Tuesday, November 26, 2019 / 05.10PM / By Dr Charles Omole/
Header Image Credit: C.Omole
I was recently sent (by a reliable source) a copy of the Hate Speech (Prohibition) Bill, 2019 going through the NA popularly known as the "Hate Speech Bill". Let me be clear from the start that I am opposed to this Bill. It will cause more confusion and it is unnecessary. But rather than simple emotional outbursts; I will instead like to explain some of the problems with the Bill in a constructive way.
Do we have some problems with Incitement to violence in Nigeria? YES we do. So, the concerns being addressed by this bill is not completely unfounded. But I believe we have enough laws to deal with these matters, included the Cyber Crime Act signed by GEJ few years ago. Lack of enforcement of extant laws cannot simply be replaced by new laws. Is there really a need to produce a new law specifically for Hate Speeches? I don't think so.
The offence of Hate speech does exist and freedom of expression may sometimes be curtailed whenever there is an epidemic of the uttering of hate speech whether verbally or in print that might endanger public safety, unity and national security. Hate Speeches are even more dangerous in a society full of illiterate population like Nigeria where falsehood can be easily weaponised. Legislation can be passed and prosecutions initiated as a last resort and in a proportionate way.
In Nigeria; there are enough existing legislation to deal with these concerns if enforced by Government. From the Terrorism Act which already deals with Incitements offences to the Cybercrime Act that deals with Falsehood online and the many Slander and Libel Laws we have on the statute books.
So, here are some of my salient observations.
The Bill fails to take notice of the global Jurisprudence on this kind of legislation. The criminalisation of "Insulting and Abusive" statements is an affront to free speech. It is one thing to criminalise "Threatening" statements, but Abusive and Insulting statements... ...are difficult to define in Law, because like beauty it can be in the eye of the beholder. What is abusive or insulting to one may not be to another. So how can the court in a consistent way determine if a statement is Insulting? It is such a subjective concept.
The Bill focuses on Victimisation of complainants and officials of the new commission as well as Harassment of Nigerians on the basis of Ethnicity and Race; BUT it DOES NOT make any mention of several other globally accepted basis of harassment & discrimination such as:
So simply focusing on Race & Ethnicity is meaningless & inchoate. If u want to deal with Harassment; then do so in ALL its manifestations & not such a narrow scope
While it explains that Individuals and Corporate Bodies can be liable under this proposed law; the Bill does not include the Government itself or State Agents as liable. Why should there be one rule for Nigerians but a different one for government bodies. An EXPRESS mention that the Government (who can be the biggest culprit) is included as liable parties will be needed to satisfy Equity. What is good for the goose, is good for the gander. The Government should be able to be sued for discrimination and harassment too.
With punishment from FIVE years imprisonment to Death Penalty; I believe this is an overkill. The punishment in this case does not fit the crime. Establishing Causation will be a challenge even with Vicarious liability imposed by this Bill. This needed to be toned down. If you are charged with Theft of N1Billion, the maximum sentence is 7yrs; yet you can be sentenced to 5yrs for insulting a Person. This is madness and legislative recklessness.
The Bill looks like another gravy train to bleed our commonwealth with d establishment of yet another Agency. 85% of the Bill is spent on the Agency itself. More attention should have been paid to define terms properly. It seems d attention less on the crimes it to investigate
The offences are too broadly defined.
Section 3 (1) of the Bill States that:
"A person discriminates against another person if on ethnic grounds the person without any lawful justification treats another Nigerian citizen less favourably than he treats or would treat other person from his ethnic or another ethnic group and/or that on grounds of ethnicity a person puts another person at a particular disadvantage when compared with other persons from other ethnic nationality of Nigeria".
What exactly do these banal words mean? The definitions are too ambiguous & can mean just about anything. This is a badly drafted Bill that is intended to be a Catch-All funnel for anything d Government or Elite do not like. It will kill FREE SPEECH unless court can strike the Bill as Unconstitutional (If it becomes an Act).
Under the Hate Speech provision; the Bill states:
"...A person who uses, publishes, presents, produces, plays, provides, distributes and /or directs the performance of, any material, written and/or visual which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words, commits an offence if such person intends thereby to stir up ethnic hatred".
Intent is a difficult concept to prove in Law. There is no guideline or explanatory notes in d Bill to guide prosecution. This is bad draftsmanship
I am also surprised that there is no exception for the Media in this law. So, Journalism will be curtailed if this bill becomes law. This will be bad for democracy. Insults should be allowed in a democracy. That should not be a crime.
Passion is needed to grow and strengthen democracy. Freedom of expression and muscular discussions will inevitably lead to insults being thrown around. This should never be criminalised in a healthy democracy.
Suggestions & Conclusions
The questionable intention of this Bill is clear to see through the many errors and omissions in it. If indeed there is a problem to be addressed (which I believe there are a few); a simple amendment to the Cyber Crime Act will fix any lacuna that exists.
Criminalizing the incitement of violence or threats can be seen to be a justifiable limit on freedom of expression. But my problem with this Bill is the criminalization of speech (or behaviour) which may be unpleasant, may cause offence. That is what DEMOCRACY is all about. We should be free to disagree robustly and even offend each other as long as violence is not involved.
Also, the Police is well able to prosecute any potential offences here. There is NO NEED to establish another money-wasting agency of government to do what the Police can do. Or at the worst "Expand" the role of an existing agency; such as the National Human Rights Commission. Creating another agency is Wasteful, unnecessary and not prudent.
As I have always stated, I accept that the right to free speech is not absolute - it can be limited to protect the rights of others. But any limitations on the right must be necessary and proportionate, and criminalising even the most unpalatable, illiberal & offensive statements should be approached with grave caution in a democracy. This Bill as proposed is not Proportionate and should be discarded.
The case for this Hate Speech Bill has not been made and it should be jettisoned. The FG did not need the Bill to arrest Sowore for "incitement" for using the words "Revolution Now". This shows Political Will is what is needed not new laws. There is not a single incident in our democratic history where the government have said they could not arrest and prosecute a person for incitement to violence because there are no laws to use. So why create a solution nobody is asking for?
Where is the evidence that the Executive have said they cannot prosecute those who Incite to violence due to lack of legal provisions or powers? The NA can make laws when those tasked with execution says they lack legal tools. That has not happened because there are enough legal tools available to the government. What has been lacking is political will and effective Institutional focus. You don't create new laws to replace lack of political will to enforce existing laws.
Proactive public enlightenment should be embarked on by the government bodies saddled with this responsibility in partnership with the media to curb incidences of hate speech. A proactive education and enlightenment campaign can be more effective than reactive responses by Government. Since a misguided Nigerian can simply go overseas and engineer Hate speeches from there (which will make them untouchable by this Bill); Educating the masses is vitally more important than just chasing the hate mongers.
So, to address the hate speech problems; let us see a small amendment to the Cybercrime Act 2015 (if necessary), to address any void the lawmakers may see and let us move on as a Nation. A new Agency is definitely not necessary. If Police cannot be trusted, an existing agency such as stated above can be tasked with this added duty. No need for this Hate Speech Bill and I recommend it should be killed off immediately by the NA.
We have bigger problems of higher priority as a people. Let's get on with salient matters. As always, this is not an exhaustive solution list; but a starting point for further discussion & debate on this matter. Kindly add your own ideas & let us together build a better Nigeria.
About The Author
Dr. Charles Omole is a Lawyer, Strategist and Governance Expert. He can be reached via @DrCOmole
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