"WR6_gUnUj-ztiW07KQcOCnTel9A"/> Notes From Atlanta: 09/15/18

Saturday, September 15, 2018

Abba Kyari’s Cowardly SLAPP against the Punch over Alleged Scam

By Farooq Kperogi, Ph.D.

In American media law, SLAPP is an acronym for “Strategic Lawsuit Against Public Participation.” It’s a type of frivolous lawsuit whose ultimate goal is to intimidate critics—particularly journalists—into silence and self-censorship, not necessarily to seek redress for intentional injury to reputation.

The threat by Abba Kyari, President Buhari’s Chief of Staff, to sue the Punch newspaper and “all those who have peddled this falsehood” of his alleged swindling of his townsman by the name of Bako Waziri Kyari is a classic SLAPP. Kyari wants to cower people into silence and muzzle public conversation about an issue that has tickled the sensation of vast swathes of Nigerians.

I am teaching a media law class this semester, and Kyari’s potential lawsuit was a subject of class discussion this week. Every student in my class agreed that Kyari’s imminent lawsuit is a prototypic SLAPP. I divided the class into groups and instructed them to deploy the media law concepts I taught them to evaluate the possible legal arguments Kyari would advance in his lawsuit. In order to do this, they read up on the scandal, searched Kyari’s name on Google and came up with troves of information about his unflattering ethical profile.

This was their conclusion: There is not a snowball’s chance in hell that Abba Kyari will win a libel lawsuit against the news media in a fair and just court trial anywhere in the world. (American courts frown at SLAPPs, and many states have enacted anti-SLAPP legislation). Although Nigeria is not America, our media laws closely mirror—and are, in fact, directly borrowed from—those of America.

For starters, Kyari is a public official whose conduct—both in public and in private—the public is justified to be inquisitive about and to scrutinize. Being a public official comes with a lot of perquisites and privileges, including being in the public consciousness, being able to influence the direction of national conversations, and having the symbolic resources to counter or at least respond to injurious information.

In recognition of the influence and power that public officials—and public figures—wield, courts impose a higher burden of proof on them to prove a case of libel against the media and the public. What would be libelous if written about a private figure isn’t libelous if written about a public official.

If I falsely accuse a no-name private person of swindling his nephew of 30 million naira, no news organization would attend the person’s press conference or publish his or her press release refuting this because they have no social or symbolic capital. But the Presidency issued a denial less than 24 hours after the Punch published the story of Abba Kyari’s alleged fleecing of his townsman, and every news organization published it. His threat to sue “all those who have peddled this falsehood” is also all over the media. That’s a lot of power.

Here’s another reason why Kyari’s impending lawsuit is a SLAPP: Punch’s reporting on the scandal isn’t new. News of the scandal actually started on Brekete Family Radio, then dispersed to social media before becoming grist for the mill in quotidian social chatter offline. Why did Kyari threaten to sue “all those who have peddled this falsehood” ONLY after Punch published the story—and weeks after it has been in the public domain? That’s the first giveaway that his threat is a cowardly SLAPP.

The second giveaway, as all my students pointed out, is that Punch’s reporting on the scandal was scrupulously fair and balanced. The paper reached out to Kyari, reflected all sides to the story, and didn’t take a stand. The paper’s reporting meets the requirements of what is called “fair report privilege” in media law, which is, according to Robert Trager, Susan Ross, and Amy Reynolds in their book The Law of Journalism and Mass Communication, “based on the idea that keeping citizens informed about matters of public concern is sometimes more important than avoiding occasional damage to individual reputations. It gives reporters some breathing room to report on official government conduct without having to first prove the truth of what the government says.”

That means even if there are factual inaccuracies in the paper’s report, it enjoys the protection of the law, particularly because it clearly made good-faith efforts to get Abba Kyari’s side of the story.
Most importantly, though, Abba Kyari has almost reached the status of what in media law we call a “libel-proof plaintiff,” that is, someone whose reputation is already so thoroughly damaged that no libelous statement can damage it further. Recall that Sahara Reporters has reported that Kyari took a 500 million naira bribe from MTN to help minimize the more than one trillion naira fine imposed on it by the Nigerian Communications Commissions (NCC). Kyari has never denied this allegation, nor has he sued Sahara Reporters.

Silence is consent, and most people believe that the story is true. There are several other uncomplimentary stories about the man in the public domain that border on unrelieved moral putrefaction and deficiency of basic ethical character, which he has never refuted. It is precisely these considerations that make his melodramatic reaction to the latest scandal and his threat to issue the news media a gutless SLAPP.

A competent and just judge would dismiss Kyari’s lawsuit as a waste of the court’s time. The judge would probably remind Kyari of the Latin legal maxim de minimis no curat lex, which means, “the law does not concern itself with trifles.”

A Tear for DSP Tijani Bulama
While it seems like Bako Waziri Kyari was the victim of a 419 scam, it’s hard to explain the unspeakable horrors that one DSP Tijani Bulama who tried to help Bako Waziri Kyari to recover his money was subjected to. After losing my wife in 2010 and my dad in 2016, I thought I had lost the capacity to cry over anything again. But after watching the viral video of the “Brekete Family” program of August 31, 2018 where Bulami told how he was physically brutalized and mentally assaulted, I lost it.

Tears started rolling down my cheeks uncontrollably when he narrated how hooded DSS operatives invaded his home, slammed his two-year-old child on the ground, and whisked him away blindfolded and without shoes for more than a month. In Nigeria, men are culturally socialized to be stoic, to not betray emotions, to not cry in public. This is even more so for law enforcement officers who are trained to be tough and stern. But Bulama, a Deputy Superintendent of Police, broke down in tears at various points in his recapitulation of the horrendous jungle justice DSS operatives inflicted on him allegedly on the orders of Abba Kyari whom he said physically visited him in his cell to sadistically mock him for having the effrontery to investigate him. That’s out-and-out soulless villainy!