PRESS FREEDOM AND NATIONAL SECURITY
(This is a abridged version of a paper l delivered at Nigerian Institute of Advanced Lagal Studies, Lagos on Wednesday, June 29, 2011)
In the last couple of years, prof. Ralph Akinfeleye of the Department of Mass Communication, University of Lagos, has been periodically inviting me to teach this subject of press freedom and National Security with the Masters Degree class.
The term National security is very fluid, depending on who is interpreting it. To some socially concerned people, lack of employment, poverty and social inequality constitute “National security” challenge. As a matter of fact, these twin factors have been largely responsible to the mass revolution in the Arab world, which was triggered off when an oppressed man set himself ablaze in Tunisia, leading to the ignition of revolution in that country.
However, to those in government, particularly in Africa, National or State security has been elevated to personal interest of those at the helm of affairs. Security agencies for example, have arrogated to themselves on what constitutes National security. There have even been suggestions in the past by some security outfits that instead of the press to publish certain things, they should just notify the agencies. This was the kernel of the assertion of Col. Kunle Togun, former Deputy Director of States Security Service(SSS) under General Ibrahim Babangida.
Speaking to airport correspondents on October 27, 1986, few days after the letter bomb murder of Dele Giwa, founding Editor-in-Chief of Newswatch, Col. Togun said inter alia: “..You were not at a Seminar initiated by Dele and Ibru for all media Executives and SSS. In that meeting, we came into a compromise, I mean utmost secrecy. And there and then, we agreed that any story that will be damaging to the State, will be brought to the notice of the SSS and we decide what to do with it. I mean we came to real secrecy and one person cannot come out and blackmail us. I am an expert in blackmail, l can blackmail very well. So nobody can come and blackmail us after an agreement. If a motorcycle man suddenly dashed into the front of a driver and the driver kills that motorcycle man, another motorcycle man who was not there would not say the motorcycle man was wrong. He would say I deliberately killed him, not knowing that he killed himself…” (See pg 95-96 of the book-MURDER OF DELE GIWA-THE ANSWERED QUESTION by Richard Akinnola). This is an obvious lie again a dead person.
Looking at this issue from this context, it would appear that part of the modus operandi of security agencies is to get Editors to inform them of perceived security threats instead of publishing same. With due respect, I disagree with this method.
James Deaken, an American journalist who covered the White House for over 25 years and should know better posits: ”The government and the press should function at arms length. If they do not stay apart, if their purposes are forced into an artificial and unnatural agreement, the nation is harmed. The purpose of the press and the purposes of the government are not the same, should not be the same, cannot be the same”. I agree entirely with him.
Though section 39 of the 1999 constitution gives us freedom of expression, it is subject to the limitations contained in section 45(1) as no right is absolute.
But there will always be a conflict between the right of the people to know and national security implications.
Although, the presence of the Official Secrets Act of 1962 in our statute books seem to be of concern despite the passage of the FOI Act, it should be gratifying that that section 28(1) of the Act seems to have taken charge of that concern where it states that “Notwithstanding anything contained in the Criminal code, Penal code, the Official Secrets Act, or any other enactment….”
However, section 12(1) of the FOI Act exempts “disclosure of which may be injurious to the conduct of International affairs and the defence of the Federal Republic of Nigeria”.
Perhaps, it is necessary to quote relevant sections of the Official Secrets Act which a public official may adopt.
Section (1)”subject to subjection (3) of this section, a person who
transmits any classified matter to a person to whom he is not authorized on behalf of the government to transmit it; or
obtains, reproduces and retains any classified matter which is not authorized on behalf of the government to obtain, reproduce or retain, as the case may be, shall be guilty of an offence.
- A public officer who fails to comply with any instructions given to himself of the government as to him safe finding of any classified matter by virtue of his office is obtained by him or under his control, shall be guilty of an offence.”
Ironically, this law was promulgated by Nigerian’s first civilian democratic government and has remained in force since September 13, 1962.
As the name connotes, the intent of the law is to keep in government’s closet, what it purports to be its secrets, issues that ought to be in public domain, which is quite at variance with the FOI Act and section 22 of the 1999 constitution, which gives the media the responsibility to make government accountable to the people. The law, no doubt, is antithetical to openness, accountability and democratic norms and should be repealed without further delay.
Unfortunately, my recourse to the judiciary in respect of this in 1999 met with brick wall. In view of the large casualties of Nigerian ECOMOG soldiers in Sierra Leone, I had approached the ministry of Defence to avail me to total casualty figures of Nigeria soldiers and also how much Nigeria had spent on ECOMOG in Liberia and Sierra Leone. They refused and I went to court. But the court in its ruling in the case of Richard Akinnola v. General Abdulsalami Abubakar and 4 others(suit no FHC/L/CS/99), held that “The right to disclose information by Government touching its Armed Forces or regarding its operation of war is not a Fundamental Right within the provisions of Chapter iv of the 1979 constitution which in essence is what this application is all about.”
No doubt, this issue of press freedom and national security has always been a global concern. It is apposite at this juncture to refer to an excerpt of the submission of Geoffrey R. Stone, a professor of Law at the University of Chicago to the House Special Committee on Intelligence, in anticipation of its consideration of possible legislation to deal with the publication of classified information by the press in 2006 particularly with the First Amendment still in force:
“A central question before the Committee is this: Should the United States criminally punish the press for publishing classified information? This inquiry poses a prospect unprecedented in American history. For more than 215 years, the United States has managed to flourish in the absence of any federal legislation directly prohibiting the press from publishing government secrets. The absence of such legislation is no accident. It clearly fulfills the promise of the First Amendment: “Congress shall make no law . . . abridging the freedom . . . of the press.” The First Amendment is not an absolute. The press may be held accountable for publishing libel, obscenity, false advertising, and the like. As the Supreme Court observed more than sixty years ago, ‘such utterances are no essential part of any exposition of ideas, and are of such slight value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ But government secrets are something else entirely. There is nothing inherent about government secrets that would make their publication of only “slight value as a step to truth.” To the contrary, the publication of government secrets may be extraordinarily valuable to the proper functioning of a self-governing society. Indeed, the very notion that the United States would punish the press for publishing government secrets seems incompatible with the most fundamental tenets of public accountability. But, of course, there are secrets and there are secrets, and in exploring this matter it may be helpful to distinguish three different types of secrets. First, there are what we might call “illegitimate” government secrets. In this category of secrets, government officials are attempting to shield from public scrutiny their own misjudgments, incompetence, misconduct, venality, cupidity, corruption, or criminality. In a self-governing society, it is vital that such secrets must be exposed. What makes this difficult is that government officials attempting to maintain such secrets may invoke the claim of national security as a cover. We know from historical experience that this happens all-too-often. Second, there are “legitimate but newsworthy” government secrets. The publication of such a secret may harm the national security and have substantial “value as a step to truth.” For example, the publication of secret information that Army rifles routinely misfire might be both harmful and beneficial to the national interest. Or the publication of secret information that the security of our nuclear power plants is inadequate might both endanger and further the national interest. In such situations, it is often difficult to know which effect predominates. Third, there are “legitimate and non-newsworthy” government secrets. The public disclosure of such secrets may harm the national security and have only “slight value as a step to truth.” An example would be a publication disclosing that the United States has broken the enemy’s code, in circumstances in which this disclosure furthers no legitimate public interest. Of course, whether any particular publication furthers a legitimate public interest is commonly a matter of dispute, so it may be easier to state this category in the abstract than to apply it in practice. In principle, the government should never be able to punish the publication of “illegitimate” secrets and should be able to punish the publication of “legitimate and non-newsworthy” secrets. The middle category, which is no doubt the largest, is the most difficult to assess because there are both real costs and real benefits to disclosure. A central challenge to a free society is to distinguish wisely among these three types of secrets. Particularly in the context of criminal prosecutions of the press, the problems of complexity and vagueness can be daunting. To provide reasonable guidance to the press, avoid chilling the publication of information that is important to the public interest, and limit the dangers of unchecked prosecutorial discretion, we need clear, simple, straightforward rules. Such rules, by definition, will be imperfect. They will inevitably protect either too much or too little expression, and they will inevitably protect either too much or too little secrecy. This is a dilemma.”
No doubt, this is the dilemma we face today and the argument continues.
How do we contextualise the CNN coverage of the Iraqi forces war in dislodging ISIS from its territory with the Daily Trust story? In the CNN report, they were reporting that the US-backed Iraqi forces would soon attack ISIS-held territories like Mosul and Fallujah, while the Trust story spoke about Nigerian Army planning to retake Baga from the terrorists. However, considering the heavy casualties suffered by the Nigerian Army in recent times in its war against Boko Haram, discretion should have been exercised. But again, we are faced with a situation where the army itself had denied that Baga fell. So, if Baga did not fall, there shouldn’t be any fret over its supposed plan to retake Baga as published.
Also, after the killing of Osama bin Laden by the American Special forces called SEALS, one of the SEALS operatives quit the service and wrote a book on the operation. American government kicked, arguing that it was against National Security. The former operative insisted and published the book. The court refused to stop the publication because of the First amendment in the American constitution which says that freedom of expression must not be abridged.