The role of the military in a democracy has always been an issue right from the days of Plato, 2500 years ago. The recent pronouncement by Nigeria’s military that it would monitor anti-government comments on social media gives cause for concern and reminds one of Plato’s argument in the Republic.

In responding to the recent misuse of the social media, the director of defense information, Major-General John Enenche, said:  “What are we doing? In the military, we are now taking on it more seriously than ever. We have our strategic media centre 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”.

Had the comments on monitoring anti-government social media posts been from the ministry of information or any other related agency, it would have sounded normal. It is the duty of the ministry of information to respond to any misinformation or criticism on government policies by Nigerians. But when the military says it would respond to anti-government comments on social media, it sends conflicting signals.

For a country which has been through military dictatorships, the kind of response expected from the military can only be imagined.

Also, when citizens are given the impression that anti-government comments are monitored not by the ministry of information, but by the military, it suppresses robust public debate and conversations.

It is worth mentioning that, in a democracy, the integration of the military into state and society follows strict rules and is covered by far reaching checks and balances. Else, in the words of Plato, a democracy could lead to nations been governed by brutes and bullies.

Fundamentally, it is expected that the military should have the presences of a non-governmental component, within its defense component, that is capable of participating in public debates on defense and security policing. And, of course, clarifying programmes and policies of the military, in terms of national security.

It becomes worrisome when this arm of the military decides to respond to anti –government commentaries. Many anti-government commentaries, especially by opposition parties in democracies, are not security threats. In fact, they sweeten democracy.

This is not to say that there are no legitimate reasons for the military to monitor social media posts.

One perfect reason is to improve situational awareness and emergency response. In cases of natural disasters and violent protests, first hand witness accounts, most times, come from posts on social media. Such posts could help the military strategize on emergency responses when other security outfits are overwhelmed. Had twitter been pervasive during 9/11, and had government been monitoring hashtags related to the attack, perhaps more people would have been rescued, successfully.

And by using special algorithms, the military could monitor comments from terrorists on social media and prevent attacks. It is well-known that extremists of all kinds use social media to recruit, radicalize and raise funds. Sometimes they announce attacks on social media.

Since lots of people live their lives on social media these days, the military could monitor public response to their policies and programmes on the internet.

But these where not exactly the reasons given by the military on why it has started monitoring the social media.

There is a legitimate fear that cracking down on hate speeches could be used as a ploy to clamp down on critics of the current government. (This column has advocated for innovative ways of stemming hate speeches. Interestingly, Facebook and Google are using technology to stem hate.)

For this reason, the pronouncement that anti-government comments on social media will be monitored by the military needs to be interrogated. Not all anti-government comments are hate speeches.

After listening to President Buhari’s speech on Monday, August 21, 2017. One thing was clear – The Government’s resolve at addressing the problem of Hate Speech in Nigeria.

No right thinking person will disagree with the President that there have been so much hatred and divisive comments on several online platforms and this calls to question the unity of Nigeria. In his 449 words speech to Nigerians, he identified the social media as the platform used for some of the hateful comments we have seen lately.

In his words “I have been kept in daily touch with events at home. Nigerians are robust and lively in discussing their affairs, but I was distressed to notice that some of the comments, ESPECIALLY IN THE SOCIAL MEDIA have crossed our national red lines by daring to question our collective existence as a nation. This is a step too far”

Curiously, one wonders why the Social media stood out for the president. I had expected the President to use the opportunity of his speech to pointedly address 2 stand out cases of hate speeches which coincidentally emanated from the Northern region of the country while he was away on medical leave. One was the quit notice issued to the Igbos by the Arewa Youths and secondly the Anti-Igbo songs which was also circulated recently. Unfortunately he didn’t.

The direction of the Buhari’s administration was clear from the beginning. Asides corruption, security tops the agenda of the Administration. Lately there have been unending clamors for the regulation of social media and sometimes hate speech in Nigeria.

With the Biafra agitations and anti-Igbo song circulated in the North plus the quit notice issued to the Igbos to leave the North by October 1 2017, we cannot help but be worried about the trend of hate speeches in Nigeria and I would expect any serious Government to respond to such dangerous trend and this would ordinarily pass to be what happened when about a month ago,

The National Council on Information (NCI) recommended the “setting up of a council to regulate the use of social media in Nigeria”. The recommendation is contained in a communiqué issued at the end of extraordinary meeting of NCI on Hate Speeches, Fake News and National Unity held on July 19 in Jos, Plateau State.

In what looked like a follow up action, The Minister of Interior, Lt.-Gen. Abdulrahman Dambazau (rtd.), has said that his ministry has submitted a draft bill to the Ministry of Justice, which will review it and submit to the National Assembly as an executive bill for passage into law. Vice President Yemi Osibajo also said that the Federal Government will no longer tolerate hate speech and would henceforth treat same as an act of terrorism.

According to the Vice President and as reported by The Guardian on August 17, 2017 “The Federal Government has drawn a line on hate speech. He referred to the Terrorism Act 2011 to buttress his point. “The law on hate speech, the Terrorism Act 2011, defines hate speech amongst other definitions, as an act deliberately done with malice and which may seriously harm or damage a country or seriously intimidate a population.”

The Hypocrisy of Government

In what appears like a coordinated effort, different actors of the current administration seems to have suddenly woken up and arms ready to address hate speech. While we observe, we must ask critical questions because hate speech is not new in Nigeria and one wonders why it has been left untamed for so long.

Without doubt, one major reason they thrive is because politicians are the greatest beneficiaries of hate speeches. Hatespeeches, threats have been used to promote political and sectional interest. The incumbent President Buhari isn’t less guilty than Asari Dokubo who regularly threatens the peace of the Nation in the dying days of President Goodluck Jonathan - Asari's threat was to ensure the perpetuation of Jonathan's government.

Also, a Presidential Committee on Post-Election Violence in parts of the country indicted the incumbent President Muhammadu Buhari for the post-election violence which led to the death of 10 National Youth Corps member and several hundred after the April 2011 Presidential polls.

Also, leading to the 2015 elections, Buhari was alleged to have said that “If what happened in 2011 (alleged rigging) should again happen in 2015, by the grace of God, the dog and the baboon would all be soaked in blood”. The current Governor of Kaduna State, Mallam Nasir El-Rufai was also accused severally of hate speeches before he became Governor in the current political dispensation.

One notable instance was when he tweeted the following: “We will write this for all to read. Anyone, soldier or not that kills the Fulani takes a loan repayable one day no matter how long it takes” on 15th of July 2012 at 7:51 pm. The Arewa Youth, Nnamdi Kanu using Biafra Radio and other means seem to be the recent frontline hate speaker and they are causing so much apprehension in the polity and the Government have suddenly woken up to the need to tame this evil.

There are those who have argued that the present Government has been the major beneficiary of hate speeches in the run up to the 2015 general election and therefore should not be talking about addressing this issue. I do not share this view one bit.

The failure of previous successive governments to address this when it should have done so is probably one of the reasons others have been emboldened to continue the trend of hate speeches. I believe the issue of hate speechesneeds to be addressed; it is however important to ask ourselves tough questions when exploring possible options at addressing the menace.

Do we really need a new law to prosecute hate speeches? What is wrong with the Terrorism Act 2011 and others? Without a doubt, there are existing laws that have addressed the issue of hate speeches. What we have lacked is the political will to apply those laws. Government in this clime typically uses such laws to stifle dissent and opposition voices. The Cybercrime Act 2015 readily comes to mind.

That piece of legislation has remained contentious and a subject of litigation because politicians have turned it to a tool of oppression. Various actors in this government have deployed section 24 of the Cybercrimes act at one time or the other whenever they need to intimidate or make a dissenting voice to shut up! It is this pattern that we will embolden when we create new laws to focus on hate speeches or ‘regulate’ social media.

The real culprits are hardly ever punished because of the likely political cost. The men who openly and unapologetically issued a quit notice to a whole ethnic group are today walking free while a man who acknowledged his mistakes, withdrew what he wrote and apologized as he was deceived to believe what he wrote on his Facebook page is currently being prosecuted by the Kaduna State Government because of his political affiliation and for being outspoken in thecriticism of the Governor of Kaduna State on how he has handled the southern Kaduna crisis.

The Government usually demonstrates strong will and even over bearing when it wants to deal with personal enemies but are lily-livered when the issues are grave and actually threatens national peace and security because of fear of losing the support or incurring the wrath of a section, a region, a constituency or a powerful individual in the society.

For an average politician, nothing is more paramount than the next election. It is about interest, interest and interest! Politicians will tolerate hate speeches, ignore real threats to national peace and security if it stands in the way of winning the next election but will abhor same if it coincides with their personal interests.

The Nigerian Government definitely has all it takes to address hate speech if really it wants to do that. The recent tautology around hate speeches is therefore a diversionary or probably an ignorant pursuit.

If you want to address hate, just go ahead and do that. 2019 elections are too near to be throwing around narratives of passing a law to tackle hate speech, regulating social media or setting up a special court for hate speech.

If any of this happens, then we can say for sure that many outspoken activists, critics of government and members of the opposition voices/parties need to brace for a time in jail because the incumbent would have found a tool just to do that and unfortunately “legally”.

Nigerian citizen must therefore resist this or regret it. It is easier to prevent a Bill from becoming a law than it is to invalidate an existing law.

It is in the interest of democracy that we resist this attempt as a people not because of our political affiliations, status in the society, affiliation with the incumbent government, our work as law enforcements, judiciary, legislator or the executive but because at the end of the day we are all citizens and anybody can be a victim of a bad law, if not today, tomorrow.

Source; reubenabati.com.ng

Director of Defence Information, Major-General John Enenche, told Channels Television that the move became necessary in the light of troubling activities and misinformation capable of jeopardizing the unity of the country.

His comments come less than 48 hours after President Muhammadu Buhari said in his national broadcast that some of the discussion on social media in his absence crossed the line and left him distressed.

For Major General Enenche, the social media has always been a challenge all over the world and for the military, it is no different.

“It is a double-edged sword and we are also having a bit of it,” he said when he appeared on Channels Television’s News At 10, hours after President Buhari met with service chiefs and ordered them to strengthen their operations.

“Imagine when the President came back and addressed the nation, not up to 30 minutes later, a fake speech of the Commander-In-Chief was being circulated in order to do what? To derail the people. If you are not very sharp and if you didn’t listen to the speech or you don’t have a copy of it like I had it almost immediately, you wouldn’t know. So, looking at it from that perspective, it is a challenge everywhere.”

Having observed the possibility that the social media can be misused the military has taken steps to address that. One of such steps is the establishment of strategic media centres.

“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,” the military chief continued.

“We tackle them appropriately with appropriate responses. Ahead of that, we are also proactive. We have measures in place, scientific measures to be able to sieve this information and also to get the public and let them know that some of this information they are getting is not genuine are not true and their objective is an anti-corporate existence of this country.”

There has been a rise in attacks by Boko Haram terrorists and it is one of the things the President advised the service chiefs to check. While the military intends to do just that, Major General Enenche said what they terrorists are doing is not surprising.

He said, “Like I have said before, it is not unexpected being that they have been degraded, decimated and really busted at camp zero and other cities there through the air bombardment and raids by members of the military, particularly the army. So you will see them spreading out like ants that have been busted from an anthill.”

According to him, the terrorists have benefitted in their attacks from the unending collaboration by insiders and sympathisers among the residents in the North East.

“However, I want to assure the general public and Nigerians that measures are in place to begin to take on them and begin to take them out. However highly placed anyone is or any insider or collaborator is, we are on top of the situation and we are beginning to get our information to begin to handle them appropriately,” he said.

Even though the hate speeches aired on Radio Biafra and the hate song released by Northern elements and many other manifestations of hate speech in our national space cannot be caught by any new legislation criminalising hate speech because of the principle of non-retroactivity of criminal legislation (section 4(9) and 36(8) of the 1999 Constitution), yet it is important that…efforts should be made to arrest this spreading canker-worm that portends great danger for all and sundry.

In the light of the recent pronouncement by the vice-president of the Federal Republic of Nigeria, Professor Yemi Osinbajo that hate speech would be considered by the Federal Government as a specie of terrorism, disparate opinions have been expressed pointing out that Nigeria does not recognise the concept of hate speech and only provides civil liability for libel or defamation. Another set of opinions have asserted that the National Assembly does not have the power to pass such laws criminalising hate speech, except through the aegis of a constitutional amendment, while expressing the view that any such law will be challenged in court as a derogation from the fundamental right to freedom of expression.

This brief opinion piece, is directed towards examining, albeit cursorily, the international laws regulating hate speech and the international obligations imposed on Nigeria to criminalise such speech, as well as the necessary care that must be exercised by the National Assembly in passing those types of laws in order to ensure that they pose restrictions to the right to the freedom of expression. These international standards are contained in the Convention on the Elimination of all Forms of Racial Discrimination, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. Nigeria is a signatory to and has ratified all these international treaties. Even though the Genocide Convention prohibits incitement to genocide, which is also relevant to hate speech, we will not examine this treaty in view of the restricted scope of this article, but suffice it to say that the Genocide Convention equally criminalises incitement to genocide, which is related to hate speech

It is our thesis that despite the lack of consensus in international law on the precise nature of hate speech as manifested by the reservations placed by states on treaties requiring the prohibition of hate speech, Nigeria as a party to these treaties, having not entered any reservation to such treaty provisions, has incurred obligations to prohibit and criminalise hate speech in its municipal criminal law. This is much more a pressing need in view of the recent spate of inciting vitriolic statements rocking the Nigerian cyber space and national life and which are currently hailed as the mark of courage and distinction but which unfortunately are creating hatred and animosity in the minds of Nigerians against fellow Nigerians as a dangerous precursor to acts of ethnic violence or in the extreme case, genocide.

It is also our contention that the National Assembly is empowered to make laws under Section 12 of the 1999 Constitution for the purpose of implementing a treaty for both matters on the Exclusive Legislative List and the Concurrent Legislative List and therefore are competent to pass laws criminalising hate speech without needing to amend the Constitution. And that freedom of expression, whether under the 1999 Constitution, the African Charter or the International Covenant on Civil and Political Rights is not an absolute right. And as long as the National Assembly observes the necessary procedural and substantive requirements of international law, such a law will stand international scrutiny despite its derogation from the absolute right to the freedom of expression.

Our opinion will ignore, to a large extent, the various human rights and academic disputations surrounding hate speech, in view of the disparate audience to which this piece is directed. It is hoped that steering clear of the academic and legal jargons, our audience will be able to grasp the relevant issues and recognise the reason why the prohibition of hate speech is imperative for the purpose of preventing outbreaks of violence, war and genocide etc.

International Regulations On Hate Speech

1. International Convention on the Elimination of All Forms of Racial Discrimination

This is the first international treaty dealing directly with the issue of hate speech, which introduced the concept of incitement to racial discrimination. Article 4 of the CERD provides that:

“States Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

(b) Shall declare illegal and prohibit organisations, and also organised and all other propaganda activities, which promote and incite racial discrimination, and shall recognise participation in such organisations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

Four out of the six categories of activities that are required to be prohibited by law under the CERD are hate speech activities namely; a. dissemination of ideas based on racial superiority, b. dissemination of ideas based on racial hatred, c. incitement to racial discrimination, and d. incitement to acts of violence against any race or group of persons of another colour or ethnic origin. The Convention, however, does not define the concept of hate speech as a form of incitement to racial discrimination.

(Note that according to Article 1 of CERD, racial discrimination’ is defined as including distinctions based on “race, colour, descent, or national or ethnic origin” which may therefore be relied upon to assert that prohibition of incitement to racial discrimination also refers to the prohibition of incitement to discrimination based on ethnic origin.)

Without going into the nitty gritty of the proscribed conduct and its elements, suffice it to say at this juncture that Nigeria, having ratified and acceded to this Convention on October 16, 1967, is by the provisions of Article 26 of the Vienna Convention on the Law of Treaties bound to perform its obligations under the Treaty in good faith, viz, pass a law prohibiting incitement to racial cum ethnic discrimination with its concomitant relationship to hate speech.

2. International Covenant On Civil and Political Rights (ICCPR), 1966

The ICCPR places an obligation on States Parties to prohibit hate speech in its Article 20(2), which provides that“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”, thus expressly prohibiting “any advocacy of …hatred that constitutes incitement…”

Despite the fact that the ICCPR also provides for the freedom of expression in Article 19, to be restricted only in certain stated circumstances and with certain procedural safeguards, the Committee on Human Rights in its General Comment No. 11 has held that Article 20 requiring the prohibition of hate speech is compatible with Article 19 recognising the freedom of speech. Nigeria ratified this treaty on July 29, 1993. Many African states including Kenya, Rwanda, Uganda, South Africa, etc., and European States like Austria, Belgium, Denmark, France, Germany, Italy, Sweden, Switzerland, and the United Kingdom, have all complied with this obligation under Article 20 of the ICCPR and have laws criminalising hate speech.

3. African Charter On Human and Peoples’ Rights

Unlike the American Convention on Human Rights which expressly bans hate speech, the African Charter, in its Article 2, provides for non-discrimination in the enjoyment of rights, recognises the right to the freedom of expression in its Article 9 but also provides for the duty to respect and consider fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance in its Article 28, without expressly requiring the states to prohibit hate speech. Article 28 may, however, be relied upon as a ground for prohibiting hate speech as being discriminatory and against a culture of mutual respect and tolerance. The African Commission, however, in its Resolution on the Right to Freedom of Information and Expression on the Internet in Africa, expressly condemned hate speech in Africa.

Meaning of Hate Speech and Speech That May Constitute Hate Speech

As we had previously remarked, hate speech is not defined in the various international instruments that have prohibited it. An attempt was made to define hate speech in the Council of Europe Recommendation on Hate Speech as follows:

The term “hate speech” shall be understood as covering all forms of expression
which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or
other forms of hatred based on intolerance, including: intolerance expressed by
aggressive nationalism and ethnocentrism, discrimination and hostility against
minorities, migrants and people of immigrant origin.

The International Criminal Tribunal for Rwanda in the Nahimana Case defined hate speech as the “stereotyping of ethnicity combined with its denigration”.

The African Commission on Human and Peoples’ Rights in its Resolution on the Right to Freedom of Information and Expression on the Internet in Africa, while condemning the use of hate speech on the Internet referred to hate speech as any form of speech which degrades others, promotes hatred and encourages violence against a group on the basis of criteria including race, colour, religion, national origin, gender, disability or a number of other traits.

There are also other attempted definitions of hate speech by Amnesty International, YouTube, etc.

Thus, from these attempts to define hate speech, we may arrive at an understanding that it generally has a tendency to spread, promote, justify or stir up people to engage in ethnic and racial hatred, fear of strangers and people who are not of the same ethnic origins with them or generally breeds hatred based on intolerance. Such speech also stereotypes and denigrates or degrades ethnicity and encourages violence against them.

Despite the absence of an authoritative definition of hate speech, certain forms of speech criminalised as hate speech, have been upheld by the Human Rights Court as not constituting an infringement of the freedom of expression. These include the following:

1. Distribution of materials, slogans (Like “Kill the Boer, Kill the Farmer” chanted at an ANC rally in South Africa and decided by the South African Human Rights Commission in the case of the Freedom Front (Appellants) and the South African Human Rights Commission and the Freedom of Expression Institute (Respondents) as constituting hate speech) and songs;

2. Religious hate (case of Norwood v. The United Kingdom in which displaying a poster with the words “Islam out of Britain – Protect the British People”, led to a conviction for aggravated hostility towards a religious group),

3. Apology for violence and incitement to hostility (case of Surek (no. 1) v. Turkey, in which a conviction for “disseminating propaganda against the indivisibility of the state and provoking enmity and hatred among the people” was held as not violating the freedom of expression, as the published letters amounted to an appeal to bloody revenge and one of the letters had identified persons by name, stirred up hatred for them and exposed them to the possible risk of physical violence);

4. Condoning terrorism (Leroy v France where a cartoonist was convicted following the publication in a weekly newspaper of a drawing representing the attack on the twin towers of the World Trade Center with a caption “We all dream of it… Hamas did it” as a public condoning of terrorism. The Court in denying that the conviction infringed on his right to freedom of expression held that the drawing was not limited to criticism of American imperialism but supported and glorified the violent destruction of America based on the caption which accompanied the drawing which expressed moral support for those he perceived to be the perpetrators of the September 11, 2001 attacks;

5. Incitement to ethnic hatred (Balsyte-Lideikiene v. Luthania) in which the court approved a finding by the Polish courts that the Applicant who owned a publishing company had breached the Code on Administrative Offences for publishing and distributing the “Lithuanian Calendar 2000” which, according to conclusions of political science experts, promoted ethnic hatred. The Applicant was issued an administrative warning and the unsold copies of the calendar were confiscated and this was upheld as not constituting an infringement of the freedom of expression as the applicant had expressed aggressive nationalism and ethnocentrism and statements inciting hatred against the Poles and the Jews;

6. Incitement to racial discrimination or hatred – Soulas and others v. France – conviction for publication of a book entitled The Colonization of Europe for inciting hatred and violence against Muslim communities from northern and central Africa. The conviction was upheld as not constituting an infringement of the freedom of expression because the terms used in the book were intended to give rise in readers of a feeling of rejection and antagonism, exacerbated by the use of military language, with regard to the communities in question, which were designated as the main enemy, and to lead the book’s readers to share the solution recommended by the author, namely a war of ethnic re-conquest.

Does the National Assembly Have the Power To Enact HAte Speech Laws Without Amending the Constitution?

Section 4(2) of the 1999 Constitution vests the power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List in the National Assembly, consisting of a Senate and a House of Representatives. The Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution contains as number 31 item on the list of matters which the National Assembly has exclusive legislative competence, “the implementation of treaties relating to matters on this list”.

As a follow-up to these provisions, section 12 of the 1999 Constitution provides that the treaties between the Federation and other countries shall not have the force of law except to the extent to which such treaties have been enacted into law by the National Assembly, and for the purpose of implementing a treaty, the National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List. The snag, however, is that before a Bill for an Act of the National Assembly in respect of matters not included in the Exclusive List which is passed for the purpose of implementing a treaty, is presented to the president for assent or is enacted, it must be ratified by a majority of all the Houses of Assembly in the Federation (Section 12(3)).

This provision of section 12(3) assumes a very important position because despite the fact that item 68 on the Exclusive Legislative List which lists matters incidental and supplementary to any matter mentioned elsewhere in the list, which is interpreted in part III of the Second Schedule as including, without prejudice to their generality, references to offences, the jurisdiction, powers, practice and procedure of courts of law etc, and which would have empowered the National Assembly to make laws exclusively on offences, jurisdiction, powers, practice and procedure of courts of law for the purpose of implementing the ICCPR, is still caught by the fact that the treaty implementing law under which the offences are created must relate “to matters on this list” (i.e the exclusive legislative list) and crimes or hate speech specifically is not included in the Exclusive Legislative list.

Having determined that passage of any hate speech legislation under section 12(2) and (3) of the 1999 Constitution would result in the bottleneck of having it pass through ratification by a majority of all the Houses of Assembly of the states, which was the same reason why the Child’s Rights Act and the Violence Against Persons (Prohibition) Act were passed as Laws applying only to the Federal Capital Territory by virtue of section 299 of the Constitution, it then becomes imperative to seek for any other head under the Exclusive Legislative List under which to anchor this piece of legislation and give it a nationwide application.

We suggest that there is a possibility of achieving this by bringing such legislation under item 60(a) and item 68 of the Exclusive legislative List read in conjunction with sections 14(b), section 15 generally and 15(2) specifically, section 17(2)(a) and 17(2)(b), section 19(c) and section 23 of the 1999 Constitution.

Having canvassed the above argument in relation to the Child’s Rights Act elsewhere, and being an academic argument which has not been pronounced authoritatively on, we will simply summarise that the National Assembly can validly pass any law on Hate Speech, without any need to amend the 1999 Constitution either under section 12(2) and (3) of the 1999 Constitution (in which case the Bill must be ratified by the majority of Houses of Assembly of the States or be considered as a law applicable only to the FCT) or as suggested above under items 60(a) and (68) of the 1999 Constitution in order to get around the need for ratification by majority of the state Houses of Assembly.

Can Hate Speech Amount To An Act of Terrorism?

It is our opinion that it will be difficult, if not almost impossible, to establish hate speech as a specie of terrorism considering that under the Nigerian Terrorism (Prevention) Act 2011, as amended by the Terrorism (Prevention) (Amendment) Act 2013, for an act to amount to terrorism it must be an act which is deliberately done with malice aforethought and which must fulfil three conditions; (1.) It may seriously harm or damage a country or an international organisation, 2. It is intended or can reasonably be regarded as having been intended to achieve certain listed objectives and 3. It involves or causes, as the case may be, certain prohibited criminal acts. Bearing in mind the use of the word “and’ in the section which imports the idea that those three conditions are conjunctive and must be cumulatively proved as elements of a terrorist act, one can submit that hate speech can only pass for an act of terrorism where it may seriously harm or damage the country, may be or have been intended or can reasonably be regarded as having been intended to achieve among other objectives to seriously intimidate a population or seriously destabilise or destroy the fundamental political, constitutional, economic or social structure of a country etc., and finally such hate speech must also have involved or causes an attack upon a person’s life which may cause serious bodily harm or death etc. Most hate speech will not reach the threshold of fulfilling the third cumulative condition laid out in section 1.

However, section 5 of the Amendment Act makes it a crime for any person to knowingly, in any manner, directly or indirectly, solicit or render support for the commission of an act of terrorism, or a terrorist group. Such prohibited “support” includes incitement to commit a terrorist act through the Internet, or any electronic means or through the use of printed materials or through the dissemination of terrorist information. In Holder v. Humanitarian Law Project, the American Supreme Court upheld the application of the Material-Support Statute as not being a violation of the freedom of speech First Amendment right of the plaintiffs. Even though, the above case may only be persuasive in Nigerian Courts, especially considering that the First Amendment allows for wider scope for the enjoyment of the right to freedom of expression and also in view of the differences between the Material-Support Statute and the Nigerian Terrorism (Prevention) (Amendment) Act, we may submit that if hate speech constitutes an incitement to commit terrorist acts through the Internet or any electronic means or through the use of printed materials, it can be prosecuted as the crime of rendering support for the commission of a terrorist act without infringing on the right of freedom of expression of the accused persons.

What About Media Gagging Through Hate Speech Legislation?

It is important to note briefly in this regard that under international law, the test for restrictions on freedom of expression is a very strict one, which imposes on the states a high standard of justification for such restrictions.

Thus, under the ICCPR, any restriction on freedom of expression must be provided by law and this law must be accessible and “formulated with precision to enable the citizen to regulate his conduct.

Second, there is an exclusive list of aims provided in Article 19(3) which any interference with the freedom of expression must pursue in order to be justifiable and any restriction on the freedom of expression serving other aims are not legitimate.

Third, the restriction must be necessary to protect those listed aims in the sense that there is a “pressing social need” for the restriction. This means that the reasons advanced by the state to justify the restrictions are both relevant and sufficient and the proposed restriction is proportionate in that the benefits outweigh the harm. (see the African Court on Human and Peoples’ Rights case of Lohe Issa Konate v.Burkina Faso, decided in 2016).

Any proposed law on hate speech, would necessarily be subjected to the above tests before it can be justified as an acceptable restriction to the freedom of expression.

Conclusion

In Erbakan v. Turkey, the court explained the rationale behind prohibiting hate speech as follows:

“… Tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …, provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.”

This basically means that hate speech offends against the principle of tolerance and respect for the equal dignity of all human beings which is the foundation of a democratic, pluralistic society.

Equally, it has been observed that advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence often precedes mass atrocities like genocide and war and as such it is imperative that restrictions should be placed on such speech in order to prevent such atrocities. The dangers of defamatory hate speech are real, having been experienced in places in Western Europe, former Yugoslavia, in Eastern Europe, and down to Rwanda.

Nigeria is currently at a dangerous cross-road tottering on a precipice with the rehashing of old grievances which keep surfacing daily to polarise the citizens of the country. The polemics and bitter vituperations which fill Nigeria cyber-space, often championed by public figures who are set up as the new model and standard of courage and bravery, calls for urgent measures directed towards curbing this growing menace and nipping it in the bud. Even though the sanction of the criminal law alone will not eradicate the menace of hate speech, as long as the underlying causes continue to fester, it may be one solution amidst a myriad of possible solutions. With absolute respect to our president, His excellency Muhammadu Buhari, even as the criminal law option is being employed, there is a need to look into the root causes of the prevalent hate speech and seek to allay the fear/suspicion of the ethnic groups of being marginalised and dominated by the ruling ethnic group. It may indeed be appropriate to apply the carrot and the stick approach and begin a process of national reconciliation, even as the criminal law option is pursued to deter unrepentant and die-hard hate speech advocates.

Even though the hate speeches aired on Radio Biafra and the hate song released by Northern elements and many other manifestations of hate speech in our national space cannot be caught by any new legislation criminalising hate speech because of the principle of non-retroactivity of criminal legislation (section 4(9) and 36(8) of the 1999 Constitution), yet it is important that considering the current realities facing the Nigerian state, efforts should be made to arrest this spreading canker-worm that portends great danger for all and sundry. In imbibing the truth set out in the Preamble to the CERD that, “…any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous…”, we learn tolerance and thereby ensure our continued corporate human development. And considering the eternal words of Jeremy Bentham that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do”, applying the sanction of the criminal law may serve to point out what we ought to do as a people in a globalised world.

Source: premiumtimesng.com

Nonso Robert Attoh is a law lecturer in the Faculty of Law, University of Nigeria, Enugu Campus.