There appears to be panic and deep pain in Afe Babalola’s actions since the publication and sales of the new international bestseller, Dele Farotimi’s book, Nigeria and its Criminal Justice System. It became a bestseller precisely because the all-powerful Mr Babalola is determined to stop Nigerians and the international community from reading it. Apparently, no one has explained to him that the best way to get everybody to read a book is to tell them that they must not read it. Mr Babalola has however persisted in his errors by getting a court to restrain Dele Farotimi Publishers, as well as bookshops, from circulating and selling the book. MA Adegbola, the presiding judge, restrained the defendants and their republishers, including Amazon Online Bookstore, Rovingheights Bookstore, Booksellers Bookstore, Jazzhole Lagos Bookstore, Glendora Bookshop, Quintessence Lagos Bookstore, and Patabah Books Limited, from further publishing and selling the book. Deep panic.
Last week, the Ekiti police command, acting on behalf of Mr Babalola, had arrested Farotimi over alleged defamation and cyberbullying. The activist was accused of spreading false information against Babalola. That was not enough, subsequently the inspector-general of Police filed a 12-count charge bordering on cybercrime against Farotimi. The ruling on the book followed an application by Kehinde Ogunwumiju, a Senior Advocate of Nigeria and managing partner at Afe Babalola & Co. seeking N500 million in damages from Mr Farotimi for allegedly defaming him in the book. The said book, Nigeria and its Criminal Justice System, is an unfiltered, freewheeling critical account of Mr Farotimi about some top Nigerian legal firms and the Nigerian judiciary.
Many of my readers will wonder how some top lawyers can pursue routes to futility with such determination. The book gained tremendous traction, reaching a top spot on Amazon’s bestseller list within days of cascading police actions against Mr Farotimi, following Mr Babalola’s petition last week. PDF copies of the book, which was launched in July, have circulated widely in the last one week due to the free publicity offered by Mr Babalola. Now the entire Nigerian Police Force might be placed in streets all over the country on a “search and hide the book” mission. Goodluck Mr Babalola.
Meanwhile, all that the 104-page book did was to research what led to the accusation that the law firm was guilty of “compromising the integrity of the Supreme Court,” scheming with “crooked lawyers and incompetent justices,” and “doctoring” a Supreme Court judgement. It also accused Mr Babalola of corrupting the Supreme Court in the service of his clients. The problem is that most Nigerians would consider such accusations to be most likely TRUE.
The response of Mr Babalola, the police, and the judiciary has been extreme punishment for Farotimi for daring to tell his story. It is for this reason that civil society organisations strongly condemn the arrest, detention, persecution and torture of Mr Dele Farotimi. The manner of his arrest was an aberration and Mr Farotimi should never have been subjected to the criminal justice process in this case. In addition, the prohibitive terms of bail for what is supposed to be a misdemeanour raises the real possibility that Mr Farotimi’s right to be tried – as required by Nigeria’s constitution – by a court “constituted in such a manner as to guarantee its independence and impartiality” has been compromised.
There are many troubling aspects of Mr Farotimi’s encounter with Nigerian law enforcement, beginning with the unnecessarily aggressive and confrontational manner in which his arrest was affected. The CCTV footage released by his office after his arrest revealed the thoroughly unprofessional and violent nature of the police officers who travelled out of the state of their posting to arrest him. The officers were not dressed in uniform and could have passed as armed thugs. They also threatened Mr Farotimi’s staff for no reason after unlawfully seizing their phones. The brutal manner of his arrest suggests the apprehension of a bandit on a most-wanted list, rather than a publicly accessible human rights lawyer.
Even more troubling than the manner of the arrest was the reason adduced for it. Before he was unlawfully “picked up” from his office on the 2nd of December, Mr Farotimi had foretold the Nigerian public of his impending arrest. In a press release that went out from his office a day before, he stated that the police had invited him to answer certain claims he had made in his most recent book. Mr. Farotimi went on to state that his impending arrest was being orchestrated by two powerful individuals – Chief Tony Elumelu and Chief Afe Babalola (CFR, SAN) – who were apparently displeased with the unflattering depictions he had made of them in his book. Rather than challenging his claims by suing him for defamation in a civil court, they decided to wield their enormous influence to have him arrested, detained, and charged to court for a crime that does not exist in the jurisdiction of his arraignment.
Defamation is a civil matter and should be treated as such. Section 4 of the Police Act 2020 clearly forbids the police from wading into civil matters. In an orderly society built on the rule of law, those contending the veracity or otherwise of the claims Mr Farotimi made in his book or who feel he has defamed them in any of his writings or speech would seek justice in the civil court, where Mr Farotimi would have had to defend his claims or provide redress, should he have been found to have maligned their character. In the process, the resources of the Nigerian state, our law enforcement agents, and our criminal justice system would not be trivialised and expended on pursuing personal vendettas. When a person feels that his or her reputation has been tarnished, the law creates opportunities for redress in a civil court. As Nigeria’s Supreme Court pointed out in 2021, criminal defamation was invented by the ‘Star Chamber” in late Mediaeval England. That is why it has been written out of the law in most states in Nigeria, as well as in many more Commonwealth countries.
Another troubling aspect of this saga is the fact that Mr Farotimi was charged by the Police before a Magistrate Court in Ekiti State on 16 counts of criminal defamation. However, criminal defamation is unknown to the Ekiti State’s Criminal Law of 2021, which currently spells out the criminal law regime in Ekiti State. It also does not exist in the Criminal Code of Lagos where Mr Farotimi resides, works, presumably wrote his book, and was abducted from. Our Constitution provides in Section 36(12) that “subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law”. The Nigerian Supreme Court has repeatedly affirmed this canonical provision as the anchor of our criminal jurisprudence, so we are left to wonder under which powers the court in Ekiti presumed to order the remand of Mr Farotimi. Moreover, the act of charging Mr Farotimi before the Magistrate Court for a “crime” that the Court clearly did not have jurisdiction to entertain, is an abuse of legal processes.
The Police should drop the charges against Mr Farotimi and he should be immediately released without preconditions. The Attorney General of Ekiti State should step in immediately to officially discontinue the case against Mr Farotimi if the police do not act fast enough in doing so. All laws that support criminal defamation in Nigeria’s criminal jurisprudence should be immediately repealed and cases initiated under those laws should be struck out by the courts. We need to make the case that our law enforcement agencies need to uphold their constitutional mandate to serve and protect citizens, rather than act as tools for the powerful to silence dissent.
Credit: Prof. Jibrin Ibrahim