Is Hate Speech Terrorism?
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.” Whilst the African Charter is enforceable in Nigeria, the United Nations Universal Declaration of Human Rights is not: see the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act 1981.
The Constitution is, however, supreme. By virtue of Section 45 of the Constitution, 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 v HASSAN (2014) INWLR pt. 1389 pg. 607 and UKAEGBU v NBC (2007) 14 NWLR pt. 1055 pg. 551.
It was in this regard, that the court held in ADIKWU v FED. HOUSE OF REPRESENTATIVES (1982) 3 NCLR 394 @ 412 that the Constitutional guarantee of free speech “does not authorise any person to publish false news.” See also SENATE v 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, criminalise 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, one cannot but wonder about the reported resolve of the National Assembly, 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.
For example, what is deficient in Section 417 of the Penal Code which, as can be seen, penalises the likes of Nnamdi Kanu (IPOB/Biafra), Abdulaziz Suleiman & Shettima Yerima (Arewa Youths) and Adeyinka Grandson (Oduduwa Republic), all of whom patently “seek to excite hatred or contempt against any class of persons in such away as to endanger public peace”; this is clearly within the meaning of that provision. Or with Section 419 of the same Code, which criminalises the reportedly viral anti-Igbo songs in Hausa language? It will be recalled that this provision explicitly penalises mere possession of such records or other audio or video representation/ reproduction with imprisonment for 2 years or a fine or both. In my view, rather than enacting entirely new legislation, the punishment prescribed in this statute (and similar laws) can be strengthened simply by amending them.
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 imprisonment 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. The key word in the provision is “act”. 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 the noun variant as “a thing done; a deed” as in “a criminal act”. I submit that while the Terrorism (Prevention) Act includes “any act which may cause serious damage to a population”, within the definition of “terrorist acts”, in the light of the definition of “act” above, it would be something of a stretch, to describe hate speech as terrorism.
Conclusion It is axiomatic that all residents of Nigeria - Nigerians and non-Nigerians alike - have a stake in their peaceful coexistence within its geographical space. Any action, or speech, which has the tendency to undermine law and order, should be regarded as a threat, not just to national unity and stability, but indeed to the individual’s personal security. A threat to one, ought to be viewed as a threat to all, and tackled accordingly.
Beyond the legislative characterisation of deviant or anti-social behaviour – of which hate speech is but a manifestation – it is a myth to assume that laws, in and of themselves, always persuade the criminally-inclined to conform. That notion, has historically proved to be a fallacy. I believe that the long-term panacea to the problem of hate speeches – as with all crimes – lies beyond mere legislative rule-making or intervention. 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 – not completely eliminated - through an elite consensus across the fault lines presently exerting centripetal forces against the country’s 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, Abdulaziz Suleiman/ Yerima Shettima and Adeyinka Grandson, as aforesaid. The enduring solution, I think, is for the protagonists and antagonists alike, to realise that not only is Nigeria greater than the sum of its parts, the want-aways and irredentists should be convinced, by any means possible, that they would be better-off as part of the Union, with all its imperfections, than in an uncertain, ill-defined separate entity, whose promise as an utopia is by no means a given - 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 realising 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.