There is No Need for a Hate Speech Law

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.

Introduction

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, violenceinducing, 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 violenceinducing.

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.