THE Director of Defence Information, Major-General John Enenche, has upped the ante over the current debate on the phenomenon of hate speech, especially on the need or otherwise for a special law against the incidence. He is among the latest top echelon of the establishment to give a clearer thinking of government on the contentious issue, which has polarised the elite, particularly the political class, who obviously are the most shamefaced over hate speech. His declaration of security watch on the social media sparked a hoopla about the actual intention of the government.
Vice-President Yemi Osinbajo,. while acting on behalf of President Muhammadu Buhari had dclared that voernment would declare hate speeches as terror acts, Featuring on a live television propgramme, Enenche, said: “The move became necessary in the light of troubling activities and misinformation capable of jeopardising the unity of the country.” He specifically declared: “What are we doing? In the military, we are now taking on it more seriously than ever. We have our strategic media centres that monitor the social media to be able to sieve out and react to all the ones that will be anti-government, be anti-military, (and) be anti-security.”
His Eneche who’s revelation has been interpreted in a number of quarters as the crystalisation of the unspoken words and body language of the authorities, which had, for the umpteenth time, warned of the possibility of introducing fresh proactive steps to whip certain elements in line over utterances believed to be constituting hate speeches. This has led to a number of posers, which centre on the fundamental rights of speech and expression by Nigerians. The teasers include whether the enactment of such a law would not constitute violation of the right of freedom of expression as constitutionally guaranteed for Nigerians and as protected by important international instruments and charters, especially the Universal Declaration of Human Rights, the African Charter on Human and People’s Rights, and the International Covenant on Civil and Political Rights, to mention a few. Other considerations are whether or not the statute will not undermine the right of the public to know about the activities of the government, including the security agencies, which in a democracy are subordinate to civil authorities; abrogate the guarantee of the safety of media professionals; incapacitate the media to carry out the obligation to monitor governance and hold the government accountable to the people as stipulated in section 22 of the 1999 Constitution, as amended; an infringement of the right of opposition political parties to take the ruling parties at the federal, state and local levels to task on their policies, programmes and performance; breach of the right of the electorate to hold elected politicians accountable for their campaign or electoral promises; and encroachment of the right of the civil society, unions, pro-democracy activists and so on, to express dissent over government policies they may consider injurious to their collective and/or individual interests.
The Sultan of Sokoto, Alhaji Sa’ad Abubakar, has also thrown his weight behind the proposed law as he remarked that “politicians now call themselves unprintable names and the broadcast industry helps in broadcasting such and the print media also help in publishing such speeches. I must reiterate that hate speeches can lead to hatred. Hatred begets hatred.” From the calibre of those voicing their positions on the issue of hate speech, it is apparent that the proposed law already has the huge prospect of coming alive.
No hate speech in Nigeria’s law- Lawyers
But, some legal practitioners are saying that there is nothing like hate speech in the constitution of the country.
The lawyers› reaction followed the statement by Vice President Yemi Osinbajo where-in he lashed out at purveyors of hate speech across the country, likening them to terrorists.
A constitutional lawyer, Gbenga Owa, told Sunday Tribune that there is nothing in the nation›s criminal laws known as hate speech. According to him, «A person may be charged under national security laws if he makes inciting statements that could cause division or incite rebellion.
“It is called sedition. The content and intent of the speech will have to be evaluated against the laws of sedition as malice must be proved,” he added.
Similarly, an Abuja based lawyer, Eddie Inegedu is on the same view that there is nothing like hate speech in any law of the country.
The constitution, he said did not define any speech as «hate» and added that, country like Kenya has a law against hate speech, but Nigeria has not.
Inegedu said, «What can be termed as hate sppech can only be defined by the prosecuting agencies. Most times, when people criticise the government, they are termed as hate speech. There is no law like that.”
According to him, the leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu and others were charged for treason based on what they are saying.
“He was saying that people should carry arms. Even what the Arewa Youths said can be said to be treasonable.
“But because we don›t have any law on hate speech, no body can be charged under it. You can only charge for incitement, sedition or treason, based on the statement, but criticising the government cannot be said to be hate speech», he added.
However, a Senior Advocate of Nigeria (SAN), Sebastine Hon said Osinbajo was “absolutely correct” in his position on the issue of hate speech.
Meanwhile, a Senior Advocate of Nigeria (SAN), Sebastian Hon, in a statement noted that Section 1(2) of the Terrorism Act, 2011, has described ‘an act of terrorism’ as an act deliberately done with malice, which, amongst other things, is intended or can reasonably be regarded as having been intended to seriously intimidate a population or seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation.
He argued that there could be no better description of the current situation in Nigeria, where ethnic or cultural groups are issuing, willy-nilly organised and unguarded threats to other ethnic groups in Nigeria.
“I personally must commend the Vice President for this timely proclamation, which only confirms and I dare say addresses my public statement a few days ago that the Federal Government must act fast to arrest our apparent, if not clear, descent to total anarchy, due to the avalanche of hate speeches flying over the whole place.
Genesis of the proposed law
The Minister of Interior, Major General Danbassau broke the ice when he declared that the authorities were already contemplating the idea. He said arrangements were at the final stage to propose a bill to the National Assembly that would be aimed at checking the incidence and menace of hate speech in the country. Then the Senate President, Dr Bukola Saraki, has promised accelerated hearing of the bill once the Senate resumes from its current recess, just as other top government functionaries have been making frantic efforts to justify the proposed law. Osinbajo’s interpretation of hate speech, in relation to the existing laws of the land, further raised the bar on public discourse of the phenomenon. His link of hate speech to an act of terrorism triggered mixed public remarks, with some citizens claiming the interpretation of the erudite scholar and legal luminary underscored insinuations that the proposed law targeted at whoever had an opposition views on the government in power.
Historically, the period of political campaigns often herald a season of hate speeches, especially among leading politicians in their desperation to gain advantage in the nation’s political turf. Dizzying inflammable remarks about rival camps and foes with the consequence of heating up the polity and which sometimes result into violent attacks and killings tend to be in vogue. Unlike the era of the first generation of political leaders and nationalists, issue-based campaigns have been relegated to the back seat by political intolerance, bigotry and outright blackmail. For instance, in the countdown to the 2015 elections, some political gladiators insulted the sensibility of most Nigerians at the expense of issues bordering on the welfare of the generality of Nigerians. Propaganda obfuscated real issues of development and economic growth, in flagrant disregard for the INEC’s Code for Political Parties.
In recent times, some groups with ethnic roots joined the fray in the perceived hate speech phenomenon. The resurgence of pro-Biafra agitations, led by the Indigenous People of Biafra (IPOB) was laced in ethnic bigotry engendering a counter-force in the name of the Coalition of Arewa Youths (CAY), which issued an October 1, 2017 to persons of Igbo extraction resident in the Northern part of the country to relocate to the South-East. Unrestrained comments from some elders from both divide escalated the crisis, which the Senate leadership claimed to have latched on to put in abeyance the critical item of devolution of power as part of the amendments the apex lawmaking body carried out in the 1999 Constitution. A number of ethnic militia and groups had also encouraged hate and intolerance, instead of preaching national integration. Today, all forms of hate videos have become viral.
What constitutes a hate speech?
Lawyers are divided over what speeches and the necessity for the law that regulate such in the country.
Though defined as “speech which attacks a person or group on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability, or gender,” there is still a strong contention among some Nigerians on what should pass for a hate speech in the country and where lies the line of demarcation with freedom of speech and expression as enshrined in the constitution of the country. In separate contributions to the current discourse on the necessity or otherwise of a law guarding against hate speech, legal luminary Chief Olisa Agbakoba (SAN), tried to explain the phenomenon, just as an elder statesman, Alhaji Tanko Yakassai (OFR), and another eminent lawyer, Mr Supo Shonibare, a top shot of the pan-Yoruba organisation, Afenifere, individually affirmed that hate speeches had been prevalent in the country long before now.
According to Agbakoba, hate speech is a recent development in Nigeria as a result of a “divisive country.” However, Shonibare is more explanatory on the issue bordering on hate speech as it affects Nigeria. He said it is “a manifestation of frustration and intemperate expression of that state of mind. Most inconsistent with the Yoruba age-long cultural morals, the Yoruba culture expects discipline, confidence and respect, without being subservient, in interactions, particularly among those either aspiring or in leadership positions.”
Similarly, a Senior Advocate of Nigeria, Mike Ozekhome, said that although he detested hate speeches with all his heart and every fibre in his vein, as they are divisive and destructive, he does not subscribe to the monitoring of social media activities by the military, as this constitutes a violent and blatant violation of the fundamental right to freedom of speech and the provisions of the Freedom of Information Act.
“Coming from a clueless and directionless government that has covered its ineptitude with mindless repression, intolerance and allergy to opposition, criticism and plurality of alternative voices, such monitoring would further muzzle the people, especially the opposition. It is reminiscent of the then Decree 4, which criminalised truth if such truth was embarrassing to the government,” he said.
A second Republic presidential Adviser, Yakassai, equally admitted the growing incidence of hate speeches in the land.
Hate speech laws in other climes
No fewer than 30 countries have a semblance of such law in their statute books, including advanced democracies like Canada, Germany, Netherlands, United Kingdom, United States, India, France, Australia and even South Africa. Nonetheless, the issue has remained a subject of controversy, because of its possible conflict with the fundamental rights bordering on freedom of speech and expression, just as the factors that necessitated the legislation ranged from extreme cases of religious bigotry and fanaticism to racial discontent and discrimination, as well as segregation based on colour and other forms of hatred and prejudices. In Nigeria, currently whereas there is an apparent consensus about prevalent hate speeches in the country, as it is seen to have become another albatross for the country, the major point of departure among the people are three-pronged: what constitutes hate speeches, line of demarcation with the fundamental rights of an individual, possibility of abuse by those in authority.
Global anti-hate speech campaign
Centre for Information Technology and Development (CITAD) has revealed that 6,258 hate speeches were recorded between June and December 2016, stating it is not a good development for the country. The Senior Programme Officer of CITAD, Isah Garba, while giving the outcome of the 2016 Monitoring and Countering Hate and Dangerous Speech Project Report, noted that rumour was one of the most inflammatory and violence causing mechanisms. He also noted that non-adherence to journalism ethics, especially on social media and its heterogeneous users, makes proliferation of rumour easy. Garba observed that government appears to be slow in tackling drivers of hate speech in the society, which he listed to be unemployment, hunger and poverty. Should “speaking openly” mean speaking without any legal constraint, even when the speech is manifestly uncivil? So the discussion raises the issue of hate speech and the difficult question about whether it is ever appropriate to legislate against it. Hate speech legislation seeks to uphold a public good by protecting the basic dignitary order of society against this kind of attack. But such legislation needs to be drafted with care. Its aim is to confine the application of legal sanctions to speech-acts, which directly and deliberately seek to make it impossible for their targets to live lives of basic dignity in our society. According to a body called The Hate Speech Watch, focuses on victims of hate crimes, fights to defend the victims of hate speech. It noted that most cases of hate speeches go unreported and not investigated, adding that hate crimes “are criminal acts motivated by bias or prejudice towards particular groups of people.” It claimed that violence and crime known as hate crime are motivated by racism, xenophobia, religious intolerance, a person or group disability, sexual orientation, gender identity, political views or any other forms of intolerance based on any forms of discrimination of hatred. Incidents may involve physical assault, damage to property, bullying, harassment and murder. It declared: “Since hate speech may encourage or accompany hate crime, the two are interlinked.”
Extant laws and sanctions in Nigeria
There are such laws as the one on sedition, libel and defamation, Criminal Code, anti-Terrorism Act 2013 and Enforcement, as well as the Cybercrime enactment. Each of the legislations defines ad articulates appropriate sanctions against misdemeanours that bother on hate speech, incitement, and character assassination. Most of these recent laws, including the Terrorism Prevention Act 2013 (as amended) and the Cybercrime (Prohibition, Prevention Act) 2015, respectively, which, some individuals claim make hate speech a criminal offence, were enacted by National Assembly and assented into law in the last political dispensation. Secondly, there is the International Covenant on Civil and Political Rights. Article 20 of the covenant prescribes legal sanctions for inciting hatred, which provides that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Like any other international law, it is subject to ratification by individual countries.
Way forward
In his treatise on hate news and other incendiary issues, the minister of information did not spare the traditional media or the social media platforms; neither did he spare the radio and televisions houses, which he accused of spewing convoluted messages capable of destabilising the state, making it ungovernable and discrediting government officials and the government. Part of his address read: “In Nigeria today, the hate being spewed on radio stations across the country is so alarming. If you tune into many radio stations, you will be shocked by the things being said, the careless incitement to violence and the level of insensitivity to the multi-religious, multi-ethnic nature of our country. Unfortunately, even the hosts of such radio programmes do little or nothing to stop these. Oftentimes, they are willing collaborators of hate speech campaigners. This must not be allowed to continue because it is detrimental to the unity and well-being of our country.”
He added: “Needless to say that we are also appealing to the media, the traditional media in particular, to show responsibility by repudiating the freewheeling and out-of-control purveyors of hate speech, disinformation and fake news. Unlike the Social Media, the traditional media is subject to the rigours of accuracy, fact-checking and fairness, among others. Sadly, even a section of the traditional media now apes the hate campaigners by lifting their unverified or distorted news and dumping such on their readers. This is not right. A section of the tradition media is also now thriving on anti-government tendency. If you pick up copies of some newspapers, you will think the government of the day is doing nothing at all to alleviate the sufferings of the people, occasioned by the economic downturn. They ignore any positive actions of government, including the massive investment in infrastructure like roads and railways, and instead focus on anything that will make the government look bad. Instead of reporting the news freely and fairly, they have constituted themselves to an opposition bloc.”
But his remarks drew flak and punches from the opposition Peoples Democratic Party (PDP), which claimed the minister could not teach others the act of civility and responsibility as stakeholders. Its spokesman, Dayo Adeyeye, accused the minister of being the guiltiest of hate speeches in the country. He said: “APC had in its quest to clinch power from PDP in the past elections, launched hate speeches and fake news on all media spaces and this has continued in their administration. Lai Mohammed and, indeed, any of the APC leaders for that matter are not in the position to teach any lessons on appropriate public speeches. APC should first apologise to Nigerians for their serial lies, inciting and hate speeches with which Nigerians were deceived into believing that they had something to offer.”
Tanko Yakassai said he was for the proposed law against hate speech “if the situation warrants it.” He observed that it was a serious issue that could lead to many unpleasant happenings either to an individual or to a group of people, citing happenings in other lands to buttress his point. He noted: “Hatred can lead to communal war resulting in the loss of many lives of both the guilty and innocent. Classical example was the hatred Nazis had against the Jews at the time of the Second World War, which resulted in the killing of over six millions Jews in Europe, particularly in Hitler’s Germany. Similar things happened in Africa, for example, in Rwanda, as a result of hatred between two ethnic groups: Hutus and Tutsis. Over one million people were massacred in Rwanda. We need a law in this country to stem the tide of hate speeches before the situation gets out of hand. Hate can turn a sane person to lose his sense and behave like a drunken man or a man possessed by evils. If that happened, people behave strangely got out of their normal selves.”
Shonibare, who is the chairman of Afenifere in Lagos State, also remarked that the issue of hate speech was a reality in the country. He offered the way out: “We must discourage hate speeches in the polity and at least ensure we rise above that in our region.” On his part, Ozekhome, who says hate speech is being instigated by the warped federal system we currently operate, which is actually unitary and breeds injustice, cronyism, nepotism, tribalism and favouritism at the expense of hard work and meritocracy, asserted that “no fresh law is required to tackle it because we already have the law of defamation to check falsehood.” That argument was further amplified by another legal practitioner, Mr Ebun-Olu Adegboruwa, who described the phenomenon of hate speech as a ruse. His words: “First, I do not agree on the concept of hate speeches. The Constitution in Section 39 has granted an unqualified freedom of expression to every citizen. If any speech made has violated anybody’s legal rights at all, there is the extant common law remedy of libel actions for damages in civil cases and criminal libel in criminal cases. Recently, it has now become common place for government and government officials to seek to gag the people by seeking all manner of restraint of the freedom of speech. To that extent, I do not agree with the Acting President on the concept of hate speeches as terrorism. Every citizen should be allowed the freedom of expression under the law. Secondly, I believe that the National Assembly lacks the legal competence in law to pass into law any bill seeking to gag citizens. Such a law, if ever passed, will run counter to section 1 of the 1999 Constitution which has declared the Constitution to be the supreme law. Any law capable of hindering the freedom of expression granted under section 39 of the 1999 Constitution and the African Charter will be illegal and unconstitutional. To that extent, the National Assembly has no power to make any law that will violate the Constitution. It is ultra vires. It is in the light of the above that I find it difficult to agree with this current government declaration that there is a need for a new law to regulate what people term as hate speeches. This is just an attempt by the ruling APC government to gag citizens and if such law is ever passed, we shall challenge it in court.”
Also speaking on the issue from a different slant, a Senior Advocate of Nigeria (SAN), Mr Femi Falana, said that apart from the right of public officers and private citizens to seek redress in the law courts against erring media organisations and individuals who defamed them, the nation’s penal laws have taken care of the mischief which may be caused by reckless publications. “In particular, offences which include criminal defamation, inciting statements, breach of the peace, criminal intimidation, publication of statement, rumour or report which may disturb public peace, false publication, etc attract penalties by imprisonment or payment of fines. See sections 59-60, 373-381 of the Criminal Code (applicable in the southern states) and sections 391-40, 417-418 of the Penal Code (applicable in the northern states). Under section 95 of the Electoral Act 2010 as amended it is provided that no political campaign or slogan shall be tainted with abusive language directly or indirectly likely to injure religious, ethnic, tribal or sectional feelings.
“Accordingly, abusive, intemperate, slanderous or base language or insinuations or innuendoes designed or likely to provoke violent reaction or emotions shall not be employed or used in political campaigns. A political party or persons who contravene the provision of this section is guilty of an offence and shall be liable on conviction- (a) in the case of an individual, to a maximum fine of N1, 000,000 or imprisonment for the term of 12 months; and in the case of a political party, to a fine of N2, 000,000 in the first instance, and N1, 000,000 for any subsequent offence.” He also cited the provisions of the Cyber Crime (Prohibition, Prevention ETC) Act, 2015, which address the public concern over the use of social media to promote bigotry and hatred in the society. He explained that the law has far-reaching provisions to prohibit any form of cybersquatting and prevent anti-social individuals and groups from subjecting the Nigerian people to racist and xenophobic attacks in any part of the country. He noted that “It is sad to note that the many public officers who have been threatening to deal ruthlessly with the excesses of social media operators have not familiarized themselves with the provisions of the 2-year old law. However, it is high time the attention of Nigerians was drawn to sections 24 and 26 of the Act which provide as follows: “24. (1) Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that- (a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or (b) he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment. (2) Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network – (a) to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person; (b) containing any threat to kidnap any person or any threat to harm the person of another, any demand or request for a ransom for the release of any kidnapped person, to extort from any person, firm, association or corporation, any money or other thing of value…”
It is obvious that all stakeholders in the country realise the nebulous effects of hate speeches and are averse to the rising trend in the land. But, the controversy over the main strategy, methodology and road the country should travel towards curbing and even bringing an end to the menace constitute the crux of the matter, without undermining the rights of the citizens.
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