By AWA KALU, SAN
A Private member’s Bill for an Act to provide for the Prohibition of Hate Speech and for other Related Matters presently pending in the Senate, has for a while, stirred the hornet’s nest.
Accordingly, the mainstream, as well as social media have at very high crescendo, raised multiple voices in opposition to the propriety of the Bill. As is usual in the prevailing circumstances of fake news and the mendacity associated with social media, the purport of the Bill itself which has been branded as ‘draconian’, ‘barbaric’, ‘archaic’, ‘decadent’, and assailed as an attempt to stifle, gag and asphyxiate the freedom of speech of indomitable Nigerians has not received complete evaluation.
It is undeniable that even in remote parts of this sprawling country, we like to talk and so many of our brothers like to make themselves heard, even if the issues are not entirely pedestrian as to accommodate multifarious and totally uninformed views. This has been the experience with the debate on the Bill on Hate Speech. Some of the protests have been over the top, some have been more of ‘hot air’ and vituperations.
The sponsors of the Bill have not found any meaningful support from any reasonable strata of our discerning public. There has been no serious effort at educating the general public as to what the Bill is about. It may be taken for granted that the quality of speeches as well as, speech making have given rise to discomfort as well as disquiet, particularly when it is remembered that the Constitution guarantees every citizen of Nigeria the right to freedom of speech as well as, to freedom of the press (See section 39 of the Constitution of the Federal Republic of Nigeria 1999).
Similarly, the same Constitution guarantees Nigerians the freedom from discrimination (again see section 42 of the Constitution). It is therefore compelling to introduce the reader to some salient aspects of the Bill. So, what you may ask, is the Bill about?
The Bill consists of a short title as well as an interpretation section in its preliminary part. In part 2, the Bill sets out the type of discrimination to which it applies and these include; ethnic discrimination, hate speech, harassment on the basis of ethnicity, offence of ethnic or racial contempt, discrimination by way of victimization and offences by a body of persons. In part 3 thereof, the Bill deals with the establishment, powers, and functions of the Independent National Commission for the Prohibition of Hate Speeches as well as the establishment of the Commission.
Having regard to the raging debate about cutting the cost of governance, how would another level of bureaucracy be created for the management of hate speech and other related matters? Furthermore, it appears that in part 3 aforesaid, establishes a legal frame work for bringing to fruition the intended purpose of the Bill and these include, the normal provisions relating to commissions such as the appointment, tenure, remuneration and cessation of appointment of the chairman as well as other members of the commission.
In part 4, the Bill makes provisions for complaints, the lodging of a complaint and it is clearly indicated that the proposed commission is not bound to accept or entertain each and every complaint that may be brought to the commission and to that extent, a complaint may ordinarily be struck out or if stale may be dismissed. In certain circumstances, the commission may have power to refer a complaint for conciliation, if and only if, conciliation is appropriate.
The commission will have powers of investigation and the manner of conducting such investigations is spelt out in the Bill. In the usual manner, when offences have been created, the Bill vests jurisdiction to try the offences created by the Bill on the Federal High Court.
Even a bird’s eye view of the Bill indicates in very clear terms that there are red flags flying here and there. It is important to premise the discussion on the intendment of the Bill and quite obviously, it is for the purpose of curtailing Hate Speeches and preventing inter ethnic strife or discrimination on grounds of ethnicity. Without much ado, it is clear that our social scientists will in due course have a lot on their plates.
The Bill in its part 2 makes provisions for ethnic discrimination, hate speech, harassment on the basis of ethnicity, offence of ethnic or racial contempt, discrimination by way of victimization as well as offences by body of persons. For the purpose of this short article, we shall refer the reader to the definitions of ethnic discrimination as well as hate speech.
A person is said to discriminate 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 another 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.
A person also discriminates against another person if, in any circumstances relevant for the purposes of any provision referred to in subsection (1)(b), he applies to that person a provision, criterion or practice which he applies or would apply equally to persons not of the same race, ethnic or national origins as that other. How can the contempt of our criminal law be based on such nebulous conduct? That question becomes more mind-bugling when the reader takes significant cognizance of the dimensions of the definition of hate speech.
The bill in its section 4(1) defines ‘Hate Speech’ as, ”A person who uses, publishes, presents, produces, 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 or behavior commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria.” (emphasis ours).
From exhaustive debates on the purpose of this Bill, it appears that even the definition of Hate Speech may present problems of construction or interpretation. In strict criminal law terms, every crime must involve an intention (mens rea) and a corresponding overt act (actus reus). In that regard, the definition of Hate Speech as outlined above can only amount to an offence “if such person intends thereby to stir up ethnic hatred or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or persons from such an ethnic group in Nigeria.”
The immediate questions that have arisen in popular discussions concern the boundary between hate speech and defamation. We are mindful of the fact that defamation is of two types namely, libel and then slander. There is also what the Lawyer would categorize as ‘vulgar abuse’. Libel in very simple terms arises when there is a disparaging publication made in writing and published of and concerning another person with an intention to bring that person or to lower that person in the estimation of right thinking people or to cause him to be shunned or avoided or exposes him to hatred, contempt or ridicule or to disparage him in his office, profession or calling or reflect on his character.
(See THE SUN PUBLISHING LTD V.D.S. NIG LTD (2019) 9 NWLR (PT 1678) PG. 514).
On the other hand, Slander may be seen as the oral version of Libel.
Slander arises where the defamatory words are not written but spoken or expressed by gesture or published in a non-permanent form. On the third level, it was explained by the Supreme Court that it is not every statement which is made and which annoys a person that is defamatory.
The Court also emphasized that it is not every statement which is made and which annoys a person that is defamatory. It is also not every vulgar statement, mere abuse or insult which is actionable.
(see CHIEF NYA EDIM EKONG V CHIEF ASUGUO E. OTOP (2014) LPELR-SC 127/2006 PP.1920).
It must be admitted, that the territory covered by the tort of defamation has been well defined in Nigerian Law and the question which will be answered at the appropriate time is whether there is a defined boundary between what in the Bill is technically characterized as “Hate Speech” and “Defamation” as known to law. The definition of hate speech does in fact suggest that the speech in question must relate to the performing arts. This is because it envisages 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.
A layman would think that the Bill is more directed at comedians, because more often than not, it is our stand up comedians who elicit laughter from the audience by disparaging different ethnic groups or their men folk as well as females by way of jokes.
There is no doubt, that such jokes have in certain places created reactions that are totally not within the contemplation of the joker. Let us assume that no stand up comedian would ordinarily be liable for Hate Speech but it is clear that the contemplation in the definition of Hate Speech is that the offence is committed once the offender is shown to intend to stir up ethnic hatred. This conclusion is inescapable because the Bill establishes separate punishments for that intention which is life imprisonment and “where the act causes any loss of life, the person shall be punished with death by hanging”.
Would Hate Speech be an ingredient in the offence of murder, guided by the fact that the intention to stir up ethnic hatred is the hallmark of Hate Speech? What test would be applied in determining the intended consequences of Hate Speech? In law, a person’s intention may be judged subjectively or objectively. Where the objective test is applied, it would ordinarily be based on the test of the reasonable man or the common man. It is for this reason that several comedians who joke or who crack jokes at the expense of defined tribes or ethnic groups do not always succeed in eliciting laughter from all persons within the audience.
Besides, opponents of the Bill have been implacable because the death penalty has since been ridiculed in several parts of the world for even heinous offences. On account of the harshness and finality of capital punishment, offences at common law were rated for punishment based on whether they were considered as mala in se (wicked in themselves) or mala prohibita, (just by prohibited conduct). You may wonder what manner of speech can rise to the degree where it could be classified as ‘wicked’. At any rate, how may ethnic groups have actually or factually been established in Nigeria? How would Hate Speech be judged – by a single judge or by jury?
For this purpose, an illustration may enlighten the reader. Imagine that a particularly sensitive Igbo man is sitting as a judge over Hate Speech attributed to a Yoruba, Hausa, Tiv, Idoma, Igala, Efik, Ibibio, Jukun man etc. Reverse the scenario and ask if an Efik person would be fit to judge the Ibibio; the Tiv to judge the Idoma etc. In the context of hate speech, would it be easy for a Christian to judge a Muslim or Muslim to judge a Christian?