This Article is an analysis of the Supreme Court’s decision in Aviomoh v. COP (2021) LPELR-55203(SC), focusing on the interpretation of freedom of expression under the Nigerian Constitution and the constitutional limitations imposed by Section 45(1).
The core issue is whether freedom of expression under Section 39(1) of the 1999 Constitution (as amended) is absolute, or whether its exercise can be lawfully restricted in a democratic society.
The Supreme Court affirmed that freedom of expression and freedom to hold opinions are fundamental rights guaranteed under Section 39(1) of the Constitution.
However, these rights are not absolute. Section 45(1) provides for constitutional limitations in the interest of:
- Defence
- Public safety
- Public order
- Public morality
- Public health
- Rights and freedoms of other persons
The Supreme Court held that laws made for these purposes will not be invalidated by the rights in Section 39, meaning such laws can legitimately restrict expression.
Section 39(1) of the Constitution Provides a broad guarantee of the right to:
- Freedom of expression
- Holding opinions
- Receiving and imparting information without interference
Section 39(3):
Preserves the operation of existing laws on broadcasting, television, and wireless communication in the public interest, but does not diminish the fundamental right in 39(1).
Section 45(1):
Acts as a limitation clause, allowing the National Assembly (or State Houses of Assembly) to enact laws that restrict fundamental rights, so long as they are:
(a) reasonably justifiable in a democratic society, and
(b) they serve a legitimate aim.
The Court rejected the idea that freedom of expression is an unqualified license.
It emphasized a balancing approach: one’s rights end where others’ begin.
Expression that harms public order, defames others, incites violence, or threatens public safety or morality can be restricted or criminalized.
A person living in society must conform to the social and legal norms of that society.
This judgment endorses communitarian values over extreme individualism: while rights are crucial, they must be exercised with responsibility.
This case solidifies the doctrine of qualified rights in Nigeria:
While the Nigerian Constitution recognizes freedom of expression, it is subject to proportional limitations under Section 45.
This decision will strengthen the legality of criminal laws that punish:
- Defamation
- Incitement
- False publications
- Hate speech
It sets a judicial standard that courts must balance constitutional rights with legitimate state interests.
While the Court’s position is doctrinally correct, it raises concerns.
Who determines what is “reasonably justifiable” in a democratic society?
Could this open the door to abuse by governments seeking to silence dissent, activists, or journalists?
Are vague concepts like “public morality” or “order” too subjective and manipulable?
This case suggests that courts will defer to legislative judgment if the law claims to serve the public interest — a potentially dangerous precedent if not closely scrutinized.
Conclusion
The Supreme Court in Aviomoh v. COP upheld a textually faithful and practical interpretation of the Constitution:
Freedom of expression is fundamental, but not without limits.
By anchoring its decision in Section 45(1), the Court reinforces the idea that rights must be exercised responsibly within the framework of collective well-being. Yet, the real-world application of this balance requires judicial vigilance, to prevent legitimate expression from being crushed under the pretext of public interest.
