The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
“If liberty means anything at all, it means the right to tell people what they do not want to hear.” – George Orwell
The two issues that piqued my interest last week, were the Erisco/Chioma Okoli saga, and the suspension of the Senator representing Bauchi Central, Senator Abdul Ningi, from the Senate for a period of three months. In both cases, the Police and the Senate may not want to hear what I have to say, but I will air my views anyway, in accordance with the provisions of the law.
The Erisco/Chioma Okoli Imbroglio
Must we all like Erisco Nagiko Tomato Paste (Erisco Purée)? No! At least, not according to Section 38(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) which guarantees our right to freedom of thought (Choice). Are we allowed to hold opinions and express them on Facebook or wherever we choose to, even if what we are expressing is our distaste for Erisco Purée or any other product? Yes! According to Section 39(1) of the Constitution that guarantees our right to freedom of expression, including our right to hold opinions. I do however, concede that with the advent of social media, there are many irresponsible people who post nonsense and outright falsehoods about others that amount to libel and criminal defamation, who need to be sanctioned by the law – see the case of Oruwari v Osler 2013 5 N.W.L.R. Part 1348 Page 535 at 556 per Chukwuma-Eneh, JSC.
But, how does posting your personal opinion about a product, translate to being a criminal offence, as alleged by the founder of Erisco? I saw a video in which the Erisco Founder said Chioma was trying to bully him and destroy the reputation of a company he had spent 40 years building! Really? Talk about being intolerant and melodramatic! Just because Chioma said Erisco Purée had too much sugar in it? Or was the Erisco Founder peeved and his ego bruised, because Chioma had stated in her post that she was constrained to buy Erisco Purée after she couldn’t find Gino and Sonia, meaning that she wouldn’t have considered Erisco Purée had either of the other two brands been available? After all, the Erisco advertisement on television done by the famous and well-loved Songstress, Onyeka Onwenu, testifies to the sweetness of Erisco Purée, as Madam Onyeka declares: ‘…and when you put am inside mouth, e sweet, and e dey gidigba for body’. Besides, Chioma is only one person, in a country that is alleged to have a population of over 200 million. What is so special about Chioma’s opinion? ‘Se Chioma f’ogun sè nu ni?’ (Did Chioma put black magic in her mouth?) So that, with her one statement, the whole of Nigeria would boycott Erisco Purée?
I submit that Chioma simply expressed her opinion, and this cannot be said to be cyberstalking or cyberbullying. Not only has Chioma not committed any crime, unless of course, there’s much more to the incident that we are unaware of, the expression of her opinion doesn’t even qualify as defamation which is a tort, a civil wrong.
The law cited in a post that I saw on social media, one said to be relied upon by Erisco, that is, Section 24 of the Nigeria Cybercrime Act 2015, does not exist. Erisco possibly may have wanted to rely on Section 24(1)(b) of the Cybercrimes (Prohibition, Prevention, Etc) Act 2015 (CA) which prohibits knowingly or intentionally sending a message that the sender ‘knows to be false’, via computer systems or network to cause annoyance, insult, injury etc, and carries a punishment of 3 years imprisonment or a fine not exceeding N7 million or both, upon conviction. This law is patently inapplicable, to this issue.
A combination of the aforementioned non-existent law (or the correct version) and the allusion by the Erisco Founder in a videoclip which was aired on our Arise TV, to a place in prison for ladies who have babies (Chioma is said to be pregnant), leads one to the irresistible conclusion that they must have had Section 24(1)(b) of the CA in mind as the offence they concocted to frame Chioma for (hoping she would be convicted and imprisoned), for letting the world know that she thinks Erisco Purée has too much sugar in it. Interestingly, the wordings at the beginning of the statute “he knows to be false” were not-so-cleverly omitted from the incorrect version of the law that was circulated, in order to make the trumped-up allegations against Chioma stick in the court of public opinion, because Chioma’s opinion, even if it is uncomplimentary, cannot be said to be a falsehood! It is her opinion, which she is entitled to, and not a twisting of any facts. Assuming, without conceding that Chioma had actually committed a crime, the element of falsehood which is required to establish this offence of cyberstalking or cyberbullying, is unproven.
It appears that if anyone is being bullied, it is Chioma, and this is unlawful. The Erisco Founder and the Police must be sanctioned, as a deterrent to ‘Big Men’ who have a penchant for using law enforcement agencies to further their unlawful activities, like the intimidation of people. The actions of Erisco and the Police for starters, smacks of false imprisonment, malicious prosecution, and a gross abuse of powers by the Police. See the case of Ogbonna v Ogbonna (2014) LPELR-22308(CA). It is sad that our Police are complicit in this illegality, and have easily allowed themselves to be used to achieve this purpose. Section 8(2) of the Administration of Criminal Justice Act 2015 prohibits the arrest of an individual merely on a civil wrong or breach of contract, let alone the arrest of an individual like Chioma, who hasn’t committed any wrong. Also see Sections 4 & 32(2) of the Police Act 2020. See the case of Skye Bank Plc v Emerson Njoku (2016) LPELR-40447(CA) where the Court of Appeal held inter alia that Complainants who wrongly use agencies such as EFCC and the Police to violate the rights of people, must be made to pay for their actions.
To get round these provisions, simply to feed the ego of an intolerant ‘Big Man’ and satisfy his bidding, the Erisco Founder and the Police connived, going beyond the stretch of a vivid imagination, to fabricate a false allegation against Chioma, in order to try to punish her for her negative opinion of Erisco Purée, which she dared to disseminate on social media.This is unacceptable.
Senate v Senator Abdul Ningi
I am quite indifferent in the issue of Senate v Senator Ningi, I do not support either of the two parties, or rather, I’m partial solely to the rule of law in this matter. While the allegations of ‘Padding’ of the 2024 Budget made by Senator Ningi against the Senate, must have been seen as some form of contempt of the Senate by the Senators, and indeed, may have sought to bring this legislative arm of government into disrepute (we also remember the Padding allegation of Hon. Abdulmumin Jibrin against the House of Representatives in 2016) (see Sections 21, 22 & 24(1)(a) of the Legislative Houses (Powers and Privileges) Act 2018)(LHPPA), the suspension of the Senator or any other Legislator for that matter, for a period of three months appears to be unconstitutional. See Sections 42(1)(a), 48, 49, 90 & 91 of the Constitution.
Section 14(2)(a) & (c) provides that sovereignty belongs to the Nigerian people, from whom government through the Constitution derives all its powers and authority, and the people have a right to participate in their Government. How is this achieved? By voting in elections, and through elected representatives that form the various levels of government. Every constituency in Nigeria is entitled to representation whether at the Senate, House of Representatives or State House of Assembly. And, even if Sections 60 & 101 of the Constitution allow these legislative Houses to regulate their own procedures, their regulations, are subject to the provisions of the Constitution, and any inconsistency in them vis-à-vis the provisions of the Constitution, makes such regulations void to the extent of their inconsistency – see Section 1(1) & (3) of the Constitution.
In some countries, Parliament can suspend or even expel its members. In the case of US Rep George Santos who was expelled from Congress in December 2023, Article 1 Section 5 Clause 2 of the United States Constitution authorises the Legislature to determine the rules of its proceedings, punish its members for disorderly behaviour, or even expel them with the concurrence of two-thirds of that House. It goes beyond Sections 60 & 101 of our Constitution, as we do not have this kind of punishment provision in ours.
The UK doesn’t have a written constitution. But, in certain circumstances, in the UK Parliament, a by-election is triggered by a Recall Petition after the suspension of an MP for 14 calendar days, to recall and replace the erring member; suspension, obviously after a thorough investigation by an independent Panel that investigates allegations, and recommends the suspension. This is unlike what obtains here in Nigeria, where once you make any allegation of financial impropriety against the Legislature, you are automatically guilty without thorough investigation. The Nigerian Legislature is the judge, jury and executioner (forget about the principle of ‘Nemo judex in causa sua’ – no one is judge in their own case) – breach of fair hearing contrary to Section 36(1) of the Constitution. We also do not have such a triggering provision in the case of a suspended member, to call for a by-election in our Constitution. See the UK Recall of MPs Act 2015. It may be just as well that we don’t have the American and UK provisions in our Constitution and laws, as I see them being subject to abuse.
However, in the unreported case of Dino Melaye & 4 Ors v The Speaker of the House of Representatives & Ors FHC/ABJ/CS/460/2010, the Federal High Court held that the suspension of the Plaintiffs for a legislative session of one year was illegal and unconstitutional, on the ground that a Legislator cannot be suspended for more than 14 days in accordance to the Standing Orders of the House. Recall that sometime in 2010, Dino Melaye and other Representatives were suspended from the House of Representatives, for disrupting the proceedings with unruly behaviour.
My problem with aforementioned LHPPA provisions and the Melaye judgement is that, even if it is a one-day suspension of a Legislator, the people of his/her constituency are excluded and denied their participation in that Chamber. Why should they be punished for the infractions of their representative? For instance, if law–s are debated or passed during the suspension period, the suspended constituency (suspending the representative, is tantamount to suspending the constituency) will be denied any input into the laws that will affect them. It is the Senate that confirms certain appointments; the suspended Senator’s constituents are also denied of any input in the confirmation process, hence, if the confirmation process occurs during the suspension period, and they have a legitimate concern about an appointee, they will be unable to voice it.
Additionally, Section 42(1)(a) of the Constitution provides for freedom from discrimination, and suspending Senator Ningi for three months means that his constituents will remain unrepresented in the Senate for that period of time, thereby excluding them and subjecting them to a disability that other Nigerians are not subjected to, amounting to discrimination. I therefore, submit that any rule of the Legislature that purports to deprive constituents of their participation in government, albeit through their elected Legislative representatives, is unfair, discriminatory and repugnant.
Why can’t the erring member be punished in other ways, that will affect only such an individual personally, and not the constituents? Suspend salaries, allowances and perquisites (which is what Section 21(3) of the LHPPA provides); remove the member from their Committee, fine him/her.
Conclusion
These two scenarios that I have discussed, again, affirm the penchant of government agencies or arms, to either observe the law in its breach, outrightly ignore the law, place themselves above the law or manipulate it to serve their own selfish ends. While it is basic that Section 4 of the Constitution, a document whose bedrock is said to be equity and fairness, mandates the Legislature to make laws for the peace, order and good governance of Nigeria, the law makers appear to have exalted their indignation over the welfare of the people of Bauchi Central, by suspending the Senator representing them. The habit of ‘Big Men’ being able to use law enforcement agencies to oppress those who they perceive to be helpless or less connected to power than they are, is also prevalent. It is for the same reason, that Erisco has been able to unlawfully use the Police to intimidate Chioma for no reason, that some are totally against the introduction of State Police, so that this type of abuse is as minimised as possible, if there’s only the Federal Police, instead of becoming the common place order of the day all over the country, in every State Police formation.
Additionally
I commiserate with the Nigerian Army and the families of the 16 slain soldiers, who were brutally murdered in very cold blood in Okuoma, Ughelli South, Delta State last Thursday, while responding to a distress call following community clashes between Okuoma and Okoloba. One really wonders, what goes through the minds of the people who commit these heinous and horrific crimes. While the murder of these gallant soldiers and fallen heroes is unacceptable, and we look forward to the capture of their killers and their prosecution to the fullest extent of the law, we plead for restraint in this matter, as it will be unfair for the innocent members of these communities to be punished for crimes they did not commit, with reprisal attacks. Instead. let us allow the rule of law to prevail.
