Joint Stakeholder Submission to the UPR of Nigeria presented by Freemuse, Nhimbe Trust, PEN International and Unchained Vibes Africa For consideration at the 45th Session of the Human Rights Council Periodic Review (January-February 2024)

Criminalising artistic expression

11. The Constitution of the Federal Republic of Nigeria, Section 39 (1), expressly states that: ‘Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.’
12. Artistic and creative expression is encompassed by Article 19 of the ICCPR guaranteeing freedom of expression in any form, including through media and the arts. Thus, this right is protected under both the Nigerian Constitution, its obligations under the ICCPR and the ACHPR, see para. 4&5 above. The Nigerian government’s above-mentioned support of recommendation para. 148.184 is a welcome acknowledgment of the importance of this right. However, since the UPR of Nigeria under the third cycle there have been numerous instances of the curtailment writers and artists’ rights to freedom of expression.
13. Defamation is criminalised under the Nigerian Criminal Code which is applicable in the southern states. Chapter 7, Section 60 of the Code provides a maximum two-year prison term for ‘defamation of persons exercising sovereign authority over a State’ by publishing ‘anything intended to be read, or any sign or visible representation, tending to expose to hatred or contempt in the estimation of the people of any foreign State any person exercising sovereign authority over that State’.
14. Defamation is also criminalised under the Penal Code which applies in northern States, Section 391 of which states that: ‘Whoever by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reasons to believe that such imputations will harm the reputation of such person, is said to defame that person.’ Furthermore, Section 392 of the Penal Code stipulates punishment for defamation of a maximum of two years’ imprisonment or a fine, or both.
15. These laws, especially Section 391 of the Penal Code and Section 24 of the Cybercrime Act have been applied to artistic expressions and used to arbitrarily arrest, detain, and prosecute artists as part of broader clampdown on activists who express critical views against the government.
16. One example of the misuse of the Cybercrime Act is the case of journalist and poet, Rotimi Jolayemi who in May 2020 was detained in Abuja under Section 24(1)(b) of the Act for causing ‘annoyance, insult, hatred and ill will’ against the Minister of Information and Culture. The charges stemmed from an audio recording of a poem recited by Jolayemi that was critical of a government minister, distributed on a WhatsApp social media platform and which went viral. This measure is in breach of Nigeria’s commitments to safeguarding freedom of expression. In addition, Jolayemi’s wife and siblings were held in police custody for several days following the demand for his arrest and were freed only when he surrendered himself to the police^[11]. This action against Jolayemi’s family is a further breach of the right not to be arbitrarily detained, as protected under Article 9 of the ICCPR.^[12] Jolayemi was released on bail. At this time of writing the charges against him remain.

Suppression of artistic freedom in Kano State

17. There is consistent concern regarding the protection of artistic freedom in the north of Nigeria including the application of the death penalty as referred to in paragraphs 8-10 above. The Kano State Censorship Board (KSCB), which was instituted based on the Sharia legal system, serves as a parastatal to the Kano government and works in collaboration with the Hisbah Command, an Islamic police unit tasked with enforcement.
18. The KSCB has invoked the Nigerian Penal Code and placed it in conjunction with the broadly defined State Censorship Board Law 2001 to censor and imprison Nigerian artists who are found to be critical of the government^[13] and whose conduct or creative expressions are deemed antithetical to ‘Islamic principles and decency.’
19. Artists have been arrested, detained and prosecuted by Kano State government for their artistic expressions. Of particular alarm is the application of flogging as a punishment for individuals exercising their freedom of expression which was carried out in at least one instance against artists for their work satirising state officials. In November 2022, skit makers, Mubarak Muhammad and Nazifi Muhammad were charged with ‘defamation’ and sentenced to 20 lashes each and fined for distributing on the social media platform TikTok a skit satirising a local government official.^[14] Such punishment is a clear breach of Article 7 of the ICCPR that states: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ as well as of the Nigerian Constitution Section 34(1) that states: ‘Every Nigerian individual is entitled to respect for the dignity of his person and accordingly’, sub clause (a) stating that ‘No person shall be subjected to torture or to inhuman or degrading treatment’.
20. A further example of punishment for criticism of government officials is that of a musician sentenced to a total of two years in prison in 2019, of which he served one year. He had been convicted under a summary trial on two counts for releasing a song and a video without prior approval of the KSCB, and a third for defamation of Kano State Governor in song.^[15] Another musician was prosecuted when he was mistaken for the above-mentioned singer, only to be freed once the intended subject of arrest was apprehended.^[16]
21. Female artists are targeted for reasons of ‘indecency’ or ‘immoral’ behaviour under Section 355 of Kano State Sharia Penal Code Law 2000. Among them was an actor ordered to serve six-months compulsory attendance at an Islamic school to be ‘re-educated’ on Islamic culture and values for her social media content, deemed to be ‘consistent seductive dancing and sexual comments’.^[17]  In early 2023 a female skit maker was ordered by Kano State Police Command to undergo psychiatric evaluation for content considered immoral and contrary to State Islamic standards.^[18]

Film censorship

22. Section 102 (2) of the Kano State Cinematography (Licensing) (Censorship) Regulations 2001 prohibits the screening of content that is considered to be indecent, obscene or likely to be injurious to morality and undesirable in the public interest.
23. Section 102(1) states that certification is issued when the Board has established that a film has (a) education and entertainment apart from promoting state culture, unity and interest, and (b) is not likely to induce or reinforce the corruption of private or public morality or encourage / glorify the use of violence.
24. Under the regulations of the censorship board, artists are required to seek prior permission before releasing any films, songs, or music videos for public distribution. Material contained in fictional works covering topics ranging from kidnap, drug abuse, theft and immorality have been subject to sanctions.^[1] Creative content that is deemed to be contrary to Nigerian ‘national values’ or perceived to project Nigerian ‘culture’ negatively is also subjected to sanctions.
25. It should be noted that the Censorship Board’s approach to enforcing rules relating to religious and traditional values in the predominantly Muslim North, emboldens non-state actors, such as religious extremists, to threaten and attack artists with impunity, further hindering the right to freedom of expression in the region.
26. There are federal censorship bodies in Nigeria, such as the National Broadcasting Commission (NBC), which controls content (including works of art) on radio and television, and the National Film and Video Censors Board (NFVCB), which makes it mandatory for producers of movies and audiovisual works to seek approval before public exhibition of their works. Both federal and State bodies have extended their mandate to content posted on digital platforms. These platforms are required to request and authenticate proof of certification for any Nigerian films they acquire. Mandatory certification and authorisation also apply to content posted independently by filmmakers on self-managed virtual platforms such as YouTube.
27. Some states also have their own censorship bodies, a situation which directly or indirectly imposes double censorship mechanisms on artists and creative practitioners operating in these states (see also censorship in Kano state referred to above). At the federal level, the NBC and the NFVCB heavily restrict ‘uncomfortable’ artistic expressions that touch on politics, religion and culturally sensitive issues. In the 12 northern states where the Sharia legal system has been adopted, censorship rules enforced by state censors are influenced by conservative doctrines that are intolerant of artistic freedom and inconsistent with international human rights standards. When these censorship rules are defied, artists stand the risk of being arrested, prosecuted and imprisoned.
28. In Lagos, the Ìsàlẹ̀ Èkó Descendants’ Union (IDU) petitioned the National Film and Video Censors Board (NFVCB) in April 2023 over alleged sacrilege of the Ẹ̀yọ̀ masquerade and negative depiction of Ìsàlẹ̀ Èkó in the Gangs of Lagos film which they claim has brought their community into disrepute. The Lagos State Ministry of Tourism also publicly condemned the movie and its producers as disrespecting the heritage of Lagos. While the NFVCB noted that it had no power to regulate online platforms, a Lagos High Court granted leave to the IDU to seek an order compelling the Lagos State Video and Film Censors Board to impose a fine of N10 billion (c. US$ 13 million) against the film producers for alleged wrongful depiction of Ìsàlẹ̀ Èkó as a centre of criminal activity. The court also granted the IDU permission to request the Attorney General of Lagos State and Lagos State Film and Video Censors Board to sanction the film producers under the Cinematograph Law of Lagos State for alleged false and defamatory depiction of the Ẹ̀yọ̀ masquerade. In June 2023, His Royal Majesty Oba Rilwan Akiolu, the Oba of Lagos, the highest traditional authority on Lagos cultural heritage matters, gave a 14-day ultimatum requesting the film producers and Amazon Prime to remove, cease and desist from using the image and the full manifestation of the Ẹ̀yọ̀ masquerade in the movie, and requested that the producers make plans for compensation for the infringement. This case illustrates the influence of non-state actors on censorship boards that contributes to the suppression of creative freedom. While recognising that cultural rights are among those protected under the ICCPR and IECSR, and that individuals must be free to practice and enjoy their cultural heritage, there needs to be a balance between this right and the right to freedom of expression.
29. The application of film classification can be justified to ensure content appropriate to young audiences on issues such as obscenity, violence, and other extreme content. However, these have been used to ban or limit distribution of films with themes directly or overtly criticizing Nigerian authorities. In one example, in March 2022, a resolution was passed by the Federal House of Representatives ordering the NFVCB to stop filmmakers from releasing movies depicting violent crimes. Commentators link this move to a climate of rising crime in the country and criticism of the Nigerian police service’s perceived inability to tackle the mounting crisis. Removing depictions of this crisis even in fictional form, could serve to detract legitimate criticism.
30. In another move ostensibly to protect police from ridicule, the Inspector General of Police introduced a new policy in July 2022 banning the use of police uniforms and the portrayal of the police institution in movies and comedy skits without authorization. Section 251 of Nigeria’s Criminal Code Act and Section 133 of the Penal Code, both of which deal with offences relating to bringing contempt on uniforms of armed and police forces, were cited as the legal basis for these measures. Members of the artistic community criticized the policy as an attempt by the Police authorities to lump illegal activities of criminals together with legitimate forms of creative expression so as to protect themselves from scrutiny and satire.