Opinion: Economic import of freedom of speech
By Lekan Sote
Many may not realise that the Nigerian Constitution promotes, and depends on, the individuality and the unleashing of the citizens’ entrepreneurial spirit to drive commerce. This constitution empowers Nigerians to practise capitalism, or at least a market-driven economy.
Capitalism is the economic system that permits private ownership of the means of production. It gives freedom to the individual to contract, or negotiate, with others, and to engage in economic activities of his choice, for his own profit and well-being.
Section 39(1) of the constitution provides, “Every person shall be entitled to freedom of expression, including freedom to hold opinion, and to receive and impart ideas and information without interference.”
Freedom of expression is not only verbal, but also doing. The freedom to hold or receive opinions, ideas, and information, gives citizens the liberty to sell or buy any article of their choice.To aid the individual’s right to sell themselves, their product or ideas, Nigerian laws allow advertising, the art of making known to the public, goods, and services available for sale.
If anyone abuses this principle of freedom of persuasion, the law prescribes some remedies. Caveat emptor means, let the buyer beware, that the purchaser buys at his own risk. But nowadays, changes or money-back warranties and guarantees that compel products to meet promised quality, fitness, and weight have become standard trade practices.
There exists also the sanction of throwing the legal books at a seller who is guilty of fraudulent misrepresentation; a tort, whose actionable elements include, “A false representation of a material fact, made with knowledge of falsity, recklessly, or without reasonable grounds for believing its truth, and with intent to induce reliance thereon, on which plaintiff relies on to his injury.”
Tort is a punishable wrong or injury, independent of contract, but resulting from a breach of a legal duty. Essential elements of tort are the existence of a legal duty owed by a defendant to a plaintiff, and a causal relationship between defendant’s conduct and the resulting damage to the plaintiff.
The law against fraud or intentional deceit that results in injury protects the buyer. Its actionable elements are, a false and material misrepresentation made by one who, either knows its falsity, or is ignorant of the truth.
If you think that misrepresentation and fraud appear to be the same in content, principle, and intent, you are correct. Unlike Chinese philosopher, Confucius, who thinks that a picture can say it all, the law does not mind using a thousand words to make one legal point clear.
That explains the “heretofore, whereupon, and thereunto” that lawyers employ to capture all nuances to make a legal point. Also, the police use the “Every, every, any, any,” rule-of-thumb to assume nothing or preclude any detail, and arrest everybody in the vicinity of a crime, before separating the innocent from the guilty.
Further legal protection for the buyer is in the law against falsehood, or a Common Law misdemeanour, which, is however, not committed during a judicial proceeding in a law court. All these protect the receiver of misleading information.
Common Law is the system of jurisprudence originating from England, and is based on judicial precedent, rather than legislative enactments. This explains why political theorists argue that judges make law.
Negotiations, or what economists call haggling, are the bargaining process by which parties to a commercial transaction mutually agree a price for the exchange of a product, service, or idea. While buyers attempt to buy as low as possible, sellers attempt to sell as high as possible.
The price, or the consideration for exchange, is the value of a commodity as expressed in terms of money, a store of value. Before now, exchange was done by barter, where, for instance, a butcher exchanges his beef for the grocer’s spinach.
Either way, you can still discern the hint of, or an attempt at, persuasion, which the Constitution guarantees. Basic economics textbooks describe exchange as the acceptance of one item for another item.
Section 40 which provides that “Every person shall be entitled to assemble freely, and associate with other persons, and in particular, he may form or belong to any political party, trade union, or any other association for the protection of his interest,” confers the right to incorporate commercial entities.
Ignore the political aspect of that phrase, and concentrate on cooperation for business interests, which allows an individual to form unto himself or in concert with one or more others a company, like the United Africa Company.
The individual could also join a trade association, like Nigeria Association of Chambers of Industries, Manufacturers, Mines, and Agriculture, which some may however consider to be a cartel, to advance their economic interest.
You could form a joint-stock-company to participate in the impersonal stock exchange with others whom you may neverknow, to further advance your business interest. It’s really cool to know that there is a platform where you can do business with associates you don’t even know.
The guarantee for protection after an incorporation platform is vested in the Federal Government that has the powers for incorporation, regulation, and winding up of bodies corporate. This gives legal teeth to the doctrine of freedom of contract, where an individual can enter into an agreement with others without fear.
That is the justification for the statutory requirement compelling business entities to display their Certificate of Incorporation, as well as the official portrait of the President, in a conspicuous place for customers and clients to see. You can confirm this at any banking hall.
Before now, the best assurances of legitimacy and quality that the British Crown conferred on products for exports was to include the insignia of the English Crown, and the inscription “Manufactured Under the Authority of the Crown of England,” on the exporters’ labels.
Adam Smith, patron saint of economists, whose article of faith assumes that when you allow individual enterprise to manifest without regulatory or other constraints, society benefits through increased employment of labour, availability of goods and services, tax paid to the sovereign, and social services.
Section 15(1)(a,b) requires Government to “provide adequate facilities for, and encourage, free mobility of people, goods, and services…” and “secure full residence rights for every citizen in all parts of the Federation.”
Government therefore has obligation to provide policies and infrastructure to aid the individual entrepreneur and also eliminate customs duties payable at customs posts, and allow industrial manufactures and agricultural produce unrestrained freight across the nation.
The ultimate commerce enhancer is Section 43, which provides that “Every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.” Section 16(2)(c), in Chapter II, which contains the Fundamental Objectives and Directive Principles of State Policy, even guarantees the right to engage in commerce.
It dictates, “The State shall direct its policy toward ensuring that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group.”
This cannot be socialism; it is an anti-trust or anti-monopoly doctrine. While it is not exactly a capitalist manifesto, the Nigerian Constitution is at least a Magna Carta for personal economic rights and liberty. Punch