Between Farotimi and Afe Babalola—Festus Adedayo

The question of whether the law of defamation is a hindrance to freedom of speech and a curtailment to democratic process confronted the Burkinabe, a few years ago. Lohe Issa Konaté was Burkina Faso, that landlocked West African country’s own Dele Farotimi. He was a journalist with the newspaper, L’Ouragan (The Hurricane). Like a tempestuous hurricane, on August 1, 2012, Konaté published a series of articles in the weekly newspaper attacking the conduct of a local prosecutor in a money counterfeiting matter. A week later, Konaté doubled down on this same allegation against the judicial system of Burkina Faso by writing a stinging piece on another matter instituted by the same prosecutor.

Like Farotimi, Konaté shot bullets of expletives, which included “rogue officer,” against the prosecutor while alleging corruption in the country’s judiciary. Angered by this against-method manner of publicly shaming the judicial system, the prosecutor promptly filed a complaint against Konaté through a defamation suit. In it, he alleged public insult and contempt of court against the journalist. Alongside these, the state also filed criminal charges against Konaté and sought damages. In October, 2012, Konaté was found guilty by an Ouagadougou High Court. He was then sentenced to one year imprisonment, fined US $3000, and a US $9000 damages to be paid by him to the prosecutor. The court was not done yet. It suspended the L’Ouragan newspaper which published the articles for a period of six months. At the Ouagadougou Court of Appeal, the court upheld the judgment.

However, in June, 2013, an application was filed by the Media Legal Defense Initiative (MLDI), an NGO with special bias for providing legal defense to independent media, journalists, and bloggers under threat for their publications. It was filed at the African Court on Human and Peoples’ Right (ACHPR). MLDI alleged that the penalties imposed by the Ouagadougou courts on Konaté were excessive and violated his freedom of expression rights as guaranteed by Article 9 of the African Charter on Human and Peoples’ Rights. On December 5, 2014, the court, in delivering this landmark judgment, which was its first case regarding freedom of the press, overruled the conviction of Konaté. It stated that the conviction was a disproportionate interference in the applicant’s guaranteed rights to freedom of expression. It noted that public figures in Burkina Faso must develop tolerance for criticisms. It then ordered the Burkina Faso government to amend its legislation on defamation so as to make it compliant with international standards. It also ordered a repeal of Burkina Faso’s custodial sentences for defamation.

Dr. Kayode Fayemi, former governor of Ekiti State, last Thursday, in Ibadan, the capital of Oyo State, delivered a thought-provoking lecture to mark the 80th birthday of journalism colossus and Nigeria’s former ambassador to the Philippines, Dr. Yemi Farounbi. In the lecture, entitled “The future and the challenges of the Nigerian State”, Fayemi invoked the spirit of that ever-engaging locus-classicus book on Nigeria, The Famished Road, authored by Ben Okri. In it, Okri looks at the concept of nation-building as a generation-to-generation effort. Each generation possesses its own predilections, with which it confronts nationhood, he says. The generation that will take over from us is an impatient generation. It is the generation called the Gen Z. It was the generation whose impatience for excuses of previous generations goaded into trooping to the streets in what has now been known as the #EndSARS and #EndBadGovernance protests. It is fearless. It suffered yet-to-be-properly-enumerated casualties in the process. It is a defiant generation, what Yoruba call the esin-ò-ko’kú (the fly fears no death) generation.

In the lecture, Fayemi compares that generation to post-Apartheid generation of South Africa called the “Born free” generation. The generation literally carries no baggage and holds no captive. It is a generation that the Greek philosopher, Heraclitus was probably referring to when he said you cannot step into the same river twice. Everything happens for and to it at supersonic speed – inventions, technology etc. In Nigeria, that generation didn’t witness the orgy of military rule and a roulette of coups. It didn’t live to see the wickedness of rulers and servile, even if complicit following. One feature that hallmarks this generation is impatience with norms, long-held views, traditions, practices and orthodoxies.

Look at the Farotimi and Afe Babalola legal duel which is the main issue of discourse in Nigeria today. Take a look also at the huge swath of public opinion behind Farotimi. Not that Farotimi himself is a youth, properly defined, but he carries its anger, its venom and dis-alignment with the ruinous Nigerian status-quo. You will locate impatience with orthodoxy in this horde of youthful supporters egging Farotimi on, in spite of his alleged violation of legal orthodoxy. The youth is not interested in the obsessive fascination of the generations before it with norms, whether legal, social or political.

While legal orthodoxy tells us about the ancient rules of defamation, even criminal defamation, and the boundaries that must not be crossed, the youth cares less. It asks brash, carelessly confounding, even if seismic questions. It asks, for instance, how those rules can help in fighting endemic corruption which, with its twin, bad rule, has conspired to under-develop Nigeria. 

The Nigerian youth is aware that the judiciary is complicit in and has been known to be the imperial castle where corruption resides in Nigeria today. The youth doesn’t care if Farotimi’s allegations against Babalola are unfounded in law. It doesn’t care that Afe, a legal colossus, has the right to defend himself against this autumn tsunami which threatens to drown decades of his contributions to law and statesmanship. It doesn’t care that Afe is one of Nigeria’s greatest private investors in education. It just doesn’t care. Generations before this generation are the enemies of the youth, the Gen Z generation says.

If public opinion is the barometer for measuring guilt or innocence of action, check the social media: Afe Babalola is guilty as charged. I am not surprised that Babalola’s counsel, on Friday, chose to address a press conference on the matter, in disregard for the upbraid of Nigerian lawyers, especially senior lawyers’ penchant for discussing cases pending in the court, by Chief Justice of Nigeria (CJN) Justice Kuburat Kekere-Ekun. The CJN upbraided them during her screening in the senate in September. There, she decried senior lawyers’ declarative or authoritative pronouncements that border on the subjudice.

In the Konaté case in Burkina Faso, the ACHPR did not seem to have provided answers to burning questions. One of the beliefs by those against legal orthodoxy is that the law of defamation is anti-democratic and has served as bulwark against the fight against corruption. Enshrined in Section 39 of the 1999 Constitution of the Federal Republic of Nigeria, the purpose of the defamation law is to protect reputation from arbitrary mudslinging, abuse and damage. The same Nigerian Constitution, under section 45, limits the exercise of individual freedom for the purpose of ensuring that this right is exercised with caution. Under sections 60, 373-380 of the Criminal Code, provision is made that, where the effect of defamatory words seems to cause a breach of peace, the Police or the Attorney General may prosecute the defendant for offence of criminal libel. Taken in its totality however, the defamation law has been held to constitute an impediment to the guarantee of rights to freedom of expression and a major shield against promotion of democratic virtues.

Among the major cancerous afflictions that Nigeria suffers today is corruption. Judicial corruption is its handmaiden. Corruption’s audacity and permeating influence are terrifying. It is almost an impossibility to get anything done in Nigeria without corrupting officials. All over the world, the renown of Nigerian institutions as beehive of corruption precedes any interface with them. Globally, Nigeria wears its maggots-laced badge as the place where the umbilical cord of corruption was buried. A pervasive stench culture of corruption and impunity reigns here. This culture is almost unanimously accepted as native to us, though it hinders effective governance and erodes public trust. The culture also kills enterprise, industry, talent and excellence, replacing them with mediocrities and reign of the adder-brained in public service.

Since the advent of colonial rule, so much fuss had been made about how ingrained corruption is in the heart of Africa. Some claim it is genetic since, even pre-colonial rule, African relations were watered by kleptocracy. We have some wise-sayings that are enablers of and symptoms of corruption which we were born into. Only a few of our mores and lore frown against corruption. Africa, like Shakespeare’s Othello, however, espouses a good name. “Good name in man and woman…is the immediate jewel of their souls…he that filches from me my good name robs me of that which not enriches him, And makes me poor indeed,” Shakespeare says.

It becomes difficult to reconcile this same Africa, which espouses the virtues of a good name, with the fact that it, in another breath, also encourages corruption. Take for example an ancient pithy saying in Yorubaland which says, only the one who pre-waters the ground walks on wet ground, or the Igbo saying that it is the person who holds palm-frond that the goat saunters towards. Or the Yoruba saying that, “If you are unlucky not to have a representative in the judicial council, even if you are innocent, you can be found guilty – “B’éèyàn ò l’éni ní’gbìmò, bó ro’jó àre, èbi ló mí a je.” All these affirm unmistakably that corruption and favouritism predate colonialism in Africa. Either in the isms – nepotism, favouritism, cronyism – or even financial subversions, Nigeria has had its share of the vermin of kleptocrats in high and low places, right from the establishment of official structures of public service.

Judicial corruption is king here. Though many attempts have been made to dress it in borrowed robes of euphemisms, judicial corruption is growing in leaps and bounds in Nigeria. In its bother about corruption in the house of justice, Transparency International affirms that all sectors of society rely on the courts to sanction corrupt officials, politicians, citizens and businesspeople, who steal resources and weaken integrity in public and private life. It maintains that, when the judicial system is corrupt, justice cannot be done and the whole society is done for. It was in recognition of this that Justice Kuburat Kekere-Ekun, at her screening in the Senate, literally swore to tackle corruption.

As if bitten by the metaphysical bug the Yoruba call “sìse-sìse” – inexplicable constant errors – in June last year, Nigerian senator, Adamu Bulkachuwa, whose wife, Zainab, was judge and President of the Court of Appeal, publicly confessed to influencing his wife’s judicial decisions. He had said: “My wife, whose freedom and independence I encroached upon while (she) was in office, and she has been very tolerant and accepted my encroachment and extended her help to my colleagues.” Bulkachuwa, now 84 years old, and a stalwart of the APC, who represented Bauchi North senatorial district in the 9th Senate, made this revelation at a valedictory session of the senate. The video of this revelation instantly went viral.

Miscarriage of justice by judicial officers and judicial corruption are not a new phenomenon in Nigeria. Hubert Ogunde’s famous play, Yòrùbá Ronú – Yoruba, think! – performed in 1964, though aimed as an attack on S. L. Akintola, Premier of the Western Region, was a damming review of intra-Yoruba relations where probity was becoming an anathema. Ogunde excoriated a phenomenon where the guilty are set free and the innocent are adjudged guilty “wón á gbé’bi f’áláre, wón á gb’áre f’élébi”. Earlier, in the 1962-published book, The Incorruptible Judge, written by D. Olu Adegoke, the concept of corruption was brought to the fore and how the judiciary can help tame it through its impartiality. The virus of compromise of court decisions has become cancerous today as it is generally believed to be a recurrent happening. That was why when Bulkachuwa confessed to the crime in the Nigerian parliament, without prodding, many Nigerians saw it as Karma fighting for the common man. But, what has happened ever since?

There are many real but unsubstantiated allegations of cahoots between judges and senior lawyers in perpetration of judicial corruption. You must be against-method and possessing the wild spirit of the Gen Z generation to say this openly and pin names and faces to it. Corruption in the judiciary is however not an openly advertized bazaar. It is operated under cultic darkness by the parties. While lawyers know among themselves who and who are corrupt elements, lawyers also know pliable judges who can be bought for a price. It is to this set of people that they go when there is the need for mortgaging of conscience for a fee.

Both Farotimi and Afe Babalola, as lawyers, are aware that the vermin of corruption is destroying the judicial institution in Nigeria. However, if Farotimi does not have evidence that irresistibly points at the facts before making all those weighty allegations in his book, it will be the height of recklessness by any worshipper ever in the temple of justice. If he has evidence, it will be good for the sanity of the legal system and the expansion of democratic frontiers in Nigeria, especially in combating the demon of judicial corruption.

But, come to think of it, which institution in Nigeria is corruption-free? Are judges and lawyers not part of the corruption whole that is sucking the blood of Nigeria like a leech? Is journalism corruption-free? The other day, the EFCC said it seized 753 duplexes, its highest ever recovery since its inception. The political class swims in sewage, bankers do and Nigeria in totality is one huge stinking sewer.

Legal orthodoxy does not support Farotimi. That is why many lawyers feel scandalized and horrified at the claims in his book, Nigeria and its criminal justice system. However, Farotimi represents the growing impatience with legal norms that are incapable of taming the shrew of rot and underdevelopment. The reality of corruption in the judiciary is one that many Nigerians know, are aware of the destruction it daily wreaks but are consigned into silence because of judicial orthodoxy. After all, two people cannot suffer the calamity of lie-telling; if the one being told does not know he is being told a lie, the one telling it will certainly be aware he is telling a lie. If bystanders to courts do not know that bribery takes place between litigants, lawyers and judges, the lawyers will know, the giver knows and judges who receive the bribe know. Judicial orthodoxy spells out silence if the one who alleges does not have irrebutable evidence to buttress their claim. What Farotimi did with that book of his was to peer torch into the eyes of the leopard in the dark (gbé’ná wo’jú olóólá, ekùn). What he did, even if a mountainous animal like the elephant does it, the animal will get his horns twisted (ìwo è á ló!). Farotimi has figuratively entered a mythic forest called Forest of the Wicked, the “Igbó Òdájú.” It is a forest that can be likened to D. O. Fagunwa’s Igbo Olodumare – the Forest of God. In this forest, there are ghommids which included Esu-kekere-ode, a two-foot-tall ghommid which lives in an anthill and prevents travelers from entering Igbó Olódùmarè. There is also what Fagunwa calls the Anjonnu-Iberu, a ghommid that guards the entrance to Igbó Olódùmarè and a furry-bearded-One, a part-human, part-ghommid creature that lives on a rock.

While entering Igbó Òdájú, elders warn the faint-hearted not to dare come near them. The ones whose mothers have not weaned from suckling are exempted. Mothers are also warned to hold their children with a leash, lest they stray into the forest. It is a forest where flesh-eating animals inhabit – the leopards, lions, jackals, ghommids and the Queen of fishes – Àrògìdìgbà. Farotimi’s matter is made worse because the judges who he alleged as recipients of the alleged bribe will sit in judgment over his matter. Again, apprehending him like a common criminal, and keeping him in jail for this long, for a bail-able offence, are too punitive and a reflection of the vengeful nature of those who wanted him to suffer for standing up to a legal shark in Nigeria’s reckless river.  But if Farotimi survives in this task of breaking the coconut pod on his own head – and I pray he does – he may have begun a major revolution against corruption.