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