the level at which the governor can go at harassing, persecuting and intimidating political opponents and the press. Agba Jalingo’s trial is an abuse of power and improper dissipation of governmental resources to settle personal political differences. If Ben Ayade feels offended by the criticisms of Agba Jalingo, there are other remedies provided by the law which he can pursue other than persecuting him. He could have sued him for libel or defamation. Sadly, he has deliberately refused to follow this noble path.
For example, when the first civilian governor of Ogun State, Chief Olabisi Onabanjo, felt offended and defamed by a publication of Concord Press owned by late Chief M.K.O. Abiola, he sued Concord Press for libel and later got judgment delivered in his favour without resorting to “self-help” like Ben Ayade. Another example is the case between Donald Duke, a former governor of Cross River State and Global Excellence Communications Limited; where the governor sued the defendant for libellous publications against his person. Apparently, Ben Ayade could also have pursued the lawful means of suing Agba Jalingo for libel or related offences as there is no legal obstacle hindering him.
No democracy can thrive without free press. It is the persistent and constructive criticisms that strengthen the delivery of government policies and goodwill. Instructively, our court was right when it said in the case of State v. Ivory Trumpet Publishing Ltd (1984) 5 NCLR 736 that “the freedom of the press is a bulwark of democracy. The Nigerian constitution has, in fact, obliged the press to uphold the responsibility and accountability of the government of the people”. Similarly, the Court of Appeal in Omega Bank Plc v. Government of Ekiti State (2007) ALL FWLR (Pt. 386) 658 held that the criticism of the government, public bodies or officers is part of the freedom of expression granted and guaranteed by the constitution. Frowning against the prosecution of a “personal matter” with state resources like we have in this Agba Jalingo and Ben Ayade’s case, in the Omega Bank’s case, supra, the court held emphatically that: “It will be against the public interest for government/public officers to use the tax paid by the people to institute actions against them (journalists)…” It is therefore strongly advocated that if Ben Ayade has no cockroach in his cupboard, he should not hesitate to withdraw the charges and courageously sue his critic for libel. Only for one to remember that he who comes with equity must come with clean hands.
However, beyond Ben Ayade’s intolerance for press freedom, there is also a growing show of hypocrisy by the People’s Democratic Party, Nigeria’s leading opposition party. Ever since the historical defeat of the party by the ruling All Progressives Congress in 2015, PDP has seized every opportunity gotten to make strong criticism when the APC led government formulate policies or do things that are prejudicial to the existence of democracy and the rule of law. They condemn all unlawful arrests, disrespect to court orders and many other precarious policies of the APC. To buttress this point, the voice of the party was, for example, very loud when Samuel Ogundipe, a journalist working for Premium Timeswas arrested by Buhari’s government. They equally waged strong war of criticism at the Federal Government when Deji Adeyanju, an activist, was kept in prison throughout the electioneering period of 2019 for an offence he has been discharged and acquitted of. Even the recent case of activist and publisher of Sahara Reporters, Omoyele Sowore’s prosecution for calling for a peaceful protest against bad governance of Buhari’s administration was criticised with the strongest words by the PDP.
But, in this case of Agba Jalingo, who is facing persecution in the hands of Governor Ben Ayade of the PDP, the PDP has kept quiet ever since – without making any statement condemning the illegality and cruelty. This shows the hypocrisy and sheer dissimulation of a party, which claimed to be different from the APC in principles and particularly in their respect for the rule of law.
Obviously, the APC and the PDP are one and the same thing. The deafening silence of the PDP on this matter shows that both PDP and the APC shares two sides of a coin merely bearing different names. Why should you be so quick to criticise APC’s disrespect for human rights and the rule of law and become reluctant to spark fire when PDP has done same? Henceforth, the PDP has no moral justification to point fingers of lawlessness and arbitrary use of power at the APC. The indifference kept by the PDP shows its criticisms of APC’s government are malicious and insincere. With the loud silence of PDP in this matter, it means they have taken side with and are in support of Ben Ayade. This is worrisome, to say the least.
Let me conclude with the evergreen words of Christopher Dodds: “When the public’s right to know is threatened, and when the rights of free speech and free press are at risk, all other liberties we hold dear are endangered.”
Festus Ogun is a human rights activist, constitutional law enthusiast and convener of Legal Minds for Good Governance Initiative. [email protected]; 09066324982