Police vs Farotimi: A Test of Free Speech, Accountability, and Law

In this piece, cybersecurity specialist, legal strategist, and writer, Amina Allison, examines the background facts surrounding the ongoing trial of activist, Dele Farotimi in two different courts in Ekiti State and argues that his ordeal underscores the complex interplay between free speech, defamation law, and the evolving digital landscape.

The intervention raises crucial questions about the boundaries of expression, accountability, and the law’s adaptability in a fast-paced digital era.

On July 2, 2024, Dele Farotimi published a book entitled: Nigeria and Its Criminal Justice System. The intellectual work offers a piercing critique of Nigeria’s judicial operations. He did not shy away from naming specific individuals, drawing immediate attention and backlash. His online interviews following the publication only reinforced his accusations, sparking a petition by a renowned Senior Advocate of Nigeria (SAN), Aare Afe Babalola, SAN, who alleged defamation.

Farotimi was subsequently arrested in Lagos State but arraigned in Ekiti State before a Magistrate’s Court on 16 counts of criminal defamation under Sections 373-375 of the Criminal Code Act 1990. This related strictly to the book’s content, which the prosecution alleged defamed certain individuals by exposing them to public hatred, ridicule, or contempt. However, this was only the beginning of his legal troubles.

Few days later, Farotimi faced additional charges at the Federal High Court, this time under Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act, 2015 (as amended 2024) with 12 counts of cybercrime-related offences. This second arraignment concerned his online comments reiterating and expanding on the claims made in his book during interviews and social media posts.

The digital age has revolutionized communication, enabling the instantaneous spread of information across the globe. This transformation has reshaped the concept of defamation, expanding its scope and increasing its consequences in unprecedented ways.

In the pre-digital era, defamatory statements were limited to traditional media like print, radio, and television. Today, social media platforms, blogs, and podcasts allow defamatory content to reach millions within seconds. Farotimi’s online interviews, for example, multiplied the impact of his book’s claims, drawing legal action that might have been avoided in a less connected world.

This amplification effect means that even minor statements, when shared widely, can cause significant reputational harm.

Once published online, defamatory content is difficult to erase. This is because even if the original posts are deleted, screenshots, archived web pages, and social media shares keep the content alive indefinitely. This permanence makes proving reputational damage easier but also complicates legal resolutions, as the harm persists even after a court ruling.

Digital defamation transcends borders, raising jurisdictional challenges. A defamatory statement made in one country can harm a person in another. This raises complex legal questions about which country’s laws apply and where the case should be heard. Though Farotimi’s case is confined to Nigeria, international legal systems face growing jurisdictional disputes as internet communication knows no borders.

The internet also allows users to post content anonymously, complicating efforts to identify and prosecute offenders. While Farotimi publicly made his comments, many defamation cases involved anonymous actors posting false claims under fake accounts. Courts increasingly rely on internet service providers and social media platforms to unmask these individuals, raising concerns about privacy rights versus public accountability.

The most pressing challenge in digital defamation cases is striking a balance between freedom of expression and protecting reputations. Section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) guarantees the right to free speech, while international agreements such as the African Charter on Human and Peoples’ Rights (ACHPR) affirm similar rights. However, these rights are not absolute and must be exercised responsibly, especially when reputational damage is concerned.

While criminalizing defamation protects individuals from serious reputational harm, critics argue that it stifles free speech and discourages investigative journalism. Activists like Farotimi, journalists, and whistle-blowers often walk a legal tightrope, risking legal consequences when exposing issues of public interest.

The consequences of digital defamation extend beyond legal penalties. They include reputational damage with victims possibly suffering personal and professional harm that can be challenging to undo and social backlash since online harassment and cancel culture can follow defamatory claims, further harming individuals.

Other consequences are economic losses as the businesses of the affected persons or professionals may lose income, sponsorships, or partnerships due to reputational harm and legal penalties for defendants found guilty of digital defamation who may face fines, imprisonment, and civil liability for damages.

The Supreme Court ruling in Abalaka v. Akinsete & 2 Ors. [2023] 13 NWLR 343 reshaped Nigeria’s defamation law by changing the burden of proof in defamation cases. Before this landmark case, any defamatory statement was presumed false, and the defendant was required to prove its accuracy. This created a significant hurdle for defendants like Dele Farotimi, whose statements were controversial but grounded in the public interest.

However, in Abalaka, the court ruled that claimants must prove both falsity and malice, aligning Nigerian law with international free speech standards. This decision strengthened legal protections for writers, activists, and journalists, making it clear that truth is an absolute defence in defamation cases.

Truth (Justification)

The truth is the most powerful defence in defamation cases. If Farotimi can prove that the allegations in his book and subsequent interviews were factually accurate, he cannot be held liable for defamation, regardless of how damaging the claims may be. This defence requires evidence-based proof of the claims, placing a heavy responsibility on Farotimi to back up his assertions with credible sources.

Fair comment on a matter of public interest

Farotimi can invoke the defense of fair comment, which applies to opinions expressed in good faith on matters of public interest. Given that Nigeria’s criminal justice system is undeniably of national and international concern, his critiques could be framed as reasoned opinions rather than defamatory statements. However, fair comments must be based on facts and devoid of malice, making this defence viable only if he can show that his comments were supported by evidence and intended to inform and not harm.

Qualified privilege

Farotimi may argue that he has a legal, moral, or social duty as a human rights activist to expose misconduct in Nigeria’s justice system. Courts may recognise his activist platform as serving a public interest, granting him qualified privilege, which protects such statements if they were made without malice and in the public interest.

Absence of malice

The prosecution must prove malice as required by Abalaka v. Akinsete. Farotimi’s legal team can argue that his comments were driven by a genuine desire for public accountability and social reform, not personal vendetta or malicious intent. If they succeed, the court would have no grounds to convict him.

Examining Farotimi’s ordeals

Notwithstanding all these, from a legal perspective, prosecuting Farotimi in two separate courts is procedurally lawful. The charges stem from distinct acts governed by different legal frameworks: the book publication under the Criminal Code and online interviews and social media posts under the Cybercrimes Act. Criminal defamation is grounded in Nigeria’s traditional defamation law, while the Cybercrimes Act exclusively governs online offences, granting jurisdiction only to the Federal High Court.

However, while legally sound, pursuing separate charges in two courts raises concerns about judicial efficiency and prosecutorial discretion. Given that both charges originate from related content, consolidating them in one court would have ensured a more streamlined trial process. The current approach risks fragmenting legal proceedings, prolonging the legal battle, and inflating legal expenses. It may also suggest prosecutorial overreach, especially if perceived as an attempt to overwhelm the defendant with multiple charges across different jurisdictions.

Additionally, considering Nigeria’s already overburdened judiciary, a single consolidated case could have mitigated procedural delays and reduced the risk of conflicting rulings.

Farotimi’s legal ordeal highlights the evolving challenges of defamation in the digital age. While prosecuting criminal defamation and cybercrime charges separately is legally justified, the decision raises procedural concerns and highlights the risks of prosecutorial overreach.

Navigating these legal complexities will require a delicate balance between freedom of expression and protection of reputation. As digital speech becomes more powerful, its legal consequences become even more significant. Freedom of speech in Farotimi’s case remains an uncertain promise, subject to judicial interpretation and legal discretion.