Media Obligations and the Disclosure of Official Secrets: An Appraisal of the Thin Line

By Dotun Odunlade Nathaniel                                                       

ABSTRACT

This paper discusses the media Vis a Vis the disclosure of official secret, focusing on the rights and responsibilities of the press and the media on the one hand and on the other hand the status of the disclosure of official secrets. Efforts are further expended on the breakdown of regulations that bothers on the media and the disclosure of official secrets which include the constitution of the federal republic of Nigeria, the official secrets act, the freedom of information act and the criminal code, with a view to dig out the thin line between the rights of the press and the disclosure of official secrets. In so doing, this paper reveals and review real cases of disputes and clashes between the media reporters and different governmental organizations within the Nigerian jurisdiction and without; the decision of the court in these cases and the way forward. This paper goes further to show by conclusion how the constitution still supersedes the freedom of information act as the rights of the media is made subject to public interest, national security and public morality which as we will see, may have whatever interpretation the governmental organization decides to give it. As a final step, this paper provided recommendations to the impediments of our society as orchestrated by our laws and governmental organizations.

INTRODUCTION

In a sane country, the possible jeopardy of the security of such country should be the need for the censorship of an information, not whether it embarrasses the government or otherwise. The Media Vis a Vis the disclosure of official secrets has been a topical issue for ages. There is media law which houses the regulation of the media, freedom of the press, freedom of expression and the likes on one hand, there is also the disclosure of official secrets being an full stop to the rights of expression as it relates to the media on the other hand. There are many theories as there are many argument as it relates to the media and the disclosure of official secrets. The forerunner of these arguments is that an information marked as a secret does not insinuate that contents of it cannot be shared with the public, the contents of it must be further examined to determine whether the contents, if shared with the public could puncture the security of the nation.[1]

Before moving further, there is need to throw light into the definition and break down of the topic.

WHAT IS MEDIA LAW

To begin with, Media refers to one of the medium through which information is passed and it essentially serves as a middle-man between the government and the people. With the recent growth in the Media and Entertainment industry the use of the internet for media consumption has mobilized this growth and regulations must be in place to put its utility in order. In the past years, the Over the Top (OTT) platforms offer curated video content that is probably suited to the needs and demands of the individuals. The contents displayed through this platform are highly against ethics; highly use of obscenity, vulgarity, content that can hurt religious sentiments, defamations and many other obscene shows, but no action can be taken as OTT platforms are not regulated by any legislation. Some specific laws or legislation must regulate media platforms to ensure cultural diversity. Media law thus relates to the regulation that guides the media, oversee its affairs and control expression. This goes along with section 39 of the constitution of the federal republic of Nigeria, 1999 which provides for the freedom of expression and the right to hold opinion and to receive and impart information without interference.[2] In relation to this topic however, there is a popular saying that your rights ends where that of another person begins, this is to the effect that regardless of the existence of rights, it does not make the exercise of it absolute. As much as the media has the right to collect, publish and broadcast information, so also must they be cautious of infringing on the rights another, for instance, the defamation and disclosure of official secrets to mention a few.

Moreover it is important to regulate media in order to ensure the cultural diversity in media content and to provide the free space to put forward various opinions and ideas without censorship. Some specific laws or legislation must regulate this platform to ensure cultural diversity. These laws amongst other numerous ones are what are collectively regarded as media law, in the sense that they help to keep the media in line with the fulfillment of the law.

DISCLOSURE OF OFFICIAL SECRET: AN EFFORT TO DESCRIBE WHAT IT MEANS. 

In an effort to describe what the disclosure of official secret is, it must first be brought to light, what a classified matter is. Relying on SECTION 9 OF THE OFFICIAL SECRET ACT, a classified matter means any information or thing which, under any system of security classification, from time to time, in use by or by any branch of the government, is not just to be undisclosed to the public but also of which the disclosure to the public would be prejudicial to the security of Nigeria. It is thus safe to conclude that an official secret is any classified matter which only is not to be disclosed to the public but also that which its disclosure would be prejudicial to the security of Nigeria hence, why the disclosure is warned against as it carries criminal charges.

The locus classicus of regulations directly relating to the disclosure of official secret is the OFFICIAL SECRETS ACT OF 1962.  The law provides in section 1 of it thus;

(1) Any person that transmits any classified matter to a person to whom he is not authorized on behalf of the government to transmit it; or obtains, reproduces or retains any classified matter which he is not authorized on behalf of the government to obtain, reproduces or retain as the case may be, is guilty of an offence.

(2) A public officer who fails to comply with the instructions given to him on behalf of the government as to the safeguarding of any classified matter which by virtue of his office is obtained by him or under his control is guilty of an offence.

The explanation of the above provisions as regards the meaning of an official secret and its disclosure is that the disclosure of an official secret which when done, has the possibility of jeopardizing the peace of the nation.[3]

LEGISLATIONS DIRECTLY AFFECTING THE DISCLOSURE OF OFFICIAL SECRET

There are several legislations directly relating to the disclosure of official secret and the regulation of mass media itself. It has already been addressed that media law is the regulation of the mass media and official secret on the other hand is such information which a person does not have the clearance to divulge but also, if divulged will tamper with the security of the nation. Amidst addressing the legislations which directly affects the disclosure of official secrets, there are also legislations which empower the media to relate information to the people as it is pertinent to discuss the rights before discussing the limitations.

1. 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

The constitution is undoubtedly is the locus classicus of all laws in the country, its provision takes precedence over other legislation. SECTION 22 provides thus:

“The press, the radio, the television and other agencies of mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the government to the people”[4]

The fundamental objectives contained in the chapter II of the constitution is the responsibility of the press to uphold, the press is empowered by section 22 to hold the government accountable to the people for same. By virtue of the above provision, the constitutional power, function, right, duty and obligation of the press to Nigerian nation and its people are in two folds. These are:

• To uphold and help the government realize the Fundamental Objectives and Directive Principles of State Principles of the State Policy, as set forth in the Nigerian constitution.
• To be a watchman, to uphold the responsibility and accountability of the government to the Nigerian people.

2. FREEDOM OF INFORMATION ACT

The freedom of information act of 28^th day of May 2011 was enacted into law by the National Assembly of the Federal Republic of Nigeria. It is an act to make public records and information more freely available, public access to public records and information, protect public records and information to such extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes and; for related matters.

Section 1 of the act explains that any person shall have the right to access or request for any information which is in the possession of any public official.[5] Such person is not required to demonstrate any specific interest in the information sought for.[6] Such person has the right to institute an action before the court to compel such public institution to comply with the provisions of the act.[7] The act further mandates public institution to conduct itself in a manner that facilitates the availability of information to the public.[8] The above provisions being an introductory part of the act, section 4 introduces the media to the law. It provided thus:

“A public institution shall ensure that information referred to in this section is widely disseminated and made readily available to members of the public through various means, including print, electronic and online sources, and at the offices of such public institutions”[9]

Media as we know takes different forms in the 21^st century; the above section introduces the media to the law when it provided that the availability of information referred to in the act shall be ensured by public institutions through prints, electronic and online sources. These institutions have their websites and online platforms, they publish information on these platforms and media houses, newspaper publishing companies and others pick it up from there. The act further makes it an offence punishable by one year imprisonment for any officer in a public institution to falsify, alter or doctor any information requested by anyone the act gives the right.[10] This is to the effect that any information about any public institution requested is to be delivered pure and unfiltered as the doing of otherwise is offensive and punishable by the law. The reason for this is not far-fetched, if a person requesting information needed a lie, such person could have approached a soothsaying organization. The deliverance of requested information about a public institution is to be delivered as it is without being engineered, otherwise, it defeats the purpose for which it is needed in the first place.

3. OFFICIAL SECRETS ACT

The official secrets act is the very first act that frowned and pronounced punishment against the disclosure of official secrets. The act provided thus:

1. Any person that transmits any classified matter to a person to whom he is not authorized on behalf of the government to transmit it; or obtains, reproduces or retains any classified matter which he is not authorized on behalf of the government to obtain, reproduces or retain as the case may be, is guilty of an offence.[11]
2. A public officer who fails to comply with the instructions given to him on behalf of the government as to the safeguarding of any classified matter which by virtue of his office is obtained by him or under his control is guilty of an offence.[12]

Before a person can be in breach of the official secrets act, he must have done an action with respect a classified matter which he is not authorized to do, according to the act, a classified matter is defined as means: Any information or thing, which under any system of security classification, from time to time, in use by or by any branch of the government, is not to be disclosed to the public and of which the disclosure would be prejudicial to the security of the Nation.[13]

Being an offence, it carries a sentence by imprisonment and the term is an imprisonment term not exceeding 14 (fourteen) years.

4. CRIMINAL CODE 

The criminal codes also have a provision that pertains to the disclosure of official secret. This is provided for in SECTION 97 which provides thus:

(1) Any person who, being employed in the public service, publishes or communicates any fact which comes to his knowledge by virtue of his office, and which it is his duty to keep secret, or any document which comes to his possession by virtue of his office and which it is his duty to keep secret, except to some person to whom he is bound to publish or communicate it, is guilty of a misdemeanor, and is liable to imprisonment for two years.[14]

(2) Any person who, being employed in the public service, without proper authority abstracts, or makes a copy of, any document the property of his employer is guilty of a misdemeanor and is liable to imprisonment for one year.  [15]

MEDIA AND THE DISCLOSURE OF OFFICIAL SECRETS: THE CONFLICT

Over the years, there has always been a conflict between media law and the media against the disclosure of official secrets. By this, I speak of the conflict between the freedom of information act which gives the right to any person to obtain information from any organ of government and the official secrets act which incriminates the disclosure of some government secrets for the sake of national security. It must be noted that the punishment established in section 97 of the criminal code incriminates a public officer, the government or such public institution in the quest of punishing the source of whatever information published who in most cases is a public officer, employ all sorts of means to have the media divulge the source of the information, an adventure which the section 39(1) of the constitution frowns against. To examine the conflict in these laws, we must first examine the case of the NIGERIAN POLICE FORCE AGAINST SAMUEL OGUNDIPE.[16] Samuel Ogundipe at the time of the case was a Nigerian journalist that worked for premium times. He published a story which has secret information about the police force in it; he was later arrested and asked to reveal the source of his information. The dispute eventually came as conflict between the freedom of information act and the official secret act, as in, the journalists right to obtain information from any government agency and the obligation of any government agency to see to it that official secret are kept official as the disclosure of them could tamper with the peace and security of the nation. Samuel Ogundipe was later charged to court under the penal code for the theft of classified documents before the magistrate court before NGO’s interfered. According to legal opinions, the case against Ogundipe is a difficult one to prove, this is because he has refused to reveal the source of his information which is within his rights[17] and he does not work in the police force for him to directly have access to the information. This dispute falls directly as a conflict of law between the official secret acts, the constitution and the freedom of information act. To this effect, there are several legal opinions by scholars, the conclusion of which resolves that the due to the freedom of information being passed into law in 2011, the official secrets act of 1962 has by implication gone into extinction though there are still limitations in the constitution.[18] This means that a person can no longer be brought before the court in breach of the provision of the official secrets act as argument will be raised against same from the freedom of information act and the freedom of information act has driven the official secret act into extinction. This is to the effect that the era of keeping government activities and correspondences a secret has come to an end, information with regards a government institution has by the freedom of information act become accessible to the public just by application for it. There are however exceptions to this;

1. Where the disclosure of such official secret will be a threat to national security.[19]

2. Where the disclosure of such information will be injurious to international affairs.[20]

3. Where the disclosure of such information is reasonably expected to facilitate the commission of an offence.[21]

4. Where the disclosure of such information will reveal the personal information of another person[22] (unless such individual consent to the disclosure of his or her personal information).[23]

5. Where the disclosure of such information will reveal trade secrets and commercial or financial information.[24] And other exceptions.

But the biggest exception which has in fact been the major stumbling block to the free exercise of the rights of the media is that which is provided in the constitution.[25]

The allowance of the disclosure official secret does not mean that the disclosure of same cannot be prosecuted. The disclosure must fall in one of the above exceptions or more for this to be pursued by the government, only that such actions cannot be brought under the official secret act. It can be brought under the section 97 of the criminal code or the penal code or under section 39(3) of the constitution of the federal republic of Nigeria which provides thus;

The freedom of expression to hold opinions, and to receive and impart ideas shall not invalidate any law which is reasonably justifiable in a democratic society for the purpose of preventing the disclosure of information received in confidence.

This means that the combined reading of section 39(1), section 22 of the constitution and the freedom of information act does not invalidate any other law which protects the security of information received in confidence and other official secret just like the section 97 of the criminal code does. This happened in the case of TONY MOMOH V THE SENATE[26] in the case, Tony Momoh was summoned to the senate to disclose the source of his information in respect of a story which he published in his newspaper, Daily Times, which the law makers found offensive, the appellant filed an action at the High court of Lagos state to stop the law makers from effecting their resolution, the court ruled in his favor in the reasoning that an effort to compel a person to disclose the source of his information published in the newspaper is an interference with the freedom of the press guaranteed by the section 39(1) of the constitution. Dissatisfied with the ruling, the senate appealed to the court of appeal, the court gave a rather paradoxical ruling, on the first hand, the court held that the power of investigation of the senate granted by the section 82(2) of the constitution does not confer the right to investigate any member of the society about their actions. On the other hand, the court ruled that any person that fails to disclose the source of his information does so at his own risk.[27] Same was decided in the case OYEGBEMI AND ORS V. ATTORNEY GENERAL OF THE FEDERATION[28]  Where the court explained that no person be he an editor, reporter or publisher of newspaper can be compelled to disclose his source of information for any matter published by that person and nondisclosure cannot be contempt of court, save in the protection of the interest of justice, national security public safety, public order, morality, welfare of persons or prevention of disorder or crime. Consequently, the right to withhold information is like all other freedoms, not absolute.

Section 45(1) of the constitution however put an end to every other thing that may be known as freedom of the press when it provided thus:

Nothing in section 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society;

1. In the interest of defense, public safety, public order, public morality of public health
2. For the purpose of protecting the rights and freedom of other persons.

This eradicates anything freedom of the press as all that an aggrieved party needs to claim is that the information which is the res of the dispute is protected in the interest of the content of the above section. It is possible that a document termed “confidential” or “official secret” may in fact not be any of the two, it may be a normal and random correspondences shared between two offices or departments which however may have aroma of embarrassing the office holders and thus term it “confidential” or “official secret”. Observing the possibility of abuse of the phrase “official secret” has made it difficult to actually decipher what in the eyes of the law is actually an “official secret” The conclusion has been made in other jurisdictions that in order to conclude on what is actually an official secret by law, the content of the document[29]must be examined to conclude whether the content possess the possibility of injuring the peace of a nation or that of the office holder.[30]

CASES DRAWN FROM OTHER JURISDICTIONS

Some of these cases, though from other jurisdictions are as follows;

• In 2002, Iftikhar Gilani, a journalist of Jammu and Kashmir was charged under the Official Secrets Act for releasing secret documents. After the investigations and procedures, it was found that the published documents were not of secret nature and is easily available in open sources. In 2004, the case was withdrawn by the government and Mr. Gilani was released.

• In 2007, General V.K Singh, BJP MLA and former army chief were charged under the Official Secrets Acts for publishing a book titled ‘India’s External Intelligence: Secrets of RAW. His house was also raided in the process.

• In 2009, Santanu Saika, a journalist of the Financial Express published an extract from a cabinet note. It was held by the Delhi Court that a publication of a document merely labeling the word ‘secret’ does not make journalists punishable under the Official Secrets Act. The Sama Alana Abdulla vs. State of Gujarat and State (NCT of Delhi) vs. Jaspal Singh has similar references, “A person cannot be put on trial merely because a document has been marked as secret, as it is necessary to see the nature of the information contained in it, to find out if any offence under the Official Secrets Act is made out or not.”  Again in 2015, Saika was arrested for writing stories from a document which was regarded stolen from the government under section 5 of the Act.

• In 2016, ‘The Hindu’, a news and media platform was claimed to have stolen confidential and secret documents of Rafale agreement from the Ministry of Defense. The documents were published as investigative journalism. Soon the claim was revoked under Section 8(1) (a) and 8 (2) of the Right to Information Act, 2005 which provides the provision to release documents in the public interest.

• In 2018, Nishant Agrawal, an engineer at BrahMos Aerospace Private Limited was prosecuted under The Official Secrets Act to possess secret documents in his personal computer. He also downloaded web-based spyware in his computer system through which some Pakistani agent has stolen the important documents.

CONCLUSION

The constitution in section 1(3) provides thus:

If any other law is inconsistent with the provision of this constitution, this constitution shall prevail and such other law shall be inconsistent to the level of its inconsistency be void.

To this effect, the constitution has already justified the disclosure of official secrets by the provision of section 39(3) and section 45(1) by reason of national security, public morality, public safety and the likes. The only conceivable conclusion is that there is actually no realistic freedom of the press as the freedom of information act which is the only act that affords the media some autonomy is being made subject to the constitution. This means that so far as the constitution continues to have section 39(3) and section 45(1) as part of its provisions, there really is little to what the press and the media can do freely.

RECOMMENDATIONS

Having considered all laws relating to the freedom of the press, the media and the disclosure of official secret; the laws which includes the constitution of the federal republic of Nigeria, the official secrets act, the freedom of information act, and the criminal code, the conclusion is that the law still tilts to the direction of the protection of official secrets more than it pledges allegiance to the freedom of the press or the media. It is thus imperative that I recommend the following:

• That all sections in the constitution and the freedom of information act which impedes on the right of the press and the media to obtain information about any governmental organization be visited and repaired.

• The word “public interest” in the constitution and the freedom of information act needs to be given an unequivocal interpretation as a lot of things are being hidden under the phrase to keep the press away which in-turn reduces the delivery of the media to the members of the public.

• That as opposed to security relayed matters and intellectual property related matters like copyright, trademarks, patents and the likes, other information with respect the activities of a governmental organization should be delivered to any person upon request.

• Direct punishments and sanctions for anyone that intentionally puncture the delivery of any information to anyone that requests same.

Dotun Odunlade Nathaniel (final year law student, Lagos state University) Odunladedotun98@gmail.com

Footnotes

[1] The sama Alana Abdulla V.S state of Gujarat, state (NCT of Delhi) V.S Jaspal singh

 [2] 1999, Constitution of the Federal Republic of Nigeria

[3] Section 9 of the official secret act

[4] 1999 Constitution of the federal republic of Nigeria

[5] Section 1(1) of the freedom of information act

[6] Section1(2) of the freedom of information act

[7] Section 1(3) of the freedom of information act

[8] Section 2(2) of the freedom of information act

[9] Section 4 of the freedom of information act

[10] Section 10 of the freedom of information act

[11] Section 1(1a &b) of the official secrets act

[12] Section 1(2) of the official secrets act

[13] Section 9 of the official secrets act

[14] Section 97 (1) of the criminal code

[15] Section 97(2) of the criminal code

[16]https://www.premiumtimesng.com/news/headlines/280119-developing-story-nigerian-police-detain-premium-times-journalist-ask-him-to-disclose-his-source.html

[17] Section 39(1) of the constitution of the federal republic of Nigeria

[18]https://www.vanguardngr.com/2018/09/lawyers-divided-over-superiority-of-foi-to-official-secret-act/

[19] Section 11(1) of the freedom of information act

[20] Section 11(1) of the freedom of information act

[21] Section 12(3) of the freedom of information act

[22] Section 14(1) of the freedom of information act

[23] Section 14(2)a of the freedom of information act

[24] Section 15(1)a of the freedom of information act

[25] Section 39(3) and section 45 of the constitution

[26] (1981) 1 NCLR 21- ANCL-RADC

[27] Malemi (2009)p.18

[28](1982) 3 NCLR, 895

[29] The meaning of document in this sense includes paper correspondences, audio tapes, video tapes or anything that falls under the definition of a document under section 258 of the evidence act 2011

[30] The Sama Alana Abdulla vs. State of Gujarat and State (NCT of Delhi) vs. Jaspal Singh has similar references, “A person cannot be put on trial merely because a document has been marked as secret, as it is necessary to see the nature of the information contained in it, to find out if any offence under the Official Secrets Act is made out or not.”