Speak and Seek Justice: Why Free Speech and the Right to Litigate Stand or Fall Together.

By George Omagbemi Sylvester | Published by saharaweeklyng.com

There are societies that fear words and there are societies that fear courts. The first tries to gag dissent; the second tries to close the courthouse door. Both are attacks on human dignity. A truly free republic protects both the right to speak and the right to litigate. These are not competing liberties; they are twin pillars of the rule of law. Where speech dies, truth withers. Where litigation is denied, rights become ornaments. We must defend both; without apology, without equivocation.

The Legal Bedrock: Global and African Standards.
Freedom of expression is not a privilege handed out by rulers; it is a human right recognized in black-letter international law. Article 19 of the Universal Declaration of Human Rights (UDHR) affirms that “EVERYONE HAS THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION,” including the freedom to seek, receive and impart information and ideas through any media.

The same guarantee is legally binding under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to hold opinions without interference and to express them; subject only to narrowly tailored restrictions provided by law and necessary for respect of the rights of others or for national security, public order, public health or morals.

On our continent, Article 9 of the African Charter on Human and Peoples’ Rights secures the right to receive information and to express and disseminate opinions within the law. The African Commission’s Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019) further consolidates these protections for the digital age.

Freedom of speech is not a slogan; it is law.

National Constitutions: Nigeria and South Africa.
These global standards breathe through our domestic constitutions. Nigeria’s 1999 Constitution guarantees freedom of expression and the press in Section 39, the right to fair hearing in Section 36, and it establishes a special jurisdiction of High Courts for enforcement of fundamental rights under Section 46; including rules allowing public interest suits.

South Africa’s Constitution echoes the same architecture. Section 16 protects freedom of expression (press freedom, the right to receive or impart information, artistic creativity and academic freedom) while making clear that the right does not extend to incitement of imminent violence, advocacy of hatred that incites harm, or propaganda for war. Section 34 goes further, guaranteeing access to courts, the right of everyone to have legal disputes decided in a fair public hearing before an independent and impartial tribunal. This is the constitutional spine of the right of litigation.

In short: speak freely and if power infringes your liberty, SUE – the Constitution says you can.

The Right to Litigate: Justice Without Violence.
Courts are where citizens contest power without bloodshed. The ICCPR’s Article 14 proclaims equality before courts and tribunals and the right to a fair and public hearing. The African Charter’s Article 7 guarantees the right to have one’s cause heard, a presumption of innocence and the right to defense and counsel. A democracy without these mechanisms is merely orderly despotism.

Over a century ago, the U.S. Supreme Court captured a universal truth that transcends jurisdictions: “The right to sue and defend in the courts is the alternative of force… the right conservative of all other rights.” Deny people the courtroom and you invite the street. That is not a Western aphorism; it is a constitutional logic any RULE-OF-LAW system must accept.

Why Both Rights Rise and Fall Together.
Free speech and fair litigation are interdependent. Speech exposes abuse; litigation remedies it. Journalists and citizens uncover corruption, environmental harm, election irregularities or police misconduct; then litigation compels evidence, checks executive overreach, vindicates rights and develops jurisprudence. Without speech, courts go blind. Without courts, speech is a cry into the wind.

This is why any policy that muzzles the press or criminalizes dissent corrodes judicial independence and why procedural barriers that block public-interest suits or muzzle access to counsel chill speech. Democracies that weaken either liberty eventually weaken both.

As Nigerian comedian I Go Dye once joked in a show, “In Nigeria, if you talk too much, they will say you are disturbing peace. If you keep quiet, they will say you are enjoying the suffering. My brother, which one we go do?” His humor captures the absurdity of silencing voices; it’s a LOSE-LOSE situation when citizens cannot express grievances freely.

The Boundaries: Lawful Limits, Not Convenient Gags.
Rights are robust but not reckless. International law permits narrow, necessary and proportionate restrictions; for example, to prevent incitement to violence or to protect the rights and reputations of others through defamation law. OPEN-ENDED BANS, vague notions of “OFFENSE,” and executive convenience do not meet this test.

The South African Constitution is explicit: advocacy of hatred that incites harm and incitement of imminent violence are outside the protection of Section 16. That clarity both protects pluralism and guards society against genuine danger; without handing censors a blank cheque.

The Intellectual Case: Why Liberty Works.
Great thinkers have long warned against the arrogance of censorship. John Stuart Mill, in On Liberty, called the silencing of any opinion a theft from humanity: if the opinion is right, we lose the chance to exchange error for truth; if it is wrong, we lose the sharper understanding that comes from confronting error.

In modern constitutional thought, Justice Oliver Wendell Holmes Jr. crystallized the “marketplace of ideas”: “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Justice Louis Brandeis added the doctrine of counterspeech: “If there be time to expose through discussion the falsehood and fallacies, the remedy to be applied is more speech, not enforced silence.”

Nigerian comedian Gordons brought the same truth home with laughter: “Our leaders do not like people talking because once you talk too much, their lies will need extra lies to cover it.” The humor might sound casual, but it reflects a sharp reality: truth dies in silence and litigation becomes useless when speech is stifled.

Practical Imperatives: What Governments Must Do.

Protect journalists and whistleblowers.

Keep the courthouse door open.

Legislate with precision.

Educate for resilience.

As Gordons quipped in another show: “Na only in Africa person go sue government, government go still be the judge.” The laughter hides a warning: judicial independence must be protected or litigation rights are reduced to theatre.

A Civic Mandate: Citizens, Not Subjects.
Citizens have duties too. Free speech is not a license for slander; it is a calling to truthful, accountable discourse. Litigation is not a toy; it is a sober instrument to vindicate rights and clarify law.

The Bottom Line

The measure of a constitutional order is simple: Can I speak? Can I sue? If either answer is “no,” the promise of freedom is already broken.

Let us say this plainly: There’s the right of free speech. There’s the right of litigation. Nobody should be denied either. Not by the state. Not by mobs. Not by wealthy actors who would rather settle truth with money than with evidence. The only alternative to speech is silence; the only alternative to litigation is force. We choose speech. We choose courts. We choose the rule of law.

Or as I Go Dye might say: “If you silence the people, don’t be surprised when the silence begins to shout louder than words.”