A former Chairman of the National Human Rights Commission (NHRC), Prof Chidi Odinkalu, says defamation has been decriminalised in Ekiti, Lagos, and Edo states, and as such persons seeking remedies for libel or slander can only do so in civil law and not criminal law.

“When you issue a warrant for criminal defamation in Ekiti State, there is no crime of criminal defamation in Ekiti State in 2024,” Odinkalu said on the Friday edition of Inside Sources with Laolu Akande, a socio-political programme aired on Channels Television.

“There are three states that have decriminalised defamation; Ekiti is the third. Wale Fapounda (SAN) was the Attorney General of the state when that happened. Kayode Fayemi was the governor who signed it into law in 2021. Edo State has decriminalised criminal defamation. Lagos State has decriminalised criminal defamation. Ekiti State decriminalised criminal defamation in 2021.”

Odinkalu said the magistrate court in Ekiti should have immediately granted human rights activist and legal practitioner Dele Farotimi bail because the offense was bailable. “A magistrate asking you to bring an application for bail on a charge in which the maximum penalty is two years either has not gone to school properly or has a mission to fulfill,” he said.

The lawyer said in a country with congested prisons and an average detention without trial of three years, the alleged offense of Farotimi is modest and there are compelling policy reasons for the magistrate court in Ekiti to have granted Farotimi bail much earlier than it did.

Odinkalu described as “a travesty of due process” the prosecution of Farotimi, saying every due process that should be breached has been violated by the prosecutors in the matter.

Earlier in December, the police in Ekiti State arrested Farotimi at his Lagos office and bundled him to Ekiti State for prosecution.

The police arraigned the author for publishing a book, ‘Nigeria and its Criminal Justice System’ where he alleged that nonagenarian legal icon Afe Babalola corrupted the judiciary and procured a revised judgment in the Supreme Court.

The defendant pleaded not guilty to all the charges that bordered on criminal defamation levelled against him and were remanded in prison for three weeks while legal fireworks continued in multiple courts. Farotimi is also facing similar charges in Abuja and Oyo states.

READ ALSO: Court Grants Dele Farotimi ₦30m Bail

‘All Processes Breached’

Odinkalu said Farotimi should be held accountable if guilty of the alleged offence but “every rule that can be breached has been breached. Mind you, the context is that Dele, as it is claimed, has made allegations about judicial corruption. This is the gist of the issue and in order to do this, we are showing that there is judicial corruption.”

“Now that they know that criminal defamation is not a crime in Ekiti State, the argument has mutated. Now, they are saying that they are not charging him under the Criminal Law of Ekiti State 2021, they are charging him under the Criminal Code Act of Nigeria. Now, that does not exist as a source of crime for the state…The Federal Government does not have power over general criminal law for the state. That means that the Criminal Code Act did not create any crime for the state; it lapsed as a piece of legislation for the state not later than 1967.

“Chief Afe Babalola himself was involved in a 2021 case in which the Supreme Court decided a similar principle: the case of CIL against Ekiti but this was a civil case. In that case, Ekiti State has in this particular case has legislated out of existence a piece of legislation called The Public Officers Protection Act which provided for certain procedural measures in terms of suing public officers.

“The argument was that since public officers were being sued, the federal act, the Public Officers Protection Act should be imported into Ekiti State to provide for what has been repealed by Ekiti State Law, and the Supreme Court said, ‘No, you cannot back-channel legislation’.

“So, the principle of law here is very clear unless we are trying to manufacture something unknown to law, in which case we should say so.

“I am not at all saying there should be no remedies for injuries to reputation at all. Not at all, particularly reputations that have been earned through hard work and investment over time. But those remedies exist in civil law, and it can be slander which is where it is oral or it can be libel where the publication is in writing or more permanent form,” he said.