The hate speech bill is a national embarrassment

The bill on hate speech before the National Assembly is an embarrassment. We seem to revel in taking decisions in moments of emotional flourishes and consequently often fail to soberly reflect on possible unintended consequences of our actions.

Last year we saw how the country made itself a laughing stock when IPOB, as despicable and unacceptable as its activities were, was hastily labelled a terrorist organization when it hardly met any of the four key criteria used by terrorism researchers in classifying an organization as a terrorist group. No country or credible researcher on terrorism was willing to support the government’s position. So how exactly did that hasty pronouncement help the country – except to trigger competitive calls for troublesome organisations and rural bandits to be similarly pronounced as terrorist groups? We must not lose sight of the lesson from that mistake.

I have written severally on hate speech and how it interplays with free speech and other speech forms. My reflections on the Hate Speech Bill will therefore draw from some of my articles on the subject over the years.

The first challenge the Hate Speech Bill will face is determining what constitutes hate speech. One definition of hate speech is that it is any speech that employs discriminatory epithets to insult and stigmatize others on the bases of their race, ethnicity, gender, sexual orientation or other forms of group membership. The problem here is that offensive speech is also similarly defined.

Another definition of hate speech is any speech, gesture, conduct, writing or display which could incite people to violence or prejudicial action. Here the key word is ‘Incite’. However defining hate speech in this manner creates its own problem because even the opinions we hold could be construed as an incitement. As Justice Holmes put it in a landmark case in the USA, (Gitlow v New York [1925]), “Every idea is an incitement... The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result.”

Several scholars have tried to more precisely delineate when offensive speech crosses that fine line and becomes hate speech. Susan Benesch, Director of the Dangerous Speech Project and a Faculty Associate of the Berkman Centre for Internet and Society at Harvard University identified five key variables for determining the ‘dangerousness’ of speech or when speech transmutes from offensive to hate speech: (1)The level of a speaker’s influence (2)the grievances or fears of the audience (3) whether or not the speech act is understood as a call to violence, (4) the social and historical context, and (5) the way in which the speech is disseminated.

Even Professor Benesch’s delineations are fraught with relativities. The point is that delineating hate speech from offensive speech is extremely difficult. The definition of ‘hate speech’ adopted by the Hate Speech Bill is not rigorous enough. And any plea of ‘Nigerian exceptionalism’ is unlikely to persuade the international community when the country tries to implement its provisions and runs into inevitable difficulties. Some people believe that the term ‘hate speech’ should only be used for extreme cases such as speeches that explicitly call for the physical injury or extermination of certain people. I will define hate speech as speech that has ‘clear and imminent danger’ of triggering violence.

The second challenge which the Hate Speech Bill faces is the effectiveness of using the law to curb hate speech. Hate speech is prohibited by law in several jurisdictions such as Canada, France, the United Kingdom and South Africa. In the United Kingdom, among the panoply of the country’s hate speech laws, is Section 5 of the Public Order Act (POA), which makes it a crime to use or display threatening, abusive, or insulting words “within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby.” Under this section of the POA, Harry Taylor, an atheist who placed drawings satirizing Christianity and Islam in an airport prayer room, was convicted in April 2010 and given a six-month prison sentence. In Nigeria under the Hate Speech Bill he would be condemned to death!

In The Netherlands, which is long considered a bastion for the freedom of thought and expression, Articles 137(c) and 137(d) of the country’s Criminal Code prohibits making public intentional insults, as well as engaging in verbal, written, or illustrated incitement to hatred, on account of one’s race, religion, sexual orientation, or personal convictions. In The Netherlands, the most prominent hate speech case to date is that of politician Geert Wilders, who was indicted by the public prosecutor in 2009 for his public comments about Muslims and Islam, and his release of a short film documenting what he called ‘inflammatory passages’ in the Qur’an.

In France, Section 24 of the country’s Press Law of 1881 criminalizes incitement to racial discrimination, hatred, or violence on the basis of one’s origin or membership (or nonmembership) in an ethic, national, racial, or religious group. In 2005, politician Jean Marie Le Pen, runner-up in the 2002 presidential election, was convicted of inciting racial hatred for comments made to Le Monde in 2003 about the consequences of Muslim immigration in France. In South Africa, Julius Malema, the former ANC’s Youth League leader was in 2011 convicted of hate speech for promoting the song, “Kill the Boer”.

In contrast to the above countries, laws prohibiting hate speech are unconstitutional in the United States as most often fail legal challenges based on the First Amendment of the Country’s Constitution which prohibits the restriction of free speech. In the US law courts, even ‘fighting words’ (those that pass the ‘clear and imminent danger’ test which are categorically excluded from the protection of the First Amendment) are not that easy to separate from hate speech, which is a protected speech.

An insight into how the American jurisprudence protects hate speech is in the way the law treats the Ku Klux Klan – one of the worst purveyors of racial hatred in that country. In a landmark case, Brandenburg v. Ohio (1969), the arrest of an Ohio Klansman named Clarence Brandenburg on criminal syndicalism charges, based on a KKK speech that recommended overthrowing the government, was overturned by the country’s Supreme Court. In a unanimous judgment, Justice William Brennan argued that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Is hate speech less in countries that use the law to fight it?

This is debatable. What is clear is that laws can sometimes exacerbate the problem. A good example of this is what happened in the Australian state of Victoria where a law banning incitement to religious hatred led to Christians and Muslims accusing each other of inciting hatred and bringing legal actions against each other which only served to further inflame community relations. Besides, even if the law is effective in curbing hate speech in countries where the basis of statehood has long been settled, we cannot assume that the same will apply here where the country is extremely polarized and the basis of statehood remains contested. It is in fact tempting to speculate on what will happen if Junaid Mohammed, Edwin Clark, Prof Ben Nwabueze, Gani Adams, Prof Ango Abdullahi, Asari Dokubo and others who hold strong views that are sometimes unacceptable to sections of the country are condemned to death for speeches they uttered? Will that promote amity or widen the social distance among the different sections of the country?

How do we speeches?

A starting point is to recognize that the line between offensive and hate speech could be blurred. While proper hate speeches – those that pass the ‘clear and imminent danger’ test should be criminalized (certainly not with death penalty), my opinion is that we should use non-legal instruments to deal with offensive speeches. There may for instance be a need to develop, in conjunction with critical organs of the society such as media owners and practitioners, the taxonomy of what constitutes hate speech and offensive speeches. Media houses through their unions should incorporate these as part of good journalism practice and impose sanctions on erring members who publish or broadcast hate speech speeches.

Perhaps one of the most effective ways of combating hate speech is to ensure that purveyors of such speeches are marginalized. For instance in the UK, while the racist British National Party and the ideas it purveys are not banned, it will be political suicide for any politician to be seen to associate with the party’s members. In Nigeria offensive and hate speech mongers are adopted as regional and ethnic heroes.

Nigerians should also learn to laugh at themselves. This is already happening in some ways with our comedians who dish out jokes based on ethnic and regional profiling. In fact it could be argued that since every region and ethnic group in the country is both a victim and a victimizer when it comes to hate speech, they countervail and cancel out one another. fight hate and offensive