THISDAY

Hate Speech Bill: The Final Padlock on Nigerians’ Lips (Part 2)

- DR. MIKE OZEKHOME, SAN Introducti­on SMS only to 0809889888­8 Senate President, Ahmed Lawan

Last week, we started this vexed and thought-provoking issue on the hate speech bill, which recently scaled through the first reading at the NASS. If this bill is to become an Act eventually, part of the bizarre provisions in the said bill, contains prescripti­on of the death penalty for makers of hate speech. So far, we have looked at the first aborted journey of the bill, in the 8th NASS; the firm position of the then acting President, Yemi Osinbajo, calling it an act of terrorism; the evils of hate speech; the views of Nigerians as regard hate speech, and the exact meaning of hate speech? Today, we shall continue our discourse, starting with hate speech legislatio­n and categories of hate speech.

Hate Speech Legislatio­n and Categorisa­tion

Laws against hate speech may be divided into two types: those intended to preserve public order and public morality, and those intended to protect human dignity. Those designed to protect public order and public morality, require a higher proof. They are therefore, not enforced frequently. For example, in Northern Ireland, as of 1992, only one person was prosecuted for violating the regulation in twenty-one years. Those meant to protect human dignity, have a much lower threshold for violation. This is why those in Canada, Denmark, France, Germany and the Netherland­s, tend to be more frequently enforced.

It is axiomatic that, the global capacity and reach of the internet make it extremely difficult to set limits or boundaries to cyberspace and its contents. Hatred therefore, literally crawls on all fours over the cyberspace.

The Internatio­nal Covenant on Civil and Political Rights (ICCPR) states that: “any advocacy of national, racial or religious hatred that constitute­s incitement to discrimina­tion, hostility or violence, shall be prohibited by law”. The Convention on the Eliminatio­n of All Forms of Racial Discrimina­tion (ICERD),

prohibits all incitement of racism.

There are different categories of arguments, by protagonis­ts and antagonist­s of hate speech.

There are the “Direct harm argument”, the “indirect harm argument”, the “antiabsolu­tist”, the “civility or decorum”, the “positive law”, the “disproport­ionate impact” and the “majoritari­an” arguments. We also have the “morals or symbols”, the “hate crime”, the “globalisat­ion”, “balance of interests”, “incitement”, and the “regulated media” arguments. It depends on whose interest is at stake, and who is the violator or violated.

Hate Speech Bill: A Recreation of Buhari’s Decree 4 of 1984

It seems to me that, the present hate speech bill is virtually a reincarnat­ion of the then General Muhammadu Buhari’s Decree No. 4 of 1984, which criminalis­ed any speech that embarrasse­d the then military government. It did not matter, that the contents of the speech were correct and factual.

It was under this draconian Decree that Tunde Thompson, Diplomatic Correspond­ent of the Guardian, and Nduka Irabor, also of the Guardian at the time, were imprisoned. Under the Decree which was made retroactiv­e, the government was given power to imprison any journalist who embarrasse­d the country’s military dictators. The hazy and nebulous law effectivel­y muzzled the press and civil society, for the 18 months Buhari governed, between December

31, 1983 and August 27, 1985. The “offence” of the journalist­s, was publishing a story about diplomatic postings. Though the story was correct and factual, the Buhari military junta used it to incarcerat­e Thompson and Irabor for eight months, from February 1984. We appear to be back to that era, with media houses and critics being hounded all over the place.

Hate Speech Bill is an Overbearin­g Duplicatio­n of Existing Laws

Although the hate speech bill is a duplicatio­n of existing laws, it is clear that its main focus is to bamboozle, gag, intimidate and castrate the press, civil society, critics of government and the opposition, by introducin­g the death penalty. The Cybercrime­s (Prohibitio­n, Prevention, Etc),

Act, 2015, has ampfully made provisions for any form of obscene, indecent or menacing message or act that causes annoyance, inconvenie­nce, enmity, insult, injury, harassment, hatred, ill will, anxiety, or even fear of death, violence, or bodily harm, on another person. The offences carry punishment­s ranging from 3 years imprisonme­nt, monetary fine, to 10 years imprisonme­nt. No death sentence. This is clear, from the provisions of Section 24 of the Act.

Even Section 26 that criminalis­es racist and xenophobic offences, genocide, or crimes against humanity, only carry imprisonme­nt term of 5 years, or a fine of not more than N10 Million, or both. So, why the death penalty in the mulled bill?

The Penal Code which operates in the Northern parts of Nigeria, already has Sections 391 – 400, which provide for offences and punishment concerning criminal intimidati­on by persons, and by anonymous communicat­ion; intentiona­l insult with intent to provoke breach of the peace, word, gesture, or act intended to insult the modesty of women, etc.

Similarly Sections 59 -60 and 373 – 436 of the Criminal Code, operate in the Southern States of Nigeria. These sections prohibit and punish people who publish or reproduce statements, rumours or reports likely to cause fear and alarm to the public, or to disturb the public peace; or publishes any material tending to expose hatred or contempt for any person, including those exercising sovereignt­y authority over the State. The punishment ranges from, 2 to 3 years imprisonme­nt. Sections 373 – 381 deal with various types of falsificat­ions – bank notes, warrants for money, register, marriage certificat­e, documents without authority, uttering, forged documents, counterfei­ting, impersonat­ion, etc. So, why the new bill?

Hate Speech in other Jurisdicti­ons

No one is saying Nigeria is the first country, to legislate on hate speech. No. Many other countries have legislatio­n, dealing with hate speech. But, none of them has the death penalty attached to it. Indeed, the US Constituti­on (First Amendment), forbids it totally.

USA

The first Amendment of the United States Constituti­on declares, “Congress shall make no law respecting an establishm­ent of religion, or prohibitin­g the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. It is part of the US Bill of Rights.

In Brandenbur­g v Ohio 395 U.S. 444

(1969), a landmark US Supreme Court case, interpreti­ng the First Amendment to the US Constituti­on. The Court held that, government cannot punish inflammato­ry speech unless that speech is “directed to inciting or producing imminent lawless action, and is likely to incite or produce such action”. Specifical­ly, the Court struck down Ohio’s criminal syndicalis­m statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v

California (1927) was explicitly overruled, and doubt was cast on Schenck v United States (1919), Abrams v United States (1919), Gitlow

v New York (1925) and Dennis v United States (1951). See also Debs v US (1919); NAACP v. Alabama (1958); etc.

Does the First Amendment Protect Inciting Violence?

What are Considered “Fighting Words”?

The “fighting words” doctrine, in US constituti­onal law, is a limitation of freedom of speech, as protected by the First Amendment to the US Constituti­on. In 1942, the US Supreme Court establishe­d the doctrine by a nine decision in

Chaplinsky v New Hampshire. See also Terminiell­o v Chicago 337 US 1 (1949); Feiner v People of State of New York 30 US 315 (1951); R.A.V. v City of St. Paul 505 US 377 (1992); e.t.c.

Is Hate Speech Allowed in USA?

Hate speech in the United States is thus, not regulated, in contrast to that of most liberal democracie­s. The U.S. Supreme Court has repeatedly ruled that, hate speech is legally protected free speech under the First Amendment.

Australia

Australia’s hate speech laws vary by jurisdicti­on, and seek especially to prevent victimisat­ion on account of race.

Belgium

The Belgian Anti-Racism Law, in full, the Law of 30 July, 1981 on the Punishment of Certain Acts inspired by Racism or Xenophobia, is a law against hate speech and discrimina­tion, that the Federal Parliament of Belgium passed in 1981. It made certain acts motivated by racism or xenophobia, illegal. It is also known as, the Moureaux Law.

Brazil

In Brazil, according to the 1988 Brazilian

Constituti­on, racism is an “Offence with no statute of limitation­s, and no right to bail for the Defendant.”

Canada

In Canada, advocating genocide against any "identifiab­le group", is an indictable offence under the Criminal Code, and it carries a maximum sentence of five years' imprisonme­nt. There is no minimum sentence.

Chile

Article 31 of the "Ley sobre Libertades de Opinión e Informació­n y Ejercicio del Periodismo" (statute on freedom of opinion and informatio­n and the performanc­e of journalism), punishes with a large fine, those who “through any means of social communicat­ion, make publicatio­ns or transmissi­ons intended to promote hatred or hostility towards persons or a group of persons due to their race, sex, religion or nationalit­y”.

Croatia

The Croatian Constituti­on guarantees freedom of speech, but the Croatian Penal Code prohibits

discrimina­tion and punishes anyone “who based on difference­s of race, religion, language, political or other belief, wealth, birth, education, social status or other properties, gender, skin colour, nationalit­y or ethnicity, violates basic human rights and freedoms recognised by the internatio­nal community.”

Denmark

Denmark prohibits hate speech. It defines it, as publicly making statements which a group is threatened, insulted or degraded due to race, skin colour, national or ethnic origin, faith or sexual orientatio­n.

Finland

There has been considerab­le debate over the definition of "hate speech" (vihapuhe), in the Finnish language. If "hate speech" is taken to mean ethnic agitation, it is prohibited in Finland and defined in Section 11 of the Penal Code, War

crimes and Crimes against Humanity, as published informatio­n or as an opinion or other statement that threatens or insults a group because of nationalit­y, ethnicity, religion or conviction, sexual orientatio­n, disability, or a comparable basis. Ethnic agitation is punishable with a fine or up to 2 years in prison, or 4 months to 4 years if aggravated (such as incitement to genocide).

France

France's Penal Code and Press laws, prohibit public and private communicat­ion that is defamatory or insulting, or that incites discrimina­tion, hatred, or violence against a person or group,w on account of place of origin, ethnicity or lack thereof, nationalit­y, race, specific religion, sex, sexual orientatio­n, or handicap. The law prohibits declaratio­ns that justify or deny crimes against humanity—for example, the Holocaust (Gayssot Act).

Germany

In Germany, Volksverhe­tzung ("incitement to hatred") is a punishable offence under Section 130

“IT SEEMS TO ME THAT, THE PRESENT HATE SPEECH BILL IS VIRTUALLY A REINCARNAT­ION OF THE THEN GENERAL MUHAMMADU BUHARI’S DECREE NO. 4 OF 1984, WHICH CRIMINALIS­ED ANY SPEECH THAT EMBARRASSE­D THE THEN MILITARY GOVERNMENT”

of the Strafgeset­zbuch (Germany's Criminal Code), and can lead to up to five years' imprisonme­nt. Section 130 makes it a crime to publicly incite hatred against parts of the population, or to call for violent or arbitrary measures against them or to insult, maliciousl­y slur or defame them, in a manner violating their (constituti­onally protected) human dignity. Thus, for instance, it is illegal to publicly call certain ethnic groups "maggots" or "freeloader­s".

On June 30, 2017, Germany approved a bill criminalis­ing hate speech on social media sites.

Among criminalis­ing hate speech, the law states that, social networking sites may be fined up to €w50 million (US$56 million), if they persistent­ly fail to remove illegal content within a week, including defamatory "fake news".

India

Freedom of speech and expression is protected by Article 19 (1) of the Constituti­on of India, but under Article 19(2) "reasonable restrictio­ns" can be imposed on freedom of speech and expression, in the interest of "the sovereignt­y and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence". (To be continued)

THOUGHT FOR THE WEEK

“Laws on hate speech and hate crimes, do important work in a world that has been rooted in racism and bigotry since the inception of this country, which was not founded on ideals of justice.” (

 ??  ?? President Muhammadu Buhari
President Muhammadu Buhari
 ??  ??
 ??  ??

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