On Open Defecation, Special Courts and Hate Speech
Rarely has the nation witnessed such a flurry of policy initiatives by two arms of government – the Executive and the Legislature – with break- neck speed ( two weeks to be exact), as those recently announced by President Buhari and the Senate, in respect of open defecation, special crimes courts and hate speech, respectively. The first two were made in the midst of public disquiet over the on-going debate by the Senate to control so-called ‘hate speech’, particularly the proposal to prescribe the death penalty for those found guilty of violating the law, when (or if) passed. While it must be said that none of these initiatives, on its face, is objectionable in and of itself, it does appear that the concerns expressed over them, have somewhat tended to overlook deeper issues surrounding their legality.
The Hate Speech Bill
Informed public commentary (the legal community), appears to be unanimous about the unconstitutionality of this bill. Is that really the case? What are the parameters for determining the constitutionality or otherwise of any proposed law? Lawyers know that, among such factors it is the extent, or otherwise, to which it is within the legislative competence of the specific lawmaking body which purports to enact it. In the case of the hate speech bill, it was proposed by a Senator, and is presently undergoing debate therein. Accordingly, the question is whether regulation of hate speech, is within the remit of the National Assembly.
As correctly opined by eminent senior counsel, Femi Falana, SAN, this question is answered by reference to the provisions of Section 4(3) and the Exclusive/Concurrent Legislative Lists of the 1999 Constitution: the National Assembly can only legislate on a matter contained in either of these Lists. Hate speech, per se, is not contained in any of them. Case closed, right? Unfortunately, it is not that simple. This is because, historically, despite the absence of corruption, economic and financial crimes from both the Exclusive and Concurrent Legislative Lists of the Constitution, the National Assembly enacted the Independent Corrupt Practices and Other Related Offences Commission Act, 2000 and the Economic and Financial Crimes Commission (Establishment) Act, 2003. Both statutes were subsequently validated, by the Apex Court and the Court of Appeal in ATT-GEN. OF ONDO STATE v ATT-GEN. OF THE FEDERATION (2002) 9 NWLR pt. 722, pg. 222, OLAFISOYE v F.R.N. (2004) 4 NWLR pt. 864 pg. 580 and AKINGBOLA v F.R.N (2012) 9 NWLR pt. 1306 pg. 511,
respectively. In all these instances, what saved the affected laws, was the fact that, they established specific structures and institutions (the ICPC and the EFCC, respectively) whose mandates,
inter alia, were the promotion and observance of the Fundamental Objectives and Directive Principles contained in Chapter II (Sections 13 to 24) of the 1999 Constitution, within the contemplation of Item 60(a) of the Exclusive Legislative List of the Constitution. In this regard, in ATT-GEN. OF ONDO STATE v ATT-GEN. OF THE FEDERATION, supra, the Apex Court (per Uwaifo, JSC), opined that, “the said Item 60(1) under the Exclusive Legislative List gives the power to the National Assembly to legislate for the establishment and regulation of authorities for the Federation or any part thereof to promote and enforce the observance of the Fundamental Objectives and Directive Principles
contained in the Constitution”. Applying this to the anti-Hate Speech Bill, the question is whether its provisions can be related to any Fundamental Objective and Directive Principle of State Policy contained in the Constitution; secondly, and more importantly, whether the bill seeks to establish and regulate an authority to promote such objectives/principles.
The answer to both questions appears to be an unequivocal ‘yes’. This is because, in the case of the first question, Section 24(c)
of the Constitution clearly provides that: “It shall be the duty of every citizen to respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony
and in the spirit of common brotherhood”. As for the second question, the bill reportedly seeks the establishment of an “Independent National
Commission for Hate Speech”, which shall enforce hate speech laws across the country. To that extent, it would be a stretch to insist that the bill, in its present form, is ultra vires the National Assembly. I don’t think it is.
In my view, what ought to agitate informed opinion, is whether the small print of the law, when passed, is precise enough to pass the ambiguity test contemplated by Section 36(12)
of the Constitution which provides that “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor
is prescribed in a written law”. So, what, exactly, is ‘hate speech’? According to the Oxford Online Dictionary, “hate speech is speech that attacks a person or a group on the basis of protected attributes, such a race, religion, ethnic origin, national origin, sex, disability, sexual orientation or gender identity”.
According to Brittanica.com, another online
data source, “typical hate speech involves epithets and slurs, statements that promote malicious stereotypes, and speech intended to incite hatred or violence against a group. Hate speech can also include non-verbal depictions and symbols, for example the Nazi Swastika, the Confederate Battle Flag (in the U.S.) and (even) pornography: these have all been considered hate speech by a variety of people
and groups”. To this, one might add the sort of inter- ethnic statements, which directly fuelled the Rwandan Genocide of 1994.
Subject to the foregoing limitations, it is clear that, given the widely- acknowledged dangers of hate speech, an unrestrained and unchecked right to freedom of speech and expression, will lead, not only its abuse, but the endangerment of vulnerable groups and minorities. According to William Curtis, the proponents of such curbs or controls argue that, hate speech is not merely the expression of ideas, but rather, an effective means of socially subordinating its victims. Hence, in his opinion, the ongoing debate in liberal democracies, over whether and how hate speech should be regulated or censored. With the notable exception of the United States (courtesy of the First Amendment to its Constitution), liberal democracies such as France, Germany, Canada and New Zealand, all have laws designed to curtail hate speech.
Accordingly, the proposed anti-hate speech bill would not be bucking the trend worldwide, but would rather be consistent with it. What seems harder to justify is the death penalty prescribed for its violation, if such speech is proved to lead to death. This might seem harsh or extreme, but is not altogether unprecedented, as it is already prescribed in anti- kidnapping laws in certain jurisdictions, where kidnapping leads to the death of the victim or anyone else.
Open Defecation and Special Courts
Apparently not to be outdone by the Senate in this seeming competition to be perceived as responsive, if not proactive, the Executive has declared a war on open defecation across Nigeria. This was done through an Executive Order, which President Buhari issued last week. Hopefully, it is the magic wand which will rid us all of the putrid stench of that all-too common habit. Unfortunately, public reaction to this otherwise commendable initiative has been rather muted, apparently drowned-out by the seemingly far more odious hate speech bill, as aforesaid. Perhaps, a similar institution to the one envisaged by the bill, will make the difference. In other words, a National Commission for Eradicating Open Defecation . . . This is neither sarcastic nor fanciful, as it has support in Section 20 of
the Constitution which enjoins the State to inter alia, “protect and improve the environment and safeguard the water, air and land of Nigeria”.
Indeed, the President’s advisers appear to have anticipated the need for such an institution, as the Order establishes a so-called Clean Nigeria Secretariat, within the Federal Ministry of Water Resources, which is mandated to ensure that all public places have accessible toilets. The ultimate goal of the initiative, according to the Order, is to ensure that Nigeria is open defecation-free by 2025. The problem with this, is that, it is doubtful if a mere Ministerial body, such as the Clean Nigeria Secretariat, is the appropriate means of giving effect to the said Fundamental Social Objective (i.e.Section 20 of the Constitution). I doubt that such an ad-hoc body (it will terminate when Nigeria is declared Open Defecation-Free), was contemplated by the framers of the Constitution. At any rate, by virtue of Section 60(a) of the
Constitution, as previously submitted, only the National Assembly is competent to establish such an institution.
Be that as it may, if these proposals fail to do the trick, perhaps, open defecation should be included in the remit of the Special Courts which the President also proposed last week, at an anti-corruption summit. Surely, the indiscipline or indiscretion displayed by those who persist in polluting our environment through this practice, is a form of corruption, deserving of special judicial intervention in the form of a separate court system. Who, but the most nasally tone-deaf, can argue with this prescription?
“PERHAPS, A SIMILAR INSTITUTION TO THE ONE ENVISAGED BY THE BILL, WILL MAKE THE DIFFERENCE. IN OTHER WORDS, A NATIONAL COMMISSION FOR ERADICATING OPEN DEFECATION..... THIS IS NEITHER SARCASTIC, NOR FANCIFUL, AS IT HAS SUPPORT IN SECTION 20 OF THE CONSTITUTION.....”