Legal scholar and former Chairman of the National Human Rights Commission (NHRC), Chidi Anselm Odinkalu, has criticized the arrest and detention of lawyer and activist Dele Farotimi, describing it as a “misuse of criminal law” and a violation of fundamental legal principles. Odinkalu argues that the case exemplifies how Nigeria’s criminal justice system can be exploited to suppress dissent and shield powerful figures from criticism.
Farotimi was arrested on December 3, 2024, at his Lagos residence by officers of the Nigeria Police Force and transferred to Ekiti State, where he was arraigned before an Ado-Ekiti Magistrate’s Court on December 4. He faces a 16-count charge of criminal defamation, with the charges linked to remarks in his book, Nigeria and Its Criminal Justice System, which included allegations against Senior Advocate of Nigeria (SAN) Afe Babalola.
Jurisdictional Questions and Legal Irregularities
Odinkalu highlights several irregularities in the handling of the case, particularly concerning jurisdiction. The alleged offense occurred in Lagos, a state that has decriminalized defamation. Furthermore, the new Criminal Law of Ekiti State (2021) no longer classifies defamation as a criminal offense. Despite this, Farotimi is being prosecuted under Nigeria’s Criminal Code Act, a federal statute.
Legal experts argue that only the Attorney-General of the Federation can prosecute offenses under federal laws, citing the Supreme Court precedent in Anyebe v. State (1986), which ruled that state attorneys-general cannot prosecute federal crimes. Yet, Farotimi is being prosecuted in a state magistrate’s court in Ekiti for a supposed federal offense.
Odinkalu and other legal analysts argue that the police and the Ekiti court are misapplying jurisdictional principles. The general rule under Nigeria’s Criminal Procedure Law is that offenses should be tried in the location where they occurred. Since Farotimi’s statements were made and published in Lagos, the appropriate jurisdiction would be Lagos, not Ekiti.
Star Chamber-Like Proceedings
Chidi Anselm Odinkalu has drawn parallels between the treatment of Farotimi and the infamous Star Chamber—a 15th-century English court notorious for secretive and politically motivated proceedings. He noted that the manner of Farotimi’s arrest and detention bears hallmarks of coercive tactics designed to suppress dissent.
The Star Chamber was known for its arbitrary decisions, denial of due process, and secret hearings, and Odinkalu argues that Farotimi’s case mirrors this approach. His arrest in Lagos and subsequent transfer to Ekiti, along with his remand without bail, exemplify a judicial process that critics say lacks procedural fairness.
Under Section 4(5) of the Ekiti State Criminal Law, offenses that are classified as misdemeanors are automatically bailable. However, the Magistrate ordered Farotimi’s remand in custody until his next court appearance. This decision has been described as judicial overreach, as the law stipulates that bailable offenses should not result in remand unless clear reasons are provided.
The Criminalization of Defamation
The use of criminal defamation charges to prosecute Farotimi has drawn widespread criticism from civil society and human rights groups. Defamation is increasingly seen as a civil matter, not a criminal offense. In fact, Lagos State decriminalized defamation as part of its broader reforms to protect free speech and align with international human rights standards.
In Ekiti, the Criminal Law of Ekiti State (2021) removed criminal defamation as an offense. Despite this, Farotimi is being charged under the older Criminal Code Act, which still recognizes defamation as a crime. Odinkalu argues that this reliance on an outdated statute shows how criminal laws are being weaponized to target critics and dissenting voices.
Legal experts have also emphasized that criminal defamation laws are inconsistent with Nigeria’s constitutional right to freedom of expression, as guaranteed under Section 39 of the 1999 Constitution. Many countries, including Ghana, Kenya, and South Africa, have moved away from the criminalization of defamation. The African Court on Human and Peoples’ Rights (ACHPR) has also ruled against the use of criminal defamation laws to suppress free speech.
Concerns About Due Process and Procedural Fairness
The nature of the court proceedings has also raised significant legal questions about procedural fairness. Farotimi’s detention without bail, despite being charged with bailable offenses, has been described as “punitive detention”. Critics argue that bail is a constitutional right for suspects charged with minor, non-violent offenses.
According to Odinkalu, bail is a right, not a privilege. Legal analysts note that the Magistrate’s decision to remand Farotimi without offering bail violates basic principles of criminal justice. The court is expected to explain its reasoning for denying bail, especially when the law presumes bail for bailable offenses.
Civil Society Reaction and Call for Reform
The arrest of Dele Farotimi has sparked a public outcry among civil society groups, legal experts, and human rights defenders. Critics argue that his prosecution is not only a misuse of criminal defamation laws but also a deliberate attempt to silence dissent.
The Nigerian Bar Association (NBA) has called for greater oversight of the police and judicial authorities, raising concerns about the use of state courts to undermine free speech. The NBA has warned that criminal defamation laws are being used as a tool for intimidation.
The wider debate on the case has brought renewed attention to the need for comprehensive judicial reform. Critics argue that Nigeria must clarify the boundaries of federal and state jurisdiction, particularly regarding federal offenses tried in state courts. There have been calls for an end to the criminalization of defamation, as it conflicts with Nigeria’s constitutional guarantees of free expression.
The arrest and detention of Dele Farotimi under the guise of criminal defamation highlight significant procedural and jurisdictional flaws in Nigeria’s criminal justice system. Legal scholar Chidi Anselm Odinkalu has criticized the process as a misuse of the country’s criminal law, arguing that the tactics used in the case resemble the workings of a Star Chamber. The controversy has renewed calls for judicial reform, particularly around the criminalization of defamation and the jurisdictional limits of state courts in cases involving federal offenses.
The broader implications for Nigeria’s legal system are clear. As Farotimi’s case unfolds, it is expected to become a key test of Nigeria’s adherence to international human rights norms and its commitment to upholding constitutional principles, including freedom of expression and fair trial rights.
