by Rotimi Fawole
Last week, it was reported that 3 presenters on Wazobia FM, Kano, were arrested for inciting the shooting of 10 polio immunisation volunteers.
Apparently, the authorities imputed a connection between what was said on the radio station earlier in the day and the subsequent killing of the anti-polio volunteers.
It has now been reported that the station has been shut down and has, in fact, had its broadcasting license suspended by the National Broadcasting Commission.
According to Lagos newspaper PM News, the presenter of the radio show on which the alleged incitement took place said that “local officials in Kano have signed a contract with the white men from the West, going door-to-door forcing on children [the polio] vaccine that has no basis… Go and tell the World Health Organisation that I know what is in the polio vaccine. I only keep quite because it is not good to stir confusion.”
This raises, broadly, issues of what constitutes the offence of incitement to violence and whether or not it is inconsistent with the constitutional guarantee of the freedom of expression.
With no confirmation of the exact provisions of the law under which these OAPs were charged, one can only cast a wide glance over plausible sections and draw appropriate inferences from them.
Now, references that this writer found to “incitement” in the criminal and penal codes were in the context of incitement to mutiny, sedition and treason; not violence per se.
However, even if this were the case, the Supreme Court’s judgement in Usman Kaza vs The State gives us some insight into what judicial thinking would resemble. In considering what constituted the offence of “abetment”, the learned Justice Niki Tobi had this to say:
“I go to the offence of abetment. Abetment is an act of encouraging, inciting or aiding another…For an accused person to be convicted of abetment, under section 85 of the Penal Code, the prosecution must prove the following ingredients (i) That there was an encouragement, incitement, setting on, instigation, promotion or procurement of offence, (ii) Any of the above acts must be positive and unequivocal specifically addressed to the commission of the offence, (iii) The act abetted must be committed in consequence of the abetment, (iv) An accused person could be convicted of the offence of abetment on proof by the prosecution of any of the acts mentioned in (i) above. In other words, the acts mentioned in (i) above are in the alternative and not cumulative.”
To secure a conviction for incitement to violence therefore, the prosecution would be required to establish first of all that the “offending” words specifically and unequivocally incited the violence and that the violence occurred in consequence of the words.
If all that happened was that some radio presenters with strong personal views about polio vaccines aired their views and (given the region’s general disposition in recent times towards the vaccine) that the unfortunate shootings/murders happened, without the prosecution being able to establish a direct link between the two, convictions would be unlikely.
The words reported by PM News do not ask anyone to commit any violence; they merely expressed an opinion. Till date, all the killers remain at large. Perhaps, if they had confessed under interrogation, that the words said on air were some sort of pre-arranged signal to activate their terror cell, the incitement/abetment could be more easily established.
This leaves the issue of whether the charge is inconsistent with the constitutionally guaranteed right to freedom of expression.
Now, it is the consensus amongst legal scholars that no rights are absolute. However, our constitution is clear on how each fundamental right can be abridged. Thus for example, while the constitution guarantees the right to life, it says no one will be deemed to have been deprived of that right if he/she “dies as a result of the use, to such extent necessary and in such circumstances as are permitted by law, of such force as is reasonably necessary – (a) for the defence of any person from unlawful violence or for the defence of property; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or (c) for the purpose of suppressing a riot, insurrection or mutiny.”
Similarly, every Nigerian citizen is entitled to move freely throughout and live in any part of the country and not be refused exit from or entry into Nigeria. However, the constitution says that guarantee will not invalidate any reasonable law that imposes restrictions on movement (a) in order to prevent a person suspected of committing a criminal offence from leaving Nigeria; or (b) extradition to be tried or imprisoned outside Nigeria.
In the case of the freedom of expression (which includes the freedom to hold opinions and to receive and impart ideas and information without interference), the only permissible restrictions are:
“(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority or independence of courts, or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or (b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the federation or members of the Nigeria Police Force or other Government security services or agencies established by law.”
So, NBC regulations can regulate what is permissible to be said on the radio and the television. The NBC’s Broadcasting Code of 2010 is the current document prescribing the conduct for licensed broadcasters and sanctions for contraventions.
Paragraph 0.1.1.1 (under the general principles of broadcasting) states that “…no broadcast shall intentionally encourage or incite to crime, lead to public disorder…”, the key word there, in my opinion, being ‘intentionally’.
Paragraph 3.1.2 (under Programming Standards) says “Materials likely to incite or encourage the commission of a crime or lead to public disorder shall not be broadcast.”
Paragraph 3.1.3 similarly states “The broadcaster shall recognize that the exercises freedom of expression as an agent of society, therefore, he shall not use his medium for any personal or sectional rights, privileges and needs of his own, proprietor, relatives, friends or supporters.”
Paragraph 3.9.1 says “Language or scene likely to encourage or incite to crime, or lead to disorder, shall not be broadcast.” There may well be other provisions relevant to this topic.
Now, what the Broadcasting Code does, is to categorise breaches of the code into Classes A, B and C, respectively. The breach of paragraph 3.1.2 is a Class A infraction; 3.1.3, a Class B infraction. Paragraph 13.6.2 stipulates the consequences of a Class A breach as follows:
Sanction procedure for Class A breaches shall either be:
(a) Suspension of licence and immediate shut down/seal up of transmitter; or
(b) Revocation of licence, seizure and forfeiture of transmitting equipment.
Thus, it seems that there is enough wiggle room for the NBC to justify its suspension of Wazobia FM’s licence and not infringe on the constitutional right to free speech in doing so.