Th e increasing incidents of infl ammatory speeches clearly designed to stoke ethnic and communal hatred has led to calls for legislative intervention by the Nigerian State.
Th ose calls are evidently informed by the belief that there is a lacuna or gap in our existing laws on the subject.
But, is that really the case? Vice President Prof. Yemi Osinbanjo, SAN, does not seem to think so, as in his opinion, hate speech is “a species of terrorism” under the Terrorism (Prevention) Act, 2011, as amended.
Is he correct? If he is, does that law violate the right to free speech guaranteed under the constitution? Th e issues are examined below.
But, fi rst… Section 39(1) of the 1999 Constitution provides that “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart information without interference”.
Similarly, Article XIX of the United Nations Universal Declaration of Human Rights provides that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
” By the same token, Article IX of the African Charter on Human and Peoples Rights provides that “Every individual shall have the right to receive information and the right to express and disseminate his opinions within the law.
” Th e Constitution is, however, supreme.
By virtue of Section 45 thereof, the right to freedom of speech can be derogated from by any law that is “reasonably justifi able in a democratic society for the purpose of protecting the rights and freedom of other persons or in the interest of public defence, public safety, public order, public morality or public health.
” In other words, the right to freedom of speech is not absolute.
Th is means that one person’s right to freedom of speech stops where another person’s right to his or her dignity, reputation or property starts.
Similar provisions are contained in the Criminal Code, as aforesaid.
Th at being the case, it is rather surprising that the National Assembly has reportedly resolved to enact fresh so-called anti-hate speech legislation.
To the extent that such laws already exist, in my view, it is either that they are deemed to be not potent enough, or – as I suspect is the case – it is yet another manifestation of the tendency of our policy-makers to confuse movement with motion.
Th ere is simply no hard evidence to support the view that the existing anti-hate speech legislation is inadequate either as deterrents or punishments.
As previously stated, Osinbajo has invoked the Terrorism (Prevention) Act, as amended, against purveyors of hate speech.
Th at law prescribes penalties of between three years and death as well as fi nes of up to N150 million for anyone who engages in “acts of terrorism” within the meaning of the Act.
Section 1(2)(b)(ii) of the Act defi nes “act of terrorism” as “an act which is deliberately done with malice aforethought and which is intended or can reasonably be regarded as having been intended to seriously intimidate a population”.
Th e Macmillan English Dictionary, 2nd edition (page 794) defi nes ‘intimidate’ as “to deliberately make someone feel frightened, especially so that they will do what you want; to frighten someone or make them feel nervous”.
It can be seen that the key phrase in the provision is “act of terrorism”, of which the word “act” is dominant.
Th is word is used either as a verb or a noun.
It is clear that it is used in the latter sense in the Act.
An Online Dictionary defi nes its noun variant as “a thing done; a deed”, as in “a criminal act”.
I submit that in the light of this defi nition, it would be a bit of a stretch to describe hate speech as terrorism.
Quite simply, a speech is not an ‘act’, either in the context in which it is used in the Terrorism Act or otherwise; to construe it otherwise, in my view, would defeat the manifest legislative intention.
Beyond any legislative characterization of deviant or anti-social behavior – of which hate speech is but a manifestation – it is a myth to assume that laws, in and of themselves, always persuade the criminallyminded to conform.
That notion has historically been a fallacy.
I believe that the long-term panacea to the problem of hate speeches – as with all crimes – is beyond mere legislative rule-making.
Th is is because, while appropriate legislation is an integral part of the policy mix for tackling hate speech, in my view, such behaviour can only be reduced to a ‘tolerable’ level – and not completely eliminated, as that is impossible – through an elite consensus across the fault lines presently exerting centripetal forces against our unity and stability.
While that consensus has by no means been lacking, the reality is that it appears to be drowned out – for the time being at least – by the voices of hate typifi ed by ethnic jingoists like Nnamdi Kanu et al.
Th e real solution, I think, is for the protagonists and antagonists alike to realize that not only is Nigeria greater than the sum of its parts, the want-aways and irredentists should be convinced, by every possible means – legitimately, of course – that they would be better-off as part of our Union, with all its imperfections, than in an uncertain, illdefi ned separate entity, whose promise as an utopia is by no means a given – if in any doubt, just look at South Sudan.
This is obviously a call to arms, but, as a battle for hearts and minds, it is one which, in the nature of things, cannot be won through the coercive instrument of the law alone.
Rather, in my view, it can be accomplished without fi ring a shot, as it were, through the simple logic of realizing that the goal so passionately pursued by the separatists might turn out, in the long run, to be a pyrrhic victory: I believe that the physical and emotional ties that presently bind us which have been nurtured over time will see to that.
Sani writes from Abuja
