Kayode Ajulo argues that the intents of the Hate Speech Bill have already been captured by existing statutes and the Nigerian constitution
The past few days have witnessed a massive dissipation of opinions and counter-opinions by Nigerians in respect of the Anti Hate Speech Bill that is currently being proposed by the Senate. Specifically, on the 12th of November, a Bill titled “National Commission for the Prohibition of Hate Speech (Estb. etc) Bill 2019” was introduced on the floor of the Nigerian Senate and it subsequently passed the first reading.
Moments after passing the first reading, criticisms began to pour in from different segments of the Nigerian public. Lawyers, activists, civil society organizations, media houses and ordinary Nigerians took their turn to lampoon the Nigerian Senate for even contemplating such a bill in the first place.
The bill has largely been described as an infringement of the freedom of speech enshrined in the Nigerian Constitution and other international instruments such as the Universal Declaration of Human Rights.
It is in view of the foregoing and also in the spirit of patriotism that I have decided to weigh in on this matter so that the Nigerian Senate can be rightly guided on this sensitive issue.
The term “Hate Speech” is not amenable to an easy definition and there is no international legal definition of hate speech as the characterization of what can be regarded as “hateful” is quite controversial and widely disputed. However, I align with the definition as stated in the United Nations Strategy and Plan of Action on Hate Speech which defines hate speech as “any kind of communication in speech, writing or behavior, that attacks or uses pejorative or discriminatory language with reference to a person or group on the basis of who they are, in other words based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”
The above reveals the capability of hate speech to foster intolerance, hatred, strife and misplaced or misguided violent aggression. It can also simply be defined as an abusive or threatening speech or writing that expresses prejudice against a particular group, especially on the basis of race, religion, or sexual orientation. Hate speech may also be defined as a speech that attacks a person or a group on the basis of protected attributes such as race, religion, ethnic origin, nationality, sex, disability, sexual orientation or gender identity.
On the surface, it may seem that the constitutive requirement for hate speech is just any speech that attacks a person or a group in a prejudicial manner, however, it is not that simple and this is evident from the intense debates that have characterized the subject of freedom of speech, hate speech and hate speech legislations. It is important to state that in the United States, there is no legal definition of hate speech, just as there is none for evil ideas, unpatriotic speech or any kind of speech that people might condemn.
A speech has to be grave, grievous, violence-inducing, havoc-wrecking and lots more for it to be considered a hate speech. The general consensus as to the qualification for hate speech appears to then be that it must be any form of expression through which the speaker(s) intend to attack or/and incite hatred against a person or group of persons. In my considered view, for a speech to qualify as a hate speech, it must meet these requirements:
1. It must be grave, grievous and violence-inducing.
2. It must be calculated to attack a person or a group/class of persons.
3. It must be highly unpatriotic.
4. It must be antithetical to free speech.
Having said this, it is pertinent to state here that the Constitution of the Federal Republic of Nigeria makes it abundantly clear that freedom of speech is the fundamental right of every Nigerian. Section 39 of the CFRN 1999 as altered specifically provides for the “right to freedom of expression and the press”, subsection 1 of that section amplifies this further by stating that “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information, ideas and opinions.
It goes further in subsection 3 by stating that “nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society-
(a) For the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
(b) Imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or Government security services or established by law.
The above provisions manifest a crystal clear positions which includes the fact that freedom of speech is guaranteed by the Constitution of the Federal Republic of Nigeria and it is unfettered save for the exceptions as provided under Section 39(3) of the CFRN as altered.
An Overview of the Hate Speech Bill viz-a-viz its Implications:
A careful perusal of some of the provisions contained in this bill shows an unnecessary amplification of an existential issue in this country which is the issue of intolerance. The Senate cannot in all honesty declare that a particular speech made by an individual(s) or a body corporate is capable of causing ethnic hatred and therefore constitutes a crime that is punishable by a ten year jail term, N10 Million fine or a death sentence as the case may be.
This is a draconian legislation that may bring to birth an ugly monster that will make the Boko Haram insurgency look like a child’s play! This is my stern and candid advice as a patriotic Nigerian who believes that the way out of this country’s woes is not in the stifling of free speech.
The Nigerian Senate should act with more circumspection and not play into the hands of the enemies and detractors of this country because feelers already show that this bill will be exploited, manipulated and may end up causing the very thing it was intended to address. One must stress further at this juncture that this bill, if passed into law is capable of making Nigeria look even more unsavoury than it does presently in the comity of nations.
We must note that most other democratic countries do not have this kind of law and it would therefore make it easier for Nigerians who are bent on expressing their views to escape to other countries and operate therefrom. We cannot so soon forget Radio Kudirat, some of the heroes of which ironically today are part of the democratic government of today, the legislature of which now seeks to repress the citizen’s fundamental right to freedom of expression. The silence of their acquiescence has been deafening. They must however not forget that Nigerians are as versatile today as they were then. They will find a way to create a Freedom Radio where information, particularly the ones that may be deemed hateful by the sponsors of this ill-advised exercise.
We must also state that today, all it takes for any young person to obtain the Canada Refugee Status is to declare himself a gay or lesbian who suffers persecution under our Anti-Gay law in Nigeria. One must also point out the possibility of guerrilla warfare which is usually a direct consequence of government’s intolerance to opposing views that is capable of making the Boko Haram insurgency seem like child’s play. Nigeria has been blessed with a vibrant press and informed populace and to seek to gag them is to breed dissensions of the Che Guevara of Cuba kind. It is doubtful that Nigeria as we know it today would survive this possible misfortune.
One important question that agitates the mind is – of what use is the proposed bill at this material point in time? The intention of the Senate is quite suspicious giving the kind of zest and zeal it deployed into having this bill reintroduced. It will be recalled that the 8th Senate tried unsuccessfully to enact this same bill.
Sovereignty is vested by the Nigerian Constitution in the people of Nigeria from whom government derives all its powers and authority. The political legitimacy of this government is aided by the continued enjoyment of freedom of speech by the masses and under no guise will the ordinary people of this country allow such right to be taken away or breached.
This is the cardinal principle underlying the social contract between the government and the citizens, it is a very bad time to test the will and resolve of the ordinary Nigerians to uphold and enforce this contract.
It is fact that cannot be gainsaid that there is a grand scale of insecurity in this country, one may not be totally wrong to assume that the entire security architecture appears to have broken down, practically a day goes by without a case of kidnapping being reported.
It perhaps seem the 9th Senate is resolute in a frivolous agenda to such an extent that it cannot recall that some provisions of the Cybercrimes (Prohibition, Prevention, etc) Act, 2015 already cover the core aspects of what it now seeks to define as “hate speech”.
As a matter of fact, asides this recent legislation, there are existing legal frameworks that already tackle similar issues for which the hate speech bill is being proposed.
Briefly, defamation which could either be civil wrong or an offence is provided for in SECTION 373 OF THE CRIMINAL CODE and it states thus:
Defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by an injury or his reputation.
Such matter can of course be expressed in spoken words or in words legibly marked in any substance whatever, or any sign or object signifying such matter otherwise than by word and maybe expressed either directly or by insinuation or irony. It even goes further to state that it is of no moment whether at the time of the publication of the defamatory matter, the person is living or dead. A person convicted for this offence is liable to an imprisonment for one year, where he knows the defamatory material is false and still publishes it, he is liable to imprisonment for two years.
A similar provision is contained under the Section 391 OF THE PENAL CODE which is applicable in the 19 northern States and the Federal Capital Territory. It stipulates that “whoever by words spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that the imputation will harm the reputation of the person, is said, except in the cases provided hereinafter excepted, to defame that person.
The offence is punishable in the manner stated in SECTION 392 OF THE PENAL CODE.
It is however conceded that the above provisions address offences against the person and not a group or class of persons, it is respectfully submitted these laws can be strengthened by way of amendments to cover the latter.
Furthermore, pursuant to Cybercrimes (Prohibition, Prevention, Etc) Act, 2015, the elements of what constitutes a hate speech appear to have been adequately addressed, the relevant section states that “any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that
(a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be sent; or
(b) he knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will, needless anxiety to another or causes any such message to be sent commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
Subsection 2 further states that any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network-
(a) to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person;
(b) containing any threat to kidnap any person or any threat to harm the person of another, any demand or request for a ransom for the release of any kidnapped person, to extort from any person, firm, association or corporation, any money or other thing of value; or
(c) containing any threat to harm property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, to extort from any person, firm, association, or corporation, any money or other thing of value: commits an offence under this Act and shall be liable on conviction.
(i) In the case of paragraphs (a) and (b) of this subsection to imprisonment for a term of 10 years and/or a minimum fine of N25,000,000.00; and
(ii) in the case of paragraph (c) and (d) of this subsection, to imprisonment for a term of 5 years and/or minimum fine of N15,000,000.00
Subsection 3 also states that a court sentencing or otherwise dealing with a person convicted of an offence under subsection (1) and (2) may also make an order, which may, for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from further conduct which-
(a) amounts to harassment; or
(b) will cause fear of violence, death or bodily harm; prohibit the defendant from doing anything described/specified in the order.
Subsection 4 has it also that a defendant who does anything which he is prohibited from doing by an order under this section, commits an offence and shall be liable on conviction to a fine of not more than N10,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
Subsection 5 states also that the order made under subsection (3) of this section may have effect for a specified period or until further order and the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.
Subsection 6 provides that notwithstanding the powers of the court under subsection (3) and (5), the court may make an interim order for the protection of victim(s) from further exposure to the alleged offences.
It is imperative to state here that the above sections were painstakingly reproduced verbatim to show the pointlessness of the hate speech bill as the issues to be addressed by it appear to have been sufficiently addressed by the Section 24 of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015
This letter is a clarion call on the Senate to suspend further deliberation on the bill. The call for patience by the Vice-Chairman of the Senate Committee on Media, Godiya Akwashiki is totally unhelpful, it will amount to a gullible lack of foresight for any well meaning Nigerian to keep quiet in the face of this impending asphyxiation of free speech disguised as anti-hate speech bill.
Save for the creation of a national commission as intended by the bill, there is nothing unique or special that about it to warrant it being reintroduced after its failure to become law under the 8th Senate.
As a final point under this subhead, I want to vehemently assert without hesitation that the problem of this country is not the lack of laws but the implementation of same, the bill currently being proposed will not solve but create more problems.
The fiscal implication of having such a commission will be too severe on the nation’s treasury which is currently suffering the effect of domestic and foreign debts. How can we be serious about maintaining a strong financial reserve when all we do is to increase our recurrent expenditure by creating needless agencies? It seems to me that this bill is being sponsored by Senator Sabi Abdullahi to create “jobs for the boys” and secondly to hunt down perceived “enemies” of the State. On a lighter note, I sincerely hope that this presumption and my letter altogether will not amount to a hate speech in the yet to be passed bill.
Free Speech, Hate Speech and Current Realities
It will be helpful to state that in Nigeria and as obtainable in other democracies, there exists a kind of relationship between free speech and hate speech, thus, striking a balance between the conflicting interests that exist between them is of utmost importance. Free Speech derives its legitimacy from the Constitution which vests legitimacy on the political authority. Guarantees of free speech allow citizens to readily accept governmental authority.
Free speech is basically the right to express any opinions without censorship or restraint; it is a universal principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship or legal sanction.
Hate speech is a deliberate and calculated action to generate hatred for a person or group or class of people. Hate speech is an antithesis of what free speech is. The antidote for hate speech as once opined by President Obama is more free speech and this is exactly how to strike the balance.
President Donald Trump of the United States is arguably the most criticized President in the US history, he is however yet to sponsor an executive bill neither has he deemed it fit to issue an executive order criminalizing hateful public criticisms.
In fairness to President Trump, some of these remarks are sometimes a direct hateful attack on his person, he however chooses to respond with his own speech most times via his verified Twitter account. This is how the most powerful man in the world chooses to respond to hateful criticisms, thereby widening the democratic space in the United States.
It may interest the Nigerian Senate to know that the United States does not have hate speech laws, since American courts have repeatedly ruled that laws criminalizing hate speech violate the guarantee to freedom of speech contained in the First amendment to the United State Constitution. By necessary implication, hate speech enjoys substantial protection under the first amendment, this is premised upon the presumption that freedom of speech requires the government to strictly protect robust debate on matters of public concern notwithstanding that such debate degenerates into distasteful, offensive, or hateful speech that causes others to feel grief, anger or fear.
Nigeria’s political history reveals that there have been consistent and persistent threats to the exercise of free speech by citizens. It is quite appalling that despite our experience during the military era where suppression of free speech and a general violation of human rights were the order of the day, the Nigerian Senate considers it a national priority to prohibit what it terms hate speech. This is reflective and symptomatic of the shallow minded leadership that we currently have at the Senate.
The hate speech bill as stated earlier can inadvertently become an anti-free speech bill, this appears to be the legitimate fears of the citizens.
Of a truth, Nigeria is facing an emergency in terms of insecurity, poor infrastructure and a weak economy, these areas are begging for legislative interventions. The Senate should be alive to its legislative responsibilities, its oversight functions have become more of sight-seeing lately.
I stand to be corrected that Nigeria as currently politically constituted by the ruling class can deploy the instrumentality of a well intentioned law (assuming without conceding it is) for a very selfish and narrow interest.
The Constitution and other relevant statutes as cited earlier cited have placed the freedom of speech within certain legal restraints. The ample provisions contained to check abuse of free speech makes this proposed hate speech bill utterly irrelevant and unnecessary, the attempt of the legislature to avert certain occurrences from happening may not only amount to a wild goose chase but it could bring to reality the worst state of governance that leaves the citizens with no choice than to find other unlawful ways through which their opinions may be expressed.
Nigerians need respite from the highhandedness and insolence of the ruling class, the national mood suggests that there is a deep-seated anger against the political class which has a strong penchant for riding roughshod on the masses. I am not a prophet of doom, however it can be safely assumed that the proverbial last straw that will break the camel’s back may be the unfortunate passage of this proposed bill into law. I hope that the quiet monsters that have been latent and inactive in the oppressed masses will not receive an impartation from the pit of hell to such an extent that all hell will be let loose in this country. May that day never come
*Ajulo is an Abuja-based lawyer and former National Secretary of the Labour Party