Investigative journalism, whistle-blowing and laws of defamation, by Adam Basheer

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Adam Basheer
Adam Basheer

The hitherto continued existence of criminal laws relating to defamation of Character in Nigeria has led to declining levels of investigative journalism and whistle blowing, as whistleblowers and journalists live in fear of arrest and persecution, and not prosecution (which wouldn’t have been a problem). In Nigeria though, access to information is made possible through the Freedom of Information Act 2015 and the Code of Conduct Act.

In order to give more life to these legislations; the federal government of Nigeria came up with the Whistle-Blower policy, and enacted the Whistle Blower Protection Act as a counter to internal fraudulent dealings, expose corrupt practices, misrepresentation of facts, failure to declare assets, etc. The Whistle-Blower Protection Act is meant to protect the identity and person of the informant.

Worthy of note are the Laws such as the Penal Code and Criminal Code Act that are used to either  stop or intimidate and jail citizens, for exercising their constitutional freedom of expression and freedom of the press, including those found to be false or go beyond the wish of the ruling elites.

On the other hand, Investigative journalism is a type of journalism that uncovers what others don’t want revealed. An investigative journalist digs deep into the story, whether it is corporate financial corruption, violent crime, or other topics that might not get covered in the everyday news.

“One of the main goals of investigative journalism is to spur change. An investigative journalist might spend years following a politician and uncovering a money laundering crime to protect the people from electing a criminal”.

One notable thing about investigative journalism is prudent and unbiased journalism. This is where a reporter does not release sensitive news, materials or documents to the public, unless and until the reporter has conducted further research and investigation into it ,to ascertain its veracity.

Again, an investigative reporter doesn’t acquire sensitive material just to publish it. Instead they use the information to write and publish a coherent and fact-based article or report.

In 2017, journalist Eric Eyre won the Pulitzer Prize for investigative reporting for his report on opioid overdoses in West Virginia. In a  three part report  for the Charleston Gazette-Mail in 2016, he demonstrated how the pills were getting into the state and causing so many deaths.

In Nigeria, earlier this year, we witnessed how a veteran investigative journalist caused a Minister of Finance to resign.

Thus, investigative journalists regularly run the risk of overstepping legal boundaries. This article discusses some legislations in Nigeria that promote investigative journalism and at the same time, the possible criminal and civil sanctions that can apply to investigative journalism activities, such as conducting research or publishing clandestine information received through informants.

The Whistle Blower Policy and Protection Act

The Federal Government of Nigeria has initiated a whistle-blower policy with the primary goal of supporting  “the fight against financial crimes and corruption, by increasing exposure of financial crimes and rewarding whistle-blowers. In order to promote such exposure, whistle-blowers are encouraged and offered protection from harassment or intimidation by their bosses or employers. The hope is that more looted funds will be recovered through the encouragement of voluntary information about corrupt practices”.

Among the selling points of the policy as stated by the erstwhile minister of finance, are the possibility of increased accountability and transparency in the management of public funds; and the possibility that more funds would be recovered that could be deployed in financing Nigeria’s infrastructural deficit. In the final analysis, it is hoped that the more accountable the government becomes, the higher will be Nigeria’s ranking on the indicators of openness and ease of doing business, whose ultimate goal is to develop a corruption-free society, and attract more and more foreign investors.

The whistle-blower policy consists of three major components. One focuses on the channels for reporting information and the type of information to be reported. Anyone, indicated the minister, who has “authentic information about violation, misconduct, or improper activity which can impact negatively on the Nigerian people and government”, should report it through one or the other of three channels: via SMS; via email; or by logging on to the whistle-blowers’ portal .

The violations include, but are not limited to mismanagement or misappropriation of public funds and assets; financial malpractice or fraud; collecting/soliciting bribes; diversion of revenue; fraudulent and unapproved payments; and procurement fraud (notably, kickbacks and over-invoicing).

The second aspect deals with rewards for reporting fraud: The whistle-blower will get between 2.5 percent (minimum) and five percent (maximum) of the recovered loot, provided that “there is a voluntary return of stolen or concealed public funds or assets, on account of the information provided”.

The third component assures whistle-blowers of protection: “If you feel that you have been treated badly because of your report, you can file a formal complaint. If you have suffered harassment, intimidation or victimisation, for sharing your concerns, restitution will be made for any loss suffered, said the former Minister of Finance.

Laws of Defamation

Not many people are aware that there exists criminal liability for defamation; defamation is a civil wrong as well as a crime. The right to institute an action in court for defamation lies with the individual in the case of defamation as a civil wrong, whereas in the case of defamation as a crime, the state prosecutes the offence.

Sections 393(1) of the Penal Code and 373(a) & (b) of the Criminal Code Act, define and explain a defamatory act as an act that is likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade, by an injury to his reputation.

Defamatory words may be spoken, or written. They can be inferred from signs or objects, or may be expressed either directly or by insinuation of irony.

It should be remembered that defamation is complete upon publication; and publication as defined under the Criminal Code Act refers to bringing the defamatory words (whether written or spoken) to the knowledge of the person defamed or another person. The offence of Criminal defamation is therefore committed when a defamatory matter is published either by speaking defamatory words to the hearing of the person defamed, or in the hearing of any other person, exhibiting defamatory words in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with intent that it may be read or seen by the person defamed or by any other person.

A person who publishes defamatory matter is liable to two years imprisonment (in case of penal Code law of Northern Nigeria) or one year imprisonment (in case of Criminal Code Act), where the person who publishes the defamatory matter is aware that it is false, he is liable to two years imprisonment. In a case where a person blackmails another with the threat of publishing or refraining from publishing defamatory matter, in order to extort or derive some benefit from the person so threatened or blackmailed, the punishment is seven years imprisonment.

There are certain defenses available to a person charged with the crime of defamation.

Investigative Journalism and the Law

In the legislation of many countries’ , conducting undercover research is often illegal and in some cases journalists can face criminal prosecution and sanctions. Investigative journalists could also face civil claims, if they breach privacy rights or commit deception. However, journalistic measures adopted during the research phase can be justified in individual circumstances. This is often the case where there is a high degree of public interest in the information.

While investigative journalism benefits from the high value afforded to the protection of journalistic sources, the protection is not unqualified. In countries without a whistle-blowing policy, where the journalist is suspected of having contributed to a crime, or where the case concerns particularly severe crimes, privilege may not be relied upon.

Journalists’ freedom to operate is governed by an international legal framework that guarantees significant rights, as well as a national legal framework which sometimes are restrictive.

The ‘public interest’ is a key concept in defense against prosecution and/or civil suit that enables a journalist to make a decision. “It refers to information which the public will be better-off knowing, or worse-off not knowing, not simply what interests the public”.

Defamation laws exist to protect individuals’ reputation and dignity. Defamation is the crime of publishing something that could tend to lower a person’s reputation. Publication includes republication from another medium, a quote, or Internet publication. The key defence is that what was published was “true and in the public interest”, and the burden of proof is on the particular journalist to prove that the content of the publication is true and not doctored.

In conclusion therefore, a whistle-blower either through investigative journalism or an inside worker who reports or publishes certain types of wrongdoing, the requirement is that the wrongdoing disclosed must be in the public interest. This means it must affect others, e.g. the general public. A whistle-blower is now protected by the law, which protects one from being treated unfairly or losing his job because he/she ‘blew the whistle’.

Mr Basheer writes from Kano. He can be reached through adambasheer08@gmail.com