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Freedom of expression is one of the fundamental rights guaranteed under the Constitution of the Federal Republic of Nigeria 1999 (As Amended).[1] It is essential to the functioning of a democratic society, allowing individuals to express opinions, disseminate information, and hold government accountable. However, this right is not absolute. One of its notable limitations arises in the context of defamation, which seeks to protect individuals’ reputations from false and damaging statements. The tension between these competing interests, i.e, free speech and the right to reputation, presents a continuing legal and ethical debate. This paper explores how Nigerian jurisprudence attempts to strike a balance between these interests.
THE CONCEPT OF FREEDOM OF EXPRESSION IN NIGERIA
Section 39(1) of the 1999 Constitution of Nigeria (as Amended) provides that:
“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”
The right to freedom of expression in Nigeria ensures that individuals can hold opinions and freely seek, receive, and impart information and ideas through any medium of their choice, be it speech, writing, art, music, or other forms of creative expression. This fundamental right empowers artists to communicate their thoughts and experiences through their art, while also allowing citizens to openly express opinions about governmental actions or policies without fear of retaliation or censorship. It is a cornerstone of democratic participation and cultural development.
The protection of this right is reinforced by Nigeria’s international obligations, notably the African Charter on Human and Peoples’ Rights, which has been domesticated and thus enjoys the force of law in Nigeria under the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Article 9 of the Charter similarly guarantees the right to express and disseminate one’s opinions within the law.
The Nigerian courts have also consistently affirmed the centrality of this right. In Director of State Security Services v. Olisa Agbakoba (1999) 3 NWLR (Pt. 595) 314, the Court of Appeal underscored the vital role of free speech in a democratic society, affirming that any attempt to unduly limit it must be viewed with suspicion.
DEFAMATION UNDER NIGERIAN LAW
Under Nigerian law, defamation is defined as any written or spoken false communication about a person (an individual or corporate body) from one party to another party carrying the legal effect of exposing the person spoken about to either: public contempt, scorn, humiliation/shame, character/reputation assassination/lowered estimation & opinions of the person spoken about in the minds of right thinking persons and has the capacity of affecting goodwill of the persons spoken about in their trades, businesses, livelihoods, or professions.[2]
Defamation in Nigeria can be both a civil wrong and a criminal offence.
As a civil wrong, defamation is a tort, or a wrongful act that causes harm or injury to another person, which can be redressed by awarding damages, an order of injunction, a retraction & an apology issued to the victim. As a criminal offense, defamation is a crime or a violation of the law that is punishable by the state.
Civil Defamation
· Civil defamation consists of libel (a written or published defamatory statement) and slander (spoken defamation). To succeed in a civil defamation suit, the claimant must establish that:
In NSIRIM V. NSIRIM[3], the Supreme Court per Obaseki JSC defined publication that is “the making known of the defamatory matter to some persons other than the person of whom it is written ….It is the reduction of libelous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libelous document was made must be pleaded.”
Once a plaintiff can prove the aforementioned to the court, the court has no choice but to grant him his relief as he has successfully proved that the defendant defamed him.
Defences available to a defendant in civil defamation include:
CRIMINAL DEFAMATION
Criminal defamation is codified under Sections 373–375 of the Criminal Code (applicable in Southern Nigeria) and Sections 391–395 of the Penal Code (applicable in Northern Nigeria). These provisions criminalize false statements that harm another person’s reputation and impose punishment.
The main difference between civil defamation and criminal defamation lies in the purpose of the legal action and the nature of the punishment. In civil defamation, the purpose is to compensate the victim for the harm to his or her reputation, and the punishment is the payment of damages to the victim. In criminal defamation, the purpose is to maintain the public order and the social peace, and the punishment is a fine, imprisonment, or both, imposed on the defamer.
THE CONSTITUTIONAL CHALLENGE
The coexistence of freedom of expression and criminal defamation laws presents a constitutional dilemma. While defamation laws serve the legitimate aim of protecting reputations, criminalizing expression can have a chilling effect, deter legitimate speech, and stifle public discourse.
In Arthur Nwankwo v. The State,[5] the Court of Appeal expressed disapproval of the criminalization of speech, stating that “those who occupy sensitive positions must develop thick skin… Resort to criminal prosecution for defamation is a step backward.”
Despite this progressive stance, criminal defamation laws remain on the books and have occasionally been used against journalists, activists, and political opponents, raising concerns about abuse and overreach.
Most recently, the 2024/2025 defamation case between Dele Farotimi and Chief Afe Babalola SAN exemplifies the ongoing struggle between the right to freedom of expression and the enforcement of defamation laws in Nigeria. Farotimi, a vocal critic of systemic corruption, faced criminal charges after making comments in his book that were perceived as defamatory toward Babalola and the judiciary. While the matter was eventually withdrawn following intervention by respected traditional rulers, the case reignited debates over the use of criminal defamation laws to silence dissenting voices. Critics argue that such laws, particularly when invoked against public commentary or political critique, have a chilling effect on free speech and are incompatible with democratic values. The case underscores the urgent need for Nigeria to repeal criminal defamation statutes and rely on proportionate civil remedies that protect reputation without stifling legitimate expression or public discourse.
INTERNATIONAL AND COMPARATIVE PERSPECTIVES
Globally, there is a growing consensus that criminal defamation laws are incompatible with democratic norms. The ECOWAS Court of Justice in Lohe Issa Konate v. Burkina Faso[6] held that imprisonment for defamation violated Article 9 of the African Charter and was disproportionate in a democratic society.
Similarly, the United Nations Human Rights Committee and the African Commission on Human and Peoples’ Rights have consistently advocated for the decriminalization of defamation, urging states to resort to civil remedies where necessary.
Countries such as Ghana, Kenya, and the United Kingdom have either abolished or reformed their criminal defamation laws to conform to international standards.
STRIKING THE BALANCE: THE JUDICIAL APPROACH IN NIGERIA
Nigerian courts are increasingly acknowledging the need to balance free expression with the right to reputation. In Media Rights Agenda v. Attorney-General of the Federation (unreported), the court emphasized that any limitation on expression must satisfy the test of necessity and proportionality in a democratic society.
This test requires:
· That the restriction pursues a legitimate aim (e.g., protection of reputation);
· That the measure is necessary in a democratic society;
· That the restriction is proportionate to the aim pursued.
Despite some progressive rulings, the judiciary has yet to adopt a uniform or clearly articulated doctrine. There is still reliance on outdated common law principles and ambiguous statutory provisions, especially in criminal defamation cases.
CONCLUSION
Freedom of expression and the protection of reputation are both indispensable elements of a civilized society. The Nigerian legal system must ensure that the protection of one does not unjustifiably encroach upon the other. While freedom of speech is essential for democratic engagement, it must not serve as a license for character assassination. Conversely, the law must not be used as a tool to silence dissent or criticism under the guise of protecting reputation.
To maintain this delicate balance, Nigeria must move decisively towards decriminalizing defamation, reinforcing civil remedies, and adopting a rights-based approach consistent with its constitutional and international obligations. Only then can the ideals of free expression and human dignity co-exist harmoniously in Nigeria’s evolving legal landscape.
[1] Section 39. 1999 constitution
[2] AFRICAN INTL BANK LTD & ORS v. ASAOLU (2005) LPELR-11340(CA)
[3] (1990) 3 NWLR (PT.138) 285, 297-298,
[4] (2013)LPELR-22028
[5] (1985) 6 NCLR 228
[6] https://www.african-court.org/cpmt/details-case/0042013
Written by Deborah Dada for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com