Opinion: Does Audu Maikori’s arrest satisfy all the conditions for incitement as prescribed by law?


by Ikemesit Effiong

It is a social media case that has understandably has much of Nigerian social media animated and riveted. A court decision on this could have serious consequences for a vibrant media scene that Nigerian politicians and regulators are all too eager to stifle or to use their term of choice, ‘regulate.’

Audu Maikori, a Nigerian lawyer and CEO of Chocolate City Entertainment was arrested for the second time in three weeks, March 10 by the Nigerian police in connection with a series of tweets about a fatal attack on his relatives in the troubled southern part of Kaduna that turned out to be false.

Mr Maikori, 41, was first arrested in Lagos on February 17 and detained for 24 hours in Abuja on allegations of posting “inciting” materials on the Internet. Mark Jacobs, the label executive’s attorney, said his client was arrested on Friday morning and transported to Kaduna.

The latest arrest comes a week after Kaduna Governor Nasir El-Rufai pledged to ensure his prosecution for allegedly circulating inflammatory materials capable of exacerbating a decades-long tussle over land possession and usage rights in the region that has quickly escalated towards the end of 2016 and has consistently made national headlines since the turn of the year.

For Mr Maikori, this is personal. He is a native of southern Kaduna.

“What he posted may have led to killings and we are trying to link the dates of the posting to attacks that may have happened the next day on Fulanis and if we are able to establish that causation, as lawyers, we know what it means,” Mr. El-Rufai said at Social Media Week Lagos March 4 –  an irony not lost on attendees and social media enthusiasts who listened to the powerful chief executive of a Nigerian state threaten a popular social media star at an event which claims to “provide the ideas, trends, insights and inspiration to help people and businesses understand how to achieve more in a hyper-connected world.” “It is totally irresponsible to do that,” the governor ventured in his verdict.

What has the governor and many commentators riled up is a series of tweets posted by Mr Maikori in January in which he alleged that some Southern Kaduna students were killed by Fulani herdsmen. But details of the tweets, which Mr Maikori said were obtained from his driver, turned out to be false, earning him vicious social media backlash.

Mr Maikori later retracted the story and apologised for the false information, saying in part, “it is important to note that nothing in my clarification undermines the fact that the lives of Nigerians citizens have been lost in the Southern Kaduna crisis rather it refers to this particular incident which I have verified to have been untrue and fraudulent.”  A magistrate in Kaduna issued a warrant for his arrest and he was released on bail February 18, but the police said he “will be charged to court promptly.”

Clearly, that is not enough for Mr El-Rufai and the Kaduna governing architecture. In the overall order of things, Mr Maikori’s comments rank among the worst verbal interventions on this subject matter. When you dig deeper, though, this looks less than a responsible government legitimately trying to crack down on inciting speech and more of an uber sensitive governor struggling to get a handle on the worst security crisis in his state’s history and unwilling to pay attention to important dissenting voices.

The police has stated in the press that it is building a case and the prosecution will argue in court that Mr Maikori’s comments were inciting and potentially led some people to take up arms and commit retributive acts of violence against Fulanis. It is, therefore, worth examining what qualifies as inciting speech.

Pardon me if things get a little too technical from here.

The Penal Code Act which is the principal criminal legislation in force in Kaduna contains an entire section on sedition that may turn out to be relevant to the state’s case. For instance, Section 416, tastefully titled ‘Inciting disaffection to the Government’ provides that:

Whoever by words, either spoken or reproduced by mechanical means or intended to be read, or by signs or by visible representation or otherwise excites or attempts to excite feelings of disaffection against the person of the President or the Governor of a State, or against the Government, or the Constitution, or any State thereof or against the administration of justice in Nigeria or any State thereof, shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.

 Furthermore, Section 417 (Section Title – Exciting hatred between classes) provides that:

Whoever seeks to excite hatred or contempt against any class of persons in such a way as to endanger the public peace, shall be punished with imprisonment for a term which may extend to three years or with fine or with both.

 Section 418 which deals with ‘publication of false news with intent to cause offence against the public peace’ is also instructive in this regard

 Whoever circulates, publishes or reproduces any statement, rumour or report which he knows or has reason to believe to be false with intent to cause or which is likely to cause fear or alarm to the public whereby any person may be induced to commit an offence against the public peace, shall be punished with imprisonment which may extend to three years or with fine or with both.

 In the explanatory notes attached to Section 416 of the Penal Code, Explanation 1 states that “the expression “disaffection” includes disloyalty and all feelings of enmity.” Explanation 2 adds that “comments expressing disapprobation (that is, the act or state of disapproving of a thing or idea, according to the Merriam-Webster Dictionary) of the measures of the Government of the Federation or of any State Government of Nigeria with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”

The second explanatory note is key to understanding if a court can make a finding of inciting speech because the words and terms used must merely not be disapproving of the government’s handling of any issue, it must be of such a nature as to excite or attempt to excite feelings of disaffection against the government officials listed.

Granted, the provision is widely designed, none of its key operating terms ‘incite’ ‘excite’ and ‘disaffection’ are defined in the Interpretation Act, or any other law as far as checks have shown and depending on the eye looking at it, can be used to define a diverse range of commentary on any given social issue, but the courts usually in similar situations tend to use a ‘reasonability’ test – that is, for our purposes here, what will a hypothetical person in society who exercises average care, skill, and judgment in conduct  consider as inciting speech, exciting hatred between the classes or publish false news with intent to cause offence.

This test as to whether a person has acted as a reasonable person is an objective one, and so it does not take into account the specific abilities of a defendant. Thus, even a person who has low intelligence or is chronically careless is held to the same standard as a more careful person or a person of higher intelligence.

The court generally decides whether a defendant has acted as a reasonable person would have acted. In making this decision, the jury generally considers the defendant’s conduct in light of what the defendant actually knows, has experienced, or has perceived. In addition to the defendant’s actual knowledge, the judge also considers knowledge that should be common to everyone in a particular community.

If the twelve local government areas of southern Kaduna is taken as a community for the purpose of determining this test, as they are the people who Governor El-Rufai and the Kaduna prosecutorial services see as the ultimate audience of Mr Maikori’s comments, what was widely known about the state of security in the community at the time? Well, multiple press reports with residents, research articles on the subject and think pieces by informed voices, not to mention the lived experiences of the residents suggest that almost everyone in the area was widely aware of the occurrences of the attacks, the parties involved, their antecedents and the consequences they spawned.

According to a January SBM Intelligence report ‘Southern Kaduna: A Critical Look,’ the current instability in the area is somewhat causally traceable to clashes as far back as 1981, with the current spate of clashes escalating to their current levels in 2016. Such bad water has passed through these communities on both sides for at least a generation that one could argue that no added motivation was needed by either side to perpetrate violence against the other side. If you decide to stretch it a bit and consider the Nigerian social media space as a community, the key issues surrounding the conflict are also well known.

If anything, Mr Maikori seems to have been singled out because he brought a personal sensibility to the ongoing debate – a successful, influential social media maven who happens to hail from the regional hotspot. But it was a mostly nuanced contribution. In a December Facebook post which the prosecution is likely to use in arguing its case, Mr Maikori rightly, accurately and succinctly said the obvious – the people of southern Kaduna are labouring under the scourge of needless violence and conflict. He offered a detailed explanation as to why bringing peace to the region – an economically vibrant area which contains some of the country’s most fertile and productive land – was important not only for its residents but for Nigeria. He argued that the historic and cultural significance of his people will be lost on generations of unborn Nigerians if the current conflagration escalated into a more open conflict. He even went as far as to offer six detailed takes which, in his opinion, will help to pacify the situation and bring the conflict to a final resolution, while reminding the state and federal government of its most fundamental constitutional duty:

” the security and welfare of the people shall be the primary purpose of government”

 Section 14(2)(b) of the Constitution of the Federal Republic of Nigeria 1999

Essentially, it does not make sense for we the people, to outsource our ability to make some of the most important decisions of our lives to an authority that cannot guarantee the basic fact that we should be alive to grow and find happiness, have and maintain a family, find a purpose and attain our individual and collective goals. Reminding a democratically elected government of its signature duty has never and should never be a criminal offence or be viewed as inciting.

The state will have its case cut out. It must not only prove that it did not like Mr Maikori’s comments, but that those comments were capable of incitement, and people did as a result of it, pick up guns and knives and killed Fulani people in the area. Just how it hopes to make that connection will lie somewhere in the border lands of impossibility. As an aside, compare this far-fetched scenario to that of the country’s most famous (or infamous, depending on your political orientation) person on trial by the Nigerian state for sedition – leader of the Indigenous People of Biafra, Nnamdi Kanu.

This is a man who has called for the destruction of Nigeria as we know it, who has encouraged his fiery, passionate base to pick up arms against the government; who ran a clandestine radio station from the United Kingdom broadcasting inciting commentary and propaganda into Nigerian territory for years; who has given his blessing to the printing of an alternative currency, an alternative constitutional framework for a would-be Biafra state; once warned that the country will “face the wrath of the Igbo people” in an address aimed at Igbo delegates to the National Conference in 2014; who called the sitting Nigerian President “mad” and a liar and is openly and unashamedly committed to the withdrawal of the southeastern portion of the country, the historical land area of the short-lived Republic of Biafra from the Nigerian Federation. Kanu’s comments and actions have led to a number of protests which have been violently quashed by Nigerian security agencies and resulted in the loss of lives and properties. You get the point, there is a lot of potentially seditious subject matter there for a judge to work with.

It is worth noting that almost no one outside of Government House, Kaduna is attacking Mr Maikori’s intent, just that he shared false information. For Mr El-Rufai and the security agencies to equate a private citizen who admittedly told a false tale via his Twitter account with the leader of a movement intent of undermining a sovereign state is not only laughable, it is disingenuous and we should all be worried at that prospect.

That Mr El-Rufai has set the state’s machinery against a man calling for action on an issue that is fast spiralling our on control while the leaders of the Miyetti Cattle Breeders Association have near constantly threatened retributive attacks in the press not only against the people of southern Kaduna but people in every part of the country where there have been herdsmen-settler clashes – Enugu, Ekiti, Delta, Nasarawa – the list is far longer than you might think, smacks of hypocrisy. And we have not even touched on the perception of bias in favour of Fulanis that continue to dog Mr El-Rufai, a governor sworn to protect all Kaduna citizens, a perception that has some basis in fact if past comments, including, yes, posts on Facebook and Twitter, by the governor are any guide.

This is ultimately a battle not about truth or irresponsibility, but about free speech, about what can be said and what cannot be said, about and about how what traditions an evolving, maturing democracy should encourage. If 21st Century Nigerians will sit down and permit a powerful state governor with near unchecked powers to use a provision from a law from the late 1950s originally instituted as a compromise criminal legislation by a colonial oppressor to among other things, crack down on free and fair commentary that would have interfered with the effective exploitation of our forefathers and their resources, then what’s the point calling ourselves a democracy? We’ll just be what we have been for much of our existence since 1914 – a police state.

Op–ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija

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