Cute Abiola’s Skits And The Constitutionality Of Sections 251 And 133 Of The Criminal Code And The Penal Code Laws Respectively

By Ekojoka Aghedo Esq.

The Nigerian Police Force this week on Tweeter tweeted that they “vehemently condemn the contemptuous act displayed by comedian Abdulgafar Abiola, popularly known as “Cute Abiola”, in two recent skits posted on his social medial handles …. The skits in question show a highly disrespectful and derogatory portrayal of the police uniform, an action that is in direct violation of section 251 of the Criminal Code and section 133 of the Penal Code Law.”

I seek to address whether the conduct of Cute Abiola is considered speech. If yes, whether such speech is protected. Further, if the speech is protected, whether sections 251 and 133 of the Criminal Code and Penal Code respectively, are not inconsistent with the Nigerian Constitution to the extent that it seeks to criminalize a protected speech.

It is not in doubt that section 39 of the 1999 Constitution of the Federal Republic of Nigeria protects the speech and expressions of individuals from interference. The right to freedom of speech allows individuals to express opinions and ideas without interference, censorship, or punishment by the government.

The purpose of this protection is to allow speech a breathing space to survive because free speech is vulnerable yet supremely precious to the survival of our society. NAACP v. Button, 371 U. S. 415, 433 (1963). Further, the right to free speech is valued as both an end and a means because free speech is the recipe for a viable republic. Punishment of speech is unwise because it is hazardous to discourage thought, hope and imagination.  Fear breeds repression; repression breeds hate; hate menaces a stable government; but the path to safety lies in the opportunity to discuss freely supposed grievances and proposed remedies. Whitney v. California 274 U.S. 357 (1927).

If free speech means the right to express opinions and ideas without interference, censorship, or punishment by the government, does Cute Abiola’s conduct of wearing a police uniform in a skit qualify as protected speech? Case laws from other jurisdictions may provide a guide.

The right to free speech is generally understood to protect the individual’s right to think and communicate his ideas. People usually communicate through symbols other than words. Such forms of communication are considered expressive conduct. Accordingly, such expressive conduct is generally classified as speech under free speech jurisprudence. To deny any individual the right to such expressive conduct undermines the rationale for free speech and the loss of one of the most effective means of communication. Erwin Chemerinsky, Constitutional Law Principles and Policies, 4^th Edn.

In Spence v. Washington 418 U.S. 405 (1974) an individual who taped a peace sign on an American flag after the killing of students was convicted of violating a penal law that prohibits flag desecration. The United States Supreme Court was presented with the question of whether the individual’s conduct was protected speech. The court explained that for conduct to be considered a protected speech, the individual’s conduct must have an intent to convey a particularized message, and in the circumstance the likelihood that the message would be understood by those who viewed it.

Cute Abiola’s skits depict the corruption in the Nigeria Police Force. It cannot be reasonably argued that his conduct in the videos complained about by the Nigerian Police Force do not convey a specific message, nor can anyone reasonably argue that the message conveyed will not likely be understood by his audience.

It follows that Cute Abiola’s skit depicting the endemic corruption of the Nigerian Police is an expressive conduct that qualifies as speech.  Another example may help clear the mind of those who think wearing a uniform does not qualify as speech. In Tinker v. De Moines Independent Community School District, 393 U.S. 503 (1969) the court stated that wearing a black armband to protest the Vietnam War is akin to “pure speech”. In free speech analysis what matters is whether the conduct is expressive, conveys a message and the likelihood that the message is understood. When these factors are identified, the individual’s conduct qualifies as speech.

The next point is whether Cute Abiola’s speech which the Police find unfavorable is protected. The very core of the right to freedom of speech is that the government cannot regulate speech based on its content or viewpoint. Viewpoint restrictions are presumptively invalid. See Turner Broadcasting System v. Federal Communications Commission 512 U.S. 662 (1994), R.A.V v. City of St. Paul, 505 U.S. 377, 382(1992).  If the right to free speech under the Constitution means anything at all, it means the right to tell people what they do not want to hear.

This leads us to the next question regarding whether the criminalization of Cute Abiola’s speech is constitutional.  The Nigerian Police Force partly relies on section 251 of the Criminal Code Act to justify their position referenced in the first paragraph above from which they would prosecute Cute Abiola. The law for the avoidance of doubts states that:

Any person who, not being a person serving in any of the armed or police forces of Nigeria, wears the uniform of any of these forces, or any dress having the appearance or bearing any of the regimental or other distinctive marks of any such uniform, in such manner or in such circumstances as to be likely to bring contempt on that uniform, or employs any other person so to wear such uniform or dress, is guilty of a simple offence, and is liable to imprisonment for three months or to a fine of forty naira. (Emphasis added).

The provisions of this law seek to punish individuals who wear uniforms or dresses that “in such manner or in such circumstances as to be likely to bring contempt on that uniform”. In other words, if the wearing of the uniform does not seem to bring “contempt” to the armed or police forces of Nigeria, an individual will not face criminal punishment. Simply put, the provision discriminates against speech that is unfavorable to the Police. The Constitution forbids this viewpoint restriction. The Nigerian Supreme Court in Arthur Nwankwo v The State (1985) 6 NCLR 228, 237 has held that:

The decision of the founding fathers of the present Constitution which guarantees freedom of speech which must include freedom to criticize should be praised and any attempt to derogate from it except as provided by the Constitution must be resisted. Those in public office should not be intolerant of criticism in respect of their office so as to ensure that they are accountable to the people. They should not be made to feel that they live in an ivory tower and therefore belong to a different class. They must develop thick skins and where possible, plug their ears with wool if they feel too sensitive or irascible. (Emphasis added).

It is submitted that the law is unconstitutional to the extent that it seeks to punish expressions that are not favorable to the armed and police forces.  Any law that seeks to punish speech because of its subject, content or viewpoint is presumptively unconstitutional.  See R.A.V v. City of St. Paul, supra where Justice Scalia wrote that a law that prohibited speech based on the subjects the speech addresses was “facially unconstitutional”. For example, in Schacht v. United States, 398 U.S. 58 (1970) the United States’ Supreme Court declared a federal law that allowed wearing a military uniform only “if the portrayal does not tend to discredit the armed forces” unconstitutional because it interferes with the right to free speech.

The Schacht Case involved an individual who participated in a skit performed several times in front of an Armed Forces induction center demonstrating opposition to American involvement in the Vietnam conflict.  The Court agreed that the last clause in the statute that denies the constitutional right of an actor who is wearing a military uniform by making it a crime for him to say things that tend to bring the military into discredit and disrepute was unconstitutional.

The whole essence of the right to free speech is to allow individuals to express opinions that others do not like. Under the provisions we seek address herein, Cute Abiola is free to wear a police uniform or dress; and participate in any skit that praised the police, but, under section 251 above, he could be convicted of an offence if his portrayal attacked the Police instead of praising it. Clearly, punishment, for this reason, is an unconstitutional abridgment of the freedom of speech based on its viewpoint restriction.

It is therefore concluded that Cute Abiola’s conduct is a protected speech for which he cannot be punished under the law; and because sections 251 and 133 of the Criminal Code and Penal Code, respectively seek to punish his protected speech, they are inconsistent with the Constitution and therefore unconstitutional.

Credit: TNL