Does freedom of speech justify hate speech?

Introduction

The increasing incidents of inflammatory speeches clearly designed to stoke ethnic and communal hatred has led to calls for legislative intervention by the Nigerian State. Those calls are evidently informed by the belief that there is a lacuna or gap in our existing laws on the subject. But, is that really the case? Acting President Prof. Yemi Osinbanjo, SAN, does not seem to think so, as in his opinion, hate speech is “a specie of terrorism” under the Terrorism (Prevention) Act, 2011, as amended. Is he correct? If he is, does that law violate the right to free speech guaranteed under the Constitution? The issues are examined below. But, first…

What is freedom of speech?

Section 39(1) of the 1999 Constitution provides that “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart information without interference”. Similarly, Article XIX of the United Nations Universal Declaration of Human Rights provides that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” By the same token, Article IX of the African Charter on Human and Peoples Rights provides that “Every individual shall have the right to receive information and the right to express and disseminate his opinions within the law.”

The Constitution is, however, supreme. By virtue of Section 45 thereof, the right to freedom of speech can be derogated from by any law that is “reasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons or in the interest of public defence, public safety, public order, public morality or public health.” In other words, the right to freedom of speech is not absolute. This means that one person’s right to freedom of speech stops where another person’s right to his or her dignity, reputation or property starts. See EFCC vs. HASSAN (2014) INWLR pt. 1389 pg. 607 and UKAEGBU vs. NBC (2007) 14 NWLR pt. 1055 pg. 551.

It was in this regard that the court held in ADIKWU vs. FED. HOUSE OF REPRESENTATIVES (1982) 3 NCLR 394 @ 412 that the Constitutional guarantee of free speech “does not authorize any person to publish false news.” See also SENATE vs. TONY MOMOH (1983) 4 NCLR 269 @ 296 where it was held that the Constitutional right to freedom of expression “does not protect the disseminator from disabilities or liabilities such as the law of libel”. It is for this reason that both the Penal Code and the Criminal Code in force in the Northern and Southern States respectively criminalize offensive or inappropriate language/speech. For instance, Sections 417, 418 and 419 of the Penal Code, provide thus respectively:

Section 417:- “Whoever seeks to excite hatred or contempt against any class of persons in such away as to endanger the public peace shall be punished with imprisonment for a term which may extend to three years or with fine or with both.”

Section 418:- “Whoever circulates, publishes or reproduces any statement, rumour or report which he knows or has reason to believe to be false with intent to cause or which is likely to cause fear or alarm to the public whereby any person may be induced to commit an offence against the public peace, shall be punished with imprisonment which may extend to two years or with fine or with both.”

Section 419:- Whoever has in his possession without lawful excuse, the proof of which shall lie on him, any book, pamphlet or paper, gramophone record, tape recording, drawing, printing, photography, cinema film or other visible or audible representation or reproduction, the publication or exhibition of which would constitute an offence under sections 416, 417 or 418, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

Similar provisions are contained in the Criminal Code, as aforesaid. That being the case, it is rather surprising that the National Assembly has reportedly resolved to enact fresh so-called anti-hate speech legislation. To the extent that such laws already exist, in my view, it is either that they are deemed to be not potent enough, or - as I suspect is the case - it is yet another manifestation of the tendency of our policy-makers to confuse movement with motion. There is simply no hard evidence to support the view that the existing anti-hate speech legislation is inadequate either as deterrents or punishments.

Is Hate Speech Terrorism?

As previously stated, the Acting President Prof. Yemi Osinbajo, SAN has invoked the Terrorism (Prevention) Act, as amended, against purveyors of hate speech. That law prescribes penalties of between three (3) years and death as well as fines of up to N150 million for anyone who engages in “acts of terrorism” within the meaning of the Act. Section 1(2)(b)(ii) of the Act defines “act of terrorism” as “an act which is deliberately done with malice aforethought and which is intended or can reasonably be regarded as having been intended to seriously intimidate a population”.

The Macmillan English Dictionary, 2nd edition (page 794) defines ‘intimidate’ as “to deliberately make someone feel frightened, especially so that they will do what you want; to frighten someone or make them feel nervous”. It can be seen that the key phrase in the provision is “act of terrorism”, of which the word “act” is dominant. This word is used either as a verb or a noun. It is clear that it is used in the latter sense in the Act. An Online Dictionary defines its noun variant as “a thing done; a deed”, as in “a criminal act”. I submit that in the light of this definition, it would be a bit of a stretch to describe hate speech as terrorism. Quite simply, a speech is not an ‘act’, either in the context in which it is used in the Terrorism Act or otherwise; to construe it otherwise, in my view, would defeat the manifest legislative intention.

Conclusion

Beyond any legislative characterization of deviant or anti-social behavior - of which hate speech is but a manifestation - it is a myth to assume that laws, in and of themselves, always persuade the criminally-minded to conform. That notion has historically been a fallacy. I believe that the longterm panacea to the problem of hate speeches - as with all crimes - is beyond mere legislative rulemaking. This is because, while appropriate legislation is an integral part of the policy mix for tackling hate speech, in my view, such behaviour can only be reduced to a ‘tolerable’ level and not completely eliminated, as that is impossible - through an elite consensus across the fault lines presently exerting centripetal forces against our unity and stability.

While that consensus has by no means been lacking, the reality is that it appears to be drowned out - for the time being at least - by the voices of hate typified by ethnic jingoists like Nnamdi Kanu et al. The real solution, I think, is for the protagonists and antagonists alike to realize that not only is Nigeria greater than the sum of its parts, the want-aways and irredentists should be convinced, by every possible means legitimately, of course - that they would be better-off as part of our Union, with all its imperfections, than in an uncertain, ill-defined separate entity, whose promise as an utopia is by no means a given - if in any doubt, just look at South Sudan.

This is obviously a call to arms, but, as a battle for hearts and minds, it is one which, in the nature of things, cannot be won through the coercive instrument of the law alone. Rather, in my view, it can be accomplished without firing a shot, as it were, through the simple logic of realizing that the goal so passionately pursued by the separatists might turn out, in the long run, to be a pyrrhic victory: I believe that the physical and emotional ties that presently bind us which have been nurtured over time will see to that.

Sani wrote this piece from Abuja.