CRIMINAL LAW 2.11 TREASON AND SEDITION
The law regards as paramount, the safety and stability of the state and its leaders. The offences of treason and sedition are therefore part of the measures put in place to ensure this.
In simple language connotes the act of levying war against the state. Abandoning you allegiance to the state.
Section 37 of the Criminal Code provides that anybody who levies war against the state (or conspires to) in order to overawe the president or governor of the state (R V Boro) is guilty of treason and liable to punishment of death.
In Enahoro V R, the court held that a conspiracy to commit treason should be charged under Section 37 rather than Section 516 dealing generally with conspiracies. In this same case, it was held that the accused person(s) need NOT be members of the armed forces, their size is irrelevant and their weapons need not be sophisticated.
In R V Vaughan, it was held that enlisting and marching are sufficient without battle.
This provision applies to every person home or abroad so long as he has connection with Nigeria.
Note that where the alleged act is done for private purpose (to redress a private grievance), it would be seen as a riot.
Section 40 levies life imprisonment on accessories after the fact and those that fail to prevent the commission of treason.
Query: In your opinion, would the Boko Haram situation amount to treason? What about the agitation for an indigenous people of Biafra?
TREASONABLE FELONY: is set out in Section 41 with life imprisonment. It simply is committed where any person attempts to remove a legally elected president or governor through unlawful means… Or make him change his measures other than by lawful means.
:: The Constitution provides for lawful instances where a legitimately elected president or governor can be removed. That is; by –Resignation (See Section 135 of the 1999 constitution); -Impeachment (See Section 143 or 188 of the 1999 constitution for President and Governor respectively); -Lapse of tenure (See Section 135 Constitution); -Declaration of incapacity (See Section 144 of the 1999 constitution).
By Section 43 of the Criminal Code, Prosecution for treason must commence within two years from the commission of the offence. Furthermore, there can be no conviction except on plea of guilty or on evidence of at least two witnesses, with one witness testifying to the overt act of the kind of treason alleged.
Section 42 of the Criminal Code is against an act or conduct which seeks to promote native wars.
The law tries to strike a balance between freedom of expression and the security of the state and its government. To this effect, the offence of sedition has been created in Section 51 of the Criminal Code and Section 416 of the Penal Code. The law of sedition, (just like defamation) curtails the right to freedom of expression as guaranteed under Section 39 of the 1999 constitution (Same protection can be found in Article 19 of the United Declaration on Human and Rights, Article 19 of the African Charter on Human and People’s Right and other international instruments).
Sedition can be seen as an act or statement calculated to incite rebellion against the government… bring the president or the governor into hatred. Promote disaffection, hatred and division among the people.
A layman may say that sedition is like the law of defamation but it is in relation to the president or governor. He may not be totally incorrect. Provided such statements are calculated to incite rebellion/hatred for the government/leader.
Ademola FCJ in DPP V Obi noted that a person has the right to criticise and notify the government of their weaknesses and proffer solutions. So long as he keeps within the limits of fair criticism. Malignant criticism shall not be condoned as it tends to disturb public peace and may amount to sedition.
Blackstone in his commentaries on the laws of England noted that the law of sedition is necessary for the preservation of public peace and order.
The court submitted in R V Aldred that in determining sedition, the facts, language, audience and circumstances of publication needs to be taken into consideration. What may be seditious to “young and uneducated men” may not have an effect on professors or divines. Publication to the world or a wider audience than required rather than the appropriate person may suggest a seditious intention.
Section 51 Punishes anybody who attempts/attempting to do an act with seditious intention, utters, prints, publishes, distributes or imports seditious articles or words. Unless he has no reason to believe that the article/material is seditious.
In Ogbuagu V Police, the court noted that to publish means to make known to another and every time this is done, a distinct offence is committed.
Seditious Intention: as provided under Section 50(2) and means where the act or statement is calculated (not necessarily expressly intended) to incite rebellion against the government… bring the president or the governor into hatred. Promote disaffection, hatred and division among the people.
Section 50(3) provides that a person shall be presumed to intend the natural consequences which would follow naturally from his conduct. I.e. what would a reasonable person expect to be the outcome of his speech on the people towards the government rather than asking what the accused actually intended.
Note also that it has been established and held in a number of cases that the truth of the statement is irrelevant-Service Press V AG Federation. But note that the truth of the statement may be useful in proving whether the intention is reasonably present or lacking.
In DPP V Obi, the court held that a publication directed against the federal government containing the statement; “down with the enemies of the people, the exploiters of the weak and oppressors of the poor” was seditious.
In African Press Ltd V R, the court found sedition where the publication contained the statement that administrative officers are incompetent and disguised enemies of the struggle for freedom.
In African Press Ltd V Attorney General, the court held that the newspaper article accusing the regional government of abuse of office, embezzlement and corruption was seditious.
In R V African Press, the court held that to accuse member of the police force of being corrupt in the administration of justice amounts to sedition.
Section 50(2 (I-IV)) goes further to show instances that CANNOT amount to sedition. These include:
An act, speech or publication which intends to;
- Show the president or governor that he has been misled or mistaken.
- To point out errors or defects in the government or constitution of Nigeria with a view to remedying such errors or defects.
- To persuade citizens of Nigeria to attempt to procure alteration by lawful means.
- To point out matters that produce ill will among different classes of Nigeria with a view to removing them.
Worthy of note is the ambivalence of some judges who may see sedition as a serious affront to the right to expression. For example, in Nwankwo V The State, the Court of Appeal held that the offence of sedition under the Criminal code is inconsistent with Section 39 of the 1999 Constitution and the derogation in Section 45 cannot justify sedition.
The following cases should be read for a deeper understanding: Ogidi V State, 1960 5 SC251, R V Osita Agbuna 1944 waca at page 12, DPP V Chike Obi. 1961 NSCC at 104
- The accused can prove that the words are not seditious.
- The accused can show that he was ignorant of the matter or did not authorise the publication- Ogbuagu V
- One who imports a seditious article is not liable if he has no reason to believe that they are seditious.
- Other exceptions under Section 50(2) (I-IV) of the Criminal Code as noted earlier here.
In conclusion, one should note that the written consent of the AG is needed to prosecute for sedition. Also there can be no conviction unless the testimony of the witness is corroborated. Finally; by Section 52(3) CC, the prosecution for sedition must be brought within 6 months from the commission of the offence.