HATE SPEECH BILL: AN AFFRONT (OR A DAYLIGHT COUP) ON THE CONSTITUTIONAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION?
One of the characteristics of a democratic state is the freedom of speech and expression which the citizens enjoy as this freedom is not only constitutionally guaranteed but widely and internationally accepted and protected.
Recently, there has been deafening uproar in Nigeria due to two recent bills sponsored by Senator Muhammad Sani Musa and Senator Abdullahi Aliyu Sabi in the National Assembly which are; Protection from Internet Falsehood and Manipulation and Other Related Matters Bill 2019 and A Bill for an Act to provide for the Prohibition of Hate Speeches and for other related matters. Nigerians have particularly reacted to ‘A Bill for an Act to provide for the Prohibition of Hate Speeches and for other related matters’ popularly known as the HATE SPEECH BILL sponsored by Senator Abdullahi Aliyu Sabi.
Although the objectives of the Hate Speech Bill is to discourage ethnic discrimination, hate speech, harassment on basis of ethnicity, racial or ethnic contempt and discrimination by way of victimization, there be more to this bill than meets the eyes of the unsuspecting. The commission to be established by the Act is saddled with the responsibility to:
- Facilitate and promote a harmonious peaceful co-existence within the people of all ethnic groups indigenous to Nigeria and more importantly to achieve this objective by ensuring the elimination of all forms of hate speeches in Nigeria, and to advice the Government of the FRN;
- Promote elimination of all forms of hate speeches against any person(s) or ethnic group indigenous to Nigeria;
- Promote tolerance, understanding and acceptance of diversity in all aspects of national life and encourage full participation by all ethnic communities in social, economic, cultural and political life of other communities;
- Plan, supervise, coordinate and promote educational training programs to create public awareness, support and advancement of peace and harmony among ethnic communities and racial groups; amongst others.
Owing to the insidious nature of this Bill, it has rightly received public outrage and condemnation as Nigerians see it as an attempt to stifle and curtail their constitutional right to freely express themselves and hold the government accountable. Further, this bill prescribes death (by hanging) or life imprisonment for any person whose act of hate speech causes loss of life to another.
The question that begs for answer is what really is the essence and need for this bill and whether this bill is truly an affront to a person’s right to freedom of speech and expression, aside it being a duplicity of other existing legal framework in Nigeria.
What is Hate Speech?
Oxford online dictionary defined hate speech as an abusive, threatening speech or writing that expresses prejudice against a particular group, especially on the basis of race, religion or sexual orientation.
Although the hate speech bill did not only restrict hate speech to written works or publication but also behavior intended to stir up ethnic hatred. It is therefore imperative to look at the Constitution of the Federal Republic of Nigeria, 1999 (as amended), being the grundnorm and other statutory provisions in Nigeria to critically evaluate the arguments for and against the hate speech bill.
Section 39 (1) of the Constitution provides: “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”
(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:
Provided that no person, other than the Government of the Federation or of a State or any other person or body authorized by the President on the fulfillment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.
(3) 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 other Government security services or agencies established by law.
For the purpose of clarification, Section 39(1) which is the main sub section is explained below:
- Everyone is entitled to Freedom of expression;
- Freedom to hold opinion;
- Freedom to receive and impart ideas and information without interference.
The above section does not only guarantee a person’s freedom of speech and expression but also protect such freedom against any violation. This is because freedom of speech guarantees an individual right to articulate his or her opinion and ideas without fear of retaliation or legal sanction. Although the constitution guarantees freedom of expression, this expression must be done within the ambit of the law and any contravention will give an injured person the right to seek redress in court.
Further, the 21st century has witnessed several information and technological advancements. Information, opinions, ideas etc. are now processed and accessed using various online mediums such as the computer and network system and includes social media. Thus, the National Assembly in order to regulate this information enacted the Cybercrime (Prohibition and Prevention) Act 2015, which aims to not only detect and prohibit cybercrimes but also prosecute offenders.
More so, the Cybercrime Act provides for punishment against any threat, cyber stalking (which includes communication that threaten, bully, harass and puts a person in fear of death, violence or bodily harm) commits an offence with the punishment prescribed. In addition to the above, Section 26 of the Cybercrime Act 2015 prohibits racist or xenophobic material published or distributed through a system or network, to the public which justifies crime against humanity and genocide on the basis of race, colour, group, National or ethnic origin, religion or descent and makes its commission an offence punishable by both fine and imprisonment of not more than five years.
Asides a person’s right to bring an action in tort under slander and libel, a person can also be punished under the Cybercrime Act 2015 for any publication which tends to stir up ethnic hatred or cause death. In addition to these existing legal frameworks against all forms of hateful speeches, the Penal Code and Criminal Code of the various States of the Federation already provide for the prohibition and punishment of inciting statements, false accusation, sedition and criminal defamation.
Another Constitutional provision that prevents discrimination on all front and enables a person to seek redress in court is Section 42 of the Constitution which provides for freedom against discrimination on the basis of ethnic, sex, religion, origin, disability etc.
It is pertinent at this point to disclose that the Hate Speech Bill is a slavish replication of the Hate Speech Bill of Singapore and South Africa. This is without expected consideration for the cultural and religious diversities embedded in the Nigerian state.
One noteworthy point is that A Bill for an Act to provide for the Prohibition of Hate Speeches and for Other related matters known as the “Hate Speech Bill” did not provide for exemptions as seen in other bills like the South Africa’s Prevention and Combating of Hate Crimes and Hate Speech Bill & International Crimes Bill which provides for exemptions to the crime of hate speech and includes the freedom of the press, artistic creativity and academic work. Furthermore, there was an exemption for, inter alia, bona fides proselytizing or espousing of any religious belief, teaching or doctrine. Hate speech also applied to cyber space, which would include social media.
It is therefore this writer’s opinion that in as much as the Legislatures make laws for the peace, order and good government of the Federation, such laws must not curtail the citizens fundamental right as constitutional guaranteed and this hate speech bill with its death penalty is a violation of a person’s right to freedom of expression.